Turner v. Harper

This case began as an action for specific performance of a contract in the trial court. The appellants here were the defendants below. Appellants filed a motion in the trial court to dismiss the complaint and for judgment on the pleadings.

Submitted June 11, 1973

Decided October 4, 1973.

H. Thad Crawley, Byrd, Groover & Buford, Garland T. Byrd, for appellants.

The trial judge overruled these motions, and the effect of overruling them was to leave the case for trial in the trial court. The two judgments overruling these motions were entered on March 15, 1973.

The appellants sought and obtained from the trial judge a certificate for immediate review. This certificate is dated March 23,1973, well within the ten-day period required by statute, but this certificate or order was not filed with the clerk or "entered” until April 6, 1973, well beyond the ten-day period required by statute.

It is clear that the judgments entered in the trial court are not final or appealable judgments without a certificate for immediate review. Such a certificate must be obtained within a ten-day period from the entry of the judgment or judgments sought to be appealed. Code Ann. § 6-701 (a 2).

Code Ann. § 6-903 provides that the filing with the clerk of a judgment, signed by the judge, constitutes the "entry” of the judgment within the meaning of the Appellate Practice Act.

We therefore have a question of first impression. Does the dating of a certificate within the ten-day period authorize an appeal by "certificate for immediate review,” or must the certificate be filed with the clerk of the trial court or "entered” within the ten-day period?

We hold that the certificate must be filed with the clerk of the trial court or "entered” within the ten-day period in order to secure immediate review of a non-final judgment; and if the certificate is not entered within the ten-day period, then the party seeking review will merely have to await a final judgment in the case before he can obtain review of interlocutory judgments entered in the trial court.

Therefore, in this case the judgments sought to be appealed were not appealable judgments.

Appeal dismissed.

All the Justices concur, except Mobley, C. J., Jordan and Ingram, JJ, who dissent.

Richard T. Bridges, for appellee.