Opinion
26412.
ARGUED MARCH 8, 1971.
DECIDED APRIL 8, 1971.
Appellate procedure. Muscogee Superior Court. Before Judge Land.
Billy E. Moore, for appellant.
Hatcher, Stubbs, Land, Hollis Rothschild, William B. Hardegree, for appellee.
This appeal is from the grant of a modification of a temporary order in a divorce and alimony case.
The notice of appeal was filed in the trial court clerk's office on January 18, 1971. The judgment complained of was rendered on December 17, 1970, but not entered until January 18, 1971. The affidavit of a deputy clerk of the trial court, filed in support of appellee's motion to dismiss the appeal, certifies that at the time the notice of appeal was filed, the judgment complained of had not been entered.
A judgment cannot be considered appealable until it is actually entered; therefore, where the notice of appeal is filed before the entry of judgment, the appeal must be dismissed. Gibson v. Hodges, 221 Ga. 779, 781 ( 147 S.E.2d 329); Benton v. Smith, 226 Ga. 722 ( 177 S.E.2d 230). The present case is distinguishable from Anthony v. Anthony, 120 Ga. App. 261, 263 ( 170 S.E.2d 273) in that the presumption in that case, that the judgment filed on the same day as the notice of appeal was filed before the notice, does not arise in this case because of the affidavit to the contrary.
Appeal dismissed. All the Justices concur.