Opinion
62365.
DECIDED SEPTEMBER 8, 1981. REHEARING DENIED OCTOBER 9, 1981.
Motion to dismiss. Cobb State Court. Before Judge Kreeger.
Jesse Cleveland, pro se. Larry Cohran, for appellees.
The plaintiff appeals from an order dismissing his complaint. Held:
The trial judge in the order appealed from further recited: "the defendants' counter-claim against the plaintiff remains viable and is still pending against the plaintiff."
"An appeal from an order dismissing the plaintiff's claim is premature when there is a counterclaim pending in the court below." Butler Auction Co. v. Hosch, 119 Ga. App. 562 ( 167 S.E.2d 684). Accord, Campbell v. George, 129 Ga. App. 644 ( 200 S.E.2d 503). Here, as in Patterson v. Professional Resources, 242 Ga. 459 (1a) ( 249 S.E.2d 248) the pendency of the counterclaim plus the absence of a determination by the trial judge that there was no just reason for delay and express direction for entry of judgment under CPA § 54 (b) (Code Ann. § 81A-154 (b); Ga. L. 1966, pp. 609, 658; 1976, pp. 1047, 1049) prevented the order from being final and appealable. This, coupled with the appellant's failure to follow the applicable procedure for review under Code Ann. § 6-701 (a) (2) (Ga. L. 1965, p. 18; 1968, pp. 1072, 1073; 1975, pp. 757, 758; 1979, pp. 619, 620), subjects the instant appeal to dismissal.
Appeal dismissed. McMurray, P. J., and Pope, J., concur.