Gano v. Gano

Hell, Justice,

dissenting.

I respectfully dissent.

Evans v. JEB, Inc., supra, Case No. 34264 decided December 6, 1978, is not controlling. That was an order, which said (in full): "Order: It appearing that the judgment appealed in this case is interlocutory and that no application has been filed or granted, the appeal must be dismissed. Appeal dismissed. All the Justices concur.” In that case there was no appealable order, whereas there is an appealable order here.

*566The order directing that the lis pendens notice be canceled was part of an order granting temporary alimony. The order granting temporary alimony was appealable under Code Ann. § 6-701 (a) 3. Code Ann. § 6-701 (b) provides that where an appeal is taken under any provision of paragraph (a), above, all rulings or orders rendered in the case which are raised on appeal and which may affect the proceedings below, shall be reviewed and determined by the appellate court, without regard to the appealability of such ruling or order standing alone.

The majority has decided that where no enumeration of error is made to the order appealable under § 6-701 (a) (e.g., temporary alimony), the court will not review an order which would have been reviewed under § 6-701 (b). Appellant could have avoided this dismissal simply by urging a spurious enumeration of error that the temporary alimony award was excessive. I commend appellant for not having urged a spurious enumeration. The majority condemn him for it. I therefore dissent.

I am authorized to state that Chief Justice Nichols and Justice Jordan join in this dissent.