Thompson v. Clarkson Power Flow, Inc.

On Motion for Rehearing.

McMurray, Judge,

dissenting.

Counsel for appellant has reargued the merits of the appeal and has pointed out that in the case of J. C. Penney Co. v. Malouf Co., 125 Ga. App. 832 (189 SE2d 453), this court reviewed the very same question in regard to a factual and procedural setting identical to the case at *775hand. Counsel points out that in J. C. Penney Co. v. Malouf Co., 230 Ga. 140, 143 (196 SE2d 145), the Supreme Court reversed the judgment of affirmance of this court. Here, however, this court has not reached the merits and has only considered the jurisdictional issue of whether or not it has authority to review the appeal at this time.

I do, however, wish to add to the dissent the decision in the recent case of Culwell v. Lomas & Nettleton Co., 242 Ga. 242, wherein the Supreme Court reversed this court in Culwell v. Lomas & Nettleton Co. 145 Ga. App. 519 (244 SE2d 61). That case was one involving summary judgment, whereas the case sub judice involves the dismissal of a third-party complaint. Nevertheless, the Supreme Court therein refers to the trial court’s express direction for the entry of the final judgment and a determination that no just reason for delaying the finality of the judgment exists (Code Ann. § 81A-154 (b); CPA § 54; Ga. L. 1966, pp. 609, 658; 1976, pp. 1047, 1049), and holds that when this is done same is a declaration of res judicata and "time for appeal begins to run.” In doing so it refers to the certification by the trial court, "that the judgment is final and ripe for review under Code Ann. § 81A-154 (b).” The certification therein referred to by the Supreme Court is not that of immediate review under Code Ann. § 6-701 (a) 2 (Ga. L. 1965, p. 18; 1968, pp. 1072,. 1073; 1975, pp. 757, 758). Clearly the Supreme Court holds that upon such certification pursuant to Code Ann. § 81A-154 (b), supra, the judgment is final and ripe for review.

I am authorized to state that Chief. Judge Bell, Presiding Judge Deen and Judge Banke join in this addendum to my dissent.