Law Offices of Johnson & Robinson v. Fortson

Beasley, Judge,

concurring specially.

I agree but would go farther.

Even if the two motions to “arrest/vacate judgments” are truly motions to set aside judgments, pursuant to OCGA § 9-11-60 (d), appellant has followed the wrong appellate procedure because appeals from orders denying such motions are discretionary. OCGA § 5-6-35 (a) (8). Appellant filed a direct appeal rather than an application in the nature of a petition, as required by OCGA § 5-6-35 (b) and we would have no jurisdiction to entertain it. Hogan v. Taylor County Bd. of Education, 157 Ga. App. 680 (278 SE2d 106) (1981).

And as the court has shown, these two motions were not in their substance motions in arrest of judgment. On this score, it is questionable whether the order granting the client’s motion to dismiss the claim of lis pendens in superior court Case No. K82-24,202 is a “final judgment” directly appealable under OCGA § 5-6-34 (a) (1). If it is not, then the motion for the court “to arrest, set aside, or vacate its order” certainly could not affect the appeal time with respect to it, under OCGA § 5-6-38 (a). The point is, it does not appear that it is a “judgment” which appellant sought to have arrested, but rather only *708an order.

Decided September 3, 1985. W. Hammond Johnson, Jr., for appellant. Robert E. Andrews, Clayton H. Farnham, William I. Sykes, Jr., Paul W. Burke, for appellees.

The two orders attacked in Case No. 70363 relate to interlocutory orders, as the complaint brought by the law firm against the client and others remains pending with respect to two counts against the client. Insofar as the record shows, superior court Case No. K8413,348, which forms the basis for appeal No. 70363, is still pending below and no final judgment has been rendered which would authorize direct appeal under OCGA § 5-6-34 (a) (1). Appellant did not here follow the procedure for seeking an interlocutory appeal in these matters, as provided by OCGA § 5-6-34 (b).