Bonzheim v. Bonzheim

227 Ga. 478 (1971)

181 S.E.2d 363

BONZHEIM v. BONZHEIM.

26412.

Supreme Court of Georgia.

Argued March 8, 1971.

Decided April 8, 1971.

*479 Billy E. Moore, for appellant.

Hatcher, Stubbs, Land, Hollis & Rothschild, William B. Hardegree, for appellee.

FELTON, Justice.

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 SE2d 329); Benton v. Smith, 226 Ga. 722 (177 SE2d 230). The present case is distinguishable from Anthony v. Anthony, 120 Ga. App. 261, 263 (170 SE2d 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.