Appellee sued appellants to recover $53,548.32 plus interest and attorney fees on an unpaid promissory note. Appellants counter-claimed for damages based on lost business opportunities. The trial court awarded summary judgment to appellee on the counterclaim and granted it partial summary judgment on the main claim as to appellants' liability on the note. It denied summary judgment with respect to damages, because a jury question remained as to the actual amount due.
Appellee has filed two separate motions to dismiss the appeal.
1. It cites OCGA 5-6-35
(a) (1), which requires an application in "[a]ppeals from decisions of the superior courts reviewing decisions of . . . auditors . . . by certiorari or de novo proceedings. . . ." However, the present case is not one which "two tribunals had already adjudicated. . . ." Citizens &c. Nat. Bank v. Rayle, 246 Ga. 727
, 730 (4) (273 SE2d 139
) (1980). This auditor's report was confined to findings of fact and reporting to the state court. Compare Ravan v. Stephens, 248 Ga. 289 (282 SE2d 312) (1981)
(auditor made findings of fact and conclusions of law). A direct appeal was authorized under OCGA 5-6-34
2. Appellee asserts that appellants have not complied with OCGA 9-7-22
(c), which requires that auditor's fees "shall be assessed as court costs and shall be paid prior to the filing of any appeal. . . ." The requirement, added in 1988 (Ga. L. 1988, p. 408) is mandatory and jurisdictional. See Carson v. Auto. Financing, 96 Ga. App. 336 (1) (99 SE2d 903) (1957)
, regarding OCGA 5-6-4
, a comparable and complementary provision as to court costs.