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HABERSHAM FEDERAL SAVINGS & LOAN ASSOCIATION et al. v. MARCIN.
61057.
DEEN, Presiding Judge.
Action on note. White Superior Court. Before Judge Palmour.
Appellant's motion to intervene in a pending proceeding was originally granted below. Subsequently, upon reconsideration, the trial court vacated its order and denied appellant's motion. This appeal follows.
"Since there has been no express determination of no just reason for delay or direction that the order is final, providing for immediate appeal, or the issuance of a certificate as provided for by [Code 6-701 (a) (2)], the appeal in this case is premature." American Mutual Liability Ins. Co. v. Moore, 120 Ga. App. 624, 625 (171 SE2d 751) (1969). The appeal must, therefore, be dismissed. Henderson v. Atlanta Transit System, 233 Ga. 82 (210 SE2d 4) (1974).
60051. SOLON AUTOMATED SERVICES, INC. v. PINES ASSOCIATES, INC.
ADDITION TO 156 GA. APP. 34.
(October 8, 1980)
ON MOTION FOR REHEARING.
Plaintiff argues, on Motion for Rehearing, that we have overlooked Bennett v. Smith, 245 Ga. 725 (267 SE2d 19), and Bradley v. Godwin, 152 Ga. App. 782 (264 SE2d 262), which "control and require this court to reconsider and reverse its present opinion."
Bennett v. Smith, 245 Ga. 725, supra, held that "[t]he plaintiff must prove both anticipated revenues and expenses with reasonable certainty in order to recover." 245 Ga. at 727. In the instant case the record was totally devoid of expenses admittedly incurred in the execution of the lease, while in Bennett the court found that "[t]he plaintiffs produced uncontroverted testimony that, due to the nature of their business, the expenses . . . remained essentially the same during the production stoppage." 245 Ga. at 727. Such evidence is lacking here.
Neither does Bradley v. Godwin, 152 Ga. App. 782, supra, require a different result. The key phrase in Bradley relied upon by the plaintiff is that "under the Civil Practice Act it is not necessary to pray specifically for general or nominal damages in order to present a question for the jury as to nominal damages." (Emphasis supplied.) We have no disagreement with that holding. Plaintiff should note that in his action he prayed for special damages only and failed to mention nominal damages in the pleadings, the prayer, or during the trial. We predicated our original holding upon the fact that "the issue of nominal damages [was not raised] at trial." Mem. Op. 4. Accordingly, under Bradley, supra, although "it is not necessary to pray specifically for general or nominal damages in order to present a question for the jury as to nominal damages," it is necessary that the plaintiff raise the issue during the trial so that it may be presented to the jury.
Motion for rehearing denied.
John E. Talmadge, Barry S. Mittenthal, for appellants.
SUBMITTED NOVEMBER 6, 1980 -- DECIDED JANUARY 6, 1981.
Thursday May 21 22:58 EDT


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