BARTLETT v. HEMBREE

BEASLEY, Judge.

In this wrongful death action, plaintiff's motion for partial summary judgment on the issue of liability against the defendant was granted on August 15, 1985; the order was entered on that date. Defendant then filed a motion to reconsider or set aside that judgment on August 26. This motion was denied by the trial judge and the order was entered on September 13. The defendant's notice of appeal from the denial of reconsideration and from the grant of partial summary judgment was sent on September 19 and marked filed on September 23.

An appeal from a judgment denying a motion for reconsideration of a summary judgment order rendered more than 30 days before the notice of appeal is not timely. Adamson v. Adamson, 226 Ga. 719 ( 177 S.E.2d 241) (1970); Shepherd v. Epps, 242 Ga. 322 (1) ( 249 S.E.2d 33) (1978). The Supreme Court has held that the denial of a motion of a set aside will sustain an appeal. Johnson v. Barnes, 237 Ga. 502 (1) ( 229 S.E.2d 70) (1976). However, as that opinion and subsequent ones have pointed out this does not mean merely using the terminology "set aside." It requires a motion that meets the requisite of OCGA § 9-11-60 (d). Dougherty County v. Burt, 168 Ga. App. 166, 170 ( 308 S.E.2d 395) (1983); Mathis v. Hegwood, 169 Ga. App. 547, 548 ( 314 S.E.2d 122) (1984). Despite the language used in the motion here at issue, it does not meet those requisites and instead is basically in the nature of a motion for reconsideration. Austin v. Carter, 248 Ga. 775, 776 ( 285 S.E.2d 542) (1982). The notice of appeal was therefore untimely.

Appellant did attempt to file a notice of appeal from the judgment of August 15 on or about September 3. However, that notice of appeal was mailed and the clerk denies receiving it. It was thereafter sent again and filed September 18, and it is too late also. Thus, although though appellant may have some equity on his side he has no law at all.

Appeal dismissed. Deen, P. J., and Benham, J., concur.