Marshall v. Gatison

Beasley, Judge. Defendants Marshall and Smith appeal the denial of their motion to traverse service. Although styled a “motion to traverse service,” the motion sought to vacate a judgment entered for plaintiff on March 23, 1989. Defendants enumerate as error the failure of the trial court to vacate the March 23 judgment and argue that because of the failure to properly serve Smith the court lacked jurisdiction and the judg [371] ment was void and cannot stand. Decided October 24, 1990. William A. Wehunt, for appellants. Hiles & Rowen, Sharon L. Rowen, John E. Klonoski, for appellee. The substance of a pleading and not mere nomenclature determines its nature. Cotton v. Fed. Land Bank, 246 Ga. 188, 191 (269 SE2d 422) (1980). The defense motion sought to set aside the judg-. ment based upon lack of jurisdiction. OCGA § 9-11-60 (d) (1). As such, OCGA § 5-6-35 (a) (8) controls, providing for discretionary review of such a judgment. By directly appealing and not filing an application for review, appellants have failed to engage the jurisdiction of this court. Ko v. Habersham Fed. Savings Bank, 194 Ga. App. 769 (391 SE2d 723) (1990). Appeal dismissed. Deen, P. J., and Pope, J., concur.