Appellant landowner filed an appeal in the Superior Court of Wilkinson County from the award of a special master in a condemnation proceeding. The matter was placed upon the trial calendar, and when counsel for appellee announced ready for trial and neither appellant nor his counsel appeared for announcement, the trial court granted appellee’s motion to dismiss appellant’s appeal for want of prosecution. Appellate review of the dismissal and of the failure of the trial court to reinstate the case to the trial calendar is now sought by appellant.
On January 5, 1987, the day of the call of the trial calendar on which appellant’s appeal appeared, appellant’s counsel was teaching a trial advocacy seminar in New Orleans. While the record contains the affidavit of appellant’s counsel in which he avers that in September *887 1986, he requested a leave of absence for early January 1987, the record does not contain such a request. Upon receiving the calendar showing that appellant’s case was the eleventh case set for trial on January 5, appellant’s counsel contacted counsel for appellee, who stated he had other matters set for January 5 and agreed that if the case were reached on January 5, the parties would seek a January 8 trial date. In a letter to the trial judge dated December 24 and filed with the clerk on December 29,1986, appellant’s counsel informed the court of the inability of counsel for both parties to begin trial on January 5, and requested that both be excused from attending the January 5 calendar call and that the case be specially set for January 8. The record also contains a letter to the trial judge dated December 29 and filed December 30 from appellee’s counsel, who joined appellant’s counsel in his request. On January 4, while in New Orleans, appellant’s counsel received word that the trial court wanted an appearance on behalf of appellant and that a continuance was not assured. Appellant’s counsel asked an attorney licensed to practice in Illinois and associated with him to appear in the trial court on January 5, to request a continuance until January 8, and to inform the court that appellant’s counsel would return immediately to try the case if so directed by the court. By means of an affidavit made a part of the record, the representative sent by appellant’s counsel averred that she had informed the court that appellant’s counsel would take the first flight from New Orleans in order that the case might proceed on the afternoon of January 5, 1987. The trial court denied the motion for continuance made by the representative from the office of appellant’s counsel and, upon motion of counsel for appellee, who had appeared at the calendar call and announced ready for trial, dismissed appellant’s appeal for want of prosecution. Appellant’s counsel personally appeared before the trial court the next morning and asked that the case be reinstated. A written motion seeking reinstatement was filed on January 30.
1. The record does not contain a ruling by the trial court on appellant’s motion to reinstate, and we have ascertained that no ruling has been made during the pendency of this appeal. While the lack of a ruling prevents appellate review of the ruling
(Sunn v. Mercury Marine,
2. The trial court’s order of dismissal recited that the case had been called for trial; the opposing party had announced ready; neither appellant nor his counsel had appeared for announcement; a representative from the firm of appellant’s counsel, not licensed to practice law in Georgia, had moved for a continuance, which motion was denied; appellee had moved to dismiss the case for want of prosecution; and the trial court had granted the motion.
“For failure of the plaintiff to prosecute . . . , a defendant may move for dismissal of an action . . . [which] does not operate as an adjudication upon the merits. . . .” OCGA § 9-11-41 (b). “[A]n order of dismissal for failure to prosecute is discretionary and is subject to appellate review for abuse of discretion. [Cits.]”
Hancock v. Oates,
Although it is not stated specifically, the strong implication of the trial court’s order of dismissal is that appellant’s appeal was dismissed due to the absence of appellant and his counsel from the January 5 calendar call. However, the dismissal could not have been based upon a violation of the “three-minute rule” embodied in former Code Ann. § 24-3341 since that rule was repealed by the adoption of the Uniform Rules for the Superior Courts (
3. Attached to the brief of appellee is the affidavit of appellee’s counsel with exhibits. However, a brief cannot be used for adding evidence to the record. Since we are required to base appellate review upon the evidence of record and not from the brief of either party, the affidavit of appellee’s counsel has not been considered in rendering this decision.
Leathers v. Timex Corp.,
Judgment reversed.