148 Ga. App. 392 | Ga. Ct. App. | 1978
Lead Opinion
For reasons stated in the majority opinions in Gorlin v. First Nat. Bank, 148 Ga. App. 133 (1978) and
Judgment affirmed.
Dissenting Opinion
dissenting.
On June 30, 1976, a judge of the Fulton Superior Court dismissed the case of Isabella Scott, plaintiff, v. North American Acceptance Corporation and Milton Morgan, d/b/a Southern Contracting & Supply Company for the failure of plaintiff’s counsel to appear at a civil peremptory calendar call on June 25, 1976, "notice of which had been published in the Fulton County Daily Report on June 8, and 24,1976. Counsel for Plaintiff then and now is Kenneth G. Levin, but the published calendar showed the name Kenneth G. Lewis. As a result, . . . Mr. Levin was unaware of the call, nor did he become aware of the dismissal until December 1977.”
Whereupon, Mr. Levin, as counsel for plaintiff, on December 30, 1977, moved to vacate the dismissal for want of prosecution because of the lack of notice of the case being on the calendar and because he was not served with or did not receive any copy of the June 30,1976, dismissal order prior to December 27, 1977, and because the defendant North American Acceptance Corporation had been operating under a bankruptcy reorganization proceeding and there had been a customary stay in effect against the prosecution of these proceedings continuously since February of 1974. It is noted here that the order of dismissal for want of prosecution stated that it was subject "to re-instatement upon appropriate motion filed within thirty (30) days hereof.”
1. This case is similar in many respects on its facts to that of Spyropoulos v. John Linard Estate, 148 Ga. App. 380. I did not agree to that decision and dissented to it. I reaffirm my reasons given in that case.
There is no magic in mere nomenclature, and the pleading in the case sub judice is in the nature of an extraordinary motion for new trial to vacate and set aside the dismissal wherein the plaintiff had received no notice whatsoever of her case being placed on the calendar by reason of any notice and publication in the official organ of the Fulton County Daily Report. The order of dismissal also stated that it was dismissed for want of prosecution subject to reinstatement upon appropriate motion filed within thirty days hereof. The plaintiff offered evidence, and the final order of the court so stated, that "no copy of my dismissal order was ever received by Mr. Levin; whether or not one was ever sent is unknown.”
2. Every pleading subsequent to the original complaint and "every written notice, appearance, demand . . . shall be served upon each of the parties”
A defendant is entitled to his day in court on the main case if in fact, "he proves this essential requirement of assignment notice to have been overlooked or absent.” Wilkes v. Ricks, 126 Ga. App. 266, 267 (190 SE2d 603). Here the publication in the official organ of the county was insufficient notice to the plaintiff so as to alert him to answer the calendar call. Further, the court found no copy of the dismissal order was ever received by counsel and we note this order was subject "to reinstatement. . . within thirty (30) days.” In my opinion the trial court erred in dismissing plaintiffs motion to reinstate the case.
As expressed in my dissent in Gorlin v. First Nat. Bank, 148 Ga. App. 133, it is my view that a final decision on the requirement of notice must be determined by the Supreme Court of Georgia with reference to the meanings of Code Ann. § 81A-105 (b), and Code Ann. § 81A-140, and
I, therefore, respectfully dissent.