114 Ga. App. 244 | Ga. Ct. App. | 1966
Regardless of whether the court’s ruling as to what the plaintiff had to prove to recover punitive damages in a default case was correct or incorrect, the plaintiff was given a choice between continuing his case according to the expressed theory of the court—with a resulting uncertainty as to what he must prove, unpreparedness to prove what was required to be proved and apprehension of an adverse judgment—and dismissing his case without prejudice. Finding himself in the dilemma of having to produce proof of allegations which he had assumed to have been established by the default judgment and of being denied a continuance by which to prepare such proof, the plaintiff accepted the court’s suggestion of dismissal without prejudice
“When a case has been withdrawn or dismissed, without a finding by the jury on the facts on which the defense rests, and the court below allows it to be re-instated, this court will not interfere with that discretion.” Vanzant, Jones & Co. v. Arnold, Hamilton & Johnson, 31 Ga. 210 (1); Harrison v. Tate, 100 Ga. 317 (27 SE 179); Bird v. Burgsteiner, 113 Ga. 1012 (39 SE 425); City of Atlanta v. Miller, 125 Ga. 495 (54 SE 538); Southern R. Co. v. James, 114 Ga. 198 (39 SE 849); Glenn v. Glenn, 152 Ga. 793 (111 SE 378); Miraglia v. Bryson, 152 Ga. 828 (3, a) (111 SE 655); Brooks v. Brooks, 175 Ga. 313 (1) (165 SE 106). An early Supreme Court case established that a plaintiff being allowed by the court to dismiss his case without prejudice may move to re-instate his cause and that “[t]he cause should be re-instated in court if the necessity for its dismissal was super-induced by the error of the court.” Warner v. Graves, 25 Ga. 369 (1, 2). The basis of the Warner case was that “[t]he plaintiff was, by the decision of the presiding judge in the court below, driven to the necessity of either submitting to a decree against him by the jury, or of dismissing his bill.” P. 371.
Although there is a line of cases which, on their face, would seem to deny the court’s authority to re-instate the present ac
The court, therefore, did not err in its judgment re-instating the plaintiff’s case.
Judgment affirmed.