Bufford v. Farmers and Merchants Bank
Citation | 138 S.E.2d 609,110 Ga.App. 393 |
Decision Date | 02 October 1964 |
Docket Number | No. 2,No. 40852,40852,2 |
Parties | Lester B. BUFFORD v. FARMERS & MERCHANTS BANK |
Court | Georgia Court of Appeals |
Walton Hardin, Washington, for plaintiff in error.
Lawson E. Thompson, Washington, for defendant in error.
Syllabus Opinion by the Court
The Farmers & Merchants Bank filed an action against Lester Bufford to recover on a note. On the call of the case, and after a jury was selected, the plaintiff failed to appear except by counsel and he could not announce ready in that none of his witnesses appeared in court. The defendant then moved to dismiss the action for lack of prosecution but before the court could rule on the defendant's motion plaintiff's counsel entered the following on the back of the original petition, and delivered the same to the clerk: The clerk then made the following entry thereon: 'Dismissed--figure cost.' Later, on the same date, the trial court reinstated the case and set it for trial at the next term of court. The defendant demurred to such order of the trial court reinstating the case and error is assigned on the judgment reinstating the case as well as on the judgment overruling the demurrers which attacked the judgment. Held:
1. It does not appear from the record that the defendant's rights were prejudiced by such dismissal of the action by the plaintiff.
2. 'The plaintiff in any action, in any court, may dismiss his action either in vacation or term time, if he shall not thereby prejudice any right of the defendant * * *' Code § 3-510.
3. Waldor v. Waldor, 217 Ga. 496(1), 123 S.E.2d 660. See also Simpson v. Brock, 114 Ga. 294, 40 S.E. 266; and Petty v. Piedmont Fertilizer Co., 146 Ga. 149, 90 S.E. 966.
4. The trial court was without authority to reinstate the case once it had been dismissed by the plaintiff's attorney. Simpson v. Brock, 114 Ga. 294, 40 S.E. 266.
Judgment reversed.
To continue reading
Request your trial-
Smithloff v. Benson
...was without authority to vacate the voluntary dismissals and to reinstate those portions of the case. See Bufford v. Farmers & Merchants Bank, 110 Ga.App. 393, 138 S.E.2d 609 (1964). In addition to granting the motion to vacate the dismissals, the trial court on June 18 granted Benson leave......
-
Kinney v. Miller, 42065
...Fourth Nat. Bank of Atlanta, 17 Ga.App. 420, 87 S.E. 606, and failure of the plaintiff's witnesses to show up. Bufford v. Farmers & Merchants Bank, 110 Ga.App. 393, 138 S.E.2d 609. In Petty v. Piedmont Fertilizer Co., 146 Ga. 149, 150, 90 S.E. 966, the court pointed out that the lower court......