Camera Shop, Inc. v. G A F Corp.

• Decision Date: 26 October 1973
• Docket Number: No. 48169,No. 1,48169,1
• Citation: 202 S.E.2d 241,130 Ga.App. 88
• Parties: The CAMERA SHOP, INC. v. G A F CORPORATION
• Court: Georgia Court of Appeals

Page 241

202 S.E.2d 241

130 Ga.App. 88

The CAMERA SHOP, INC. v. G A F CORPORATION.

No. 48169.

Court of Appeals of Georgia, Division No. 1.

Oct. 26, 1973.

Alexander & Jarrard, Alan M. Alexander, Athens, for appellant.

Cotton, Katz & White, J. Christopher Simpson, Richard A. Katz, Atlanta, for appellee.

Syllabus Opinion by the Court

QUILLIAN, Judge.

Civil Action No. 22682 was filed by GAF Corporation in the Clarke Superior Court against The Camera Shop, Inc. The Camera Shop duly filed its answer to the complaint. GAF Corporation then served its first interrogatories on The Camera Shop which interrogatories were duly answered. The Camera Shop then filed its first interrogatories addressed to GAF Corporation. No answer was filed to these interrogatories and The Camera Shop filed a motion to compel answer to written interrogatories. Hearing on this motion was on October 13, 1972 at which the trial judge entered an order providing in part 'there having been no response by the plaintiff and no appearance by or in behalf of the plaintiff at the time and place fixed for said hearing; . . . it is ordered, . . . that the plaintiff answer the defendant's interrogatories . . . within ten days hereof, or file objections thereto within ten days hereof, in default whereof the plaintiff's complaint shall stand dismissed.'

On October 24, 1972, GAF Corporation filed its answers to the interrogatories which were signed only by its attorney and were unsworn and unverified. On October 25, 1972, the Camera Shop filed its motion for imposition of sanctions requesting that the purported answers to the defendant's interrogatories be stricken in their enitrety and that the plaintiff's pleading stand dismissed. The trial judge entered an order dismissing the plaintiff's complaint. On October 27, 1972, GAF Corporation filed its motion to set aside the order of dismissal. On October 30, 1972, the trial judge amended his order of October 25, 1972 to allow the plaintiff (GAF Corporation) to refile its action, and providing that Civil Action No. 22682 was dismissed without prejudice.

GAF Corporation then filed a new action, styled Civil Action No. 23702 which was served on The camera Shop on November 9, 1972. The Camera Shop answered this complaint and moved to dismiss, pleading res judicata by virtue of the order entered by the trial judge on October 25, 1972 in Civil Action No. 22682. This motion was overruled by the trial judge and, upon certificate for review, appeal was taken to this court. Held: The Supreme Court has held that on its own motion the superior court has the power to revoke, alter, amend or modify an order or judgment during the term in which it is rendered. Board of Education of Hall County v. Shirley, 227 Ga. 565, 181 S.E.2d 826. See also Dover v. Dover, 205 Ga. 241, 53 S.E.2d 492; Barrett v. Manus, 219 Ga. 693, 135 S.E.2d 430; Thompson v. Maslia, 127 Ga.App. 758, 763(3), 195 S.E.2d 238.

In Board of Education of Hall County v. Shirley, 227 Ga. 565, 181 S.E.2d 826, supra, this rule was applied where the trial judge, on the day following the entry of the order of dismissal and during the term in which the order was entered, amended the order to provde that the order of dismissal 'shall not operate as an adjudication of the merits of the second case, and said dismissal of the second case is without prejudice to the plaintiffs.' In a very recent decision, the court has continued to apply that doctrine. See Vick v. Vick, 230 Ga. 36, 195 S.E.2d 399.

Section 60 of the Civil Practice Act provides: '(a) Collateral attack. A judgment void on its face may be attacked in any court by any person. In all other instances, judgments shall be subject to attack only by a direct proceeding brought for that purpose in one of the methods hereinafter prescribed.' Code Ann. § 81A-160 (Ga.L.1966, pp. 609, 662; 1967, pp. 226, 239, 240).

Here we have a judgment which is not void on its face. Thus until it...