English v. Atlanta Transit System, Inc.

• Decision Date: 10 April 1975
• Docket Number: No. 50410,No. 3,50410,3
• Citation: 134 Ga.App. 621,215 S.E.2d 304
• Parties: Pearl ENGLISH v. ATLANTA TRANSIT SYSTEM, INC
• Court: Georgia Court of Appeals

Page 304

215 S.E.2d 304

134 Ga.App. 621

Pearl ENGLISH v. ATLANTA TRANSIT SYSTEM, INC.

No. 50410.

Court of Appeals of Georgia, Division No. 3.

April 10, 1975.

Rehearing Denied April 24, 1975.

Phillip Slotin, Atlanta, for appellant.

Hansell, Post, Brandon, Dorsey, Dent Acree, Atlanta, for appellee.

Syllabus Opinion by the Court

STOLZ, Judge.

In a prior tort action against the appellee, the appellant, prior to verdict, submitted a written paper to the judge stating that she 'moves for a voluntary dismissal.' (Emphasis supplied.) The judge had the court reporter mark it as an exhibit, and when the plaintiff handed it back to the judge, the latter looked at it and stated, 'I can tell you that that is not sufficient under the law.' The judge refused to discharge the jury, which deliberated for several more hours without objection by the plaintiff's counsel before returning a verdict for the defendant. Within 6 months thereafter, the plaintiff renewed the action and had the voluntary dismissal 'motion' docketed, which had not been done. The plaintiff appeals from the grant of the defenant's motion for summary judgment on the grounds of res judicata.

1. This case is yet another example of the 'sporting theory' of justice involving 'a technical skirmish between counsel and the trial judge,' which should have been avoided by the liberalized philosophy of the CPA and which illustrates the need for the General Assembly to restore our trial judges 'to their historic common law role as the master of the trial.' See Judge (now Justice) Hall's concurring opinion in Shonson v. Bottomy, 126 Ga.App. 691, 692, 191 S.E.2d 618.

The statute, Code Ann. § 81A-141(a) (Ga.L.1966, pp. 609, 653), allows the plaintiff to voluntarily dismiss, 'without order of court, by filing a written notice of dismissal at any time before verdict.' (Emphases supplied.) The judge's denial of the plaintiff's attempted voluntary dismissal was apparently based upon the technicality that the plaintiff moved for dismissal, rather then gove notce of dismissal (the judge gave no specific reason for his ruling). Under the notice system of pleadings of the CPA, we think that the plaintiff's pleading was sufficiently definite so as to inform the court of her intention to voluntarily dismiss. See Woods v. Canady, 126 Ga.App. 389, 190 S.E.2d 920 and cits. This is especially so since Code Ann. § 81A-141(a) 'eliminates the provision that a voluntary dismissal cannot be had without an order of court,' Hospital Authority of Emanuel County v. Gray, 123 Ga.App. 415, 418, 181 S.E.2d 299, 301, which means that now the plaintiff is entitled to voluntary dismissal as a matter of right when he substantially complies with the statutory conditions. 'It has long been established in our law that the substance of a legal pleading determines its nature, not what it is denominated. S. S. Kresge Co. v. Carty, 120 Ga.App. 170, 176, 169 S.E.2d 735 and cit.' Nunnery v. Dept. of Transportation, 128 Ga.App. 221, 222, 196 S.E.2d 171. This court itself has used the terms 'motion' and 'notice' interchangeably with regard to the vehicle for voluntary dismissal. See Shonson v. Bottomy, 126 Ga.App. 691, 191 S.E.2d 618, supra. Just as '(s) uperadded, meaningless surplusage in a verdict may be disregarded and stricken,' McAfee v. Fickling & Walker Co., 123 Ga.App. 647, 649, 182 S.E.2d 146, 148 and cits., so can, and should, a motion for relief which requires merely notice and the exercise of no discretion by the trial judge, be treated as substantial compliance with the statutory provision for notice.

2. Code Ann. § 81A-105(e) (Ga.L.1966, pp. 609, 615; 1967, pp. 226, 229) provides: 'The filing of pleadings and other papers with the court as required by these rules ...