Holiday Inns, Inc. v. Page, 57591

Decision Date03 October 1979
Docket NumberNo. 57591,57591
Citation151 Ga.App. 55,258 S.E.2d 909
PartiesHOLIDAY INNS, INC. et al. v. PAGE.
CourtGeorgia Court of Appeals

Lokey & Bowden, Glenn Frick, Robert P. Bleiberg, Atlanta, for appellants.

Scheer & Elsner, Robert A. Elsner, Atlanta, for appellee.

BIRDSONG, Judge.

After the defendants answered the plaintiff's complaint, the plaintiff on September 12, 1978, filed a document signed by his counsel in the trial court which read as follows: "VOLUNTARY DISMISSAL WITH PREJUDICE 'Comes now, Plaintiff Michael Wayne Page, and dismisses this action against the Defendants above named With prejudice.' " (Emphasis supplied.)

On October 18, 1978, plaintiff moved for an order under CPA § 60(g) (Code Ann. § 81A-160(g)) to correct an alleged clerical error in the voluntary dismissal previously entered by "substituting the word 'without' for the word 'with' wherever used . . ." In the alternative, plaintiff moved to set aside the Voluntary Dismissal. Plaintiff's counsel tendered his affidavit in support of the motion wherein he averred that he intended to voluntarily dismiss without prejudice; that he "instructed my secretary to draft a Voluntary Dismissal"; that the secretary drafted a Voluntary Dismissal which he signed without noticing that it was a dismissal with prejudice. The trial court granted the motion by amending the voluntary dismissal nunc pro tunc by substituting the word "without" for "with" wherever used therein. The defendants have appealed from this order. Held :

1. The trial court's amendatory order was based on the discretionary power vested in it by CPA § 60(g) (Code Ann. § 81A-160(g)). It provides: " Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders." The Supreme Court held in Smith v. Smith, 230 Ga. 238, 240, 196 S.E.2d 437 that ordinarily CPA § 60(g), supra, should be used to modify or correct the record only "where the clerical error or omission is obvious on the face of the record." There is an exception to this general rule where there has been a hearing on a motion to correct the judgment and the evidence compels the conclusion that the omission was in fact a clerical error. Smith v. Smith, supra; and Cagle v. Dixon, 234 Ga. 698, 217 S.E.2d 598. The error or omission here is not obvious on the face of the record. The voluntary dismissal filed by plaintiff shows in two glaring places that it was made "with prejudice," which in law adjudicates the non-liability of these defendants to the plaintiff. Rowland v. Vickers, 233 Ga. 67, 209 S.E.2d 592. The exception to the general rule cannot apply. While there was a hearing on the motion, neither the face of the document nor the evidence compels the conclusion that the error was in fact a clerical error. The only evidence on the issue is contained in the affidavit of the counsel for plaintiff. He stated that he did not notice that the dismissal was drafted with the phrase "with prejudice." Nowhere does he aver that his secretary prepared what she did not intend in drafting the document. Lastly, defendants do not concur or admit that a clerical error was made as was the case in Smith v. Smith, supra. The trial court abused its discretion in amending the voluntary dismissal under the authority of CPA § 60(g), supra.

2. Plaintiff's voluntary dismissal with prejudice was made and filed without an order of court as provided by statute. See CPA § 41(a) (Code Ann. § 81A-141(a)). This dismissal by the spontaneous action of the plaintiff (a party to the suit) and the subsequent order of the court amending the Plaintiff's personal choice to dismiss nunc pro tunc, were all entered during the same term of the Superior Court of Fulton County. Plaintiff contends that the case falls within the rule that a Judgment, not based on the verdict of a jury, but on the Act of a judge, remains in the breast of the court during the term in which it is rendered, and in the exercise of a sound discretion the judge may set it aside. Martin v. General Motors Corp., 226 Ga. 860, 178 S.E.2d 183. Plaintiff argues that his voluntary act in dismissing this suit is technically a judgment as it adjudicates the merits of his claim and therefore would come within this rule. A judgment has been defined as the official and authentic decision of a court on respective rights and claims of parties to an action therein litigated and Submitted for its determination. Oxford v. Generator Exchange, 99 Ga.App. 290, 108 S.E.2d 174. The facts here show that plaintiff invoked no ruling of a trial judge or court when he filed his voluntary dismissal. The act for which he seeks correction was of his own making and not that of a judge which had been submitted to him for determination. Consequently, it cannot be held that the voluntary dismissal by a party under these facts would be elevated to the dignity of a judgment simply because it had the accompanying legal effect of adjudicating the merits of the claim. Moreover, it would appear that the purpose of CPA § 41(a) is to allow a plaintiff to withdraw a pending action from the bosom of the court thereby obviating the requirement for a ruling thereon by the court. Therefore, this case does not fall within the foregoing rule relative to the setting aside of a judgment within the same term of court. This applies equally to the codified rule found in Code § 24-104(6), that a court has inherent power to amend and control Its processes and orders. But even if the dismissal here was a judgment, the rule authorizing a court to set aside a judgment during the term in which it is rendered is a discretionary power and may be exercised only where a meritorious reason has been shown. Hicks v. Hicks, 226 Ga. 798, 177 S.E.2d 690. The only reason advanced is the clerical error concept which we have previously rejected.

Judgment reversed.

QUILLIAN, P. J., and SHULMAN and BANKE, JJ., concur.

McMURRAY, P. J., concurs in the majority opinion and also concurs specially.

DEEN, C. J., and SMITH, UNDERWOOD and CARLEY, JJ., dissent.

McMURRAY, Presiding Judge, concurring specially.

I agree fully with the majority opinion and all that is said therein and the reversal of the trial court. However, I desire to add the following due to the recent decision of Albert v. Bryan, 150 Ga.App. 649, 258 S.E.2d 300.

In the case sub judice the plaintiff voluntarily dismissed his petition with prejudice On September 12, 1978. More than thirty days later, plaintiff moved the court to correct an alleged clerical error in his voluntary dismissal, i. e., to change it from dismissal With prejudice to dismissal Without prejudice. The motion was allowed, amending the dismissal nunc pro tunc. Be that as it may, the petition was no longer before the court as it had been voluntarily dismissed. At that point in time there was nothing before the court for consideration by it.

As has been clearly stated in Waldor v. Waldor, 217 Ga. 496(1), at page 497, 123 S.E.2d 660, the dismissal of plaintiff's petition removed the case from the court and, further, after dismissal there is no case in court. See also the various citations for the ruling made by the Supreme Court in that case.

In Albert v. Bryan, 150 Ga.App. 649, 258 S.E.2d 300, supra, there was a voluntary dismissal of a notice of appeal by counsel for the appellant. In that case the trial court did the very same thing as here, i. e., attempted to resurrect the case and allow it to proceed in this court. While that case is not directly on all-fours with this case, in both of these instances the dismissals were acts of counsel for the parties and not the action of the court.

SMITH, Judge, dissenting.

Code Ann. § 24-104(6) states that every court has the power "(t)o amend and control its processes and orders, so as to make them conformable to law and justice; and to...

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