Matthews v. Riviera Equipment, Inc., 58995
Decision Date | 07 January 1980 |
Docket Number | No. 58995,58995 |
Citation | 264 S.E.2d 318,152 Ga.App. 870 |
Parties | MATTHEWS et al. v. RIVIERA EQUIPMENT, INC. |
Court | Georgia Court of Appeals |
Orinda D. Evans, Steven M. Collins, R. Neal Batson, Atlanta, for appellants.
Tony Center, William R. Gignilliat, III, Atlanta, for appellee.
Plaintiff Riviera Equipment, Inc., filed suit seeking damages for the tortious conversion of two concrete pump trucks. Defendant Omega Equipment Corporation counterclaimed for indebtedness due and owing on a promissory note executed by plaintiff as payment for the same equipment. At issue in this interlocutory appeal is the trial court's reinstatement of plaintiff's complaint after plaintiff had voluntarily dismissed his action in accordance with CPA § 41(a) (Code Ann. § 81A-141(a)). Held :
1. CPA § 41(a) (Code Ann. 81A-141(a)).
The issue of whether the trial court may order a complaint reinstated after it has been voluntarily dismissed under CPA § 41(a) is one of first impression in Georgia. "(T)he CPA apparently makes no provision for the 'reinstatement' of an action after dismissal as distinguished from a recommencement." Davis & Shulman's, Ga. Practice & Procedure, § 13-4 (4th Ed. 1975). Federal decisions construing Rule 41(a) of the Federal Rules of Civil Procedure, the model for Code Ann. § 81A-141(a), do not permit such reinstatement. "(A) suit dismissed without prejudice pursuant to Rule 41(a)(2) leaves the situation the same as if the suit had never been brought in the first place." Humphreys v. United States, 272 F.2d 411, 412 (9th Cir. 1959). Accord, Rosso v. Magraw, 288 F.2d 840 (8th Cir. 1961); A. B. Dick Co. v. Marr, 197 F.2d 498 (2nd Cir. 1952). We adopt this interpretation, as to allow reinstatement would render meaningless Georgia's rule allowing only two voluntary dismissals without prejudice. See CPA § 41(a), supra. The plaintiffs' reliance on Warner v. Graves, 25 Ga. 369 (1858), and Kinney v. Miller, 114 Ga.App. 244, 150 S.E.2d 723 (1964), is misplaced, as those cases were concerned with a predecessor statute and with errors made by the trial court prior to the dismissal.
2. Defendants also seek review of the trial...
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Southwest Health and Wellness, L.L.C. v. Work
...as distinguished from a recommencement. Davis & Shulman's Ga. Practice & Procedure, § 13-4 (4th Ed. 1975). Matthews v. Riviera Equip., 152 Ga.App. 870(1), 264 S.E.2d 318 (1980). . . . (Punctuation and footnote omitted.) Collier v. Evans, 205 Ga.App. 764, 767(4), 423 S.E.2d 704 Villani v. Ed......
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Ga. Dep't of Revenue v. Moore
...(26 USC § 6672), we “may turn to the federal cases for aid in construing [the] statute”); see generally Matthews v. Riviera Equipment, 152 Ga.App. 870–871(1), 264 S.E.2d 318 (1980) (in deciding issue involving Ga.Code Ann. § 81A–141 (a) (now OCGA § 9–11–41), this court looked for guidance f......
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Gallagher v. Fiderion Group, LLC
...§ 9-11-41 leaves the situation the same as if the suit had never been brought in the first place." (Punctuation omitted.) Id. See Matthews v. Riviera Equip.5 Thus, it "operate[s] to divest the court of jurisdiction, after which the trial court [has] no authority to enter" additional orders,......
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Collier v. Evans
...as distinguished from a recommencement.' Davis & Shulman's, Ga. Practice & Procedure, § 13-4 (4th Ed.1975)." Matthews v. Riviera Equip., 152 Ga.App. 870(1), 264 S.E.2d 318. Nor does the Civil Practice Act provide authority for setting aside a dismissal based on fraud in the inducement of th......