Muhanna v. O'Kelley
Citation | 363 S.E.2d 626,185 Ga.App. 220 |
Decision Date | 04 December 1987 |
Docket Number | No. 75489,75489 |
Parties | MUHANNA v. O'KELLEY et al. |
Court | Georgia Court of Appeals |
Weymon H. Forrester, Gainesville, for appellant.
Charles B. Tanksley, Atlanta, for appellees.
The defendant physician in this medical malpractice action moved for summary judgment. After oral argument on the motion but before the trial court had made any indication as to how it intended to rule, the plaintiffs determined that their response was insufficient and filed a voluntary dismissal of their complaint. The defendant appeals from the denial of his subsequent motion to strike the dismissal, contending that the plaintiffs had already "rested" their case within the contemplation of OCGA § 9-11-41 (a) when the dismissal was filed. Held:
Section 41(a) of the Civil Practice Act specifies, in pertinent part, that OCGA § 9-11-41 (a) (Ga.L.1986, p. 816, § 1). (Emphasis supplied.) Originally, the Code section had permitted the voluntary dismissal of an action without a court order "at any time before verdict" (Ga.L.1966, p. 609, § 41). In 1985, the latter wording was changed to read, "at any time before the submission of the case to the jury" (Ga.L.1985, p. 546, § 1). The present language was substituted for that version the following year.
Regardless of the wording of the statute, the right of voluntary dismissal has always been subject to a judicially created limitation prohibiting its exercise, even prior to trial, where there has already been an announcement by the court of its intention to rule in favor of the defendant. See Guillebeau v. Yeargin, 254 Ga. 490, 330 S.E.2d 585 (1985). Peoples Bank of Talbotton v. Exchange Bank, 119 Ga. 366, 368, 46 S.E. 416 (1903).
If in the present case the trial court had announced an intention to grant the defendant's motion for summary judgment...
To continue reading
Request your trial-
Leary v. Julian, A96A2482
...a demand for trial under local arbitration rules not knowledge of actual, as opposed to possible, result of case); Muhanna v. O'Kelley, 185 Ga.App. 220, 363 S.E.2d 626 (1987) (plaintiff's entitlement to summary judgment not preclusive if no announcement by court). The question presented her......
-
Lakes v. Marriott Corp.
...where there has already been an announcement by the court of its intention to rule in favor of the defendant. Muhanna v. O'Kelley, 185 Ga.App. 220, 363 S.E.2d 626 (1987). The reason for that limitation was explained in Peoples Bank of Talbotton v. Exchange Bank, 119 Ga. 366, 368, 46 S.E. 41......
-
Redman Homes, Inc. v. Voss
...must be obtained before dismissal.... A dismissal under this subsection is without prejudice." It was explained in Muhanna v. O'Kelley, 185 Ga.App. 220, 363 S.E.2d 626 (1987): "Originally, the Code section had permitted the voluntary dismissal of an action without a court order 'at any time......
-
Target Nat'l Bank v. Luffman, A13A1523.
..."at any time before the submission of the case to the jury," and originally, "at any time before verdict." See Muhanna v. O'Kelley, 185 Ga.App. 220–221, 363 S.E.2d 626 (1987). The Luffmans appear to contend that any time a witness is sworn, even in an unreported hearing which apparently cul......