Spyropoulos v. Linard Estate

• Decision Date: 17 April 1979
• Docket Number: No. 34592,34592
• Citation: 243 Ga. 518,255 S.E.2d 40
• Parties: SPYROPOULOS v. John LINARD ESTATE.
• Court: Georgia Supreme Court

Page 40

255 S.E.2d 40

243 Ga. 518

SPYROPOULOS v. John LINARD ESTATE.

No. 34592.

Supreme Court of Georgia.

Submitted March 12, 1979.

Decided April 17, 1979.

Richardson, Chenggis & Constantinides, Platon P. Constantinides, Chamblee, for appellant.

No attorneys for appellee.

HALL, Justice.

This case is here on the grant of certiorari in Spyropoulos v. John Linard Estate, 148 Ga.App. 380, 251 S.E.2d 327 (1978). The petitioner's case in the Fulton County Superior Court was dismissed by the trial court under Code Ann. 81A-141(b) for his failure to be present when the matter came on to be heard pursuant to a notice of trial which was given by publication of the court calendar in the Fulton County Daily Report. The petitioner is an out-of-state attorney who represented himself at the time of the dismissal. After learning of the dismissal, he filed a motion to set aside the judgment or in the alternative for a new trial on extraordinary grounds under Code Ann. § 81A-160. His motion was supported by an affidavit stating that he had no personal notice of the trial calendar. The trial court denied the motion and stated in the order that notice of trial published in the Fulton County Daily Report, the official organ of Fulton County, is sufficient notice under Code Ann. § 81A-140(c), citing Rockmart Bank v. Beck, 129 Ga.App. 457, 199 S.E.2d 907 (1973) as the controlling authority. The Court of Appeals affirmed.

Prior to the adoption of the Civil Practice Act, parties and their counsel were " . . . bound to take notice of the time and place of trial and of when their presence is required." Blanch v. King, 202 Ga. 779, 783, 44 S.E.2d 779, 782 (1947). However, where the trial court prepared a calendar of cases for trial under Code Ann. § 24-3343, a party or his counsel could rely on the fact that a case not on the calendar would not be called for trial in his absence and without notice to him of a change in the court's calendar. Williams v. Linn, 108 Ga.App. 629(3), 133 S.E.2d 892 (1963).

The CPA was adopted in 1966 and provides: "The courts shall provide for the placing of actions upon the trial calendar (1) without request of the parties but upon notice to the parties, or (2) upon request of a party and notice to the other parties. . . . " Code Ann. § 81A-140(c). Code Ann. § 24-3343 was not repealed by the CPA. In our opinion, notice of trial by publication of the court calendar in the Fulton County Daily Report is notice pursuant to Code Ann. § 81A-140(c). McNally v. Stonehenge, Inc., 242 Ga. 258, 248 S.E.2d 653 (1978). See also Redding v. Raines, 239 Ga. 865, 239 S.E.2d 32 (1977). However, this does not mean that the trial court is without authority to set aside the judgment or grant a new trial under Code Ann. § 81A-160 where the circumstances warrant such relief. It should be remembered that an order of dismissal for failure to prosecute is discretionary and is subject to appellate review for abuse of...