Swint v. Smith, 22238
| Decision Date | 10 January 1964 |
| Docket Number | No. 22238,22238 |
| Parties | Joe SWINT et al. v. Mrs. Lamar S. SMITH et al. |
| Court | Georgia Supreme Court |
Carl K. Nelson, Jr., Nelson & Nelson, Dublin, for plaintiffs in error.
Irwin L. Evans, J. Benton Evans, Casey Thigpen, Sandersville, for defendants in error.
Syllabus Opinion by the Court
The question presented is whether or not a pending suit was dismissed by reason of Ga.L.1953, Nov.Sess.,[219 Ga. 533] pp. 342, 343 (Code Ann. § 3-512) because no written order was entered in the record thereof during a period in excess of 5 years. On November 9, 1953, plaintiffs filed their petition seeking an injunction and damages. An ex parte restraining order was granted and defendants filed their answer and plea. On December 3, 1962, at the December 1962 term of court, and with none of the defendants present or represented by counsel, a jury verdict in favor of the plaintiffs for $400 damages and a permanent injunction was entered. Judgment was entered on the verdict on May 1, 1963. On May 17, 1963, defendants filed a motion to set the verdict and judgment aside for a defect appearing on the face of the record, to wit: that prior to entry of the verdict and judgment no written order had been taken in the case for over 5 years and therefore the case stood dismissed before the verdict and judgment were entered. The motion to set the verdict and judgment aside came on for a hearing at which evidence was adduced by plaintiffs and defendants that no written orders of any sort were taken in the case after the ex parte restraining order and before the verdict and judgment; that the case had been continued from term to term for various reasons, usually by consent of counsel; that certain of the court calendars kept for the convenience of the judge of the superior court, which calendars do not form a part of the record of the case, were marked 'Cont.' opposite the name of the case; that at the September term of 1962 the case was put on the calendar and the then counsel for defendants, who thereafter withdrew as counsel before entry of the verdict and judgment advised the court of Code Ann. § 3-512 and that one of the defendants had died; that the judge granted a continuance, stating that under those circumstances he would continue the case for the term. After hearing the aforesaid evidence, the trial court denied the motion to set the verdict and judgment aside. This judgment is assigned as error. Held:
1. Ga.L.1953, Nov.Sess., pp. 342, 343 (Code Ann. § 3-512). The Act is mandatory. It places upon a plaintiff who wishes to avoid an automatic dismissal of his case by operation of law a duty to obtain a written order of continuance or other written order at some time during a five year period and to make sure the same is entered in the record. Bowen v. Morrison, 103 Ga.App. 632, 120 S.E.2d 57; Lewis v. Price, 104 Ga.App. 473, 122 S.E.2d 129; Dupriest v. Reese, 104 Ga.App. 805, 123 S.E.2d 161.
2. Paragraph 14 of plaintiffs' answer to defendants' motion to set the verdict and judgment aside is too indefinite to raise any question as to the constitutional application of Ga.L.1953, Nov.Sess., pp. 342, 343 (Code Ann. § 3-512) to the present case because it fails to specify the Act of the General Assembly attacked and the particular provision of the Constitution alleged to have been violated. Adams v. Ray, 215 Ga. 656, 113 S.E.2d 100; Prince v. Thompson, 215 Ga. 860, 113 S.E.2d 772; Underwood v. Atlanta & West Point Railroad Co., 217 Ga. 226, 122 S.E.2d 100; Williams v. State, 217 Ga. 312, 122 S.E.2d 229.
3. The operation of Code Ann. § 3-512 can not be waived by a party litigant because that section has at least the dual purpose of preventing court records from becoming cluttered by unresolved and inactive litigation and protecting litigants from dilatory counsel, City of Chamblee v. Village of North Atlanta, 217 Ga. 517, 523, 123 S.E.2d 663; Lewis v. Price, 104 Ga.App. 473, 476, 122 S.E.2d 129, and a party can not waive or renounce his rights when to do so would injure others or affect the public interest. Code § 102-106; Yeomans v. Williams, 117 Ga. 800, 803, 45 S.E. 73; Watts v. Watts, 130 Ga. 683, 61 S.E. 593; MacNeill v. Steele, 186...
To continue reading
Request your trial
-
In re Spencer
...dismissed without the necessity of a court order upon an event occurring, language is used making that clear. See Swint v. Smith, 219 Ga. 532, 134 S.E.2d 595, 596 (1964) (discussing state statute which provided that "any suit filed in any of the courts of this State in which no written orde......
-
Cornelius v. Morris Brown College
...Ga. Dept. of Med. Assistance v. Columbia Convalescent Center, 265 Ga. 638, 640(1), 458 S.E.2d 635 (1995); see also Swint v. Smith, 219 Ga. 532, 534(3), 134 S.E.2d 595 (1964). [T]he statute grants a litigant five years to produce only the most minimal of activity to avoid dismissal and there......
-
Goodwyn v. Carter
...of entry of an order by the trial judge or any action marking it dismissed by the clerk on the court docket. Swint v. Smith, 219 Ga. 532, 533-34(3), 134 S.E.2d 595 (1964); Maroska v. Williams, 146 Ga.App. 130(1), 245 S.E.2d 470 (1978); Norton v. Brady, 129 Ga.App. 753(1), 201 S.E.2d 188 (19......
-
Fulton County v. Corporation of Presiding Bishop of Church of Jesus Christ of Latter Day Saints
...the time of death.' 4. The dominant leit motif for the five year automatic dismissal for non-action was declared in Swint v. Smith, 219 Ga. 532, 534(3), 134 S.E.2d 595, 597. There our Supreme Court said the statute 'has at least the dual purpose of preventing court records from becoming clu......