(Ga. L. 1953, Nov.-Dec. Sess., p. 342, §§ 1, 2; Ga. L. 1967, p. 557, § 1; Ga. L. 1984, p. 597, § 1.)
Law reviews.- For article comparing sections of the Georgia Civil Practice Act (Ch. 11 of this title) with preexisting provisions of the Georgia Code, see 3 Ga. St. B.J. 295 (1967). For article surveying Georgia cases in the area of trial practice and procedure from June 1977 through May 1978, see 30 Mercer L. Rev. 239 (1978). For annual survey of trial practice and procedure, see 38 Mercer L. Rev. 383 (1986). For survey article on trial practice and procedure, see 60 Mercer L. Rev. 397 (2008).
JUDICIAL DECISIONSANALYSIS
General Consideration
Constitutionality.
- Automatic dismissal provision of O.C.G.A. § 9-2-60 is a reasonable procedural rule and does not violate due process. Georgia Dep't of Medical Assistance v. Columbia Convalescent Ctr., 265 Ga. 638, 458 S.E.2d 635 (1995).
This section is declaration of legislature that it is in the public interest to remove from court records litigation which has been inactive for a period of five years. Swint v. Smith, 219 Ga. 532, 134 S.E.2d 595 (1964); Berry v. Siskin, 128 Ga. App. 3, 195 S.E.2d 255 (1973).
Legislative intent to reduce cluttered dockets.
- This section was passed by the legislature in recognition of the fact that courts of this state had long been cluttered by a great number of cases which to all intents and purposes had been abandoned by both parties and in many cases settled without clearing the docket. Lewis v. Price, 104 Ga. App. 473, 122 S.E.2d 129 (1961).
Purpose of this section is to prevent cluttering of court records with unresolved and inactive litigation. Freeman v. Ehlers, 108 Ga. App. 640, 134 S.E.2d 530 (1963).
Rule nisi filed for the purpose of securing a continuance was a "rule" and not an "order" within the meaning of O.C.G.A. § 9-2-60. Beck v. Dean, 177 Ga. App. 144, 338 S.E.2d 693 (1985).
This section serves dual purpose of preventing court records from becoming cluttered by unresolved and inactive litigation and protecting litigants from dilatory counsel. Lewis v. Price, 104 Ga. App. 473, 122 S.E.2d 129 (1961); Swint v. Smith, 219 Ga. 532, 134 S.E.2d 595 (1964); Berry v. Siskin, 128 Ga. App. 3, 195 S.E.2d 255 (1973); Fulton County v. Corporation of Presiding Bishop, 133 Ga. App. 847, 212 S.E.2d 451 (1975); Jefferson v. Ross, 250 Ga. 817, 301 S.E.2d 268 (1983).
Equities of parties.
- There being no "express provision" in the statute defining the words "written" and "order," the equities of the parties may be considered in order to effect the true purpose of O.C.G.A. § 9-2-60. Republic Claims Serv. Co. v. Hoyal, 210 Ga. App. 88, 435 S.E.2d 612 (1993), rev'd on other grounds, 264 Ga. 127, 441 S.E.2d 755 (1994).
Operation of O.C.G.A. § 9-2-60 cannot be waived by the parties. Department of Medical Assistance v. Columbia Convalescent Ctr., Inc., 203 Ga. App. 535, 417 S.E.2d 195 (1992), cert. denied, 203 Ga. App. 535, 417 S.E.2d 195 (1992).
No power to reinstate dismissed proceeding.
- Trial court does not have the power to reinstate a proceeding that, pursuant to subsection (b) of O.C.G.A. § 9-2-60, has been automatically dismissed by operation of law. Earp v. Kranats, 184 Ga. App. 316, 361 S.E.2d 217 (1987).
Civil Practice Act (Ch. 11 of this title) did not repeal this section expressly or by implication. Fulton County v. Corporation of Presiding Bishop, 133 Ga. App. 847, 212 S.E.2d 451 (1975).
Section inapplicable when default judgment entered.
- This section was inapplicable to action in which for five years a default judgment was allowed to stand as such action was one in which an apparent final judgment had been entered, even though a later judgment was set aside for lack of service. Lewis v. Price, 104 Ga. App. 473, 122 S.E.2d 129 (1961).
Provisions of this section are mandatory.
- See Bowen v. Morrison, 103 Ga. App. 632, 120 S.E.2d 57 (1961); Freeman v. Ehlers, 108 Ga. App. 640, 134 S.E.2d 530 (1963); Norton v. Brady, 129 Ga. App. 753, 201 S.E.2d 188 (1973).
O.C.G.A. § 9-2-60 provides for automatic dismissal when no written order is taken for a period of five years; this is mandatory and dismissal occurs by operation of law. Loftin v. Prudential Property & Cas. Ins. Co., 193 Ga. App. 514, 388 S.E.2d 525 (1989).
O.C.G.A. § 9-2-60 only mandates that a written order be taken. Plaintiff need not initiate the process but only insure that an order is entered before five years elapse. Loftin v. Prudential Property & Cas. Ins. Co., 193 Ga. App. 514, 388 S.E.2d 525 (1989).
Operation of this section cannot be waived by party litigant. Swint v. Smith, 219 Ga. 532, 134 S.E.2d 595 (1964).
Agreement between counsel to continue a case, entered in record prior to lapse of five years, was not sufficient to avoid mandatory dismissal provisions of Ga. L. 1966, p. 609, § 41 and Ga. L. 1967, p. 557, § 1 (see now O.C.G.A. §§ 9-11-41 and9-2-60), as plaintiffs had the duty to obtain a written order of continuance from court and enter it in record. Harris v. Moody, 144 Ga. App. 656, 242 S.E.2d 321 (1978).
Fact that one defendant died would not prevent dismissal. Swint v. Smith, 219 Ga. 532, 134 S.E.2d 595 (1964).
Granting leave of absence to counsel constituted "order".
- Unopposed grant of a ten-day leave of absence to third-party defendant's counsel constituted an order within the meaning of O.C.G.A. § 9-2-60. Loftin v. Prudential Property & Cas. Ins. Co., 193 Ga. App. 514, 388 S.E.2d 525 (1989).
Inactive list placement order within meaning of subsection (b).
- It is not necessary for an order to advance or resolve a litigation matter for the order to fall within the meaning of subsection (b) of O.C.G.A. § 9-2-60, as an order granting a continuance or any order that would delay the resolution of the pending litigation will qualify. Tillett Bros. Constr. Co. v. DOT, 210 Ga. App. 84, 435 S.E.2d 241 (1993).
Order issued by the court in response to plaintiff's unopposed motion to stay discovery, signed by the trial judge and entered in the records of the court, placing an action on the "inactive list," was a written order within the meaning of subsection (b) of O.C.G.A. § 9-2-60. DOT v. Tillett Bros. Constr. Co., 264 Ga. 219, 443 S.E.2d 610 (1994), overruled on other grounds, Zepp v. Brannen, 283 Ga. 395, 658 S.E.2d 567 (2008).
Effect of ex parte restraining order on operation of section.
- Automatic dismissal by reason of this section would not be affected or prevented by fact that when the case was originally filed the court granted an ex parte restraining order until further order of the court. Swint v. Smith, 219 Ga. 532, 134 S.E.2d 595 (1964).
Any action of court clerk in marking case dismissed is ministerial as dismissal is automatic on expiration of five years. Norton v. Brady, 129 Ga. App. 753, 201 S.E.2d 188 (1973).
Role of clerk of court.
- When an action is pending, with no written order taken therein for over five years, it is automatically dismissed by operation of law, and action of the clerk of court in entering order of dismissal thereon is a purely ministerial act. Freeman v. Ehlers, 108 Ga. App. 640, 134 S.E.2d 530 (1963).
Party asserting this section will not be estopped simply because it might seem unfair to allow that party to go to trial and only assert this section after the party has lost. Salter v. Chatham County, 136 Ga. App. 914, 222 S.E.2d 638 (1975).
This section is not a statute of limitations as to cause of action or right to again bring a dismissed complaint. Harris v. United States Fid. & Guar. Co., 134 Ga. App. 739, 216 S.E.2d 127 (1975).
Failure to reduce defendant's default to judgment.
- Since the defendant failed to answer and was in default, but judgment was not entered for more than five years, the case stood as if a jury verdict had been returned and was not subject to dismissal under the five-year rule. Faircloth v. Cox Broadcasting Corp., 169 Ga. App. 914, 315 S.E.2d 434 (1984).
Exception based on "manifest injustice".
- Since the trial court's order revoking the grant of a continuance and dismissing a complaint was entered some three years after the entry of the order granting the continuance - although after the expiration of over five years from the last written order prior to the continuance order - it was obvious that "manifest injustice" would result if that order revoking the continuance was affirmed, even though the continuation order had been entered in the absence of a written motion and without notice. Simmerson v. Blanks, 183 Ga. App. 863, 360 S.E.2d 422, cert. denied, 183 Ga. App. 907, 360 S.E.2d 422 (1987).
Waiver.
- Operation of the mandatory dismissal provision of subsection (b) of O.C.G.A. § 9-2-60 cannot be waived by a party litigant. Bainbridge & Assocs. v. Johnson, 183 Ga. App. 784, 360 S.E.2d 273 (1987).
Case properly dismissed.
- Individual's case against an employee of a condominium association was automatically dismissed under the five-year rule of O.C.G.A. § 9-2-60(b), even though the individual had obtained a directed verdict on liability, had filed a motion for a leave of absence, and had secured a date for a hearing on damages. Ogundele v. Camelot Club Condo. Ass'n, 268 Ga. App. 400, 602 S.E.2d 138 (2004).
Trial court properly dismissed a party's counterclaim for failure to prosecute under O.C.G.A. §§ 9-2-60(b) and9-11-41(e). It was undisputed that there had been no written order entered in the case for a period of over five years; even if there was evidence supporting the party's claim that the party had attempted to have the case placed on the trial calendar, the case the party relied upon had been reversed; and it had been held that the automatic dismissal statutes did not violate due process. Roberts v. Eayrs, 297 Ga. App. 821, 678 S.E.2d 535 (2009).
Because no written order was entered in the parents' wrongful death action for five years, pursuant to O.C.G.A. § 9-2-60(b), the action was dismissed by operation of law; therefore, the trial court's memorialization of the automatic dismissal resulting from that fact was not erroneous. Cornelius v. Morris Brown College, 299 Ga. App. 83, 681 S.E.2d 730 (2009).
Trial court did not err in dismissing a condemnation case for lack of prosecution pursuant to O.C.G.A. § 9-2-60(b) because the last qualifying order entered in the case was the certificate of immediate review signed by the trial court and entered on the trial court's records on April 7, 2004, which was two months before the owner filed the owner's motion under Ga. Unif. Super. Ct. R. 7.1 to have the matter placed on the trial court's next available pretrial calendar to address the notice of appeal challenging the amount of compensation. If the owner wished to further litigate the owner's claims, the owner had ample time to obtain a trial court order that would have allowed that, but the owner failed to do so. Windsor v. City of Atlanta, 287 Ga. 334, 695 S.E.2d 576 (2010).
Dismissal erroneously granted.
- Trial court erroneously dismissed a litigant's petition for a writ of mandamus, and erroneously relied on dicta, in finding that orders setting a pre-trial conference in the underlying medical malpractice action were merely "housekeeping or administrative orders" that did not suspend the running of the five-year period under O.C.G.A. §§ 9-2-60(b) and9-11-41(e). Instead, such orders tolled the running of the five-year rule if it was in writing, signed by the trial judge, and properly entered in the records of the trial court. Zepp v. Brannen, 283 Ga. 395, 658 S.E.2d 567 (2008).
Trial court erred by dismissing a father's contempt action because the final consent order had not been entered within the five-year rule under O.C.G.A. § 9-2-60(b) because the legitimation, custody, and support matter had been resolved by consent and all that remained was entry of the order; thus, the case presented an exception to the five-year rule. Ga. Dep't of Human Servs. v. Patton, 322 Ga. App. 333, 744 S.E.2d 854 (2013).
Civil renewal provisions apply in habeas corpus proceedings.
- O.C.G.A. § 9-14-42(c) was not a statute of repose and not an absolute bar to the refiling of a habeas corpus petition, and therefore, was not in conflict with the provisions of O.C.G.A. §§ 9-2-60(b) and (c) and9-11-41(e), which allowed for the renewal of civil actions after dismissal. Therefore, the habeas court's dismissal of a petition as untimely was reversed. Phagan v. State, 287 Ga. 856, 700 S.E.2d 589 (2010).
Cited in Friedman v. Theofilos, 102 Ga. App. 304, 115 S.E.2d 598 (1960); State Hwy. Dep't v. Hester, 112 Ga. App. 51, 143 S.E.2d 658 (1965); City of Chamblee v. Village of N. Atlanta, 217 Ga. 517, 123 S.E.2d 663 (1962); Burgess v. State, 221 Ga. 586, 146 S.E.2d 288 (1965); Butler v. Claxton, 221 Ga. 620, 146 S.E.2d 763 (1966); Bridger v. Bracewell, 222 Ga. 856, 152 S.E.2d 839 (1967); Hodges v. Libbey, 120 Ga. App. 246, 170 S.E.2d 37 (1969); Milam v. Mojonnier Bros. Co., 135 Ga. App. 208, 217 S.E.2d 355 (1975); Majors v. Lewis, 135 Ga. App. 420, 218 S.E.2d 130 (1975); Jernigan v. Collier, 234 Ga. 837, 218 S.E.2d 556 (1975); Tarpley v. Hawkins, 144 Ga. App. 598, 241 S.E.2d 480 (1978); Dehco, Inc. v. State Hwy. Dep't, 147 Ga. App. 476, 249 S.E.2d 282 (1978); Kessler v. Liberty Mut. Ins. Co., 157 Ga. App. 287, 277 S.E.2d 257 (1981); Ross v. Ross, 159 Ga. App. 144, 282 S.E.2d 759 (1981); Couch v. Wallace, 249 Ga. 568, 292 S.E.2d 405 (1982); Stone v. Green, 163 Ga. App. 18, 293 S.E.2d 506 (1982); Henry v. Department of Transp., 255 Ga. 467, 339 S.E.2d 715 (1986); Pierce v. Cessna Aircraft Co., 179 Ga. App. 549, 347 S.E.2d 261 (1986); Adams v. Cobb County, 184 Ga. App. 879, 363 S.E.2d 260 (1987); Nixson v. Chris Leasing, Inc., 185 Ga. App. 548, 365 S.E.2d 135 (1988); DOT v. Samuels, 185 Ga. App. 871, 366 S.E.2d 181 (1988); In the Matter of Leslie, 300 Ga. 774, 798 S.E.2d 221 (2017).
Timing
Intention of legislature in enacting 1967 version of this section was to make five-year bar binding upon all court proceedings, not limited to suits and specifically including condemnations. Fulton County v. Corporation of Presiding Bishop, 133 Ga. App. 847, 212 S.E.2d 451 (1975).
Impact of 1967 amendment.
- Legislature passed the 1967 version of this section to correct the situation created by case law holding that the five-year bar did not apply to appeal pending in superior court from award of assessors in condemnation proceeding so as to include condemnation proceedings within the five-year rule. Berry v. Siskin, 128 Ga. App. 3, 195 S.E.2d 255 (1973).
Action refiled more than six months after automatic dismissal was untimely.
- Injured party's lawsuit against a business was automatically dismissed for want of prosecution, pursuant to O.C.G.A. § 9-11-41(e), five years after the lawsuit was filed, not on the date the trial court entered an order confirming the fact that the lawsuit was dismissed. Therefore, the trial court properly granted the business's motion for summary judgment after the injured party refiled a lawsuit because the injured party refiled that lawsuit more than six months after the lawsuit was automatically dismissed. Brown v. Kroger Co., 278 Ga. 65, 597 S.E.2d 382 (2004).
As the plaintiff failed to show that any action in the original suit filed, within the meanings of O.C.G.A. §§ 9-2-60 and9-11-41(e), occurred to bar dismissal of the suit, and failed to timely file a renewal action, the renewal action was properly dismissed. Nelson v. Haugabrook, 282 Ga. App. 399, 638 S.E.2d 840 (2006).
Five-year rule was intended to prevent long delays before trial, not to facilitate such delays. Jefferson v. Ross, 250 Ga. 817, 301 S.E.2d 268 (1983).
Statutory five-year period does not run during time case in federal court.
- Although dismissal for want of prosecution is automatic on expiration of five years, the statutory five-year period does not run during the time the case is in federal court. When an action in a state court is removed to a federal district court, the jurisdiction of the state court is suspended until the case is remanded to the state court, at which time the case resumes the status it occupied at the time of the removal. Southern Bell Tel. & Tel. Co. v. Perry, 168 Ga. App. 387, 308 S.E.2d 848 (1983); Strauss Fuchs Org., Inc. v. LaFitte Invs., Ltd., 177 Ga. App. 891, 341 S.E.2d 873 (1986).
Ga. L. 1966, p. 609, § 41 (see now O.C.G.A. § 9-11-41) was neither in conflict with nor contradictory to Ga. L. 1967, p. 557, § 1 (see now O.C.G.A. § 9-2-60); the statutes reasonably stand together by recognizing that Ga. L. 1967, p. 557, § 1 expanded coverage of the five-year nonaction bar. Fulton County v. Corporation of Presiding Bishop, 133 Ga. App. 847, 212 S.E.2d 451 (1975).
Five-year period of Ga. L. 1953, Nov.-Dec. Sess., p. 342, §§ 1 and 2 (see now O.C.G.A. § 9-2-60) is not a limitation within meaning of former Code 1933, §§ 3-803, 3-804, and 3-806 (see now O.C.G.A. §§ 9-3-92,9-3-93, and9-3-95). Swint v. Smith, 219 Ga. 532, 134 S.E.2d 595 (1964).
Applicability of
§ 9-11-6(a). - Ga. L. 1967, p. 557, § 1 (see now O.C.G.A. § 9-2-60) was an applicable statute under the time computation provision of Ga. L. 1967, p. 226, §§ 5 and 6 (see now O.C.G.A. § 9-11-6), and not a statute of limitations. Georgia Power Co. v. Whitmire, 146 Ga. App. 29, 245 S.E.2d 324 (1978).
Computation of five-year period.
- Orders are not complete until filed or recorded, and five-year period is computed from filing date. Georgia Power Co. v. Whitmire, 146 Ga. App. 29, 245 S.E.2d 324 (1978).
Five-year period of subsection (b) of O.C.G.A. § 9-2-60 begins to run on the date the complaint is filed, and not on the date defendant's answer is filed. International Longshoremen's Ass'n v. Saunders, 182 Ga. App. 301, 355 S.E.2d 461 (1987).
Trial court correctly determined that a products liability case had been dismissed by operation of law pursuant to O.C.G.A. § 9-2-60(b) because an order granting the plaintiffs' attorney a leave of absence was improvidently entered in violation of the automatic stay in bankruptcy and was void, and the record affirmatively showed that the case was inactive for a period of five years when the bankruptcy stay was not in place. Jinks v. Eastman Enters., 317 Ga. App. 489, 731 S.E.2d 378 (2012).
Dismissal is automatic on expiration of five-year period and cannot be waived by a party litigant. Maroska v. Williams, 146 Ga. App. 130, 245 S.E.2d 470 (1978).
Dismissal of a survivor's wrongful death suit was proper and automatic, when five years had passed after the most recent court order, and no further action was documented thereafter. Tate v. Ga. DOT, 261 Ga. App. 192, 582 S.E.2d 162 (2003).
Five ad valorem tax appeals were properly dismissed because more than five years had passed since entry of the last order in each of the cases, and the clear language of this provision stated that automatic dismissal applied to "any action or other proceeding," which included appeals from property assessment valuations. Pace Burt, Inc. v. Dougherty County Bd. of Tax Assessors, 305 Ga. App. 111, 699 S.E.2d 34 (2010).
Trial court did not err in dismissing the action under the five-year rule, O.C.G.A. §§ 9-2-60(b) and9-11-41(e), because no written order had been taken in the case for a period of five years and an order authorizing an attorney to withdraw during the five-year period did not toll the time because the order was void since the order was entered in violation of a bankruptcy stay. Miller v. Lomax, 333 Ga. App. 402, 773 S.E.2d 475 (2015).
Statute of limitations not tolled.
- When a Federal Employers' Liability Act, 45 U.S.C. § 51 et seq. action is dismissed for the absence of a written order for a period of five years, the statute of limitations applicable to such actions is not tolled during that five year period. Smith v. Seaboard Sys. R.R., 179 Ga. App. 822, 348 S.E.2d 97 (1986).
Right to refile within six months.
- Under former Code 1933, § 3-808 (see now O.C.G.A. § 9-2-61), plaintiff may refile an action within six months following automatic dismissal mandated by Ga. L. 1967, p. 557, § 1 or Ga. L. 1966, p. 609, § 41 (see now O.C.G.A. § 9-2-60 or O.C.G.A. § 9-11-41) when the original action was not barred by the statute of limitations. Berry v. Siskin, 128 Ga. App. 3, 195 S.E.2d 255 (1973).
When five years have not yet passed since last order was filed in prior action, the prior action is still pending when a plea of pendency is filed. That being so, the pleader is entitled to a judgment in the pleader's favor because the key event is not the entry of an order in the second action but the filing of the defense of pendency. Hammond v. State, 168 Ga. App. 508, 308 S.E.2d 701 (1983).
Court may enter judgment on jury verdict at any time.
- Court of record, in the exercise of its inherent power, has continuing jurisdiction to enter judgment on a jury verdict at any time. Jefferson v. Ross, 250 Ga. 817, 301 S.E.2d 268 (1983) (overruling Maroska v. Williams, 146 Ga. App. 130, 245 S.E.2d 470 (1978)).
Effect of settlement during five-year period.
- Automatic dismissal requirement of O.C.G.A. § 9-2-60 when no action is taken for a period of five years requires dismissal of a motion to compel settlement, made more than five years after a written order was taken on the case, even though a settlement has been reached during the five years. Stephens v. Stovall & Co., 184 Ga. App. 78, 360 S.E.2d 638 (1987).
Writing Requirement
In order to avoid automatic dismissal, an order must be written, signed by the trial judge, and properly entered in the records of the trial court by filing it with the clerk. Scott v. DeKalb County Hosp. Auth., 168 Ga. App. 548, 309 S.E.2d 635, aff'd, 169 Ga. App. 257, 312 S.E.2d 154 (1983).
In order to break the running of the five-year dormancy period, the order has to be in writing, signed, and entered. Loftin v. Prudential Property & Cas. Ins. Co., 193 Ga. App. 514, 388 S.E.2d 525 (1989).
Duty to obtain written continuance or order.
- Legislature placed the duty squarely upon plaintiff to obtain a written order of continuance from the court and have the order entered in the record in order to avoid mandatory provisions of this section. Dupriest v. Reese, 104 Ga. App. 805, 123 S.E.2d 161 (1961).
This section places upon plaintiff who wishes to avoid automatic dismissal of the plaintiff's 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 that order is entered in the record. Swint v. Smith, 219 Ga. 532, 134 S.E.2d 595 (1964); Norton v. Brady, 129 Ga. App. 753, 201 S.E.2d 188 (1973); J.F. Barton Contracting Co. v. Southern Ry., 191 Ga. App. 13, 380 S.E.2d 724 (1989).
Order must be properly entered in records of court to toll five-year period.
- As a jury selection notice sent by the trial court to the parties was not stamped by the clerk of court's office as "filed," and there was nothing else in the record to show that the notice was properly entered in the records of the court, the jury selection notice did not meet the requirements for a written order that tolled the five-year dismissal period of O.C.G.A. § 9-2-60(b). Therefore, the trial court erred in denying the defendants' motion to dismiss. Pilz v. Thibodeau, 293 Ga. App. 532, 667 S.E.2d 622 (2008).
Continuance must be reduced to writing and entered in record in order to avoid mandatory provisions of this section. Bowen v. Morrison, 103 Ga. App. 632, 120 S.E.2d 57 (1961); Johnson v. McCauley, 123 Ga. App. 393, 181 S.E.2d 111 (1971); Georgia Power Co. v. Whitmire, 146 Ga. App. 29, 245 S.E.2d 324 (1978); Maroska v. Williams, 146 Ga. App. 130, 245 S.E.2d 470 (1978).
Unsigned entries in a docket sheet indicating continuances did not satisfy the requirements of subsection (b) of O.C.G.A. § 9-2-60 and were not sufficient to preclude dismissal for want of prosecution. Republic Claims Serv. Co. v. Hoyal, 264 Ga. 127, 441 S.E.2d 755 (1994).
Grant of continuance is an "order"; when it is entered in the docket, it is "written" and has the force of law. Thus, if the court's docket showed several continuances and trial resettings caused by the defendant and the defendant caused further delay by refusing to make an agreed settlement, the action did not have to be dismissed as one in which there had been no written order taken in five years. Republic Claims Serv. Co. v. Hoyal, 210 Ga. App. 88, 435 S.E.2d 612 (1993), rev'd on other grounds, 264 Ga. 127, 441 S.E.2d 755 (1994).
It was the duty of a decedent's spouse to obtain a written order from the probate court granting the spouse's petition for year's support. Because the spouse failed to do so, the entire case, not just a caveat to the petition filed by the decedent's child, was automatically dismissed as a matter of law pursuant to O.C.G.A. § 9-2-60(b) five years after the last written order was filed on the spouse's petition. Clark v. Clark, 293 Ga. App. 309, 667 S.E.2d 103 (2008).
Appellate court order was not a "written order" signed by the trial court within the meaning of subsection (b) of O.C.G.A. § 9-2-60. Kachwalla v. Byrne, 198 Ga. App. 454, 402 S.E.2d 74 (1991).
Effect of Dismissal
Section makes dismissal rule applicable to all proceedings.
- Ga. L 1967, p. 557, § 1 (see now O.C.G.A. § 9-2-60) was supplementary to Ga. L. 1966, p. 609, § 41 (see now O.C.G.A. § 9-11-41(e)) in making the five-year dismissal rule applicable to all proceedings in all courts. Fulton County v. Corporation of Presiding Bishop, 133 Ga. App. 847, 212 S.E.2d 451 (1975).
Notices of attorney's leaves of absences insufficient to avoid application of statute.
- Pursuant to O.C.G.A. §§ 9-2-60(b) and9-11-41(e), because an individual's negligence suit sat dormant when the trial court failed to enter any orders for eight years, the suit was automatically dismissed for want of prosecution, and the individual could not overcome application of those statutes as notices of leaves of absence filed by the individual's attorney were insufficient to avoid application. Ward v. Swartz, 285 Ga. App. 788, 648 S.E.2d 114 (2007).
Proceedings after dismissal hereunder null.
- After automatic dismissal under this section, the case is no longer pending, and any further action, even trial and verdict, is a mere nullity. Salter v. Chatham County, 136 Ga. App. 914, 222 S.E.2d 638 (1975).
When case stands automatically dismissed it is completely lifeless for all purposes from date of dismissal, so that if not removed motion to strike it from the docket will lie; date on which automatic dismissal occurs rather than date on which it was physically stricken is controlling. Fulton County v. Corporation of Presiding Bishop, 133 Ga. App. 847, 212 S.E.2d 451 (1975).
Dismissal under this section is not dismissal deciding merits of the case so as to bar another action upon the same cause of action. Covil v. Stansell, 113 Ga. App. 179, 147 S.E.2d 479 (1966); Frank Maddox Realty & Mtg., Inc. v. First Nat'l Bank, 196 Ga. App. 114, 395 S.E.2d 326 (1990).
Nor is dismissal under this section res judicata so as to conclude, adversely to plaintiff, the cause of action itself. City of Chamblee v. Village of N. Atlanta, 217 Ga. 517, 123 S.E.2d 663 (1962); Frank Maddox Realty & Mtg., Inc. v. First Nat'l Bank, 196 Ga. App. 114, 395 S.E.2d 326 (1990).
Party may refile after dismissal pursuant to this section, provided the cause of action is not then barred by some statutory limitation or by laches. City of Chamblee v. Village of N. Atlanta, 217 Ga. 517, 123 S.E.2d 663 (1962).
OPINIONS OF THE ATTORNEY GENERALIntent of legislature in passing 1967 version of this section was to expand scope of original provisions. 1970 Op. Att'y Gen. No. 70-138.
This section controls in appeal of condemnation proceedings.- Civil Practice Act (Ch. 11 of this title) is controlling in declaration of method of condemnation, and this section is controlling in appeal from award of assessors or special master. 1970 Op. Att'y Gen. No. 70-138.
RESEARCH REFERENCES
Am. Jur. 2d.
- 1 Am. Jur. 2d, Actions, § 3. 24 Am. Jur. 2d, Dismissal, Discontinuance, and Nonsuit, §§ 76, 78 et seq.
C.J.S.- 27 C.J.S., Dismissal and Nonsuit, § 67 et seq.
ALR.
- Construction and application of statutory requirement or rule of court that action should be brought to trial within specified time, 112 A.L.R. 1158.
Effect of nonsuit, dismissal, or discontinuance of action on previous orders, 11 A.L.R.2d 1407.
Reviving, renewing, or extending judgment by order entered after expiration of statutory limitation period on motion made or proceeding commenced within such period, 52 A.L.R.2d 672.
Illness or death of party, counsel, or witness as excuse for failure to timely prosecute action, 80 A.L.R.2d 1399.
Dismissal of appeal or writ of error for want of prosecution as bar to subsequent appeal, 96 A.L.R.2d 312.
Time when voluntary nonsuit or dismissal may be taken as of right under statute so authorizing at any time before "trial," "commencement of trial," "trial of facts," or the like, 1 A.L.R.3d 711.
What constitutes bringing an action to trial or other activity in case sufficient to avoid dismissal under state statute or court rule requiring such activity within stated time, 32 A.L.R.4th 840.