Opinion
A97A0520.
DECIDED MAY 6, 1997.
Motion to set aside. Fulton State Court. Before Judge Glanville, pro hac vice.
Christoper J. McFadden, for appellant.
Baker Shivers, Thurbert E. Baker, Eleanor L. Martel, for appellee.
Plaintiff Howard filed this negligence action against defendant AMLI Realty Company. Defendant did not file a timely answer and its motion to open default was denied. The case was placed on a non-jury default calendar, but when the case was called plaintiff was not present. Defendant's motion to dismiss due to plaintiff's failure to appear and prosecute the case was granted. The dismissal of the case with prejudice was entered on February 13, 1996.
On March 21, 1996, plaintiff filed his motion for reconsideration and motion to set aside the order of dismissal. Plaintiff's allegations in support of these motions included assertions that non-amendable defects appeared on the face of the record. These motions were denied and plaintiff's application for discretionary review of the denial of his motion to set aside was granted. Held:
"Under Uniform Superior Court Rule 14, the trial `court may dismiss without prejudice any civil action . . . upon the failure to properly respond to the call of the action for trial . . . .' (Emphasis supplied.) Pursuant to OCGA § 9-11-41 (b) and (c), the dismissal of a counterclaim `for failure . . . to prosecute does not operate as an adjudication upon the merits . . . .' These authorities restrict the dismissal of an action for failure to appear at the call of the case `to one without prejudice.' Kraft, Inc. v. Abad, 262 Ga. 336 ( 417 S.E.2d 317) (1992).
"Because the trial court's dismissal of the [plaintiff's claim] with prejudice constituted a nonamendable defect on the face of the record, see generally Cooley v. All the World, 247 Ga. 459 (3) ( 276 S.E.2d 615) (1981); Murphy v. Murphy, 263 Ga. 280, 283, fn. 2 ( 430 S.E.2d 749) (1993); Brown v. C S Nat. Bank, 245 Ga. 515, 517 ( 265 S.E.2d 791) (1980), the trial court erred in denying [plaintiff's] motion to set aside the judgment under OCGA § 9-11-60 (d)." (Footnote omitted.) Bonner v. Green, 263 Ga. 773, 774 ( 438 S.E.2d 360).
Judgment reversed. Beasley and Smith, JJ., concur.