Opinion
42283.
SUBMITTED SEPTEMBER 9, 1966.
DECIDED OCTOBER 10, 1966.
Motion to re-instate. Clayton Superior Court. Before Judge Banke.
Greene, Neely, Buckley DeRieux, James H. Moore, Thomas B. Branch, III, Wallace, Wallace Driebe, Charles J. Driebe, for appellants.
Ballard Thigpen, Hutcheson Kilpatrick, Lee Hutcheson, for appellee.
Plaintiff's counsel is chargeable with knowledge of the order of dismissal of his case, a matter of public record, notwithstanding the fact that his failure to answer its call may have been induced by his assumption that the case was in default, caused by the inadvertent omission from the calendar of the names of defendants' counsel. The overruling of the general demurrers to the plaintiff's amended motion to re-instate the case was error.
SUBMITTED SEPTEMBER 9, 1966 — DECIDED OCTOBER 10, 1966.
In Curtis v. Lindsey, 113 Ga. App. 125 ( 147 S.E.2d 618), this court reversed the judgment of the trial judge in his order setting aside his judgment of dismissal for want of prosecution and reinstating the case. Prior to the entry of an order by the trial court on the remittitur, the plaintiff (appellee) filed an amendment to his original motion to re-instate the case, alleging substantially as follows: That in September of 1964, plaintiff had substantially amended his petition; that on October 9, plaintiff's counsel and associate counsel had answered the October, 1964, call of the case, which case was then marked, "Continued 1 month"; that plaintiff's associate counsel had observed that the calendar for the November, 1964, term did not show any defense counsel in the case and, concluding from this that the case was noncontested, did not answer the November call; that on November 11, 1964, subsequent to the November 6 call and dismissal for want of prosecution, counsel for both the plaintiff and defendants (appellants) took a deposition of a doctor in connection with the case; that the next notice plaintiff had concerning the case was his receipt of a bill of costs from the Clerk of the Superior Court of Clayton County, dated June 4, 1965, whereupon plaintiff had paid his costs and, on July 2, 1965, filed his motion to re-instate the case. The defendants demurred generally to the motion as amended on the grounds that it fails to set forth any facts sufficient to require the relief sought, that the original motion did not constitute enough to amend by, and that the amendment fails to meet the requirements provided by the court in the prior appeal, Curtis v. Lindsey, supra. The court overruled the defendants' demurrers to the motion as amended, from which judgment they appeal.
The only substantial additional allegation which the amendment to the original motion contains is that of the taking of the deposition by counsel for both sides after the case had already been dismissed. The fact that counsel for neither side apparently was aware of the order of dismissal could not invalidate the order of dismissal, retroactively or otherwise. Counsel were chargeable with knowledge of all of the developments in the case which they could have ascertained by the exercise of proper diligence, just as in the case of extraordinary motions for new trial. Curtis v. Lindsey, 113 Ga. App. 125, 126, supra, and cit.; Harper v. Mayes, 210 Ga. 183 ( 78 S.E.2d 490); Philip Carey Co. v. Sheppard, 19 Ga. App. 368 ( 91 S.E. 444); Watkins v. Brizendine, 111 Ga. 458 ( 36 S.E. 807); Johnson v. Sikes, 22 Ga. App. 46 ( 95 S.E. 469). Plaintiff's counsel, therefore, is presumed to have had knowledge of the order of dismissal, a matter of public record in the case, and nothing which occurred subsequently to the order could be considered as misleading. Furthermore, the affidavit of appellee's associate counsel, on file in the trial court and a part of this record, reveals that he was personally in attendance at the November call of the case, at which time he had the opportunity and the duty of answering and ascertaining the disposition of the case.
The amended motion failed to set forth any facts sufficient to authorize the re-instatement of the case; therefore, the court erred in its judgment overruling the general demurrers to the motion as amended.
Judgment reversed. Frankum and Pannell, JJ., concur.