Congoleum-Nairn Inc. v. Barker Warehouse Co.

139 S.E. 100, 37 Ga. App. 110, 1927 Ga. App. LEXIS 501

• Court: Court of Appeals of Georgia
• Decided: July 14, 1927
• Docket: 18150
• Status: Published

Opinion

Bloodworth, J.

This case, while pending in the city court of Atlanta, was dismissed for want of prosecution. During the term at which it was dismissed the plaintiff filed a petition to set aside the order of dismissal. Upon a hearing- of the petition the judge passed an order vacating and setting aside the order of dismissal and reinstating the case. In Athens Apartment Corp. v. Hill (supra), speaking through Justice Hines, the Supreme Court said: vDuring a term of court at which a judgment is rendered the court has power, on its own motion, to vacate the same for irregularity, or because it was improvidently or inadvertently entered. The court has plenary control of its judgments, 'orders, and decrees during the term at which they are rendered, and may amend) correct, modify, or supplement them for cause appearing, or may, to promote justice, vacate them as may in its discretion seem necessary; and the exercise of his discretion by the trial judge in reinstating a case dismissed for want of prosecution will not, unless flagrantly abused, be disturbed. ’ The order of reinstatement is evidence of the improper .dismissal of the case and of the propriety of its reinstatement. Davis v. Alexander, 27 Ga. 479; Wallace v. Gason, 42 Ga. 435; Strachan v. Wolfe, 2 Ga. App. 254 (58 S. E. 492); Jones v. Garage Equipment Co., 16 Ga. App. 596 (85 S. E. 940).” Under this ruling and the principles announced in the cases cited in the opinion, this court will not say that the trial judge flagrantly abused his discretion in vacating the order of dismissal and reinstating the case. See also Smith v. Armour Fertilizer Worlcs, 18 Ga. App. 521 (89 S. E. 1087).

Judgment affirmed.

Broyles, G. J., and Luke, J., concur.