Kenemer v. Arkansas Fuel Oil Company

21 S.E.2d 348, 67 Ga. App. 587, 1942 Ga. App. LEXIS 477

• Court: Court of Appeals of Georgia
• Decided: June 19, 1942
• Docket: 29579.
• Status: Published

Opinion

Felton, J.

1. Where an action is dismissed for want of prosecution on motion of defendant’s counsel, on the ground that when the case was called for trial the plaintiff did not answer present and ready for trial, the judgment of the court refusing to reinstate the case will not be held to be an abuse of discretion, even where it occurs fifteen minutes after the dismissal, where it is not made to appear in the bill of ex-eeptions why the plaintiff was not present and ready for trial on the call of the case and where there is no other reason why the ease should have been reinstated except the fact of dismissal and a refusal to reinstate fifteen minutes later when all parties, counsel, witnesses, and jury were present. Platen v. Ordinary of Chatham County, 60 Ga. 422.

Decided June 19, 1942. Rehearing denied July 10, 1942. I. 0. Adams, for plaintiff. Hardin & McOamy, for defendant.

2. The assignment of error on the exceptions pendente lite to the sustaining of a demurrer to a part of the petition does not present a question which it is either necessary or proper to be passed on by this court under the record. There has been no final judgment in the case on its merits. Under our ruling' affirming the dismissal of the case, it is ended, and there is no presumption that it will be renewed. If it is, it will be a de novo proceeding, and the rulings in the present case will not be res judicata as to similar questions raised in the renewed case. Bishop v. Greene, 62 Ga. App. 126 (8 S. E. 2d, 148). See Wright v. Morris, 50 Ga. App. 196 (177 S. E. 365). The court did not err in' dismissing the action, or in refusing to reinstate the case.

Judgment affirmed.

Stephens, P. J., and Sutton, J., eonour.-