Maslia v. Hamilton

235 S.E.2d 485, 239 Ga. 52, 1977 Ga. LEXIS 814

• Court: Supreme Court of Georgia
• Decided: April 5, 1977
• Docket: 31865
• Status: Published

Opinion

Undercofler, Presiding Justice.

We granted certiorari in this case and reverse. Hamilton v. Maslia, 140 Ga. App. 239 (230 SE2d 318) (1976). A motion to set aside a judgment filed during the same court term the judgment is entered may be acted upon at a subsequent term. Ammons v. Bolick, 233 Ga. 324 (210 SE2d 796) (1974). The failure to have a rule nisi issued during the judgment term extending a hearing into the next term does not alter this rule. Code Ann. § 81A-106 (c) provides, "The period of time provided for the doing of any act or the taking of any proceeding is not affected or limited by the continued existence or expiration of a term of court, except as otherwise specifically provided by law. The continued existence or expiration of a term of court in no way affects the power of a court to do any act or take any proceeding in any civil action which has been pending before it, except as otherwise provided by law.” We find no requirement that a rule nisi be issued upon the motion here at the same term of court at which the judgment is entered. All that is required is not less than five days notice of the hearing thereon. Code Ann. § 81A-106 (d); Stoner v. McDougall, 235 Ga. 171 (219 SE2d 138) (1975).

Argued March 14, 1977 Decided April 5, 1977 Rehearing denied April 21 and May 25, 1977. Worozbyt & Nodvin, Marvin P. Nodvin, for appellants. William R. Parker, for appellee.

Division 2 of the Court of Appeals is reversed; Divisions 3 and 4 and the judgment are vacated. The case is thus remanded to the Court of Appeals for further proceedings not inconsistent with this opinion and for further determination of the nature of the motion at issue in this case. See Pekor v. Clark, 236 Ga. 457 (224 SE2d 30) (1976).

Judgment reversed, vacated and remanded.

Nichols, C. J., Jordan, Ingram, Hall and Hill, JJ., concur.