Shonson v. Bottomy

Court of Appeals of Georgia

Shonson v. Bottomy

191 S.E.2d 618, 126 Ga. App. 691, 1972 Ga. App. LEXIS 1253

CourtCourt of Appeals of Georgia

DecidedJune 19, 1972

Docket47207, 47208

StatusPublished

Cited by6 cases

This text of 191 S.E.2d 618 (Shonson v. Bottomy) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Shonson v. Bottomy, 191 S.E.2d 618, 126 Ga. App. 691, 1972 Ga. App. LEXIS 1253 (Ga. Ct. App. 1972).

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Opinions

Quillian, Judge.

It is contended in the enumeration of errors that the trial judge erred in refusing to allow appellant’s counsel to voluntarily dismiss the suit prior to the jury returning a verdict. Appellant’s counsel argues that when his associate counsel attempted to file the voluntary dismissal she was prevented from doing so by the trial judge. The record shows that the associate counsel had made an oral motion to dismiss the suit. Immediately prior to the jury returning its verdict the record states: "The Court: All right. Mrs. Berger, I have noted your oral motion. Ask the jury to come in, please. Mrs. Berger: Your Honor, can I file my brief? The Court: No. We are going to bring the jury in right now.”

Associate counsel for the appellant filed an affidavit which states in part: "I had the written notice of dismissal in my right hand which was outstretched as I was proceeding to hand the written notice of dismissal to the clerk and ask him to mark it filed, but when I was still some five or six feet from the clerk’s desk, Judge Etheridge said, 'All right, Mrs. Berger, I have noted your oral motion. Ask the jury to come in please.’ To which I respond.ed, with my hand still outstretched holding up the written notice of dismissal, 'May I file this please’ or words to that effect. The Judge answered, 'No. We are going to bring the jury in right now.’ ”

The record also- shows that the trial judge stated: "The Court: I’m very sorry. The court simply has no tender of any written motion.”

This court is bound by the contents of the transcript as certified to this court unless a change is made in the proper manner. Therefore, no written motion to dismiss having [692]*692been filed this appeal is affirmed. Code Ann. § 81A-141 (a) (Ga. L. 1966, pp. 609, 653).

Argued June 5, 1972— Decided June 19, 1972— Rehearing denied July 17, Shoob, McLain & Jessee, C. James Jessee, Jr., for appellants. T. M. Smith, Jr., Hunter S. Allen, Jr., for appellee.

Judgment affirmed.

Hall, P. J., and Pannell, J., concur.

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Quillian, Judge.

It is contended in the enumeration of errors that the trial judge erred in refusing to allow appellant’s counsel to voluntarily dismiss the suit prior to the jury returning a verdict. Appellant’s counsel argues that when his associate counsel attempted to file the voluntary dismissal she was prevented from doing so by the trial judge. The record shows that the associate counsel had made an oral motion to dismiss the suit. Immediately prior to the jury returning its verdict the record states: "The Court: All right. Mrs. Berger, I have noted your oral motion. Ask the jury to come in, please. Mrs. Berger: Your Honor, can I file my brief? The Court: No. We are going to bring the jury in right now.”

Associate counsel for the appellant filed an affidavit which states in part: "I had the written notice of dismissal in my right hand which was outstretched as I was proceeding to hand the written notice of dismissal to the clerk and ask him to mark it filed, but when I was still some five or six feet from the clerk’s desk, Judge Etheridge said, 'All right, Mrs. Berger, I have noted your oral motion. Ask the jury to come in please.’ To which I respond.ed, with my hand still outstretched holding up the written notice of dismissal, 'May I file this please’ or words to that effect. The Judge answered, 'No. We are going to bring the jury in right now.’ ”

The record also- shows that the trial judge stated: "The Court: I’m very sorry. The court simply has no tender of any written motion.”

This court is bound by the contents of the transcript as certified to this court unless a change is made in the proper manner. Therefore, no written motion to dismiss having [692]*692been filed this appeal is affirmed. Code Ann. § 81A-141 (a) (Ga. L. 1966, pp. 609, 653).

Argued June 5, 1972— Decided June 19, 1972— Rehearing denied July 17, Shoob, McLain & Jessee, C. James Jessee, Jr., for appellants. T. M. Smith, Jr., Hunter S. Allen, Jr., for appellee.

Judgment affirmed.

Hall, P. J., and Pannell, J., concur.

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191 S.E.2d 618, 126 Ga. App. 691, 1972 Ga. App. LEXIS 1253, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shonson-v-bottomy-gactapp-1972.

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