Thomas v. Bartlett

Court of Appeals of Georgia

Thomas v. Bartlett

237 S.E.2d 7, 142 Ga. App. 694, 1977 Ga. App. LEXIS 1408

CourtCourt of Appeals of Georgia

DecidedJune 29, 1977

Docket54024

StatusPublished

Cited by1 cases

This text of 237 S.E.2d 7 (Thomas v. Bartlett) 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.

Bluebook

Thomas v. Bartlett, 237 S.E.2d 7, 142 Ga. App. 694, 1977 Ga. App. LEXIS 1408 (Ga. Ct. App. 1977).

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Opinion

Banke, Judge.

The appellee sued the appellant on a contract in small claims court and won a judgment. The appellant appealed to the superior court. When the case was called for trial, neither the appellant nor his attorney answered. Therefore, upon the appellee’s motion the appeal was dismissed for lack of prosecution. The appellant subsequently made a motion to set aside the superior court’s dismissal of his appeal. The motion to set aside was denied by the superior court, and the appellant appealed. We hold that the court erred in denying the appellant’s motion to set aside.

An appeal to the superior court from a small claims court is a de novo investigation. Although a default judgment may be entered on the primary cause of action under appropriate circumstances, the appeal itself may not be dismissed simply because of the absence of one of the parties to the cause. National Furniture Co. v. Edwards, 105 Ga. 240 (31 SE 161) (1898); Rose City Foods v. Usry, 86 Ga. App. 307 (1) (71 SE2d 649) (1952); Rousch v. Green, 2 Ga. App. 112 (58 SE 313) (1907).

Judgment reversed.

Quillian, P. J., and Shulman, J., concur. D. D. Veal, for appellant. H. M. Bartlett, pro se.

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Banke, Judge.

The appellee sued the appellant on a contract in small claims court and won a judgment. The appellant appealed to the superior court. When the case was called for trial, neither the appellant nor his attorney answered. Therefore, upon the appellee’s motion the appeal was dismissed for lack of prosecution. The appellant subsequently made a motion to set aside the superior court’s dismissal of his appeal. The motion to set aside was denied by the superior court, and the appellant appealed. We hold that the court erred in denying the appellant’s motion to set aside.

An appeal to the superior court from a small claims court is a de novo investigation. Although a default judgment may be entered on the primary cause of action under appropriate circumstances, the appeal itself may not be dismissed simply because of the absence of one of the parties to the cause. National Furniture Co. v. Edwards, 105 Ga. 240 (31 SE 161) (1898); Rose City Foods v. Usry, 86 Ga. App. 307 (1) (71 SE2d 649) (1952); Rousch v. Green, 2 Ga. App. 112 (58 SE 313) (1907).

Judgment reversed.

Quillian, P. J., and Shulman, J., concur. D. D. Veal, for appellant. H. M. Bartlett, pro se.

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Bluebook (online)

237 S.E.2d 7, 142 Ga. App. 694, 1977 Ga. App. LEXIS 1408, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomas-v-bartlett-gactapp-1977.

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