The appellant and appellees are siblings. In January 1992, the appellees filed a suit in equity against appellant and a number of other relatives, seeking a decree of title to certain real property in which the mother of appellant and appellees had an interest. Appellant answered the complaint, and counterclaimed for sums which he maintained he had expended as administrator of his mother's estate. However, the appellant and other named defendants failed to appear when the case was called for trial. The trial court entered an order granting a default judgment in favor of the appellees, and dismissing with prejudice the appellant's counterclaim.
Nearly seven months later, the appellant filed a motion to set aside the judgment of the trial court, alleging that non-amendable defects appeared on the face of the record. OCGA 9-11-60
(d). The trial court denied the motion, and we granted appellant's application to appeal, OCGA 5-6-35
(a) (8), to consider the sole issue of whether the motion to set aside should have been granted on the ground that the trial court erred in dismissing appellant's counterclaim with prejudice.
Under Uniform Superior Court Rule 14, the trial "court may dismiss without prejudice any civil action . . . upon the failure to properly respond to the call of the action for trial. . . ." (Emphasis supplied.) Pursuant to OCGA 9-11-41
(b) and (c), the dismissal of a counterclaim "for failure . . . to prosecute does not operate as an adjudication upon the merits. . . ." These authorities restrict the dismissal of an action for failure to appear at the call of the case "to one without prejudice." Kraft, Inc. v. Abad, 262 Ga. 336 (417 SE2d 317) (1992)
Adams & Hemingway, W. W. Hemingway, F. Bradford Wilson, Jr., for appellees.