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DIAL v. TURNER et al.
BANKE, Chief Judge.
Court costs. Chatham Superior Court. Before Judge Cheatham.
On September 12, 1985, the trial court granted a summary judgment motion filed by the defendants/appellees based on plaintiff/appellant's failure to appear for oral argument on the motion or to file a responsive brief or affidavits. Appellant moved to set aside the judgment, contending that his counsel had been granted a leave of absence which was in effect at the time of the hearing. Although the request for leave was not in compliance with the Uniform Rules of Superior Courts, Rule 16, the trial court nonetheless, in an order dated October 25, 1985, set aside the judgment, allowing appellant 10 days to file a response and scheduling a second hearing for November 12, 1985. Counsel for appellant also failed to appear at this hearing, however; and the trial court consequently reinstated its order of September 12, 1985, granting summary judgment to the defendants.
The notice of appeal in this case was filed on October 10, 1985, between the time the appellant moved to set aside the original grant of summary judgment and the time that motion was granted. On October 30, 1985, the appellant was notified by the clerk's office of the costs of preparing the record for the appeal. On December 12, 1985, appellee filed a motion to dismiss the appeal for nonpayment of costs pursuant to OCGA 5-6-48. This appeal is from the grant of that motion. Held:
Baird, 232 Ga. 81(205 SE2d 273) (1974). Furthermore, it appears that the appeal was moot in any event, in view of the fact that the judgment appealed from had been set aside by the trial court.
2. There appearing to have been no reasonable ground upon which to anticipate reversal of the trial court's decision, a penalty in the amount of $300 is hereby assessed against the appellant pursuant to Rule 26 (b) of this court for filing a frivolous appeal. The trial court is hereby directed to enter judgment in favor of the appellee in said amount.
Owen Page, for appellees.
Robert M. Ray, Jr., for appellant.
Thursday May 21 14:57 EDT

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