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Lawskills.com Georgia Caselaw
LUMPKIN v. GUTHRIE.
45986.
EBERHARDT, Judge.
Action on contract. Gwinnett State Court. Before Judge Cheeley.
The oral motion to dismiss, and the order granting it, were made pursuant to CPA 41 (b) (Code Ann. 81A-141 (b)). See Todd v. Waddell, 120 Ga. App. 20, 22 (169 SE2d 351). However, such a motion is authorized only "[a]fter the plaintiff . . . has completed the presentation of his evidence . . .," and not before. CPA 41 (b) (Code Ann. 81A-141 (b)). In the instant case plaintiff was not allowed to complete his evidence, and the judgment of dismissal must be reversed and remanded with direction that plaintiff be allowed to present his case. See 5 Moore's Federal Practice 1151, 41.13[2]. After plaintiff has completed the presentation of his evidence, defendant may then make his CPA 41 (b) motion if he so desires.
H. Rhodes Jordan, for appellee.
Lewis M. Groover, Jr., for appellant.
SUBMITTED MARCH 8, 1971 -- DECIDED JUNE 15, 1971.
Friday May 22 16:00 EDT


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