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Lawskills.com Georgia Caselaw
NORTON v. BRADY et al.
48578.
DEEN, Judge.
Dismissal of action. Rockdale Superior Court. Before Judge Hubert.
This appeal arises out of action of the trial court in sustaining appellee's motion to dismiss appellant's complaint based on the ground that no written order was taken or filed and entered of record for a period of over five years. Held:
1. Upon examination of the record in this case it appears that no order was entered or filed between October 3, 1964, and October 3, 1969. "Any suit in which no written order is taken for a period of five years shall automatically stand dismissed with costs to be taxed against the party plaintiff." Code Ann. 3-512 and 81A-141 (e). Any action of the clerk of the court as to marking the case dismissed is ministerial, as the dismissal is automatic on the expiration of five years. "The Act is mandatory. It places upon a plaintiff who wishes to avoid an automatic dismissal of his case by operation of law a duty to obtain a written order of continuance or other written order at some time during a five year period and to make sure the same is entered in the record." (Emphasis supplied.) Swint v. Smith, 219 Ga. 532 (1) (134 SE2d 595). "The present suit having been pending, without any written order taken therein, for over five years after the effective date of Code Ann. 3-512 was automatically dismissed by operation of law, and the action of the clerk of the court in entering an order of dismissal thereon was a purely ministerial act." Freeman v. Ehlers, 108 Ga. App. 640 (134 SE2d 530). In Butler v. Claxton, 221 Ga. 620 (146 SE2d 763), the record disclosed no written orders between December 10, 1955, and December 10, 1960, and the court held the case automatically dismissed on the last date.
3. Appellant's contention as to the applicability of res judicata is without merit.
The trial court did not err in sustaining the motion to dismiss.
Smith, Cohen, Ringel, Kohler Martin & Lowe, Fred W. Ajax, Jr., for appellees.
C. C. Perkins, for appellant.
ARGUED SEPTEMBER 12, 1973 -- DECIDED SEPTEMBER 27, 1973.
Friday May 22 13:40 EDT


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