Freeman v. Ehlers

108 Ga. App. 640 (1963)

134 S.E.2d 530

FREEMAN v. EHLERS.

40414.

Court of Appeals of Georgia.

Decided November 13, 1963.

S. S. Robinson, E. E. Moore, Jr., for plaintiff in error.

Howard & Storey, James C. Howard, Albert T. Ehlers, Ben J. Smith, Jr., contra.

RUSSELL, Judge.

Ga. L. 1953, Nov. Sess., p. 342 (Code Ann. § 3-512) provides that as to all pending suits "in which no written order is taken for a period of five years the same shall automatically stand dismissed with costs to be taxed against the party plaintiff." Its provisions are mandatory. Bowen v. Morrison, 103 Ga. App. 632 (120 SE2d 57). Its purpose is to prevent the cluttering of court records with unresolved and inactive litigation. Lewis v. Price, 104 Ga. App. 473, 476 (122 SE2d 129). Where no order is taken, the dismissal results automatically. Dupriest v. Reese, 104 Ga. App. 805 (123 SE2d 161). An automatic dismissal is one which results as a matter of law from the occurrence of a condition specified in a statute or order of the court, and without any further action on the part of anybody. Cf. Coffee v. Foote, 66 Ga. App. 701 (18 SE2d 782), where it was held that a petition as to which an order had been entered that it stood dismissed unless amended within a given time, was automatically dismissed by the lapse of time and could not be revived by a subsequent amendment.

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 court in entering an order of dismissal thereon was a purely ministerial act. The trial court did not err, on a subsequent motion of counsel for the plaintiff to reinstate the case, in holding that the dismissal was mandatory and he had no discretion to order it reinstated. The plaintiff's remedy, provided he was not barred by the statute of limitation or some other cause, would be to bring the action over. City of Chamblee v. Village of North Atlanta, 217 Ga. 517 (123 SE2d 663).

Judgment affirmed. Felton, C. J., and Eberhardt, J., concur.