Hobgood v. Neely

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139 Ga. App. 135 (1976)

228 S.E.2d 30



Court of Appeals of Georgia.

Argued June 8, 1976.

Decided June 22, 1976.

William Jonathan Murray, for appellant.

Lee R. Williams, Garland T. Byrd, for appellees.

PANNELL, Presiding Judge.

Where a trial judge orally announces the sustaining of a defendant's motion for summary judgment, and prior to the reduction of said ruling to writing and its filing with the clerk of the court below, the complainant appellant, on the same day the oral ruling is made files with the clerk of the court below his voluntary dismissal of his complaint under Section 41 (a) of the Civil Practice Act (Ga. L. 1966, pp. 609, 653; Code Ann. ยง 81A-141 (a)) the voluntary dismissal is effective and controlling, and the *136 subsequent reduction of the ruling to writing and the filing thereof with the clerk was nugatory. See Wilson v. Matthews, 120 Ga. App. 284 (170 SE2d 346); Garrett v. Panacon Corp., 130 Ga. App. 641, 645 (2) (204 SE2d 354). While the statement in the latter case quoting the position here taken, was obiter dictum, we think it is a correct statement of the law.

While the written order subsequently entered was ambiguous as to whether it was reduced to writing before or after the proper filing of the notice of dismissal, the appellee, in its brief, concedes it was reduced to writing and entered subsequent thereto. The notice of dismissal being controlling rather than the subsequently entered order sustaining the defendant's motion for summary judgment, the judgment is reversed.

Judgment reversed. Marshall and McMurray, JJ., concur.