Boatright v. First National Bank of Alma , 166 Ga. App. 167 ( 1983 )

166 Ga. App. 167 (1983) 303 S.E.2d 506

BOATRIGHT
v.
FIRST NATIONAL BANK OF ALMA.

65348.

Court of Appeals of Georgia.

Decided April 4, 1983.

J. Laddie Boatright, for appellant.

Jimmy J. Boatright, for appellee.

SHULMAN, Chief Judge.

Appellee bank filed suit against appellant, seeking a writ of possession and a money judgment. After appellant filed an answer and posted a bond, the trial court ordered counsel for the parties to attend a pre-trial conference. Counsel for appellant did not attend the meeting and, upon appellee's motion, the trial court ordered appellant's answer dismissed, the writ of possession issued, and a money judgment for appellee entered. Appellant filed a motion to set aside the judgment or, in the alternative, a motion for new trial, which, after a hearing, was denied on July 15, 1982. This appeal followed.

1. "[T]he real question presented is what sanctions should attach to . . . the failure of counsel to attend a pre-trial conference previously set by order of the court . . . It, undoubtedly, must lie within the power of the court to impose appropriate sanctions to make effective its pre-trial orders . .. [N]o harsher sanctions should be imposed than are necessary to vindicate the court's authority . . . ``[T]he withdrawal from the defendant of the right to introduce any evidence in his own behalf bearing upon the issues of fact in the case seems drastic.'" Ambler v. Archer, 230 Ga. 281, 288 (196 SE2d 858).

We note initially that this is not a case in which counsel failed to appear when a case was sounded for trial and the three-minute rule was invoked. Code Ann. § 24-3341; Archer v. Monroe, 165 Ga. App. 674 (302 SE2d 583). Weeks v. Weeks, 243 Ga. 416 (254 SE2d 366); Scott v. W. S. Badcock Corp., 161 Ga. App. 826 (289 SE2d 769); and Turner v. T & T Oldsmobile, 154 Ga. App. 228 (267 SE2d 833), can be similarly distinguished: they are cases in which a plaintiff's failure to appear at a pre-trial hearing resulted in the dismissal of the complaint at the motion of the defendant, who was statutorily entitled to such a remedy under OCGA § 9-11-41 (b) (Code Ann. § 81A-141). A plaintiff, however, does not have a similar statutory weapon with which to inflict such punishment on a defendant for its failure to comply with an order of the court.

We think it is clear that striking appellant's answer and entering judgment against him was too harsh a sanction to impose upon him for his counsel's failure to appear at a pre-trial conference. "Such action unnecessarily punished the [client] for the supposed negligence of [his] counsel, and . . . resulted in the disposition of the case against [him] . . . Such a disposition resulted from considerations not related to the merits of the case. For these reasons, the judgment must be reversed." Ambler v. Archer, supra, p. 289.

2. In light of our disposition of this case in Division 1, appellant's remaining enumerations of error need not be considered.

Judgment reversed. McMurray, P. J., and Birdsong, J., concur.