Simmerson v. Blanks , 183 Ga. App. 863 ( 1987 )

Banke, Presiding Judge,

dissenting.

I must dissent, as I believe that the majority’s decision does not protect the plaintiff from manifest injustice but instead results in manifest injustice to the defendant, who is now faced with defending a suit which has been pending for over 10 years, yet in which the only substantive action taken by the plaintiff has been the filing of the complaint.

The majority neglects to mention that, although the plaintiff’s ex parte motion for continuance was ostensibly predicated on his counsel’s intention to withdraw from his representation of the plaintiff and the consequent need to allow the plaintiff an opportunity to secure replacement counsel, counsel never in fact withdrew but has continued to represent the plaintiff up to and throughout this appeal. “The five-year rule was intended to prevent long delays before trial, not to facilitate such delays. [Cit.]” Jefferson v. Ross, 250 Ga. 817, 819 (301 SE2d 268) (1983). There being ample basis in this case for a finding that the plaintiff sought the ex parte continuance order solely for the purpose of avoiding the effect of the 5-year automatic dismissal rule and for no other bona fide purpose connected with the litigation, I would hold that the trial court did not abuse its discretion in revoking the continuance order and granting the defendant’s motion to dismiss the complaint.

I am authorized to state that Presiding Judge Deen, Presiding Judge McMurray, and Judge Beasley join in this dissent.