Vanderbreggen v. Hodge , 171 Ga. App. 868 ( 1984 )

Benham, Judge,

dissenting.

I respectfully dissent from Division 2 of the majority opinion, which reverses the trial court’s decision granting the voluntary dismissal of plaintiff’s complaint.

The record clearly shows that appellee tendered his written motion to the court before the jury returned its verdict and before the parties knew what the verdict would be. At that point, appellee was entitled to have his motion filed and the case dismissed; had he handed the motion directly to the clerk of court, there is no doubt that the case would have been over.

“A voluntary dismissal under Code Ann. § 81A-141 (a) [OCGA § 9-11-41 (a)] is a matter of right and terminates the action.” Page v. Holiday Inns, 245 Ga. 12 (262 SE2d 783) (1980). It is also clear that while the trial judge may permit papers to be filed with him, he is not required to do so. OCGA § 9-11-5 (e); see Smith v. Forrester, 145 Ga. App. 281 (243 SE2d 575) (1978). It is equally clear that a plaintiff has a right to file a voluntary dismissal in writing before knowledge or publication of a jury’s verdict, without court order. OCGA § 9-11-41 (a); Seaboard Air Line R. Co. v. Whitman, 107 Ga. App. 375 (130 SE2d 272) (1963). The question succinctly put becomes: How can one reconcile a plaintiff’s right to file for dismissal with the judge’s right to exercise discretion in accepting the motion for filing? In the case sub judice, the answer must be that the plaintiff’s right is superior to the judge’s exercise of discretion. A fortiori, the trial judge exercised his discretion in a manner consistent with plaintiff’s right, and in the absence of a showing of an abuse of discretion, the decision of the trial court should be affirmed.

In light of the exigencies of the situation, it was reasonable for appellee to tender the dismissal to the court for filing and to expect that it would be accepted. However, not only did the judge decline to accept the motion for filing, he did not return it to appellee, thus completely preventing him from effecting a filing with the clerk. “By the use of various procedures the plaintiff was prevented from voluntarily dismissing [his] suit just prior to the jury returning its verdict. The solution should not be a technical skirmish between counsel and the trial judge.” Shonson v. Bottomy, 126 Ga. App. 691, 692 (191 SE2d 618) (1972), concurring opinion; affd. 230 Ga. 188 (196 SE2d 135) (1973). The instant case is distinguished from Shonson in that in the Shonson case, plaintiff did not tender a written dismissal, but merely made an oral motion to dismiss before the jury returned the verdict.

Under the circumstances of this case, to disallow the filing would not be consistent with principles of substantial justice. Mundt v. Olson, 155 Ga. App. 145 (270 SE2d 344) (1980). I would affirm the decision of the trial court in allowing the dismissal.

I am authorized to state that Presiding Judge Deen and Judge Carley join me in this dissent.