Kraft, Inc. v. Abad ( 1992 )

Clarke, Chief Justice.

Erma L. Abad, who lives in New York, was in an automobile accident with a vehicle driven by an employee of Kraft, Inc. She filed a personal injury action against Kraft in Fulton County. The case appeared on the trial calendar three times. Each of these calendars provided notice to plaintiff’s counsel that the case could be called for trial on that day. The third time the case was on the calendar, the case was reached. The trial court’s docket clerk had telephoned Abad’s attorney an hour before the case was reached. Abad was in New York recovering from abdominal surgery. Her attorney could not be reached by phone. Neither Abad nor her attorney appeared at the call of the case. The trial court heard evidence put forward by defendant Kraft and entered judgment in its favor. The Court of Appeals reversed, saying that under OCGA § 9-11-41 (b) (lack of prosecution) or Superior Court Rule 14 (failure to respond to calendar call) the trial court had only the authority to dismiss the action without prejudice. We granted certiorari and now reverse.

OCGA § 9-11-41 (b) and Superior Court Rule 14 both contain permissive language. Under either provision the court may dismiss an action without prejudice if the plaintiff fails to appear at the call of the case. Neither provision, however, exhausts the options available to the trial court under its authority to control its own docket and regulate the business of the court. Scocca v. Wilt, 243 Ga. 2 (252 SE2d 401) (1979). The rule and the statute simply allow the court to dismiss the action and restricts the dismissal to one without prejudice. It goes without saying that the trial court may elect to continue the case and set it for trial on another date. Alternatively, the court may go forward with the trial of the case as was done here. The judgment that is entered following such a trial is not a dismissal. It is a judgment like any other judgment that is subject to appeal, motion for new trial, or a motion to set aside under OCGA § 9-11-60.

Because we reverse on the above grounds, we do not address Kraft’s remaining arguments.

Judgment reversed.

All the Justices concur, except Benham, Fletcher and Sears-Collins, JJ., who dissent.