Moore v. McNair , 145 Ga. App. 888 ( 1978 )

145 Ga. App. 888 (1978) 245 S.E.2d 25

MOORE
v.
McNAIR et al.

55402.

Court of Appeals of Georgia.

Argued March 1, 1978. Decided April 19, 1978. Rehearing Denied May 12, 1978.

William R. Parker, for appellant.

Rich, Bass, Kidd, Witcher & Billington, Charles T. Bass, Casper Rich, for appellees.

SMITH, Judge.

Appellant filed this suit to recover on an oral contract for services, and appellees counterclaimed for the cancellation of certain liens. Appellees moved for summary judgment, and appellant then filed a written notice of dismissal pursuant to Civil Practice Act § 41 (a) (Code Ann. § 81A-141 (a)). Appellees made no objection to appellant's voluntary dismissal. Subsequent to the dismissal, the trial court granted appellees' motion for summary judgment. Appellant enumerates as error that grant. We reverse.

CPA § 41 (a) stipulates, in part, as follows: "Subject to the provisions of section 81A-123 (c), of section 81A-166, and of any statute, an action may be dismissed by the plaintiff, without order of court, by filing a written notice of dismissal at any time before verdict. If a counter claim has been pleaded by a defendant prior to the service upon him of the plaintiff's motion to dismiss, the action shall not be dismissed against the defendant's objection unless the counterclaim can remain pending for independent adjudication by the court." Upon appellees' failure to object to appellant's voluntary dismissal, which was properly written and filed under CPA § 41 (a), the "action," including appellees' counterclaim, became dismissed. That being the case, no claims remained upon which the court could grant summary judgment. The entry of summary judgment, therefore, was error.

Judgment reversed. Deen, P. J., and Banke, J., concur.