Holiday Inns, Inc. v. Page , 151 Ga. App. 55 ( 1979 )

Birdsong, Judge.

After the defendants answered the plaintiffs complaint, the plaintiff on September 12, 1978, filed a document signed by his counsel in the trial court which read as follows: "VOLUNTARY DISMISSAL WITH PREJUDICE 'Comes now, Plaintiff Michael Wayne Page, and dismisses this action against the Defendants above named with prejudice.’ ” (Emphasis supplied.)

On October 18, 1978, plaintiff moved for an order under CPA § 60 (g) (Code Ann. § 81 A-160 (g)) to correct an alleged clerical error in the voluntary dismissal previously entered by "substituting the word 'without’ for the word 'with’ wherever used . . .” In the alternative, plaintiff moved to set aside the Voluntary Dismissal. Plaintiffs counsel tendered his affidavit in support of the motion wherein he averred that he intended to voluntarily dismiss without prejudice; that he "instructed my secretary to draft a Voluntary Dismissal”; that the secretary drafted a Voluntary Dismissal which he signed without noticing that it was a dismissal with prejudice. The trial court granted the motion by amending the voluntary dismissal nunc pro tunc by substituting the word "without” for "with” wherever used therein. The defendants have appealed from this order. Held:

1. The trial court’s amendatory order was based on the discretionary power vested in it by CPA § 60 (g) (Code Ann. § 81A-160 (g)). It provides: "Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders.” The Supreme Court held in Smith v. Smith, 230 Ga. 238, 240 (196 SE2d 437) that ordinarily CPA § 60 (g), supra, should be used to modify or correct the record only "where the clerical error or omission is obvious on the face of the record.” There is an exception to this general rule where there has been a hearing on a motion to correct the judgment and the evidence compels the conclusion that the omission was in fact a clerical error. Smith v. Smith, supra; and Cagle v. Dixon, 234 Ga. 698 (217 SE2d 598). The error or omission here is not obvious on the face of the record. The voluntary dismissal filed by plaintiff shows in two glaring places that it was made "with prejudice,” which in law adjudicates the non-liability of these defendants to the plaintiff. Rowland v. Vickers, 233 Ga. 67 (209 SE2d 592). The exception to the general rule cannot apply. While there was a hearing on the motion, neither the face of the document nor the evidence compels the conclusion that the error was in fact a clerical error. The only evidence on the issue is contained in the affidavit of the counsel for plaintiff. He stated that he did not notice that the dismissal was drafted with the phrase "with prejudice.” Nowhere does he aver that his secretary prepared what she did not intend in drafting the document. Lastly, defendants do not concur or admit that a clerical error was made as was the case in Smith v. Smith, supra. The trial court abused its discretion in amending the voluntary dismissal under the authority of CPA § 60 (g), supra.

2. Plaintiffs voluntary dismissal with prejudice was made and filed without an order of court as provided by statute. See CPA § 41 (a) (Code Ann. § 81A-141 (a)). This dismissal by the spontaneous action of the plaintiff (a party to the suit) and the subsequent order of the court amending the plaintiffs personal choice to dismiss nunc pro tunc, were all entered during the same term of the Superior Court of Fulton County. Plaintiff contends that the case falls within the rule that a judgment, not based on the verdict of a jury, but on the act of a judge, remains in the breast of the court during the term in which it is rendered, and in the exercise of a sound discretion the judge may set it aside. Martin v. General Motors Corp., 226 Ga. 860 (178 SE2d 183). Plaintiff argues that his voluntary act in dismissing this suit is technically a judgment as it adjudicates the merits of his claim and therefore would come within this rule. A judgment has been defined as the official and authentic decision of a court on respective rights and claims of parties to an action therein litigated and submitted for its determination. Oxford v. Generator Exchange, 99 Ga. App. 290 (108 SE2d 174). The facts here show that plaintiff invoked no ruling of a trial judge or court when he filed his voluntary dismissal. The act for which he seeks correction was of his own making and not that of a judge which had been submitted to him for determination. Consequently, it cannot be held that the voluntary dismissal by a party under these facts would be elevated to the dignity of a judgment simply because it had the accompanying legal effect of adjudicating the merits of the claim. Moreover, it would appear that the purpose of CPA § 41 (a) is to allow a plaintiff to withdraw a pending action from the bosom of the court thereby obviating the requirement for a ruling thereon by the court. Therefore, this case does not fall within the foregoing rule relative to the setting aside of a judgment within the same term of court. This applies equally to the codified rule found in Code § 24-104 (6), that a court has inherent power to amend and control its processes and orders. But even if the dismissal here was a judgment, the rule authorizing a court to set aside a judgment during the term in which it is rendered is a discretionary power and may be exercised only where a meritorious reason has been shown. Hicks v. Hicks, 226 Ga. 798 (177 SE2d 690). The only reason advanced is the clerical error concept which we have previously rejected.

Submitted April 4, 1979 Decided July 16, 1979 Rehearing denied July 30, 1979 Lokey & Bowden, Glenn Frick, Robert P. Bleiberg, for appellants. Scheer & Eisner, Robert A. Eisner, for appellee.

Judgment reversed.

Quillian, P. J., Shulman, and Banke, JJ., concur. McMurray, P. J., concurs in the majority opinion and also concurs specially. Deen, C. J., Smith, Underwood and Carley, JJ., dissent..