Dixon v. Minnesota Lumber Co. , 132 Ga. 347 ( 1909 )

Atkinson, J.

1. When, upon the call of a suit pending in the superior-court, neither party appeared, and, referring to the ease, the judge ■ merely made an entry on the trial docket, “November term, 1904, dismissed for want of prosecution,” and the ease was stricken from the docket, hut no order was ever taken, nor entry made on the minutes,, such entry by the judge, without more, was insufficient to accomplish a dismissal of the suit. Williams v. Rawlins, 33 Ga. 117 (10), 123. See also Greenfield v. Vason, 74 Ga. 126 (3).

(а) In a direct proceeding afterwards brought, attacking the validity of the entry and moving the court to re-enter the ease upon the docket, it affirmatively appearing from statements in the bill of exceptions,, duly certified, that no order of dismissal was. taken and entered upon the minutes of court, and that nothing else was done by the judge except as first above indicated, it was erroneous for the judge to refuse - to re-enter the case on the docket to he disposed of in accordance with law.

(б) Nothing said here is in conflict with the rulings made in Clark v. Western Union Tel. Co., 112 Ga. 633 (37 S. E. 870), Thornton v. Perry, 101 Ga. 608 (29 S. E. 24), and Armstrong v. Lewis, 61 Ga. 680. The-rulings there made dealt with the entry of the judge merely as evidentiary in character, and held that, there being no direct attack upon the entry and the recitals thereof being presumed to ho true, the entries could not be controverted in a collateral proceeding.

Judgment reversed.

All the Justices concur.