Simpson v. Brock

Lumpkin, P. J.

The case of Brock against Simpson came on to be heard in the superior court of Haralson county, was dismissed, and, during the same term, over the defendant’s objection, reinstated. The motion to reinstate was based on the grounds that the case was called out of its order for trial, that the plaintiff, for reasons assigned, was unavoidably absent, and that because of his absence his counsel was unable to prove certain facts essential to the maintenance of his action. It affirmatively appears, however, that the case was dismissed “ on motion of plaintiff’s counsel.” It is inferable that counsel took this step in order to prevent a verdict for the defendant. The fact nevertheless remains that the act of dismissing the case was that of the plaintiff’s own counsel; and this being so, it is obvious that the court had no authority to reinstate the case over the defendant’s objection. Had the court improperly dismissed the action, the question would be entirely different; but the plaintiff, through his counsel, having taken his own case out of court, whether for a good reason or a bad one, the matter was at an end, and the judge had no further power over it.

Judgment reversed.

All the Justices concurring.