Rothstein v. DeKalb County Hospital Authority

Banke, Judge.

This is an appeal from a judgment entered on a jury verdict in favor of the plaintiff/appellee in a suit on account. The appellee had previously been awarded a default judgment due to the appellant’s failure to appear at a calendar call; however, that judgment was reversed in Rothstein v. DeKalb County Hosp. Auth., 153 Ga. App. 69 (264 SE2d 550) (1980), because at the time the case was called for trial a hearing was scheduled on a motion for summary judgment filed by the appellant. In this final appeal, the appellant complains that despite our prior ruling, the trial court proceeded with the trial of the case without giving him a hearing on his motion for summary judgment. Held:

This court’s prior ruling was not that a hearing on the motion for summary judgment was an absolute prerequisite to the trial of the case but merely that the trial court could not call the case for trial and enter a default judgment against the appellant for non-appearance when a hearing was still scheduled on his motion for summary judgment. The judgment before us now was not entered by default but upon a jury verdict which followed a trial at which the appellant presumably was present and able to present all his defenses.

There is no transcript before us and thus no indication that the appellant moved for a continuance on the ground that his motion for summary judgment had not been heard. Under these circumstances, we cannot hold the lower court in error for trying the case. In any event, it does not appear from the record that the motion for summary judgment was meritorious and, even if it was, and even had the trial court erroneously denied it, that ruling would not have constituted a ground for reversal after the case had been tried. See Preferred Risk Mut. Ins. Co. v. Thomas, 153 Ga. App. 154 (264 SE2d 662) (1980).

Submitted September 3, 1980 Decided October 2, 1980. Herman Rothstein, pro se. Bruce W. Baggerly, Jr., for appellee.

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.