Bowen v. Morrison , 103 Ga. App. 632 ( 1961 )

103 Ga. App. 632 (1961) 120 S.E.2d 57

BOWEN, Trustee
v.
MORRISON.

38829.

Court of Appeals of Georgia.

Decided May 8, 1961.

Zachary & Hunter, W. E. Zachary, for plaintiff in error.

Sheats, Parker & Webb, Guy Parker, contra.

EBERHARDT, Judge.

On September 21, 1954, Mrs. Ann Morrison filed an action for damages in DeKalb Superior Court against James O. Bowen, as trustee for Margaret Elizabeth Bowen et al, Defendants filed their demurrer and answer on October 9, 1954, and thereafter on August 29, 1955, plaintiff filed an amendment to the petition, which was allowed by order of court subject to objection or demurrer. The case was continued from time to time, but no further written order was made or entered therein, and on February 14, 1961, defendants moved that an order of dismissal be entered by the court pursuant to the provisions of Ga. L. 1953, Nov. Sess., pp. 342, 343 (Code § 3-512). The motion to dismiss was overruled and defendants excepted. Held:

The provisions of Code § 3-512 that any suit filed in the courts of this State in which no written order is taken for a period of five years shall automatically stand dismissed are mandatory. While it is true that this section does provide that "for the purposes of this section an order of continuance will be deemed an order," such an order, to avoid the automatic dismissal, must have been reduced to writing and entered in the record.

Judgment reversed. Carlisle, P. J., and Nichols, J., concur.