Gulf Oil Corp. v. Pentecost , 133 Ga. App. 651 ( 1975 )

Pannell, Presiding Judge.

Plaintiff Pentecost brought an action sounding in tort on January 18, 1971, and defendant answered on February 17, 1971. A jury trial on April 7, 1972, twice resulted in a mistrial on that date. On April 25, 1972, plaintiffs attorney withdrew from the case, notifying both plaintiff and the court. The case was placed on the trial calendar for October 13,1972. At the sounding of the calendar on that date, no announcement having been made on behalf of the plaintiff, the court dismissed the action for want of prosecution. On December 18, 1972, plaintiff, through his new attorney, filed a consolidated motion to set aside the judgment and motion for a new trial, which motions were denied on March 23, 1973. Plaintiff then filed a new action on April 6,1973, identical to that raised in the case filed on January 18, 1971. Defendant moved for summary judgment, and after a hearing, the motion was denied on April 30, 1973. The case is now before us on certificate for immediate review. Held:

Argued October 3, 1974 Decided January 6, 1975. Neely, Freeman & Hawkins, William Q. Bird, for appellant. Andrew J. Hairston, for appellee.

1. Appellant, Gulf Oil Corporation, initially enumerates as error that the trial court failed to grant its motion for summary judgment because the dismissal of the first suit was res judicata. We think that decision in t.bis case is controlled by the decisions of this court in the cases of Old South Investment Co. v. Aetna Insurance Co., 124 Ga. App. 697 (185 SE2d 584); Zaun v. Nobles, 128 Ga. App. 846 (198 SE2d 326); Krasner v. Verner Auto Supply, 130 Ga. App. 892 (204 SE2d 770). There, as here, the dismissal for failure to prosecute was involuntary and on the court’s own motion under the Civil Practice Act, Section 41 (b) (Code Ann. § 81A-141 (b)), with the trial court not specifying that the dismissal was without prejudice. Accordingly, in the case sub judice, the dismissed suit is res judicata as to the present suit and the trial court erred in denying defendant’s motion for summary judgment.

2. The remaining enumerations of error are controlled adversely to appellee by our decision herein.

Judgment reversed.

Evans and Webb, JJ., concur.