Barkett v. Jones

Shulman, Judge. In 1975, Barkett, et al. (hereinafter Barkett), brought suit against Jones, et al. (hereinafter Jones), under a lease. That action was subsequently dismissed for want of prosecution. The dismissal was occasioned by the failure of Barkett or counsel to answer the call of the calendar and was evidenced by a standard dismissal stating that the case was "... dismissed without prejudice for want of prosecution. . .” Barkett later filed the same suit again. Upon a plea of res judicata made by Jones, the complaint was dismissed. It is from that dismissal that Barkett appeals. Subsequent to the second dismissal, Jones made a motion to correct the record, alleging that the original dismissal should have been with prejudice. That motion, as amended, was based on Code Ann. § 24-104 (6). Jones appeals the denial of his motion. 1. The first order of dismissal clearly states that it is without prejudice. Such a dismissal is not an adjudication on the merits (Code Ann. § 81A-141; Bowman v. Ware, 133 Ga. App. 799 (3) (213 SE2d 58)), and is not a bar to a second suit. Douglas v. Douglas, 238 Ga. 452, 453 (233 SE2d 195). The dismissal of Barkett’s second complaint was, therefore, error and requires reversal of that order. 2. The power given trial judges by Code Ann. § 24-104 (6) is to be used or withheld at their discretion. This court will not interfere with the exercise of that [836] discretion "... unless it is made to appear that wrong or oppression has resulted from its abuse.” Carr v. State, 76 Ga. 592 (2c). We cannot say from the record before us that the court abused its discretion in denying Jones’ motion to correct the record. The judge’s denial of the motion must, therefore, be affirmed. Argued April 11, 1977 Decided May 13, 1977 Rehearing denied July 14, 1977. Charles B. Rice, Alford Wall, for Barkett et al. George C. Finch, for Jones et al. Judgment reversed in 53718 and affirmed in 53846. Bell, C. J., Deen, P. J., Webb, Marshall, Smith and Banke, JJ., concur. Quillian, P. J., and McMurray, J., dissent.