Hamilton v. Maslia

McMurray, Judge. The decision of this court reversing the judgment of the trial court (Hamilton v. Maslia, 140 Ga. App. 239 (230 SE2d 318)), having been reversed by the Supreme Court (Maslia v. Hamilton, 239 Ga. 52 (235 SE2d 485)), as to Division 2 and vacating Divisions 3 and 4 and the judgment, our decision is hereby vacated. Held: 1. As stated in Maslia v. Hamilton, 239 Ga. 52, supra, the motion to vacate and set aside the judgment and reinstate the case previously dismissed for want of prosecution was filed during the term and needed no rule nisi to preserve consideration during a subsequent term. Since the court retained full control over its orders and judgments, where not based on jury verdicts, during the same term, and preserved here by a motion for the court to set it aside, the judgment remained in the breast of the court for a hearing of the motion. See Division 1 of Hamilton v. Maslia, 140 Ga. App. 239 (1), supra. See also Pekor v. Clark, 236 Ga. 457, 458 (224 SE2d 30). There is no evidence as to this hearing before us, if evidence was considered at the hearing reinstating the case. The court did not err in reinstating the case previously dismissed for want of prosecution. 2. The defendant Hamilton having been absent at the regular call of the case on May 16,1975, the court did not err in striking his answer and rendering judgment against him on the issue of liability with the amount of damages to be determined by a jury. 3. There is no transcript of the evidence in the record as to the trial before a jury. Thus, we can make no determination as to whether or not the judgment which follows that verdict is correct. Jenkins v. Bd. of Zoning Appeals, 122 Ga. App. 412, 413 (2) (177 SE2d 204); King v. Cox, 130 Ga. App. 91, 92 (1, 2) (202 SE2d 216). Judgment affirmed. Smith and Birdsong, JJ., concur. William R. Parker, for appellant. Marvin P. Nodvin, William J. Dawkins, for appellees.