Keriaze v. National Bank

Birdsong, Judge. This case earlier appeared before this court (National Bank of Ga. v. Keriaze, 163 Ga. App. 652 (294 SE2d 688)); but on remand, when the case was called for trial on appellant’s counterclaim, the appellants failed to appear. The trial court dismissed the counterclaim. Held: Appellants contend the dismissal of their counterclaim was an abuse of discretion, in that the trial court failed to consider the circumstances of the case and hence failed to exercise any discretion at all, as in Spyropoulos v. John Linard Estate, 243 Ga. 518 (255 SE2d 40). However, unlike the case in Spyropoulos, the trial court granted a hearing on the appellants’ motion to set aside the dismissal judgment, and heard circumstances advanced for appellants’ failure to answer the call of the case. It is contended that the failure to appear was due either to a clerical error in the office of appellants’ attorneys, whereby in the shuffle of Christmas season holidays the pertinent calendar call publication in the DeKalb News Era was overlooked or confused with another weekly edition, or the failure of the attorneys to receive the publication, even though the evidence shows the notice was published. The trial court properly heard those arguments and evidence (see Sunn v. Mercury Marine, 166 Ga. App. 567 (1) (305 SE2d 6)) and ruled specifically that the court calendar was properly published, the attorneys were duly notified according to law, and failed to appear. This ruling was not a failure to exercise discretion, but an exercise of discretion against appellants. The ruling was authorized by the evidence and adheres to the law stated in Bragg v. Bragg, 225 Ga. 494, 496 (170 SE2d 29) concerning the fundamental duty of counsel to keep informed of the progress of cases. The lapse in this case, even though accidental and perhaps understandable, would in effect remove that duty if approved by the trial court. Judgment affirmed. Shulman, C. J., and McMurray, P. J., concur.