Jones v. Rich's Division of Federated Department Stores, Inc.

Benham, Judge. Appellant brought suit against appellee for malicious prosecution, but the action was dismissed for want of prosecution. This appeal follows the above dismissal. On June 20, 1983, the legal newspaper of DeKalb County published a trial calendar for Judge Keegan Federal for the week of July 11, 1983. The present action appeared on the calendar and the attorneys for both parties were put on one-hour call. On the morning of July 13, 1983, the trial court notified the attorneys that the case would be called for trial at 11:00 a.m. The office of appellant’s counsel called appellant and told him that his attorney was at a doctor’s office but that appellant was to attend the trial alone. Appellant contacted his attorney at the doctor’s office, and the attorney told appellant that he had been in an automobile accident and that he would “get in [688] touch with the Judge, later.” However, appellant’s counsel failed to contact Judge Federal or any member of his staff before the case was called for trial. When appellant told the trial court what had transpired, Judge Federal called a recess and telephoned appellant’s counsel at the doctor’s office. Counsel explained that he had been in an automobile accident on June 5, 1983, and that he was still under a doctor’s care. He admitted that he would probably have to withdraw from the present case. Decided April 11, 1984. Sampson Oliver, Jr., for appellant. Ben Kingree III, for appellee. Because of the failure of appellant’s counsel to contact the court concerning his absence and the fact that he had acted similarly on prior occasions, the trial court denied appellant’s motion for continuance and dismissed the case for want of prosecution. We conclude from the foregoing facts that the trial court did not abuse its “sound legal discretion”; therefore, there is no error in the trial court’s denial of appellant’s motion for continuance. Turner v. Nat. Bank of Walton County, 160 Ga. App. 165 (2) (286 SE2d 500); Hill v. Jackson, 147 Ga. App. 704 (250 SE2d 7); OCGA § 9-10-167. Judgment affirmed. Banke, P. J., and Pope, J., concur.