Moore v. McNair, 245 S.E.2d 25 (Ga. Ct. App. 1978). · Go Syfert
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Moore v. McNair, 245 S.E.2d 25 (Ga. Ct. App. 1978). Cases Citing This Book View Copy Cite
18 citation events (6 in the last 25 years) across 2 distinct courts.
Strongest positive: Mize v. FIRST CITIZENS BANK & TRUST CO., INC. (gactapp, 2009-03-25)
Top citers, strongest first. 2 distinct citers.
discussed Cited as authority (rule) Mize v. FIRST CITIZENS BANK & TRUST CO., INC. (2×) also: Cited "see"
Ga. Ct. App. · 2009 · confidence medium
P. S. Indus., supra, 210 Ga. App. at 291 (1); Moore v. McNair. 4 Given these circumstances, “no claims remained upon which the court could grant summary judgment.” Moore, supra, 145 Ga. App. at 888.
discussed Cited "see, e.g." D.P.S. Industries, Inc. v. Safeco Insurance Co. of America (2×)
Ga. Ct. App. · 1993 · signal: see also · confidence low
See also Moore v. McNair, 145 Ga. App. 888 ( 245 SE2d 25 ) (1978) (holding that upon appellee’s failure to object to appellant’s voluntary dismissal, the “action,” including appellee’s counterclaim, was dismissed).
MOORE
v.
McNAIR Et Al.
55402.
Court of Appeals of Georgia.
Apr 19, 1978.
245 S.E.2d 25
William R. Parker, for appellant., Rich, Bass, Kidd, Witcher & Billington, Charles T. Bass, Casper Rich, for appellees.
Smith, Deen, Banke.
Cited by 8 opinions  |  Published
Smith, Judge.

Appellant filed this suit to recover on an oral contract for services, and appellees counterclaimed for the cancellation of certain liens. Appellees moved for summary judgment, and appellant then filed a written notice of dismissal pursuant to Civil Practice Act § 41 (a) (Code Ann. § 81A-141 (a)). Appellees made no objection to appellant’s voluntary dismissal. Subsequent to the dismissal, the trial court granted appellees’ motion for summary judgment. Appellant enumerates as error that grant. We reverse.

CPA § 41 (a) stipulates, in part, as follows: "Subject to the provisions of section 81A-123 (c), of section 81A-166, and of any statute, an action may be dismissed by the plaintiff, without order of court, by filing a written notice of dismissal at any time before verdict. If a counter claim has been pleaded by a defendant prior to the service upon him of the plaintiffs motion to dismiss, the action shall not be dismissed against the defendant’s objection unless the counterclaim can remain pending for independent adjudication by the court.” Upon appellees’ failure to object to appellant’s voluntary dismissal, which was properly written and filed under CPA § 41 (a), the "action,” including appellees’ counterclaim, became dismissed. That being the case, no claims remained upon which the court could grant summary judgment. The entry of summary judgment, therefore, was error.

Judgment reversed.

Deen, P. J., and Banke, J, concur. [*889] Argued March 1, 1978 Decided April 19, 1978 Rehearing denied May 12, 1978. William R. Parker, for appellant. Rich, Bass, Kidd, Witcher & Billington, Charles T. Bass, Casper Rich, for appellees.