Hancock v. Oates, 259 S.E.2d 437 (Ga. 1979). · Go Syfert
Hancock v. Oates, 259 S.E.2d 437 (Ga. 1979). Cases Citing This Book View Copy Cite
66 citation events (2 in the last 25 years) across 2 distinct courts.
Strongest positive: Enchanted Valley RV Park Resort, Ltd. v. Weese (gactapp, 1999-11-23)
Treatment trajectory · 1980 → 2026 · click a year to view as-of
1980 2003 2026
Top citers, strongest first. 24 distinct citers.
cited Cited as authority (rule) Enchanted Valley RV Park Resort, Ltd. v. Weese
Ga. Ct. App. · 1999 · confidence medium
“The burden is on him who asserts error to show it affirmatively by the record.” (Citations and punctuation omitted.) Hancock v. Oates, 244 Ga. 175, 176 ( 259 SE2d 437 ) (1979).
cited Cited as authority (rule) McGregor v. Stachel
Ga. Ct. App. · 1991 · confidence medium
Hancock v. Oates, 244 Ga. 175, 177 ( 259 SE2d 437 ) (1979); Memorial Med.
discussed Cited as authority (rule) Allen v. Thompson
Ga. Ct. App. · 1991 · confidence medium
“It should be remembered that an order of dismissal for failure to prosecute is discretionary and is subject to appellate review for abuse of discretion.” Hancock v. Oates, 244 Ga. 175, 176 ( 259 SE2d 437 ) (1979).
discussed Cited as authority (rule) First Union National Bank v. Cumberland Creek Country Club
Ga. Ct. App. · 1990 · confidence medium
Myers v. Mobil America Corp., 132 Ga. App. 331 ( 208 SE2d 169 ); Johnson v. Martin, 132 Ga. App. 813 ( 209 SE2d 256 ); Hancock v. Oates, 244 Ga. 175, 177 ( 259 SE2d 437 ).” Spivey v. Rogers, 167 Ga. App. 729 ( 307 SE2d 677 ).
cited Cited as authority (rule) Ragan v. Smith
Ga. Ct. App. · 1988 · confidence medium
Hancock v. Oates, 244 Ga. 175, 176 ( 259 SE2d 437 ) (1979).
cited Cited as authority (rule) Ward v. State
Ga. Ct. App. · 1988 · confidence medium
Appellant has the burden of showing error which has harmed him, and such error must be shown by the record (Hancock v. Oates, 244 Ga. 175, 176 ( 259 SE2d 437 )) and this cannot be done by the brief.
discussed Cited as authority (rule) Broadwater v. City of Danville
Ga. Ct. App. · 1987 · confidence medium
“For failure of the plaintiff to prosecute . . . , a defendant may move for dismissal of an action . . . [which] does not operate as an adjudication upon the merits. . . .” OCGA § 9-11-41 (b). “[A]n order of dismissal for failure to prosecute is discretionary and is subject to appellate review for abuse of discretion. [Cits.]” Hancock v. Oates, 244 Ga. 175, 176 ( 259 SE2d 437 ) (1979). “[A] dismissal for [failure to appear] should not be based solely on the absence of a party, but should be taken only after a full consideration of all circumstances. [Cits.]” Cohutta Mills v. Bunch…
discussed Cited as authority (rule) Cantrell v. RED WING ROLLERWAY, INC.
Ga. Ct. App. · 1987 · confidence medium
Those requested charges are not in the record, and we note in appellant’s notice of appeal that he specifically directed the clerk to omit: “Defendant’s Request to Charge filed June 2, 1986.” “ ‘The burden is on him who asserts error to show it affirmatively by the record.’ ” Hancock v. Oates, 244 Ga. 175, 176 ( 259 SE2d 437 ).
discussed Cited as authority (rule) Sheriff v. State
Ga. Ct. App. · 1987 · confidence medium
On appeal the burden is on appellant to show error (Brown v. Frachiseur, 247 Ga. 463, 464 ( 277 SE2d 16 )), and such error must be shown by the record (Hancock v. Oates, 244 Ga. 175, 176 ( 259 SE2d 437 )); this cannot be done in the brief.
discussed Cited as authority (rule) Travelers Indemnity Co. v. Schenden
Ga. Ct. App. · 1987 · confidence medium
Myers v. Mobil America Corp., 132 Ga. App. 331 ( 208 SE2d 169 ); Johnson v. Martin, 132 Ga. App. 813 ( 209 SE2d 256 ); Hancock v. Oates, 244 Ga. 175, 177 ( 259 SE2d 437 ).” Spivey v. Rogers, 167 Ga. App. 729 ( 307 SE2d 677 ).
cited Cited as authority (rule) Accurate Bonding Co. v. Ponder
Ga. Ct. App. · 1985 · confidence medium
Spyropoulos v. John Linard Estate, 243 Ga. 518, 519 ( 255 SE2d 40 ); Hancock v. Oates, 244 Ga. 175, 176 ( 259 SE2d 437 ); Maolud v. Keller, 153 Ga. App. 268 ( 265 SE2d 86 ).
discussed Cited as authority (rule) DeKalb County Teachers Federal Credit Union v. Citizens & Southern National Bank
Ga. Ct. App. · 1985 · confidence medium
Myers v. Mobil America Corp., 132 Ga. App. 331 ( 208 SE2d 169 ); Johnson v. Martin, 132 Ga. App. 813 ( 209 SE2d 256 ); Hancock v. Oates, 244 Ga. 175, 177 ( 259 SE2d 437 ).” Spivey v. Rodgers, 167 Ga. App. 729 ( 307 SE2d 677 ).
discussed Cited as authority (rule) Miller v. Grier
Ga. Ct. App. · 1985 · confidence medium
“There is a presumption in favor of the regularity and legality of all proceedings in superior court, Hancock v. Oates, 244 Ga. 175, 177 ( 259 SE2d 437 ) (1979); there is also a presumption that the clerk gave notice as required.
discussed Cited as authority (rule) Collier v. Rogers
Ga. Ct. App. · 1985 · confidence medium
Myers v. Mobil America Corp., 132 Ga. App. 331 ( 208 SE2d 169 ); Johnson v. Martin, 132 Ga. App. 813 ( 209 SE2d 256 ); Hancock v. Oates, 244 Ga. 175, 177 ( 259 SE2d 437 ).” Spivey v. Rogers, 167 Ga. App. 729 ( 307 SE2d 677 ).
cited Cited as authority (rule) Thigpen v. Johnson
Ga. Ct. App. · 1984 · confidence medium
We must take the record as we find it. “ ‘The burden is on him who asserts error to show it affirmatively by the record.’ ” Hancock v. Oates, 244 Ga. 175, 176 ( 259 SE2d 437 ).
discussed Cited as authority (rule) Concert Promotions, Inc. v. Haas & Dodd, Inc.
Ga. Ct. App. · 1983 · confidence medium
Moreover, the burden is upon defendant now, as appellant, to show that the trial court erred in this regard (see generally Hancock v. Oates, 244 Ga. 175, 176 ( 259 SE2d 437 )), and defendant has simply, once again, failed to meet its burden.
cited Cited as authority (rule) Spivey v. Rogers
Ga. Ct. App. · 1983 · confidence medium
Myers v. Mobil America Corp., 132 Ga. App. 331 ( 208 SE2d 169 ); Johnson v. Martin, 132 Ga. App. 813 ( 209 SE2d 256 ); Hancock v. Oates, 244 Ga. 175, 177 ( 259 SE2d 437 ).
cited Cited as authority (rule) Scott v. Morris Brown College
Ga. Ct. App. · 1982 · confidence medium
Hancock v. Oates, 244 Ga. 175, 177 ( 259 SE2d 437 ); Vaughan v. Car Tapes, Inc., 135 Ga. App. 178, 180 (3) ( 217 SE2d 436 ); Newman v. Greer, 131 Ga. App. 128, 129-130 ( 205 SE2d 486 ).
discussed Cited as authority (rule) Myers v. Department of Human Resources
Ga. Ct. App. · 1982 · confidence medium
Glenn Thomas, Jr., District Attorney, James A. Chamberlin, Jr., Assistant District Attorney, for appellee. “ ‘The burden is on him who asserts error to show it affirmatively by the record.’ ” Hancock v. Oates, 244 Ga. 175, 176 ( 259 SE2d 437 ).
cited Cited as authority (rule) Wrip, Inc. v. Sledger
Ga. Ct. App. · 1982 · confidence medium
Code Ann. § 6-701 (a) (2); Hancock v. Oates, 244 Ga. 175, 177 ( 259 SE2d 437 ); Ansaldi v. Dexter, 145 Ga. App. 557 ( 244 SE2d 98 ).
discussed Cited as authority (rule) MacDonald v. MacDonald
Ga. Ct. App. · 1980 · confidence medium
The certificate of the clerk shows that these documents “were *570 not omitted from the original record” but were filed at a later date. “ ‘The burden is on him who asserts error to show it affirmatively by the record.’ ” Hancock v. Oates, 244 Ga. 175, 176 ( 259 SE2d 437 ). “[I]t may not be done in an enumeration of error or by assertions appearing only in a brief.” Continental Nut Co. v. Savannah Bank & Trust Co., 142 Ga. App. 509, 513 ( 236 SE2d 501 ).
discussed Cited "see" State v. Abbott (2×)
Ga. · 2020 · signal: see · confidence high
See Hancock v. Oates, 244 Ga. 175, 176 ( 259 SE2d 437 ) (1979); see also 29 AmJur 2d Evidence § 222 (2020) (“When any judicial act is shown to have been done in a manner substantially regular it is presumed that the court complied with the formal requisites for its validity.”).
discussed Cited "see" Sammor v. Mayor of Savannah (2×)
Ga. Ct. App. · 1985 · signal: see · confidence high
See generally Hancock v. Oates, 244 Ga. 175, 176 ( 259 SE2d 437 ) (1979); Myers v. Dept. of Human Resources, 162 Ga. App. 885, 886 ( 293 SE2d 480 ) (1982). 2.
discussed Cited "see, e.g." Lankford v. Karkotsky (2×)
Ga. Ct. App. · 1984 · signal: see also · confidence medium
See also Hancock v. Oates, 244 Ga. 175, 176 ( 259 SE2d 437 ) (1979).
HANCOCK
v.
OATES (Two Cases)
35055, 35056.
Supreme Court of Georgia.
Sep 7, 1979.
259 S.E.2d 437
Donald B. Hanna, for appellant., Adams, Barfield & Dunaway, Tommy R. Hankinson, for appellee.
Marshall, Jordan.
Cited by 33 opinions  |  Published
Marshall, Justice.

The appellant filed a petition for revision of permanent alimony (Case No. 35055) and an application for attachment for contempt for failure to pay alimony (Case No. 35056). Rulés nisi set the hearing for March 2, 1979. On March 1,1979, the appellee filed an answer and a counterclaim for modification of visitation rights.

On March 2, 1979, the trial court entered orders as follows: "The above and foregoing matter having come on regularly to be heard on the 2nd day of March, 1979, pursuant to a rule nisi duly entered by the court and plaintiff having failed either to answer ready or to move for a continuance within three minutes of the call of the case; and defendant’s counsel having moved for a dismissal of plaintiffs complaint [in Case No. 35055; "motion” in Case No. 35056] for failure to either answer ready or move for a continuance within three minutes of the call of the case, it is ordered that the plaintiffs complaint [motion in Case No. 35056] is hereby involuntarily dismissed with prejudice as though there had been an adjudication on the merits thereof, and all costs thereof are hereby cast upon the plaintiff herein.”

On March 12,1979, the appellant filed motions to set aside the orders of dismissal, on the ground that she had requested at the time of filing of her pleadings to be[*176] notified of the civil action number and the date of the nisi hearing, and that she was not given this information until she received the mailed order of dismissal on March 12, 1979. The appellant asserts that no ruling has been made on these motions, and none appears in the record. The appeal is from the dismissal of the complaint and motion. Held:

The appellant argues in her brief that it was error for this case to be placed on the trial court calendar without notice to her under the provisions of Code Ann. § 81 A-140 (c) (Ga. L. 1966, pp. 609, 653; as amended).

" 'The burden is on him who asserts error to show it affirmatively by the record.’ Kemp v. State, 226 Ga. 506, 507 (175 SE2d 869) (1970).” Marshall v. State, 239 Ga. 101 (2) (236 SE2d 58) (1977). The record before us does not show whether notice was given to the appellant. The appellee evidently received notice, as he moved for dismissal for failure to prosecute the cases on the day of the hearing, pursuant to Code Ann. § 81A-141 (b) (Ga. L. 1966, pp. 609,653). "There is a presumption in favor of the regularity and legality of all proceedings in the superior court. This presumption of law cannot be rebutted by a direct appeal involving an issue of fact which has not been judicially determined by the trial court. Touchton v. Stewart, 229 Ga. 303 (190 SE2d 912) [1972]." Easterling v. Easterling, 231 Ga. 889 (3) (204 SE2d 610) (1974).

"However, this does not mean that the trial court is without authority to set aside the judgment or grant a new trial under Code Ann. § 81A-160 where the circumstances warrant such relief. It should be remembered that an order of dismissal for failure to prosecute is discretionary and is subject to appellate review for abuse of discretion. 9 Wright & Miller, Federal Practice and Procedure: Civil, p. 203, § 2370; 5 Moore’s Federal Practice 1125, ¶ 41.11[2]. A dismissal with prejudice for failure to prosecute should not be based solely on absence but on all the circumstances of the case. See Link v. Wabash R. Co., 370 U. S. 626, 634-635 (1962).” Spyropoulos v. John Linard Estate, 243 Ga. 518, 519 (255 SE2d 40) (1979). "[CJircumstances attending a purely ministerial act may be investigated, even though the person performing the act is a judicial officer. [Cit.] Thus, the trial court was[*177] authorized to determine whether the clerk properly sent notice of trial to plaintiffs counsel. And [if it] determined that plaintiffs counsel did not receive such notice, the court was empowered to grant a new trial.” Vaughan v. Car Tapes, Inc., 135 Ga. App. 178 (5) (217 SE2d 436) (1975).

Submitted June 22, 1979 Decided September 7, 1979. Donald B. Hanna, for appellant. Adams, Barfield & Dunaway, Tommy R. [*178] Hankinson, for appellee.

[*177] The trial judge would have been authorized under usual circumstances to have considered the plaintiffs motions to set aside as extraordinary motions for new trial, in ruling on which he would have had a sound legal discretion under Code § 70-208 to determine whether the non-appearance of the plaintiff or her counsel was for good cause, or whether plaintiffs counsel violated his duty of keeping advised as to the progress of the litigation. Vaughan v. Car Tapes, Inc., supra, (2), (3), (4). Thus, although there was no showing to explain the non-appearance of plaintiff and her counsel at the time of the dismissal of her complaint, the plaintiffs subsequent motions to set aside, although never ruled on, might have provided the vehicle by which the order of dismissal could have been reexamined.

In the present posture of the case, however, we cannot review the trial court’s actions in dismissing the complaint and failing to rule on the motions to set aside (the latter not having been enumerated as error). Where the defendant’s counterclaim is still pending in the trial court, the order of that court dismissing the main complaint against the defendant is not directly appealable. Absent proper certification from the trial judge, accompanied by an application for immediate review, the appeal is not subject to review by this court and is therefore premature. Ansaldi v. Dexter, 145 Ga. App. 557 (244 SE2d 98) (1978) and cits.

Appeals dismissed.

All the Justices concur, except Jordan, J., who dissents.