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NICHOLS, Chief Justice.
Action to set aside judgment. Turner Superior Court. Before Judge Gray.
Helena Chemical Company filed an equitable complaint to set aside a judgment of dismissal for want of prosecution. After hearing the trial court found that the judgment should be set aside due to accident and mistake without negligence or fault to the plaintiff.
This case began when Helena Chemical Company filed suit against appellant on an open account. Appellant answered and the case was placed on the trial calendar. Counsel for both parties entered into negotiations toward a compromise offer. When appellant's counsel could not get in touch with his client, he informed Helena's counsel that there would be no offer of compromise and that he would dismiss the defensive pleadings and allow Helena to take a judgment on the pleadings. When the case was called, appellant's counsel withdrew from the case and reasoned that after withdrawal he did not have authority to dismiss the defensive pleadings. The trial court on its own motion entered an order of dismissal for want of prosecution on the following day. Helena's counsel was not informed of this action until sometime later.
"Where by acts and statements of a defendant a plaintiff is misled into the belief that the defendant will not resist the plaintiff's claim, and he, acting under this belief, fails to appear and prosecute his claim, as he would have done but for these statements of the defendant, it would be unconscionable to allow the defendant to take advantage of the plaintiff's absence and have a decree entered in his favor which concluded for all time the plaintiff's right to enforce his claim." Bigham v. Kistler, 114 Ga. 453, 456 (40 SE 303) (1901). The trial court did not err in setting aside its former judgment of dismissal for want of prosecution.
Cheryle T. Bryan, for appellant.
ARGUED JUNE 13, 1977 -- DECIDED JUNE 20, 1977.
Friday May 22 07:05 EDT

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