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BANKE, Judge.
Action on contract. Putnam Superior Court. Before Judge Jackson.
The appellee sued the appellant on a contract in small claims court and won a judgment. The appellant appealed to the superior court. When the case was called for trial, neither the appellant nor his attorney answered. Therefore, upon the appellee's motion the appeal was dismissed for lack of prosecution. The appellant subsequently made a motion to set aside the superior court's dismissal of his appeal. The motion to set aside was denied by the superior court, and the appellant appealed. We hold that the court erred in denying the appellant's motion to set aside.
An appeal to the superior court from a small claims court is a de novo investigation. Although a default judgment may be entered on the primary cause of action under appropriate circumstances, the appeal itself may not be dismissed simply because of the absence of one of the parties to the cause. National Furniture Co. v. Edwards, 105 Ga. 240 (31 SE 161) (1898); Rose City Foods v. Usry, 86 Ga. App. 307 (1) (71 SE2d 649) (1952); Rousch v. Green, 2 Ga. App. 112 (58 SE 313) (1907).
H. M. Bartlett, pro se.
D. D. Veal, for appellant.
SUBMITTED JUNE 8, 1977 -- DECIDED JUNE 29, 1977.
Friday May 22 06:59 EDT

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