MASLIA et al. v. HALL et al., 121 Ga. App. 740

Deen, Judge.

A prior action by these plaintiffs against these defendants on substantially the same cause of action was dismissed by the plaintiffs on October 20, 1965, following an order by the trial court entered October 13, 1965, as follows: “Paragraphs 1 and 2 of said [general] demurrer are hereby sustained; Paragraphs 3, 4, 5, 6 and 7 of said demurrer are hereby overruled; plaintiff is allowed 20 days in which to amend.” We do not agree with the defendants that this is a bar to the bringing of the present action, which was filed in May 1968, at which time there was in effect Code Ann. § 81A-141 as follows: “An action may be dismissed by the plaintiff, without order of court, by filing a written notice of dismissal at any time before verdict. . .

A dismissal under this paragraph is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has twice dismissed in any court an action based on or including the same claim.” The same result is reached under former Code § 3-510 because the order sustaining the demurrer to the previous suit with time to amend left the suit pending in the court until the 20 days for amendment had expired. Even an oral order of dismissal, until reduced to writing and signed by the trial judge, does not operate as a dismissal. Hughes v. Feagin & Hancock, 23 Ga.

App. 667 (99 SE 232); Athens Apt. Corp. v. Hill, 156 Ga. 437 (1) (119 SE 631). Nothing to the contrary is held in Peacock Constr. Co. v. Chambers, 223 Ga. 515 (156 SE2d 348), where for purposes of appeal one against whom a demurrer has been sustained with leave to amend is given the option whether to consider the date of the order as the date of a final judgment and appeal within 30 days thereafter, or to treat the case as pending and amend, or to treat the case as pending until the expiration of the time allowed for amendment and appeal within 30 days thereafter.

The losing party here treated the case as pending and during the time allowed for amending voluntarily dismissed it, which he had a right to do. As to the merits of the complaint as shown by the affidavits of the parties, a jury question may well be presented on the question of whether or not the plaintiffs, by failing to remove their property before the deadline given them by the defendants, abandoned it. Otherwise, however, they may well be able to show such a trespass against their personal property as would entitle them to prevail.

Since there is no evidence to support the proposition that the lease was assigned to them, or that the owners at any time authorized a sublease of the property, they were either tenants at will, tenants at sufferance, or intruders. Whichever status they occupied, the defendants had no right to seize and destroy their property. See Entelman v. Hagood, 95 Ga. 390 (22 SE 545), and Allison v. Hodo, 84 Ga. App. 790 (67 SE2d 606).

The first case involves a tenant holding over and the second an intruder relying on the tenancy of another, but in both instances it was held that a judicial process of ouster must be followed and that self-help in getting rid of the personal property of another on the premises is not permissible. Abandonment, of course, may result from acts of the owner or from failure to bring an action for the recovery of the personalty within four years. Code § 3-1003. The defendants were not entitled to a

summary judgment on this issue. It follows that, since there was no evidence of a subsisting lease at the time of the sale to the defendants, the third-party defendants were properly granted

summary judgment in their favor. Judgment affirmed. Bell, C. J., Jordan, P. J., Hall, P. J., Eberhardt, Quillian and Whitman, JJ., concur. Pannell and Evans, JJ., dissent.