On August 31, 1994, Ralph J. Goodwyn sued Dewey Carter, Tommy Brown, and Brown & Williamson Tobacco Company in the Superior Court of Bibb County, Georgia. On September 30, 1994, after answering, the defendants had the case removed to the United States District Court for the Middle District of Georgia. On November 15, 1995, the federal district court determined that there was no federal subject matter jurisdiction and ordered the case remanded to the Superior Court of Bibb County; however, the records of the Superior Court of Bibb County do not contain such federal order filed in federal district court. The clerk for the federal district court transferred the closed federal court records to archives in Atlanta. On May 9, 2001, in the superior court, plaintiff filed a motion to reinstate and to reactivate the case, which had been automatically dismissed with the passage of five years without any order being filed, and did not seek to renew the action by refiling it. The defendants in opposition to the motion filed a copy of the federal orders of lack of jurisdiction and remand. On June 6, 2001, the trial court found that it lacked jurisdiction, because under OCGA § 9-11-41 e the case stood automatically dismissed for lack of an order being filed in the case within the time period of five years and the six months grace period; the plaintiff has failed to recommence by filing a new action within the six-months grace period following the automatic dismissal; and the motion to reinstate came outside such six-month period. See also OCGA § 9-2-60 b. We affirm.
On October 15, 2000, the complaint was automatically dismissed, because “no written order was taken for a period of five years” of record in the Superior Court of Bibb County. OCGA § 9-2-60 b; 9-11-41 e. Plaintiff took no action to reinstate or recommence the action by filing a recommenced action until May 9, 2001, which was outside the grace period which “recommences the action within six months following the dismissal.” OCGA § 9-11-41 e; see also 9-2-60 b. The dismissal occurs as a matter of law automatically without the necessity of entry of an order by the trial judge or any action marking it dismissed by the clerk on the court docket. Swint v. Smith, 219 Ga. 532, 534 3 134 SE2d 595 1964; Maroska v. Williams, 146 Ga. App. 130 1 245 SE2d 470 1978; Norton v. Brady, 129 Ga. App. 753 1 201 SE2d 188 1973. The action of the clerk of court in marking a case dismissed after the period has run is ministerial only. Swint v. Smith, supra at 753; Norton v. Brady, supra at 753. From the expiration of the five-year period when the case stands dismissed by operation of law until the actual marking of the case as dismissed, the case stands completely lifeless for all purposes from the date of automatic dismissal and not from the date the case is physically stricken from the docket. Fulton County v. Corporation of Presiding Bishops &c., 133 Ga. App. 847, 853 3 212 SE2d 451 1975; Dollar v. Webb, 132 Ga. App. 811 209 SE2d 253 1974. Neither OCGA § 9-2-60 nor OCGA § 9-11-41 e are in conflict and are supplementary to each other, making the rule applicable to all proceedings. Fulton County v. Corporation of Bishops, supra at 849.
