concurring. In my view, any reference or discussion of the so-called law of the case in older opinions is irrelevant to an opinion in this case. The old law of the case rule on amendments in the trial court has been abolished by statute. Code Ann. § 81A-160 (h). The question here, as stated in the majority opinion, is whether the ruling of the trial court became res judicata prior to the voluntary dismissal.
Code Ann. § 81A-141 (to my personal regret) is not the same as Federal Rule 41. The latter does not give the plaintiff an absolute right to dismiss his suit after filing of defensive pleadings; it states that dismissal under these circumstances can come only upon order of the court and upon such terms and conditions as the court deems proper. To put it another way—once defensive pleadings have been filed, the Federal trial court has general supervision of the proceedings. However, Code Ann. § 81 A-141 keeps the old Georgia sporting rule of allowing a plaintiff to play fast and loose with the trial court right up to the verdict. Irrespective of our personal views, we must accept the statute as it is written.
The holding in Peacock Constr. Co. v. Chambers, 223 Ga. 515 (156 SE2d 348), affirming Chambers v. Peacock Constr. Co., 115 Ga. App. 670 (155 SE2d 704), is that this type of ruling does not become final until the expiration of the time allowed for amendment. The only way it can become final prior to that time is upon the filing of a notice of appeal by the party who has the right to amend. In the absence of this affirmative action here, it did not become final until the expiration of the time allowed for amendment.
I am authorized to state that Judge Eberhardt concurs with this concurrence.