dissenting.
As I would affirm in Case No. A91A1949 and reverse in Case No. A91A1948, I respectfully dissent. My view of the case sub judice departs from that adopted by the majority upon the question of the significance to be given the evidence in the affidavit of the clerk concerning the markings upon the returned envelope and claim check.
However, first it should be recognized that this case is not truly a rebuttable presumption of delivery case. Even if the four elements that the majority has recited from Edmondson v. Air Svc. Co., 123 Ga. App. 263 (2) (180 SE2d 589) are conceded, nothing is accomplished. It is uncontroverted that the letter was written, properly addressed, contained correct postage, and was duly mailed in the post office. Clearly, a rebuttable presumption of delivery is established. Equally clear is the fact that the presumption of delivery was fully rebutted by the return of the unopened envelope. I can only express my astonishment that the majority simultaneously acknowledges the return of the letter while holding that the record is devoid of any evidence rebutting the presumption that plaintiff’s counsel received the letter.
The majority also relies on the rule that a refusal to accept a letter delivered to the proper address with adequate postage is the equivalent of receipt of notice. The principle stated by the majority is correct, but there is no probative evidence showing that this principle is applicable to the case sub judice. In other words, there is no probative evidence supporting an hypothesis that plaintiff’s counsel, the addressee, refused to accept delivery of the letter. There are only the representations of some unknown person or persons upon the envelope and “Claim Check” form which are incorporated by reference into the affidavit of the clerk. Such evidence is clearly hearsay, and hearsay, even when admitted into evidence without objection, lacks probative value to establish any fact. Southern Business Machines of Savannah v. Norwest Fin. Leasing, 194 Ga. App. 253, 256 (2) (390 SE2d 402); Howell Mill/Collier Assoc. v. Pennypacker’s, Inc., 194 Ga. App. 169, 171 (2) (390 SE2d 257). Compare Hill v. Federal Employ*613ees &c. Union, 193 Ga. App. 44, 45 (2b) (386 SE2d 874). As the evidence failed to establish that plaintiff became aware of the notice to pay costs prior to service of defendant’s motion to dismiss, I would hold that the trial court did not err in denying defendant’s motion to dismiss plaintiff’s appeal. Thus, I would affirm the judgment in Case No. A91A1949.
Decided January 29, 1992. H. Pierre, Jr., for appellant. Swift, Currie, McGhee & Hiers, Thomas D. Martin, for appellee.The trial court’s order, dismissing without prejudice plaintiff’s action against defendant, was entered prior to the decision in Loftin v. Prudential Property &c. Ins. Co., 193 Ga. App. 514 (388 SE2d 525). It is clear under Loftin that several orders granting leaves of absence to defense counsel, which were written, signed, and entered in the record of the case sub judice, sufficed to avoid operation of OCGA § 9-11-41 (e), the substantial equivalent of OCGA § 9-2-60 (b). Fi/e dormant years not having elapsed since the last of these orders, I would hold that there was no dismissal by operation of law. Thus, I would reverse the judgment in Case No. A91A1948.
I am authorized to state that Presiding Judge Carley joins in this dissent.