¶1 dissenting. It appears in the report of the decision in this case when it was here before that the objection to the petition to reinstate it was as follows: “The petition is insufficient in law, in that it fails to show any reason for not having made *566 this motion within the time provided by law.” Hicks v. Hicks, supra. In reversing the case this court did not consider or pass upon this objection, but reversed the case for another reason. This reversal had one of two effects: (1) It either, held by implication that the objection above quoted was without merit; or (2) it failed to consider and pass upon the question at all, in which latter event the question raised by said quoted objection would still have been open for decision when the case went back to the lower court.
¶2 My view is simply this: On the motion to reinstate there was only one question for consideration, and that was whether the judge had a right to dismiss the application for dower for want of prosecution without notice to the applicant. Since the quoted objection to the application was not urged at the second hearing, it was waived if this court did not pass on it, and as stated, left as the only question to be decided- — -the question of dismissal without notice. I am of the opinion that a trial judge can not pick up the court at the tail end of a term, without a jury, and without notice to interested parties and dismiss a case for want of prosecution. If it be presumed that the judge in this case notified all of the attorneys who had cases pending in his court, he nevertheless did not notify the applicant for dower, who was at that time not represented by an attorney at law. If she had had an attorney and the judge had dismissed the case without notice to him, I think the dismissal would have been void. The same reasoning applies to the failure to notify the applicant in person or by mail or in some other effective way. I think that this court has injected into the case issues which are entirely foreign to it. I do not think that the merits of the application to reinstate were at issue on the hearing of the motion to reinstate, and therefore they are not in issue here. I think that the same rule as to notice prior to dismissal for want of prosecution, which applies in equity, will apply in law, and as I understand the Georgia rule, it is that there can be no proper dismissal for want of prosecution without notice to the plaintiff or similar party. Hoxey v. Carey, 12 Ga. 534 (6); Code, § 24-3341.
¶3 I am authorized to say that Gardner, J., concurs in the dissenting opinion.
¶4 concurring specially. I concur in the judgment of affirmance. The motion to reinstate the case was not made at the term when the application for dower was dismissed, but was made 28 months later, after 8 terms of the court had intervened, and no sufficient reason was shown for the delay in making the motion to reinstate. In these circumstances, the court did not err in refusing to reinstate the application for dower. See Code, § 70-303; Austin v. Markham, 44 Ga. 161; Watkins v. Brizendine, 111 Ga. 458 (supra); McCandless v. Conley, 115 Ga. 48, 51 (41 S. E. 256); Arnold v. Kendrick, 50 Ga. 293 (3); Miraglia v. Bryson, 152 Ga. 828 (111 S. E. 655).