Atlantic Coast Line R. Co. v. A. Cohn & Co.

• Decision Date: 21 October 1908
• Docket Number: 1,112.
• Citation: 62 S.E. 572,4 Ga.App. 854
• Parties: ATLANTIC COAST LINE R. CO. v. A. COHN & CO.
• Court: Georgia Court of Appeals

62 S.E. 572

4 Ga.App. 854

ATLANTIC COAST LINE R. CO. v. A. COHN & CO.

No. 1,112.

Court of Appeals of Georgia

October 21, 1908

Syllabus by the Court.

An exception in a petition for certiorari that the lower court erred in refusing to continue the trial of the cause presents nothing for the consideration of the reviewing court, when it appears that no motion was made at the trial to continue the case; and, should the petition for certiorari contain no other assignment of error, it should be dismissed.

The fact that a magistrate or a judge has extrajudicially granted a party's sole counsel leave of absence, or has personally agreed to continue the trial of the case, does not require the grant of a continuance; and especially is there no abuse of discretion in proceeding to try the cause, where the personal extrajudicial statement or promise that the cause would be continued is made, not by the judge presiding at the time of the trial, but by his predecessor in office and no motion for a continuance is presented to the court.

A magistrate, when not presiding in court, does not act judicially; and one who absents himself from court upon a promise, made by the magistrate when not actually presiding that a leave of absence will be granted, or that the cause will be continued, does so at his own risk.

Error from Superior Court, Decatur County; W. N. Spence, Judge.

Action in a justice's court by A. Cohn & Co. against the Atlantic Coast Line Railroad Company. Judgment for plaintiff and the railroad company filed its petition for certiorari. Certiorari dismissed, and the railroad company brings error. Affirmed.

Pope & Bennet and R. G. Hartsfield, for plaintiff in error.

Russell & Hawes, for defendant in error.

RUSSELL J.

The plaintiff in error excepts to the dismissal of its certiorari. It appears from the allegations of the petition for certiorari, as admitted in the answer to be true, that Cohn & Co. filed a suit in the justice's court against the Atlantic Coast Line Railroad Company, returnable to the February term, 1907. The suit was filed and the summons was issued by W. G. D. Tonge. notary public and ex officio justice of the peace. The defendant filed its defense at the first term, and the case was appealed by consent to a jury in the justice's court. Thereafter the case seems to have been continued at the March, April, May, and June terms of the court. At the May term, 1907, of the superior court of Decatur county, J. H. Boyett was, upon the recommendation of the grand jury, appointed notary public and ex officio justice of the peace in place of W.G.D. Tonge. Boyett was commissioned prior to the July term, 1907, of the justice's court, and presided at the trial and at the rendition of the verdict sought to be reviewed and set aside by the certiorari. The case was tried and verdict rendered in favor of the plaintiff on July 22, 1907. On that day, before the call of the docket, Boyett, the notary public and ex officio justice of the peace, was informed that R. G. Hartsfield, Esq., the counsel for the Atlantic Coast Line Railroad Company, was sick and under treatment; that he was not to be present on that day; and that he had leave of absence, applying to the case of Cohn & Co. v. Atlantic Coast Line Railroad Company. To this statement, made by Perry, an assistant in Hartsfield's office, Boyett replied that, as Hartsfield had no leave of absence from him, he would call the case and have it tried, and thereafter, in the absence of petitioner's attorney and of its witnesses, the magistrate did call the case for trial, and had a jury impaneled and sworn, who, after hearing the testimony in behalf of the plaintiff, returned a verdict against the petitioner in certiorari.

It is uncontradicted that on the 8th of July, two weeks before the July term, 1907, of the justice's court at which the verdict was rendered, Hartsfield, who was the sole attorney for the defendant, the petitioner in certiorari, went to W. G. D. Tonge, who was still holding the position of notary public and ex officio justice of the peace (Boyett not having been qualified), and stated to him that he was in bad health, that his physician had advised him to leave his business and go away for a while, and that his physical condition was such that he would not be able to attend the trial of the case, and for this reason he asked a leave of absence from the July term of the court, to apply to said case, and that the case be continued for the term. Tonge granted the attorney the leave of absence requested, and agreed to continue the case. Upon the hearing in the superior court the judge dismissed the certiorari upon the ground that "the leave of absence granted by W. G. D. Tonge was not binding on the plaintiffs in this case, for the reason that said magistrate, Tonge, was without any authority to grant leave of absence from the term of the justice's court after his term of office had expired."

1, 2. We think the judge properly dismissed the certiorari. Even if Tonge, by reason of Boyett's failure to be qualified, had still been presiding justice at the July term of the justice court, the party to whom leave of absence had been granted could have relied upon it only at his peril, and certainly Boyett, the magistrate who succeeded Tonge, was not bound by the extrajudicial leave of absence granted by his predecessor. Furthermore, the judge of the...