Banister v. Hubbard, 33277
| Decision Date | 26 October 1950 |
| Docket Number | No. 33277,No. 2,33277,2 |
| Citation | 82 Ga.App. 813,62 S.E.2d 761 |
| Parties | BANISTER et al. v. HUBBARD |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
The judge of the superior court has the power and authority to pass on the court's own motion an order directing the clerk of the court to attach to the plaintiff's petition a process as required under Code Sec. 81-201, and for which the plaintiff prayed, when it appears that the clerk had attached to the petition a process which required the defendants to be and appear at the February Term 1950 of the court to answer the plaintiff's suit, as formerly provided by said Code section, instead of as now provided under said statute that the defendants be and appear in said court in thirty days from service of the petition and answer the plaintiff's complaint.
On December 23, 1949, Sarah Beverly Hubbard, a minor, by O. M. Hubbard, as next friend, brought suit in Hart Superior Court against Mrs. A. E. Brown and Dock Banister, as executor of A. E. Brown, deceased, to recover damages for personal injuries alleged to have been sustained by her as a result of a collision by the automobile, in which the plaintiff was riding and an automobile of the deceased, A. E. Brown, which was being driven at the time by Mrs. A. E. Brown, and which was an automobile owned and kept by the deceased for the comfort, pleasure, convenience and use of his family, of which the defendant, Mrs. A. E. Brown was a member, and that said automobile was being used as a family purpose car at the time of the collision, in which the plaintiff was injured. The plaintiff set up that the said Mrs. Brown was operating this automobile at the time in a careless and negligent manner, and that as a result thereof she drove the same into the car in which the plaintiff was riding. The plaintiff prayed 'that process issue requiring the defendants to be and appear and to file their answer to this complaint in this court as is now provided by law.' Thereupon the clerk of said court attached to the petition a process requiring the defendants 'to be and appear at the next superior court, to be holden in and for said county, on the fourth Monday in February, 1950, then and there to answer plaintiff's complaint', which process was dated December 23, 1949, bore tests in the name of the judge of said court and was signed by a deputy clerk thereof and was directed to the sheriff of Hart County or his legal deputies. The sheriff served each of the defendants personally, entering his return of service on December 24, 1949.
The defendant, Dock Banister, as such executor, filed a general demurrer to the plaintiff's petition, on the ground that the process attached to the petition was 'a null and void process, because not in conformity with Code sec. 81-201 * * * which Code section requires that the clerk shall annex to every petition a process, unless the same shall be waived, signed by the clerk or his deputy, bearing tests in the name of the judge of the court and directed to the sheriff of the county, or his deputy, requiring the defendant to answer the petition within thirty days after the service of the petition, and the process does not conform thereto because it requires the defendant to answer the said suit, and be and appear in court on the fourth Monday in February, and then and there answer same, and not within 30 days from date of service of the petition;' and 'that the failure of the clerk or his deputy to attach to the petition a process required by said Code section renders said suit subject to demurrer, as being null and void, and same is a fatal defect, and cannot be cured by amendment, defendant never having waived same.' The said defendant, Dock Banister, as such executor, also filed 'his special plea in abatement' and set up that the suit be abated on the ground that the action was one in tort and did not survive the death of A. E. Brown, and his estate was not liable, and also because of the alleged void process, as set out in the general demurrer filed. Said defendant, Dock Banister, also filed a traverse to the entry of service on the petition on the ground that same was served with said void process and he has not been properly or legally served and he denies the truth thereof. Said defendant also filed his motion to quash said suit on the ground that the process attached to the petition was void as set out in said demurrer.
On the hearing on August 9, 1950, the court rendered the following order, which appears to have been rendered by the court on its own motion.
'To the Hon. John W. Herndon, Clerk Superior Court, Hart County, Georgia:
'Defendant Dock Bannister, Executor of the will of A. E. Brown, deceased, in his demurrer and motion to quash, having directed the court's attention to the fact that the process attached to both the original and copy of suit in the above stated and captioned case, is not in conformity with law (Code Sec. 81-201 Ann. Code of Ga.):
'This is to direct you to detach and delete what purports to be process attached to original petition and in lieu thereof attach process in conformity with above section both to original and all copies for service upon defendant and deliver same to sheriff for service upon defendants.
'When this order and directive have been complied with you will report same to the undersigned so that action and decision may be had upon said demurrer and motion to quash.'
To this order and judgment the defendants except.
John B. Morris, Hartwell, for plaintiffs in error.
Joseph S. Skelton, Carey Skelton, Hartwell, for defendant in error.
1. Did the Superior Court judge have the power and authority on his own motion to pass the order to which exception is made? Code Section 24-104(6) provides that a court of this State has the power 'To amend and control its processes and orders, so as to make them conformable to law and justice; and to amend its own records, so as to make them conform to the truth.' Code Sec. 24-104(4) provides that courts have the power 'To control, in furtherance of justice, the conduct of its officers and all other persons connected with a judicial proceeding before it, in every matter appertaining thereto.' It has been held by the Supreme Court of Georgia that it is the duty of the judge on his own motion to interpose and give a case proper direction, where he sees injustice about to be done, and the case is in limine, and there is no estoppel available to either party. 'It is the duty of the judge to protect the law from being outraged.' It is the sworn obligation of the judge 'to see that the law is administered.' Kelly v. Strouse & Bros., 116 Ga. 872(8), 893, 894, 43 S.E. 280, 289. The judge has a discretion in regulating and controlling the business of the court, and the appellate court should never interfere with the exercise of this discretion, unless it is plainly apparent that wrong has resulted from its abuse. See Carr v. State, 76 Ga. 592(2-c). Where the court sees a rule of public policy being violated, during the progress of a trial, he may, 'of his own motion, interfere, and have proper corrective applied.' Goodrum v. State, 60 Ga. 509(3).
Thus it will be seen that the court here had the full power and authority to act and to pass on his own motion, the order here complained of, directing the clerk of the...
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