Cone v. American Sur. Co.

• Decision Date: 24 January 1923
• Docket Number: 3433,3434.
• Citation: 115 S.E. 481,154 Ga. 841
• Parties: CONE v. AMERICAN SURETY CO., AND SEVEN OTHER CASES.
• Court: Georgia Supreme Court

115 S.E. 481

154 Ga. 841

CONE v. AMERICAN SURETY CO., AND SEVEN OTHER CASES.

Nos. 3433, 3434.

Supreme Court of Georgia

January 24, 1923

Syllabus by the Court.

The city court of Thomasville is a constitutional city court from which writs of error will lie to the Court of Appeals of Georgia in cases which were tried therein prior to the act of July 24, 1922 (Ga. Laws 1922, p. 300), which gives to the state the right to trial by a jury of 12 in all misdemeanor cases, and in cases tried in said court since the passage of that act.

Certified question from Court of Appeals.

Actions between Angie Cone and the American Surety Company, in which the latter brought a cross-writ of error; between M. Sampson and E. M. Smith, Sr., executor; between E. J. Coffee and the South Georgia Farmers' Fire Insurance Association between the Cooper Auto Supply Company and the Oxweld Acetylene Company; between M. Sampson and C. W. McRae between W. B. Seymour and the Bank of Thomasville; and between J. L. Pilcher and Mrs. C. L. Thompson. The party first mentioned in each case brought error to the Court of Appeals which certified a question to the Supreme Court. Question answered.

HINES J.

In the above cases the Court of Appeals desires instructions from this court upon the question whether writs of error will lie from the city court of Thomasville to that court, because of the fact that neither in the act establishing the city court of Thomasville nor in any act amendatory thereof is it provided that in criminal cases the state can demand the trial of the defendants by a jury, or because of the fact that none of said acts provide for trial of defendants in criminal cases except on demand of the defendants, or because of the fact that said acts deny to the state the right in criminal cases to demand jury trials, or because of the fact that said acts provide that there shall be no jury trials in criminal cases unless demands are made therefor by the defendants; said acts in effect providing for a jury of 12 in all civil cases upon the demand of either party, and in all criminal cases upon the demand of the defendants, and said court in all other respects coming up to the requirements of a constitutional city court.

After having recalled, on own motion, our previous decision, and after further consideration of this question, we have reached the conclusion that our former answer to the Court of Appeals there was erroneous.

The act creating the city court of Cartersville (Ga. Laws 1884-85, p 487) contained this provision:

"That the trial of all issues of fact in said court shall be by the court without a jury, except when either party in a civil case, or the defendant in a criminal case shall in writing demand a trial by jury." Section 9.

Under this act the state was not given the right to demand a jury in the trial of criminal cases, and all such cases were tried by the court without a jury, unless the defendant demanded a jury. This court held that a writ of error would lie to this court from the city court of Cartersville. W. & A. R. Co. v. Voils, 98 Ga. 446, 26 S.E. 483, 35 L.R.A. 655. The act creating the city court of Macon (Ga. Laws 1884-85, p. 470) provided for the trial of all civil cases by a jury of 12, and for the trial of all criminal cases by a like number of jurors, unless the defendant waived trial by jury, in which event the judge of that court tried the case without a jury. It will be seen that the state was not entitled to demand a jury trial when it was waived by the defendant. This court held that the city court of Macon was a like court to the city court of Atlanta, and that writs of error would lie from the former court to this court. Ivey v. State, 112 Ga. 175, 37 S.E. 398; Ward v. State, 112 Ga. 192, 37 S.E. 400; Driver v. State, 112 Ga. 229, 37 S.E. 400.

In the case of Welborne v. State, 114 Ga. 793, 40 S.E. 857, this court, on its own motion called in question its jurisdiction to entertain writs of error from the city courts of Atlanta, First and Second divisions, Richmond county, Savannah, Macon, Athens, the criminal court of Atlanta, the city courts of Moultrie, Bainbridge, Jefferson, Hall county, Floyd county, LaGrange, Americus, Waycross, Douglas, Baxley, and Brunswick. See page 796 of 114 Ga., on page 858 of 40 S. E., for the cases in which the question of the jurisdiction of this court to hear writs of error from the city courts named was raised. The city court of Richmond county was established by the act of September 22, 1881 (Ga. Laws 1880-81, p. 574). This act was amended by the act of October 24, 1887 (Ga. Laws 1887, p. 713). The city court of Macon was created by the act of August 14, 1885 (Ga. Laws, 1884-85, p. 470), which was amended by the act of December 11, 1900 (Ga. Laws, 1900, p. 144). It was probably on account of this amendment that this court, although it had previously passed upon the question as above shown, again considered the question of its jurisdiction to pass upon writs of error from this city court. The city court of Athens, under the name of the city court of Clarke county, was established by the act of Sept. 9, 1879 (Ga. Laws 1878-79, p. 291). By the act of December 18, 1894 (Ga. Laws 1894, p. 212), the name of this court was changed from that of the city court of Clarke county to that of the city court of Athens. The city court of Moultrie was established by the act of November 13, 1901 (Ga. Laws 1901, p. 136). The city court of Bainbridge was created by the act of November 27, 1900 (Ga. Laws 1900, p. 104). The city court of LaGrange was brought into existence by the act of December 19, 1899 (Ga. Laws 1899, p. 385). The city court of Jefferson was created by the act of November 30, 1897 (Ga. Laws 1897, p. 485). The city court of Hall county was established by the act of August 14, 1891 (Ga. Laws 1890-91, vol. 2, p. 939). The city court of Floyd county was brought into existence by the act of September 27, 1883 (Ga. Laws 1882-83, p. 535). The city court of Americus was established by the act of November 22, 1900 (Ga. Laws 1900, p. 93). Under this act this court was held not to be a constitutional city court, because it did not provide for the trial of civil and criminal cases by a jury of 12. Monford v. State, 114 Ga. 528, 40 S.E. 798. This was remedied by the act of November 4, 1901 (Ga. Laws 1901, p. 92). By reason of this amendment, this court again, in Welborne v. State, supra, passed upon its jurisdiction to hear writs of error from that court. The city court of Waycross was established by the act of December 11, 1897 (Ga. Laws 1897, p. 510). The city court of Douglas was created by the act of December 9, 1897 (Ga. Laws 1897, p. 448). The city court of Baxley was established by the act of December 1, 1897 (Ga. Laws 1897, p. 420). The city court of Brunswick was created by the act of December 9, 1895 (Ga. Laws 1895, p. 374), which was amended, as to jury trials, by the act of December 19, 1899 (Ga. Laws 1899, p. 348).

It will appear from an inspection of the above acts establishing the city courts above referred to, with the possible exception of one in which the accused and the state were both entitled to jury trial, that provision was made for the trial of all civil cases in each of said courts by a jury of 12, upon demand of either party; and for the trial of all criminal cases by a jury of the same number, upon demands for jury trial by defendants alone in criminal cases. In none of these acts was provision made for jury trials on demand by the state. With these provisions for jury trials, in the acts creating them, this court, in Welborne v. State, supra, held each of the above courts (except the city court of Jefferson, on the ground that Jefferson was not a city, Lampkin v. Pike, 115 Ga. 827, 42 S.E. 213, 90 Am.St.Rep. 153) to be a constitutional city court, and that writs of error would lie direct from them to this court. Brucker v. O'Connor, 115 Ga. 95, 41 S.E. 245; Travelers' Protective Ass'n v. Small, 115 Ga. 455, 41 S.E. 628; Maxwell v. Family Protective Union, 115 Ga. 475, 41 S.E. 552; McGehee v. State, 114 Ga. 833, 40 S.E. 1004; Gay v. State, 115 Ga. 204, 41 S.E. 685; Owen v. Palmour, 115 Ga. 683, 42 S.E. 53; Eastlick v So. Ry. Co., 116 Ga. 48, 42 S.E. 499; Smith v. Zachry, 115 Ga. 722, 42 S.E. 102; Moon v. Potter, 115 Ga. 673, 42 S.E. 43; Jones v. Spence, 115 Ga. 794, 42 S.E. 94; So. Ry. Co. v. Overstreet, 115 Ga. 795, 42 S.E. 95; Com. Bk. of Jacksonville v. Flowers, 116 Ga. 219, 42 S.E. 474. These were the cases in which this court raised the question of its jurisdiction over writs of error from the named city courts, and, after having fully considered the question, retained the bills of exceptions and passed upon these causes, thus holding necessarily that said courts were constitutional city courts.

In the act creating the city court of Thomasville (Ga. Laws 1905, p 386), as amended by the act of 1907 (Ga. Laws 1907, p. 239), provision is made for the trial by jury of all civil cases upon the demand of either party, and of criminal cases upon the demand of defendants, without any provision for trial of criminal cases by jury upon demand of the state. Under the decision in Welborne v. State, supra, construed in the light of the facts of that case, the city court of Thomasville is a constitutional city court from which writs of error lie direct to the Court of Appeals, notwithstanding the fact that there is no provision in said acts by which in criminal cases the state can demand the trial of defendants by a jury, notwithstanding the fact that none of said acts provide for trial by jury of defendants in criminal cases except upon demand of the defendants, and notwithstanding the fact that said acts deny to the state the right in criminal cases to demand jury...