Cox v. State
| Decision Date | 02 February 1917 |
| Docket Number | 7758. |
| Citation | 91 S.E. 422,19 Ga.App. 283 |
| Parties | COX v. STATE. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
While under the provisions of article 6, § 5, par. 1, of the Constitution of this state, in any county where there is a city court, the judge of that court and of the superior court of the county may "preside in the courts of each other in cases where the judge of either court is disqualified to preside," no authority is conferred either by the Constitution or by statute upon the judge of a city court to originate a proceeding in a superior court by assuming to act as the judge of the superior court.
An extraordinary motion for a new trial institutes an entirely new case, requiring discretionary action on the part of a judge having jurisdiction thereof to bring it into actual existence as a cause in the courts.
(a) The granting of a rule nisi by a judge having authority upon an extraordinary motion for a new trial, filed at the time contemplated by law, amounts to a grant of authority to file the same, and is as effectual as if the permission had been expressly conferred by a special order or by precise recitals in the rule nisi itself.
(b) In a county where there is a city court, the judge of that court, when the judge of the superior court in whose circuit the county is included is disqualified because of relationship, cannot assume to act as a judge of the superior court and grant a rule nisi on an extraordinary motion for a new trial, and thereby authorize or ratify the filing of such a motion in the superior court, and thus originate a proceeding in that court.
Where an extraordinary motion for a new trial in the superior court is presented to a judge of a city court, who signs the rule nisi, the entire proceeding being void ab initio, the judgment of a judge of the superior court dismissing the same will not be reviewed by this court.
Error from Superior Court, Mitchell County; W. E. Thomas, Judge.
T. U Cox was convicted of voluntary manslaughter, and he brings error. Affirmed.
See also, 17 Ga.App. 727, 88 S.E. 214.
Judges 29
Where extraordinary motion for new trial in superior court is presented to judge of city court, who signs the rule nisi the entire proceeding being void ab initio, the judgment of the judge of superior court dismissing the same will not be reviewed by Court of Appeals.
At the April term, 1915, of Mitchell superior court, T. U. Cox was convicted of voluntary manslaughter, Hon. W. E. Thomas, judge of the superior courts of the Southern circuit, presiding on account of the disqualification of Judge E. E. Cox of the superior court of Mitchell county. A motion for a new trial was overruled by Judge Thomas, and his judgment was thereafter affirmed by this court, and the remittitur made the judgment of the lower court. During the April term of Mitchell superior court, counsel for the movant, T. U. Cox, requested Judge Cox, who was then presiding, to allow Hon. R. D. Bush, judge of the city court of Camilla in Mitchell county, to take the bench and preside as a judge of the superior court for the purpose of passing upon a disqualified case. Judge Cox physically yielded the bench, whereupon Judge Bush assumed it, and, without any request from Judge Cox to preside therein, an extraordinary motion for a new trial was presented to him in behalf of the said defendant, T. U. Cox, and Judge Cox having entered thereon the fact of his disqualification on account of his relationship to the movant, Judge Bush thereupon over objection by the solicitor general, granted a rule nisi ordering the solicitor general to "show cause before the court at the courthouse at Camilla, Ga., on the 6th day of May, 1916 (to which time the court stands open for the purpose of trying case), why the new trial should not be granted." The bill of exceptions recites that: "On the last-mentioned date [May 6th], the superior court of said county being still in session, movant appeared for the purpose of presenting said motion to Judge Bush, but on said day and date his Honor Wm. E. Thomas, judge of the superior courts of the Southern circuit, appeared in court and went upon the bench and undertook to take jurisdiction of said motion"--announcing in substance that he had been requested by Judge Cox, the regular presiding judge of the said superior court, to preside for him upon that date in certain cases in which Judge Cox was disqualified, among which cases was the extraordinary motion for a new trial filed by T. U. Cox. Judge Thomas further announced that before going upon the bench he had discussed this extraordinary motion with Judge Bush, the judge of the city court of Camilla, and the latter had stated in substance that he had no personal desire to hear and determine the motion, but wished only to discharge his duty under the law, whatever that might be; that "Judge Bush did not decline to exercise jurisdiction in the matter, but simply stated that he did not personally care to act upon the motion"; and thereupon Judge Thomas announced that for the reasons stated by him he would take jurisdiction of said motion, and, over the objection of counsel for movant, he assumed such jurisdiction, called the case, and set it down for a hearing before him at a future date before the next regular term of the court. After Judge Thomas had vacated the bench and made his exit from the courthouse, Judge Bush of the city court of Camilla again took the bench, assumed jurisdiction of the case, and set it for a hearing at the next term of Mitchell superior court, over objection by the solicitor general as to his authority so to do.
When the cause came on to be heard before Judge Thomas at the time and place set by him, counsel for the movant appeared, "solely for the purpose of making a special appearance and objection to Hon. William E. Thomas taking jurisdiction in said case, and to object to said motion being heard and determined at this time and place, because of its having been continued [by the subsequent order of Judge Bush] to the October term, 1916, of said court." Judge Thomas overruled the objections of counsel for movant, and thereafter sustained a motion, previously filed on April 13, 1916, by the solicitor general, to dismiss the extraordinary motion for a new trial, for various reasons set forth therein as follows: The motion to dismiss the attempted extraordinary motion was urged upon the grounds that the judge of the city court of Camilla was without authority or jurisdiction to pass any order in the nature of a rule nisi therein, and that such an order signed by him, which required the solicitor general to show cause why the motion should not be granted, was absolutely null and void; that the motion, being an extraordinary motion, could not be entertained by any court or be filed of record until it was first judicially determined whether or not it set forth good and sufficient reasons why the same had not been made during the term at which the trial was had, or why the grounds thereof had not been set forth in the original motion for a new trial filed at the term when the trial was had, and the judge of the city court of Camilla was without authority to assume jurisdiction over it for the purpose of granting a rule nisi or passing upon the reasons why the grounds of the motion were not incorporated in the original motion; that the said extraordinary motion did not constitute a case pending in the superior court of Mitchell county until a rule nisi had been granted thereon and it had been judicially determined by the court whether the motion might be filed at a term subsequent to the trial term; and the judge of the city court of Camilla was without authority or jurisdiction to preside in the superior court in the cause until the case had been filed in court after an adjudication upon the question whether it should be filed or not, and until the motion became a case in court by filing; that the motion had never been ordered filed by a superior court judge or any other judge of competent jurisdiction, and the filing thereof without such an order was ineffective, and the motion, therefore, was not a case in court, and was subject to be dismissed and stricken from the superior court; that, the motion having been set down for hearing and determination at Valdosta on May 27, 1916, before Hon. William E. Thomas, judge of the superior courts of the Southern circuit, by an order duly passed by Judge Thomas on May 6, 1916, in open court at Camilla, at the April adjourned term, 1916, of Mitchell superior court, while presiding therein by request of the judge of that court, and counsel for the movant, T. U. Cox, appearing before Judge Thomas on said May 27, 1916, solely for the purpose of insisting upon his disqualification to preside therein and after such objections had been overruled, declining to present his motion to the court for hearing, and refusing to offer it to the court for adjudication on the merits, or to offer any evidence in its support, and wholly refusing to prosecute it before the court, the motion should be dismissed for want of prosecution.
To the judgment dismissing the extraordinary motion the defendant excepts; counsel for the movant insisting that Judge Bush, "having assumed jurisdiction of said motion, had full power and authority to hear and determine the same," and that Judge Thomas erred in refusing and declining to hold that he was himself disqualified to act upon the motion, and erred in disposing of it on May 27, 1916, and in not continuing it until the October term, 1916, of Mitchell superior court, in accordance with the order granted by Judge Bush, after the date May 27th had been fixed by Judge Thomas.
Little Powell, Smith & Goldstein, of Atlanta, Pottle & Hofmayer, of...
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