CTC Finance Corp. v. Holden

• Decision Date: 23 February 1966
• Docket Number: No. 23263,23263
• Citation: 147 S.E.2d 427,221 Ga. 809
• Parties: CTC FINANCE CORPORATION v. Bessie HOLDEN.
• Court: Georgia Supreme Court

Page 427

147 S.E.2d 427

221 Ga. 809

CTC FINANCE CORPORATION v. Bessie HOLDEN.

No. 23263.

Supreme Court of Georgia.

Feb. 23, 1966.

Syllabus by the Court

Superior and city courts are not required to conform with provisions of Georgia Laws 1959, p. 353, in their judgments granting new trials. That Act is merely directory and as an amendatory statute it is invalid since it amends no law.

This case is reported in Holden v. CTC Finance Corp., 112 Ga.App. 443, 145 S.E.2d 597, and relates to the question of the right of a trial judge or court in the first grant of a new trial and an interpretation of Georgia Laws 1959, pp. 353, 354, which seemingly restricts the court in granting same, the Court of Appeals holding that the matter of stating the ground, or grounds, upon which the first grant of a motion for new trial is granted is not discretionary but mandatory. The applicant is before this court contending the decision is erroneous because it is in conflict with the power of superior courts to grant new trials under the constitutional mandate (Constitution of 1945; Code Ann. § 2-123, Const. art. I, § I, par. XXIII) and is an invasion of the judicial powers by the legislature under the separation of powers clause of the State Constitution (Constitution of 1945; Code Ann. § 2-3906 Const. Art. VI, § IV, par. VI). The writ of certiorari has been granted to review the decision and judgment of the Court of Appeals.

Grant Spears & Duckworth, William G. Grant, Atlanta, for appellant.

Duncan & Gary, Ray Gary, Vernon W. Duncan, Marietta, for appellee.

DUCKWORTH, Chief Justice.

The Constitution, Art. VI, Sec. IV, Par. VI (Constitution of 1945; Code Ann. § 2-3906) confers unqualified power upon superior and city courts, not the legislature, to grant new trials. Art. 1, Sec. 1, Par. XXIII of the Constitution (Constitution of 1945; Code Ann. § 2-123) requires that 'legislative, judicial and executive powers shall forever remain separate and distinct, and no person discharging the duties of one, shall, at the same time, exercise the functions of either of the others, except as herein provided.' These constitutional clauses constitute insuperable barriers to any legislative control or interference with the courts in the exercise of their powers to grant new trials. If the legislature can qualify and restrict the power of the courts as it appears to have undertaken by Georgia Laws 1959, p. 353, it could add additional qualifications and restrictions to the point of nullifying the unrestricted constitutional power of the courts which the Constitution limits only to the point that the grant of a new trial be 'on legal grounds.' While the trial court did not rule upon the constitutionality of Georgia Laws 1959, p. 353, and hence we are unable to do so here, yet a decision here requires a construction of that Act, and in making that construction the rule we must follow is that if it is susceptible of two meanings, one of which would render it unconstitutional and the other would render it constitutional, we must give it the latter construction. Fordham v. Sikes, 141 Ga. 469. 81 S.E. 208; Cutsinger v. City of Atlanta, 142 Ga. 555, 83 S.E. 263, L.R.A. 1915B, 1097; Evans v. Evans. 190 Ga. 364, 369, 9 S.E.2d 254; Sumter County v. Allen, 193 Ga. 171, 17 S.E.2d 567; Thomas v. Board of Commissioners of Chattooga County, 196 Ga. 10, 14, 25 S.E.2d 647.

Since, as pointed out above, if the Act be construed to be mandatory it would be legislative exercise of a purely judicial function and hence unconstitutional, but if it is construed to be merely direcory and not mandatory, it would be constitutional, we apply the rule as stated in the foregoing decisions and construe the Act not to be mandatory but merely advisory. With this construction placed upon the Act, the judges may comply with it if they wish, but a failure to do so is not error and constitutes no grounds for reversing the judgment granting a new trial.

While the...