Faulkner v. Walker, (No. 17866.)

CourtUnited States Court of Appeals (Georgia)
Citation137 S.E. 909,36 Ga.App. 636
Docket Number(No. 17866.)
PartiesFAULKNER et al. v. WALKER, Governor,et al.
Decision Date12 April 1927
36 Ga.App. 636

137 S.E. 909

WALKER, Governor, et al.

(No. 17866.)

Court of Appeals of Georgia,
Division No. 1.

April 12, 1927.

(Syllabus by the Court.)

Error from Superior Court, Cherokee County; John S. Wood, Judge.

Petition by William J. Faulkner and another against Clifford Walker, Governor, and others, to set aside a judgment forfeiting an appearance bond Demurrer to petition was sustained, and plaintiffs bring error. Reversed.

William J. Faulkner was indicted, and John S. Wood, as solicitor general, represented the state in the drawing and procuring of the indictment. William J. Faulkner, as principal, and James F. Faulkner, as security, executed an apperance bond. When the case was called in the superior court, in which John S. Wood was solicitor general, the defendant failed to appear, and the bond was forfeited and scire facias issued. Subsequently the judge of the superior court died and John S. Wood succeeded him in office. Thereafter, while John S. Wood was presiding as judge of that court, the defendant's case was again called, and, William J. Faulkner not being present and having failed to make a new bond in the case, judgment was entered against the defendant and his security on the bond, which judgment was signed by John S. Wood, judge of the court, then and there presiding. The defendant and his security filed a petition in the superior court, praying that said forfeiture and judgment and the fi. fa. issued thereon be declared null and void, and that same be vacated and set aside, on the ground that the judge was disqualified because of his former participation in the case as solicitor general. When this cause came on to be heard before Judge Wood, George D. Anderson, then solicitor general, demurred to the petition, and the judge sustained the demurrer and dismissed the petition. To this judgment William J. Faulkner and James F. Faulkner excepted.

Morris, Hawkins & Wallace, of Marietta, for plaintiffs in error.

Geo. D. Anderson, Sol. Gen., of Marietta, for defendants in error.

BLOODWORTH, J. (after stating the facts as above). [1, 2] Section 4642 of the Civil Code of 1910 provides that:

"No judge or justice of any court, * * * can sit in any cause or proceeding in which * * * he has been of counsel. * * * Provided, that in all cases in which the presiding judge of the superior court may have been employed as counsel before his appointment as judge, he shall preside in such cases if the opposite party or counsel agree in writing that he may preside, unless the judge declines so to do." (Italics ours.)

It is undisputed that the presiding judge had been of counsel for the state in the case under consideration, and it is not contended that the defendant or his counsel gave written consent for him to preside in the bond forfeiture. In Marks v. Smith, Governor, 4 Ga. App. 129,...

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3 cases
  • Crane, In re, 41234
    • United States
    • Supreme Court of Georgia
    • January 7, 1985
    .... Page 443. 324 S.E.2d 443. 253 Ga. 667. In re CRANE. No. 41234. Supreme Court of Georgia. Jan. 7, 1985. Page 444. ... Faulkner v. Walker, 36 Ga.App. 636, 137 S.E. 909 (1927). Even in a case involving ......
  • Strayhorn v. Staley, 71126
    • United States
    • United States Court of Appeals (Georgia)
    • January 7, 1986
    ...the charge of contempt against appellant. Thus, appellee was necessarily "involved in this controversy." Id. See also Faulkner v. Walker, 36 Ga.App. 636, 137 S.E. 909 (1927); Crane, supra at 668-669(1). A review of the record also reveals that appellee might be a material witness in the con......
  • Faulkner v. Walker, 17866.
    • United States
    • United States Court of Appeals (Georgia)
    • April 12, 1927
    ...137 S.E. 909 36 Ga.App. 636 FAULKNER et al. v. WALKER, Governor, et al. No. 17866.Court of Appeals of Georgia, First DivisionApril 12, Syllabus by the Court. "No judge or justice of any court *** can sit in any cause or proceeding in which *** he has been of counsel" (Civ. Code 1910, § 4642......

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