Garland v. State, 40922
| Decision Date | 09 November 1964 |
| Docket Number | No. 2,No. 40922,40922,2 |
| Citation | 140 S.E.2d 46,110 Ga.App. 756 |
| Parties | Reuben A. GARLAND v. The STATE |
| Court | Georgia Court of Appeals |
Syllabus by the Court
A proceeding for disbarment brought against an attorney of this state is not filed and process attached by the clerk as in an ordinary case, but is commenced by an order of the judge who issues a rule nisi and directs that service of the rule and petition be made. Before the judge signs such order he must make an original judicial determination that the allegations of the petition, if proved, would be cause for disbarment, and he must then order personal service upon the defendant. A judge who is disqualified for any reason to hear and act in the case is disqualified from making any judicial determination therein, including the signing of the initial order which embraces the rule nisi and order for service, the signing of which is contingent upon the judicial determination that the petition sets out a cause of action. The motion in abatement in the present case based on the fact that such order was signed by a judge who was disqualified to serve in the case was well taken, and the error in overruling the motion renders all further proceedings nugatory.
Cowart, Sapp, Alaimo & Gale, Anthony A. Alaimo, Brunswick, Benjamin B. Garland, Atlanta, for plaintiff in error.
William T. Boyd, Solicitor Gen., Charles A. Williams, Newell Edenfield, Atlanta, for defendant in error.
It appears that after all of the judges of the Atlanta Judicial Circuit signed an order directing the solicitor general of that circuit to bring disbarment proceedings, and after the solicitor prepared (but did not verify) such petition, it was presented to one of the judges who ordered it filed and issued a rule nisi directed to the defendant, copy of which was ordered served upon him. It also appears that each of the nine judges disqualified himself for an undisclosed reason. The defendant at first opportunity moved to dismiss the petition for disbarment on the ground that a judge who was disqualified to 'preside, act or serve' in the case (Code Ann. § 24-102) had no authority to enter such an order, and the petition should therefore abate. This is upon the theory that a judge who is disqualified can perform no judicial act in relation to the case, and that if he attempts to do so the result is a nullity. Howard v. Warren, 206 Ga. 838, 59 S.E.2d 503; Shuford v. Shuford, 141 Ga. 407(9), 81 S.E. 115; Gaskins v. Gaskins, 181 Ga. 124(3), 181 S.E. 850; Garrison v. Marietta Trust & Banking Co., 155 Ga. 562(1), 118 S.E. 48. In Short & Co. v. Spragins, Buck & Co., 104 Ga. 628, 30 S.E. 810, it was held that where a judge sanctioned a petition and ex parte granted a temporary restraining order and appointed a temporary receiver, the action was essentially judicial; that the order was in the nature of a judgment and could not have been granted if the judge had not first judicially determined that the petition made a case entitling the plaintiffs to the relief sought.
Applying the reasoning of these cases, it is apparent that the judge, whose statement of his own disqualification must be accepted at its face value, was performing a judicial act here. Indeed, an original judicial determination is implicit in Code § 9-509 which provides that the court 'if of opinion that the accusation would, if true, be ground for removal' shall order the accused to appear and cause him to be served with the petition and rule which takes the place of process in the ordinary case. In requiring, as Code § 9-509 does, that the suit be initiated by a judge who signs a rule nisi and orders it, together with the petition, served on the defendant, the same procedure is followed as in the statutory foreclosure of an attorney's lien for fees. In Moss v. Strickland, 138 Ga. 539, 75 S.E. 622 it was pointed out (p. 541, 75 S.E. page 623) that '[i]n proceedings to foreclose an attorney's lien, the process is a rule nisi issued by the court, and not a process issued by the clerk as in ordinary cases' and that in such a case (p. 540, 75 S.E. page 622) 'a process issued by any other person than one qualified to issue it cannot be the foundation of a valid judgment.'
What the court does in disbarment proceedings, which are sui generis, is to mentally pass on a general demurrer to the petition prior to filing and prior to service, and this action is reviewable even if its result be negative and the judge, deciding that no cause of action is set out, refuses to issue the rule and order for service. Even though the defendant has never been served and has not in fact appeared or demurred, the issue on appeal is whether the allegations of the petition, if true, would constitute cause for disbarment. Gordon v. Clinkscales, 215 Ga. 843, 114 S.E.2d 15.
Since the judge who signed the order declared that he was disqualified, that fact must be taken as true, and under Howard v. Warren, supra, even though the disqualification was not announced and acted upon until after the rule nisi and for service was signed it relates back to it so that it, being itself a judicial act, is rendered nugatory. If all of the judges of the Atlanta Judicial Circuit were in fact disqualified, as from the record it appears that they were, the petition should have been tendered in the first instance to another judge as was done in Gordon v. Clinkscales, supra, and the only order which any of the Atlanta Circuit judges could properly have signed would have been one disqualifying themselves and referring the petition to some other judge who was not disqualified and who could make the initial judicial determination of whether a cause of action was stated.
Under the provisions of Code § 9 -509 the defendant was not before the court until served with a copy of the petition and rule nisi under a proper order of service signed by a qualified judge. The judge who signed the order was not qualified to take any judicial action in the case, and this includes the judicial determination reflected in the order that the petition states a cause of action for disbarment. It follows that the defendant's motion to abate the action was well taken. This error rendered all further proceedings nugatory. Our attention has been called to the fact that Brant v. State, 72 Ga.App. 704, 34 S.E.2d 735 sets out a statement of facts marking a physical precedent to the contrary of what is held here. In that case, however, a waiver of the lack of jurisdiction over the person of the defendant resulted from the failure of the defendant to urge the question here decided, while in the present case the motion in abatement was made at the first opportunity.
Judgment reversed.
I concur in the opinion as prepared by Judge RUSSELL. During the oral argument before this court the question of the propriety of the writer of this concurrence hearing the case was raised by the State since he was subpoenaed and...
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