Garland v. State

• Decision Date: 17 February 1960
• Docket Number: No. 37985,Nos. 1,2,37985,s. 1
• Citation: 114 S.E.2d 176,101 Ga.App. 395
• Parties: Reuben A. GARLAND v. STATE of Georgia
• Court: Georgia Court of Appeals

Page 176

114 S.E.2d 176

101 Ga.App. 395

Reuben A. GARLAND v. STATE of Georgia.

No. 37985.

Court of Appeals of Georgia, Division Nos. 1, 2.

Feb. 17, 1960.

Judgment Adhered to on Rehearing April 1, 1960.

Syllabus by the Court

1. The mere general assignment of error on the judgment adjudging the respondent to be in contempt, that such judgment was contrary to law was too vague and indefinite to present any question for decision by this court, except as to the sufficiency of the facts specified in the judge's order to constitute contempt.

2. Where the record fails to show that the contemnor by any appropriate pleading raised any question for decision by the trial judge as to the denial to him of due process of law, he will be held to have waived any right guaranteed to him by the Constitution to a hearing or to any other procedural formality.

3. The assignment of error that the judgment overruling the two pleas in bar was contrary to law when considered in connection with those pleas was a sufficient assignment of error.

4. The judgment of this court on the former appearance of this case was not res judicata as to the merits of the case now before the court.

5. The constitutional inhibition against double jeopardy is not applicable to cases of contempt.

6. The order of the judge of the superior court specified sufficient facts from which it appears that he was authorized to hold the respondent guilty of contempt.

7. A bill of exceptions cannot be amended in this court to assign error on rulings of the trial court except in accordance with the record made under the judge's original certificate.

This is the same case as Garland v. State, 99 Ga.App. 826, 110 S.E.2d 143. On its previous appearance before this court, it was held that the order holding the respondent in contempt was void since it failed to specify the facts upon which the judge held the respondent in contempt, and being thus deficient furnished no basis for review by this court. This court expressly pointed out therein that it was not passing on any question as to whether or not the respondent was guilty of contempt of court, and that it was only holding that the orders of the trial judge were insufficient to afford this court the opportunity to review the trial judge's decision. The case was remanded to the trial court and the judge, on August 11, 1959, entered an order making the judgment of this court the judgment of that court, and issued an order requiring the respondent to appear in court at 2 p. m. on the same day for further proceedings in the case. In response to that order, the respondent appeared and filed two pleas in bar, the first being in substance that the judgment of the Court of Appeals and the judgment of the trial court on the remittitur were res judicata as to the issues in the case and constituted a bar to further proceedings; and, second, on the ground that further proceedings against the respondent would amount to putting him in jeopardy of his liberty more than once for the same offense contrary to the provisions of Art. I, Sect. I, Par. VIII, of the Constitution of the State of Georgia, providing that: 'No person shall be put in jeopardy more than once for the same offense save on his or her motion for a new trial after conviction or in case of mistrial.' On August 19, 1959, the trial judge entered an order reciting that after argument heard the pleas were overruled. On the same day the court entered an order adjudging the respondent to have been twice in contempt and specifying as to the first contempt nine separate occurrences during the trial of the case of Bright v. The State, and specifying as to the second finding of contempt three separate occurrences. This order provided that the respondent should serve 20 days in the Fulton County jail on each of the two alleged contempts, and further provided that he should have credit on said sentences for the five days already served by him on the occasion of the first judgment and sentencing. See Garland v. Tanksley, 99 Ga.App. 201, 107 S.E.2d 866.

The respondent filed his bill of exceptions in which the only assignments of error are that the order overruling the pleas in bar was contrary to law and that the final judgment adjudging him in contempt was contrary to law.

F. L. Breen, Wm. G. McRae, Reuben A. Garland (pro se) Atlanta, for plaintiff in error.

Paul Webb, Solicitor-General, Carl B. Copeland, E. L. Tiller, Wm. G. Grant, W. F. Buchanan, Lewis R. Slaton, Jr., R. W. Spears, Atlanta, for defendant in error.

George G. Finch, Atlanta, for parties at interest.

CARLISLE, Judge

1. Error is assigned on the final judgment because the same was 'contrary to law.' Code, § 6-901 provides that the bill of exceptions shall specify plainly the decision complained of and the alleged error, and Code, § 6-1607 directs that the Supreme Court and the Court of Appeals shall not decide any question unless it is made by a specific assignment of error in the bill of exceptions. In construing and applying these Code sections, this court and the Supreme Court have consistently held that no question will be considered by the appellate courts of this State unless the bill of exceptions and the record clearly show that that question was presented to and passed on by the trial court. Hart v. Phenix Insurance Co., 113 Ga. 859, 862, 39 S.E. 304; Pritchett v. Payne, 194 Ga. 84, 86(1), 20 S.E.2d 765; Rushing v. Akins, 210 Ga. 450(1), 80 S.E.2d 813; Paradies & Rich v. Warren Co., 53 Ga.App. 457(2), 186 S.E. 438; Carpenter v. Lyons, 78 Ga.App. 214(1), 50 S.E.2d 850; Nix v. State, 94 Ga.App. 141(2), 93 S.E.2d 783. For the rule to be otherwise would be unfair both to the trial judge and to opposing counsel. As was said in Patterson v. Beck, 133 Ga. 701, 704(1), 66 S.E. 911, 913, 'The decision complained of and the error alleged to exist therein ought to appear plainly. This is fair to the judge whose judgment it is sought to reverse, so that he can make such facts appear, or require such evidence and record to be brought to this court as may be necessary for a proper consideration of the errors complained of. Civ.Code, 1895, § 5528. To allow a mere general assignment which, without more, would not direct the attention of the judge to the real question, and then to hunt for something covered up in such generalities as a ground for reversal would be very much like allowing him to be ambushed. It is fair to the adverse counsel or party, in order that he may know what he must meet in this court. It is fair to this court, in order that there may be clear-cut questions for them to decide, and not an indefinite complaint for them to wander through in the search for questions to determine and errors to reverse. This is not a court of appeals, but a court for the correction of errors; and, in order for it to deal with alleged errors intelligently, the questions to be decided should be made to appear.' This rule of law is nonetheless applicable, whether the case be one involving issues of law and fact, or one involving merely questions of law decided on an agreed statement of facts. Kimball v. Williams, 108 Ga. 812, 33 S.E. 994.

Applying these principles to the assignment of error in this case, what question does the mere general exception that the judgment holding the respondent in contempt was contrary to law present for decision? Does the plaintiff in error mean to contend anything more than that the facts specified in the order of the judge are insufficient to constitute a contempt? Does he mean to specify that the order is void for want of some formality in its entry, to wit, the failure to issue a rule nisi or to serve the respondent with notice or afford the respondent an opportunity to be heard; or does he intend to contend that for any of these reasons the court has violated his constitutional rights, or that he has not been afforded due process of law under constitutional guarantees. Peruse the bill of exceptions and the record in this case as we might, it is impossible for this court to ascertain therefrom that any of these contentions were made before the trial judge. Whether it is intended that any such contentions are now made can be ascertained only by reference to the brief of counsel for the plaintiff in error.

Clearly then, the assignment of error in this case is wholly insufficient to raise any question as to whether the respondent's constitutional rights have been violated by the proceeding in the trial court or as to whether there was sufficient service or notice or whether he was afforded an opportunity to be heard and to present witnesses in his own behalf. Patterson v. Beck, 133 Ga. 701, 707, 66 S.E. 911, supra. Something more than a mere general assignment of error is required to raise any question for consideration by the appellate court as to whether a party's constitutional rights have been violated by a court proceeding. Hulsey v. Cedartown Textiles, Inc., 208 Ga. 666, 68 S.E.2d 709; Young v. Cedartown Textiles, Inc., 208 Ga. 667, 68 S.E.2d 711. These rulings are consistent with the requirement that in order to raise any question as to the constitutionality of an act, it is not only necessary that the particular constitutional provision claimed to have been contravened thereby be pointed out, but that the specific way in which it is violated by the act must be clearly shown. See Harrell v. Cane Grower's Cooperative Association, 160 Ga. 30(3), 126 S.E. 531; Hooten v. Holcomb, 177 Ga. 561(2), 170 S.E. 803; Loque v. Hancock County, 8 Ga.App. 208(2), 68 S.E. 866. It follows, therefore, that the assignment of error on the final judgment in this case is entirely too vague and general to present any question for decision by this court thereon save as to the sufficiency of the facts specified in the order to constitute contempt. See generally in this connection, Cates v. Duncan, 180 Ga. 289(1), 179 S.E. 121; Vick v. Farmers and Merchants Bank of Coolidge, 209 Ga. 77, 70...