Gay v. Lewis

• Decision Date: 05 February 1960
• Docket Number: No. 37986,No. 1,37986,1
• Citation: 101 Ga.App. 387,114 S.E.2d 155
• Parties: Carlus GAY, Sheriff, v. S. A. LEWIS et al., Commissioners, et al
• Court: Georgia Court of Appeals

Page 155

114 S.E.2d 155

101 Ga.App. 387

Carlus GAY, Sheriff, v. S. A. LEWIS et al., Commissioners, et al.

No. 37986.

Court of Appeals of Georgia, Division No. 1.

Feb. 5, 1960.

Rehearing Denied March 18 and April 1, 1960.

Syllabus by the Court

While no reversible error is shown as to the judgments on the sheriff's demurrers or as to the other judgments rendered prior to the time when the case was heard on its merits, the judgment overruling the sheriff's motion for new trial was error since it included findings not authorized by either the pleadings or evidence.

S. A. Lewis, R. A. Register, and J. W. Robertson, in their capacities as Commissioners of Roads and Revenues of Laurens County, brought their petition for a rule against the Clerk, the Solicitor and the Sheriff of the City Court of Dublin, to require a distribution of the funds derived from fines and forfeitures in the City Court of Dublin. Both the Judge of the City Court of Dublin and the Judge of the Superior Court of Laurens County disqualified themselves, and the Judge of the City Court of Swainsboro presided in the case. After a hearing, a judgment was entered distributing the funds in question. Both the solicitor and the clerk in their answers denied any interest in the fund and were not named as parties in this court. Therefore, the sheriff will hereinafter be referred to as the defendant. The defendant has assigned as error various rulings and judgments adverse to him on the pleadings, his motion for new trial, and motions to amend and modify and to set aside the judgment. The writ of error was first taken to the Supreme Court and transferred by that court to this court inasmuch as this court has jurisdiction of such writ of error. Gay v. Lewis, 215 Ga. 317, 109 S.E.2d 646.

Carl K. Nelson, Nelson & Nelson, Dublin, Price, Spivey & Carlton, Swainsboro, for plaintiff in error.

H. Dale Thompson, Dublin, Williams & Smith, Swainsboro, for defendants in error.

NICHOLS, Judge.

1. The first assignment of error in the bill of exceptions complains that the judgment of the court issuing a rule nisi in the case and assigning the same for hearing was void. The judgment excepted to was rendered on June 3, 1958, in the City of Swainsboro, Emanuel County, Georgia, before the action was filed in the City Court of Dublin. The record discloses that the Judge of the City Court of Dublin had disqualified himself and that the Judge of the City Court of Swainsboro was presiding in the case. The rule nisi was reissued by the presiding judge in Dublin, Laurens County, Georgia. Therefore, the question of whether the first rule nisi was void, as contended by the defendant, becomes moot, and there is no assignment of error that the reissued rule nisi was insufficient.

The contention is made that under Code § 24-2205 the judge who presided had no authority to preside in the case because he had not been requested to serve by the Judge of the City Court of Dublin. This contention is without merit, for while Code § 24-2205 does provide that another city court judge must be requested to serve when a judge of a city court is disqualified, the defendant sheriff consented for the judge to try the case without the intervention of a jury, and then filed a motion for new trial on other grounds. In the case of Baldwin v. Ragan, 6 Ga.App. 529, 65 S.E. 335, which is very similar to the case sub judice, it was said: 'The judge so presiding may be consent of the parties, try and determine, and the judgment rendered therein will be binding, and neither of the consenting parties will thereafter be heard to question his right to render the judgment; and especially would a party in such case be estopped from denying the authority of the presiding judge to render judgment therein, after he had recognized the validity of the judgment by filing a motion for a new trial on other grounds.' Accordingly, this assignment of error is without merit.

2. The defendant filed general and special demurrers to the plaintiff's petition which were overruled. When the case was before the Supreme Court it was held, when transferring the writ of error to this court, that the grounds of demurrer attempting to raise constitutional questions were insufficient to do so, and it necessarily follows that those grounds of the sheriff's demurrers were property overruled by the trial court.

The remaining grounds of demurrer are controlled adversely to the defendant by the decision of this court in Banks County v. Stark, 88 Ga.App. 368, 378 et seq., 77 S.E.2d 33, and the judgment of the trial court overruling such grounds of demurrer was not error for any reason assigned, and under such decision as well as the decision of the Supreme Court when such case was before that court (Rucker v. Stark, 209 Ga. 496, 74 S.E.2d 74) and the authorities there cited, it became the duty of the trial court, under equitable principles, to make distribution of the funds.

3. The third assignment of error complains that the trial court erred in sustaining the plaintiff's oral motion to dismiss the defendant's 'special plea of res judicata and/or estoppel by judgment as amended.'

Neither the writ of error nor the record discloses the ground, or grounds, upon which the oral motion to dismiss was based, and under the full-bench decision of the Supreme Court in Tree v. City of Atlanta, 144 Ga. 757(1), 87 S.E. 1021, no question for decision is presented to this court by such assignment of error.

4. Error is assigned on the findings and judgment rendered in the case because the trial court prepared his written findings, decision and judgment in Swainsboro, Emanuel County, Georgia and mailed them to the clerk of the court in Dublin, Laurens County, Georgia. This assignment of error is based on the contention that the trial court had no authority in Emanuel County to pass an order or judgment involving a case pending in the City Court of Dublin (Laurens County, Georgia).

'Where there is a conflict between the bill of exceptions and the record, the record controls. Hunt v. State, 64 Ga.App. 320, 13 S.E.2d 117; Sims v. Hatcher, 77 Ga. 389(3), 3 S.E. 92; Howell v. Seigler, 89 Ga.App. 221(3), 78 S.E.2d 874.' Johnson v. Johnson, 98 Ga.App. 588(1), 106 S.E.2d 176. In the present case the record discloses, with reference to the judgment here complained of, that it was rendered in Laurens County, Georgia, for the final paragraph thereof reads as follows: 'This decision and findings of the court and order issued in Laurens County, Dublin, Georgia on this the 10th day of December, 1958.'

5. The trial court, hearing the case without the intervention of a jury, rendered the following written opinion, the italicized parts thereof were assigned as error in the amended motion for new trial:

'Contentions of parties litigant--Laurens County instituted rule against proper officers of said county for distribution of fund held by the Clerk of the City Court of Dublin and sheriff of said county. Laurens County contends that the fund should be distributed between the sheriff, said clerk and solicitor of said court on a percentage or pro rata basis in accordance with the Act of City Court of Dublin of the year 1900 and legal amendments to said act. The county contends that the portion of the fund going to the solicitor and the clerk of said court shall be paid to the legal authorities of the county, as said officers are on a salary and the county stands in the shoes of said officers and should receive the part of said...