Gill v. Decatur County

• Court: Georgia Court of Appeals
• Writing for the Court: CLARK; EVANS; EVANS
• Citation: Gill v. Decatur County, 201 S.E.2d 21, 129 Ga.App. 697 (Ga. App. 1973)
• Decision Date: 20 September 1973
• Docket Number: No. 48314,No. 2,48314,2
• Parties: Elizabeth GILL v. DECATUR COUNTY

Page 21

201 S.E.2d 21

129 Ga.App. 697

Elizabeth GILL v. DECATUR COUNTY.

No. 48314.

Court of Appeals of Georgia, Division No. 2.

Sept. 20, 1973.

Weiner & Bazemore, Paul S. Weiner, Jonesboro, for appellant.

Harold Lambert, Bainbridge, for appellee.

Syllabus Opinion by the Court

CLARK, Judge.

This appeal results from a declaratory judgment action filed by Decatur County, as a political subdivision against Elizabeth Gill in her capacity as Justice of the Peace of the 513th Militia District. A justiciable controversy was alleged in the complaint and admitted by the answer. The matters for determination were the amount of fees properly chargeable for certain J.P. services.

Hon. Robert Culpepper, Jr. heard the matter and rendered an opinion favorable to Decatur County in all respects. The J.P. then brought this appeal in which she enumerated error as to all matters with one exception. She has not contested the court's ruling that appellant 'is not entitled to exact cost in advance as a condition to issuance of warrant.' (R. 15). The other matters determined are treated as a caption to each point in the form of a question by the trial judge, Hon. Robert Culpepper, Jr. Because Judge Culpepper's exhaustive opinion represents the views of this court we adopt it in toto. It reads as follows:

When costs are due justices of the peace after termination of case, from what source and by whom are they paid?

It appears to be the sense of the law that in cases where (1) party has been acquitted; or (2) when they are unable to pay costs; or (3) where there is no county court and the party is bound over by justice of the peace, or has been committed to jail in default of bail, and the grand jury returns a 'no bill,' or, when, after an investigation, party has been discharged by the justice; or (4) in counties where there are no county courts, in felony cases; and in misdemeanors where indictments have been demanded; the costs due justice of peace and constables are payable only out of fine and forfeiture fund, upon the order of the judge of superior court, and are of equal dignity with the accounts of the superior court officers and entitled to pro rata distribution. This means that costs in cases such as set out above are not payable out of the general treasury of the county.

However, in cases where warrant has issued and resulted in an accusation or indictment, and a conviction has been had, under provisions of Code §§ 27-2928, 27-2929, 27-2930, 27-2931, 27-2932 and 27-2933, the costs due justice of peace and constables, upon proper verification, are payable out of general county treasury. In view of the provisions of § 27-2933 that all claims for fees of justices of the peace shall be paid from the funds arising from fines imposed in criminal cases before any order of any claimant shall be paid, it appears that even in cases of conviction, costs should first be paid out of fine and forfeiture fund, and, if such fund is insufficient in a given case, then out of the general county treasury.

For issuing a warrant, does the fee of $4 as set forth in schedule of fees in Code 24-1601 cover all services in connection with issuance of warrant, or is defendant entitled to additional fee of $1 for docketing the case, .50 for seal and .50 for filing papers in each case as sought to be charged by defendant?

The schedule of fees of justice of the peace embraced in Code § 24-1601 provides for a charge of $4 for each warrant issued. Defendant contends that in addition to such charge for each warrant issued, she is entitled to $1 for docketing the case, $1.50 for seal on the warrant, and .50 for filing the papers. While the exact point was not involved in case of Owens v. Maddox, 80 Ga.App. 867, 57 S.E.2d 826, the clear import of the decision is that the $4 warrant charge embraces all of the services connected with the issuance of a warrant.

In Owens, the justice of peace had made the flat then charge of $2 for issuing warrant, and had added .50 for examination of a witness in a criminal case, and $1 for waiving a committal trial. It was held that he was not entitled to the fee for examination of witnesses, as there was no trial, and not entitled to fee for waiver of committal trial, as there was no waiver before said office. In headnote 1(c) it is stated: 'Under the facts of this case the justice of the peace was only entitled to a fee of $2 for issuing a criminal warrant.'

In the enumeration of charges for justices of the peace in the foregoing code section, after setting forth charge for trial of each case, there is the charge for 'docketing each case,' meaning a case that was tried in justice court, as it is followed by charge for 'Each witness sworn' and 'Issuing such execution,' all of which relate to an actual case trial in justice court. We hold that issuing a warrant is not a 'case' in justice court which would justify a charge for docketing same, but is only the beginning of a possible criminal 'case' in some other court.

In the Owens case, it was held that the officer was not entitled to .50 for examination of a witness in criminal case, as there was no case. By the same reasoning, the defendant justice of the peace in this case could not charge $1 for docketing a case when there was no case in her justice court. This line of reasoning is sustained in the case of Ormond v. Ball, 120 Ga. 916, 48 S.E. 383, in which it was held: '4. The issuing of a criminal warrant by a justice of the peace is a judicial act, performed by a judicial officer, and is the beginning of a judicial proceeding, but it is not the act of a court. 5. The court of inquiry does not come into existence until the accused has been 'legally arrested and brought before' the magistrate and a court organized for the purpose of examining into the accusation . . . 7. The officer to whom the warrant is delivered for execution has some discretion with reference to the judicial officer before whom the warrant shall be returned, and the magistrate who issues it cannot become a court if the warrant should not be returned before him.'

Thus, the justice of the peace, for merely issuing a warrant, cannot also at the same time charge $1 for docketing the case, as there is no such case at the time, and a 'case' with reference to such warrant only comes into existence when and if the arresting officer should bring before the issuing officer the person arrested under the warrant, seeking committal hearing, or waiving same and asking for bond. The same rule applies to the .50 charge for filing papers in the case. At the time of the issuance of warrant, there is no case in justice court in connection with which one could file any papers, and the warrant is not actually filed with the justice of the peace but is returned and filed in either superior court or other trial court.

There is no requirement for a seal either on a warrant or a search warrant; and, therefore, the...