Gresham v. Symmers, 26377
| Decision Date | 20 May 1971 |
| Docket Number | No. 26377,26377 |
| Citation | 227 Ga. 616,182 S.E.2d 764 |
| Parties | James S. GRESHAM v. H. S. SYMMERS. |
| Court | Georgia Supreme Court |
Roy J. Leite, Jr., Atlanta, for appellant.
Mose S. Hayes, Atlanta, for appellee.
Syllabus Opinion by the Court
The appeal in this case is from the judgment of a judge of the Civil and Criminal Court of DeKalb County (denominated the State Court of DeKalb County) overruling defendant's motion to quash summons and overruling defendant's motion to dismiss for lack of jurisdiction of the person of defendant and for lack of jurisdiction of the subject matter of the action. A certificate of immediate review was timely filed. Jurisdiction of the appeal is in this court by reason of an attack by the movant on the constitutionality of a portion of the Act approved March 29, 1968 (Ga.L.1968, pp. 2928-2934). The order appealed from expressly overruled the constitutional attack made upon the statute cited.
1. In Crosby v. Dixie Metal Company, 227 Ga. 541, 181 S.E.2d 823, which was a certified question from the Court of Appeals relating to the Civil Court of Bibb County, we held that the declaration of the legislature that the Civil Court of Bibb County was a court of record, coupled with provisions requiring the keeping of permanent records, constituted such court a court of record within the meaning of that term as used in the Civil Practice Act. In DeKalb County v. Deason, 221 Ga. 237, 144 S.E.2d 446, this court had for consideration another question certified to it by the Court of Appeals as to whether the Civil and Criminal Court of DeKalb County was then a court of record. That question was answered in the negative. By Sec. 3 of the Act approved March 29, 1968 (Ga.L.1968, pp. 2928, 2932), the General Assembly amended the Act approved February 14, 1951 (Ga.L.1951, p. 2401 et seq.) creating the Civil Court of DeKalb County and the Acts amendatory thereof by adding to said Act a new section 12-B. In paragraph (a) of that section the Civil and Criminal Court of DeKalb County (the name of the said court having been changed pursuant to the Act approved March 17, 1958 (Ga.L.1958, p. 2519) was declared to be a court of record and required as such to keep only the following records: (1) an index of all civil and criminal cases filed; (2) dockets showing the final disposition of all cases; (3) all the original pleadings in civil cases; and, (4) all accusations and sentences in criminal cases except as thereinafter provided. Then follows in the same paragraph of Sec. 12-B a provision that, 'after final disposition of any and all cases, both civil and criminal in said court, the clerk shall at the direction of the court have all indexes and dockets, the original pleadings in civil cases and all criminal sentences and accusations preserved as a part of the original record by having such documents microfilmed and kept as the permanent records of the court.' We now hold that, under the ruling made by this court in the case of Crosby v. Dixie Metal Company, 227 Ga. 541, 181 S.E.2d 823, supra, the addition of these provisions to the Act creating the Civil and Criminal Court of DeKalb County constitutes such court a court of record as that term is used in the Civil Practice Act.
2. Section 1 of the Civil Practice Act (Code Ann. § 81A-101) provides that 'this Title governs the procedure in all courts of record of the State of Georgia in all suits of a civil nature whether cognizable as cases at law or in equity, with the exception stated in section 81A-181.' Section 81 (Code Ann. § 81A-181) provides that 'this title shall apply to all special statutory proceedings except to the extent that specific rules of practice and procedure are in conflict herewith.' Such special statutory proceedings are the only exceptions to the practice and procedure prescribed by the Civil Practice Act permitted in courts of record. While it is true that § 12(a) of the Civil Practice Act (Code Ann. § 81A-112(a)) provides that the defendant shall serve his answer within 30 days after the service of the summons and complaint upon him unless otherwise provided by statute the phrase 'otherwise provided by statute' relates to such special statutory proceedings (such as quo warranto, mandamus, etc.) as may prescribe specific rules of practice and procedure with relation to the time of filing defensive pleadings as may be different from the 30 days permitted under the Civil Practice Act, and not to local practice rules provided in the various statutes creating such courts as the Civil and Criminal Court of DeKalb County. The legislature having declared the Civil and Criminal Court of DeKalb County to be a court of record thus authomatically brought it under the provisions of the Civil Practice Act, and the legislature could not constitutionally thereafter, either in the same Act or in a subsequently enacted law, vary the rules of Practice and Procedure provided for in the Civil Practice Act by adding provisions such as embodied in § 12-B(b) requiring defendants to file defensive pleadings sooner than 30 days after service of the complaint on...
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McSears v. State
...courts." (Ga.L.1970, p. 679 at 682 § 10.)4 State courts were included with city courts in the 1976 Constitution. Gresham v. Symmers, 227 Ga. 616(2), 182 S.E.2d 764 (1971), is therefore inapposite.5 It has been intimated that Thompson v. Utah may be contrary to the rule that procedures may c......
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Cochran v. McCollum
...nature whether cognizable as cases at law or in equity, with the exceptions stated in § 81A-181.' Code Ann. § 81A-101; Gresham v. Symmers, 227 Ga. 616, 182 S.E.2d 764. The court of ordinary is a court of record. Wofford v. Vandiver, 72 Ga.App. 623, 34 S.E.2d 579. Under the CPA, a pleading s......
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Crosby v. Dixie Metal Co., 45755
...comes within the exception of the Civil Practice Act, relying upon Hines v. Wingo, 120 Ga.App. 614, 171 S.E.2d 905. In Gresham v. Symmers, 227 Ga. 616, 182 S.E.2d 764, holding a portion of the Act of March 29, 1968 (Ga.L.1968, pp. 2928-2934) relating to the Civil and Criminal Court of DeKal......
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Johnson v. Barnes
...172 S.E.2d 158 (1969); Swint v. Smith, supra. 2. The parties agree that the trial court is a court of record (see Gresham v. Symmers, 227 Ga. 616, 182 S.E.2d 764 (1971); Fain v. Hutto, 236 Ga. 915(1), 225 S.E.2d 893 (1976)), and that the CPA is generally applicable to courts of record (Code......