Home Ins. Co. v. Willis

• Decision Date: 19 September 1934
• Docket Number: 9945.
• Citation: Home Ins. Co. v. Willis, 179 Ga. 509, 176 S.E. 371 (Ga. 1934)
• Parties: HOME INS. CO. v. WILLIS.
• Court: Georgia Supreme Court

176 S.E. 371

179 Ga. 509

HOME INS. CO. v. WILLIS.

No. 9945.

Supreme Court of Georgia

September 19, 1934

Rehearing Denied Sept. 24, 1934.

Syllabus by Editorial Staff.

Lyons citycourt, as created by 1931 act providing for trial by six jurors, was not constitutional court from which writs of error would lie, or which could grant new trials (Laws 1931 p. 343, pp. 348, 355, §§ 12, 35;p. 352, § 28, as amended byLaws 1933, p. 344, § 4;Const. art. 6, § 2, par. 5, and § 4 par. 6).

Lyons citycourtheld changed by amendatory act providing for trial by jury of twelve into constitutional court authorized to grant new trials (Laws 1931, p. 352, § 28, as amended byLaws 1933, p. 344, § 4;Civ. Code 1910, § 6078).

Judgment of Lyons citycourt for plaintiff, rendered before statutory amendment authorized court to grant new trial, afforded plaintiff vested right unaffected by such amendment(Laws 1931, p. 352, § 28, as amended byLaws 1933, p. 344, § 4;Civ. Code 1910, § 6078).

Error from Superior Court, Toombs County; R. N. Hardeman, Judge.

Suit by C. M. Willis against the Home Insurance Company.To review a judgment overruling demurrers to the petition and appointing a receiver, defendant brings error.

Affirmed.

BELL J., dissenting.

B. P. Jackson, of Vidalia, and Smith, Smith & Bloodworth, of Atlanta, for plaintiff in error.

Saffold & Sharpe, of Vidalia, for defendant in error.

Syllabus OPINION.

ATKINSON Justice.

1.The city court of Lyons was created by the act approved August 27, 1931(Ga. L.1931, p. 343).In section 12 it was provided that the terms should commence on the fourth Monday in January, April, July, and October.In section 28 provision was made for trial by a jury of six, to be selected from a panel of twelve jurors, but there was no provision in the act for trial by twelve jurors.In section 35 power was expressed purporting to authorize the judge to grant new trials under the laws governing the grant of new trials in the superior courts.The act was amended by the act approved March 24, 1933(Ga. L.1933, p. 341), whereby provision was made for trial by twelve jurors to be selected from a panel of twenty-four.Held:

(a) On account of failure to provide for trial by a jury of twelve jurors, the court, as created by the act of 1931, was not a constitutional court within the meaning of paragraph 5,section 2 of article 6 of the Constitution(Civil Code, § 6502) relating to allowance of writs of error, and paragraph 6 of section 4 of article 6 of the Constitution(section 6515) relating to the power of courts to grant new trials.Cone v. American Surety Co.,154 Ga. 841, 115 S.E. 481.

(b) This character of the court was changed by the amendatory act of March 24, 1933, supra, so as to provide for trial by a jury of twelve jurors and thereby render the court such a constitutional court, and authorized to grant new trials.Civ. Code, § 6078.

(c) A verdict and judgment rendered at the October term, 1932 could not be affected by a motion for new trial made during that term, because there was no valid law authorizing the court to grant a new trial.Consequently the judgment was final, and afforded the plaintiff in that judgment a vested right prior to the passage of the amending act of March 24, 1933.The amending act of 1933, supra, could not operate retroactively, so as to destroy such vested right by the grant of a new trial.Wilder v. Lumpkin,4 Ga. 208 (4);Western Union Telegraph Co. v. Smith,96 Ga. 569, 23 S.E. 899;Western Union Telegraph Co. v. Lumpkin,99 Ga. 647, 26 S.E. 74;Harris v. Gano,117 Ga. 934...