Knox v. State
| Decision Date | 20 July 1901 |
| Citation | 39 S.E. 330,113 Ga. 929 |
| Parties | KNOX. v. STATE. |
| Court | Georgia Supreme Court |
CRIMINAL LAW — APPEAL — REMITTITUR—JURISDICTION OF TRIAL COURT—NEW TRIAL. The filing of a remittitur from the supreme court in the office of the clerk of a trial court immediately reinvests it with jurisdiction for all purposes over the case to which such remittitur relates, though good practice requires that the trial court cause the remittitur to be entered upon its minutes. (a) If, where a new trial has been granted by the supreme court, the remittitur is not so entered before the new trial is had, it is proper to pass a nunc pro tunc order directing that the remittitur be entered as of the date when that trial began. (b) While the practice of promptly having remittiturs entered upon the minutes of trial courts should be followed, and in so doing trial courts should pass such orders as are appropriate to effectuate the judgments of the supreme court, an order formally making a judgment of that court the judgment of the trial court is not an indispensable prerequisite to proceeding with a new trial, when, under the judgment of the supreme court, a new trial is to be had.
(Syllabus by the Court.)
Error from superior court, Franklin county; R. B. Russell, Judge.
Ed Knox was found guilty of murder, and brings error. Affirmed.
W. R. Little and A. G. McCurry, for plaintiff in error.
C. H. Brand, Sol. Gen., and J. M. Terrell, Atty. Gen., for the State.
At the March term, 1900, of the superior court of Franklin county, Ed Knox was found guilty of the crime of murder. He made a motion for a new trial, which was overruled, and he excepted. On November 30, 1900, this court rendered a judgment reversing that of the trial court See 112 Ga. 373, 37 S. E. 410. The remittitur was duly transmitted to the clerk of the court below, and received by him. On December 21, 1900, in vacation, he entered the remittitur upon the minutes of that court. At the March term, 1901, thereof, Knox was again tried, found guilty, and sentenced. He thereupon filed a motion in arrest of judgment on the ground that the judgment of the supreme court had never, by any order of the superior court been made its judgment. The judge of that court passed an order reciting the facts above mentioned as to the receipt by the clerk of the remittitur, and providing that the judgment of the supreme court be made the judgment of the superior court. This order also embraced a direction that it be entered upon the minutes as of the date when the last trial began. The motion in arrest of judgment was then overruled, and Knox sued out a bill of exceptions, alleging that the courterred in passing the nunc pro tunc order just mentioned, and also in overruling his motion in arrest of judgment
We are of the opinion that no error was committed. All jurisdiction of this court over the case was at an end after the remittitur therefrom had been filed in the office of the clerk of the court below. Zorn v. Lamar, 71 Ga. 85. And see Legg v. Overbagh, 4. Wend. 4S8, 21 Am. Dec. 115. It was, of course, essential that, before taking any further steps in the case, the trial court should have been officially informed of the judgment which had been rendered by this court. Section 5597 of the Civil Code points out the manner in which a trial court is to be apprised of the decision of this court in any given case, viz. that such decision "shall be certified by the clerk [of this court] to the court below, under the seal of the supreme court." This section further declares that, after the decision has been so certified, it "shall be respected and in good faith carried into effect by the superior court." The thirty-fifth rule of this court is based upon the section of the Code just cited. Section 5134 declares that "when any cause shall be sent back to the superior court by the supreme court, the same shall be in order for trial." It is certainly safe to say that a case is "sent back" when the remittitur from the supreme court reaches the hands of the clerk of the trial court The case starts on its journey back to the court from whence it came to the supreme court when the remittitur is transmitted by the clerk of this court, and the journey is completed when that remittitur is lodged with the official custodian of the trial court, who is authorized to receive the document. That custodian is the clerk of that court, and none other. "If the judgment below is affirmed, upon filing the remittitur with the clerk of the superior court in vacation, the supersedeas shall cease, and execution shall issue at once for the amount of the original judgment." Civ. Code, § 5598. This very clearly indicates that the "filing of the remittitur with the clerk of the superior court" is all that is necessary to restore to that court jurisdiction over the case; for, In the absence of such jurisdiction, any action taken by its clerk with reference to issuing an execution upon "the original judgment" would be wholly nugatory. "All cases decided by the supreme court which are not finally disposed of by such decision, shall stand for further hearing at the term next ensuing after the decision of the supreme court, unless the lower court be in session when such decision is made, in which event they shall stand for trial during such term of the lower court" (section 5490); and "the clerk of the lower court in which a remittitur is entered shall docket the case immediately after the other cases then pending in his court which stand for trial at the term above fixed" (section 5491), to the end that another hearing may be had in conformity to the judgment of the supreme court. In the great majority of instances the clerk actually receives the remittitur during the vacation of the trial court. He is nevertheless authorized and directed to immediately "docket the case, " acting, not under any order passed in term by the judge, but solely by virtue of the fact that "a remittitur is entered" in the court of which he is clerk. The term "entered, " as employed in section 5491, is used in the sense of "filed" or "duly deposited." That section cannot possibly mean that the remittitur must be spread upon the minutes before the clerk proceeds to "docket the case." On the contrary, it contemplates that the case shall be immediately entered upon the docket of the trial court in order that the judge, on reaching the case in its regular order, may dispose of it by carrying into effect the judgment rendered by this court. If the remittitur be received in vacation, this much must be done at once, independently of any action taken by the trial judge in the premises, in order that, as...
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Cromartie v. Warden
...affirming the judgment of the court below, was made the judgment of that court. 53 Ga. 128,133-34 (1874) (emphasis in original). In Knox v. State, the Georgia Supreme Court determined when its jurisdiction over a case ended and the jurisdiction of the trial court resumed. 113 Ga. 929, 39 S.......
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Ga. Ry. & Power Co v. Thompson
...remittitur relates, though good practice requires that the trial court cause the remittitur to be entered upon its minutes." Knox v. State, 113 Ga. 929, 39 S.E. 330. In the instant case, the sustaining of the general demurrer and the dismissal of the case by the lower court was not uncondit......
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Tuten v. Towles, (No. 17402.)
...a formal order sustaining the certiorari and remanding the case with instructions, as was done. See, in this connection, Knox v. State, 113 Ga. 929, 39 S. E. 330; Equity Life Ass'n v. Gammon, 119 Ga. 271 (7), 46 S. E. 100; Rusk v. Hill, 121 Ga. 378 (1), 49 S. E. 261. 2. "When the only error......
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Tuten v. Towles
... ... certiorari and remanding the case with instructions, as was ... done. See, in this connection, Knox v. State, 113 ... Ga. 929, 39 S.E. 330; Equity Life Ass'n v ... Gammon, 119 Ga. 271 (7), 46 S.E. 100; Rusk v ... Hill, 121 Ga. 378 (1), 49 S.E ... ...