Lamas v. Baldwin
| Decision Date | 03 April 1973 |
| Docket Number | No. 2,No. 47997,47997,2 |
| Citation | 128 Ga.App. 715,197 S.E.2d 779 |
| Parties | Arthur A. LAMAS v. Frank BALDWIN |
| Court | Georgia Court of Appeals |
Richardson, Chenggis & Constantinides, Platon P. Constantinides, Chamblee, for appellant.
Peek, Whaley & Haldi, Glenville Haldi, J. Robert Hardcastle, Atlanta, for appellee.
Syllabus Opinion by the Court
Frank Baldwin sued Arthur A. Lamas and Happy Herman's, Inc. for electrical work performed upon the business establishment of the latter. Lamas was the general contractor that employed Baldwin to perform the electrical work.
This is the fourth appearance of this litigation in this court. See Lamas Co., Inc. v. Baldwin, 118 Ga.App. 437, 164 S.E.2d 236; Id., 120 Ga.App. 149, 169 S.E.2d 638. Baldwin v. Happy Herman's, Inc., 122 Ga.App. 520, 177 S.E.2d 814. However, none of these cases has any bearing on the issues now before the court.
On June 5, 1972, the original suit came on to be heard; was called in its order, and as there was no appearance of the plaintiff, same was dismissed without prejudice for want of prosecution. Judgment was rendered in favor of the defendant and against plaintiff for the costs of court. The foregoing judgment of dismissal was rendered by a judge pro hac vice who was serving in the absence of the regular judge.
On August 24, 1972, the plaintiff filed a motion to have the case reinstated and to set aside the dismissal for want of prosecution. This motion came on for hearing on December 1, 1972, before Honorable Thomas L. Camp, Chief Judge of the Civil Court of Fulton County. The judgment of dismissal was vacated and set aside because said dismissal for want of prosecution by a judge pro hac vice was adjudged to be not legally binding. The defendant appeals. Held:
In any case pending the Chief Judge of the Civil Court of Fulton County may appoint any qualified attorney to act as judge pro hac vice whenever it is necessary by reason of the disqualification of any judge in that court. The judge pro hac vice shall proceed to exercise all functions of a judge in that case. Ga.L.1950, pp. 2479, 2481. There is absolutely no authority for an attorney at law to act as judge pro hac vice in the Civil Court of Fulton County unless he is appointed to act in the place of a judge of that court who is disqualified.
There are various methods by which one judge may sit for another in the several courts of this state, particularly to replace a judge or judges where absent for providential cause or otherwise unable to preside. In this court judges of the various city courts (now State courts) in the State may be requested to serve by the chief judge (Sec. 15, above law, supra), or judges emeritus of that court may be requested to serve (Ga.L.1963, p. 3306).
In the case sub judice, a judge pro hac vice was appointed to serve because of the providential absence of certain judges, and not because of disqualification of another judge in that court. Thus the appointment, on its face, was void, and the action of the judge pro hac vice in dismissing this suit for lack of prosecution was an absolute nullity.
There is some question as to the difference between the old law and the new law as to method of attacking a void judgment. Formerly, Code § 110-701 provided: 'A void judgment may be attacked in any court and by any person.' But this statute was repealed and Code Ann. § 81A-160(a) enacted in its place, which provides: 'A judgment void on its face may be attacked in any court by any person . . .' (emphasis supplied), which is followed by Code Ann. § 81A-160(b) as follows: 'A judgment may be attacked by motion for new trial, motion to set aside, or by complaint in equity.' (emphasis supplied), which is followed by Code Ann. § 81A-160(d): 'A motion to set aside must be predicated upon some non-amendable defect which does appear on the face of the record or pleadings.' (Emphasis supplied.) CPA § 60 (Ga.L.1966, pp. 609, 662; 1...
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Lamas v. Baldwin
...the corporation was barred. Baldwin v. Happy Herman's, Inc., 122 Ga.App. 520, 177 S.E.2d 814. After one more detour (Lamas v. Baldwin, 128 Ga.App. 715, 197 S.E.2d 779), plaintiff's case proceeded to trial against Lamas alone to determine if he was liable individually. From a voluminous tria......
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Bendiburg v. Dempsey
...well as of the Georgia Court of Appeals in Bedingfield v. First National Bank, 4 Ga.App. 197, 61 S.E. 30 (1908) and Lamas v. Baldwin, 128 Ga.App 715, 197 S.E.2d 779 (1973). In Chambers, Adams, and Trammell, the Georgia Supreme Court was confronted with judgments, orders and other judicial a......
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Haire v. Cook
...Warren, 206 Ga. 838(4), 59 S.E.2d 503 (1950), Garland v. State, 110 Ga.App. 756, 758, 140 S.E.2d 46 (1964), and Lamas v. Baldwin, 128 Ga.App. 715, 717, 197 S.E.2d 779 (1973), for the proposition that an order entered by a disqualified judge is nugatory. Defendant's counsel urges next that t......
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Hood Oil Co. v. Moss
...vacating and setting aside for a non-amendable defect appearing on the face of the record. See in this connection Lamas v. Baldwin, 128 Ga.App. 715, 717, 197 S.E.2d 779. 6. A judgment which is correct for any reason will be affirmed. Sims TV, Inc. v. Fireman's Fund Ins. Co., 108 Ga.App. 41,......