Northside Manor, Inc. v. Vann, 22198

• Decision Date: 10 October 1963
• Docket Number: No. 22198,22198
• Citation: 133 S.E.2d 32,219 Ga. 298
• Parties: NORTHSIDE MANOR, INC. v. Annie VANN.
• Court: Georgia Supreme Court

Page 32

133 S.E.2d 32

219 Ga. 298

NORTHSIDE MANOR, INC. v. Annie VANN.

No. 22198.

Supreme Court of Georgia.

Oct. 10, 1963.

Syllabus by the Court

The amendment of 1952 (Ga.L.1952, pp. 243, 245) to Code Ann. § 81-1001 (Ga.L.1946, pp. 761, 775; 1952, pp. 243, 245; 1953, Nov.Sess., p. 82) is an attempt by the legislature to exercise judicial powers in violation of the Constitution (Code Ann. § 2-123; Const. of 1945, art. 1, § 1, par. 23) by changing the law of the case when established by a court judgment, and the attack thereon is meritorious and the act is therefore void. When the amendment to the petition was not submitted within the 20 days provided in the judgment of October 3, 1962, the judgment sustaining the demurrer became final, and it was error to allow an amendment thereafter.

This is a personal injury case in which a constitutional question is raised in the lower court to give this court jurisdiction of the writ of error. The petitioner brought suit for damages, and demurrers were filed thereto. When the case came on for hearing of the demurrers it was noted that counsel for the petitioner had withdrawn from the case, and the court granted a continuance instructing the clerk to notify the party plaintiff of the continuance. Upon the call of the case for hearing after the continuance, neither counsel nor the litigant was present, and after consideration, the court sustained the demurrers allowing the petitioner 20 days in which to amend said petition. No amendment was filed within the time allowed, and after a considerable passage of time, defendant filed a motion for final dismissal of the case. Upon that hearing, counsel appeared and asked for a continuance to study the case. The Continuance was granted, and upon the hearing he tendered an amendment which was allowed subject to objections which were also filed at that time. The court after consideration overruled the objections and denied the motion to dismiss. The exceptions are to these judgments, and one of the objections to the allowance of the amendment is the constitutional attack upon that portion of Code Ann. § 81-1001 (Ga.L.1952, pp. 243, 245), allowing parties the right to amend at any time prior to the rendition of a final judgment after an order on demurrers allowing time for amendment in that it allows a party litigant an absolute uncontrolled right to amend and deprives the court of control over its own proceedings, and is a usurpation of the power of the judiciary by the legislative branch of government in violation of Art. I, Sec. I, Par. XXIII of the Constitution of 1945 (Code Ann. § 2-123).

Essley B. Burdine, Margaret Hopkins, Atlanta, for plaintiff in error.

William H. Moore, Jr., Atlanta, for defendant in error.

DUCKWORTH, Chief Justice.

By the Constitution, courts are invested with the exclusive ultimate power to construe laws. McLeod v. Burroughs, 9 Ga. 213; McCutcheon v. Smith, 199 Ga. 685, 35 S.E.2d 144; Calhoun v. McLendon, 42 Ga. 405; Thompson v. Talmadge, 201 Ga. 867, 872, 41 S.E.2d 883. The legislative department is invested with the exclusive power to say what the law is. When a court adjudicates that a petition alleges no cause of action, whether rightly or erroneously, that becomes the law of the case, and neither the legislature nor the judiciary can disregard that ruling. When, by the judgment on the 3rd of October 1962, the court adjudicated that the petition failed to allege a cause of action, it thereby settled that question. When the court in the same order gave 20 days in which to meet the defect upon which that adjudication was based, it limited the time for amendment by judgment, and that time limit likewise became the law of the case, and thus disallowed amendments beyond the time stated. The legislature has no constitutional power to construe or alter judgments.

In right of the foregoing incontrovertible principles of law, how stands the amendment of 1952 (Ga.L.1952, pp. 243, 245) to Code Ann. § 81-1001 (Ga.L.1946, pp. 761, 775; 1952, pp. 243, 245; 1953, Nov.Sess. p. 82)? It not only trangresses the constitutional division of powers but subverts the Supreme Court rule made pursuant to legislative request and ratified by the legislature in Code Ann. § 81-1001 (Ga.L.1946, pp. 761, 775). This confusion could result only from an utter misconception of the finality of a court judgment. In McCutcheon v. Smith, 199 Ga.685, 35 S.E.2d 144, supra, this court was confronted with a situation where the legislature attempted to substitute its judgment for that of this court. There we applied the Constitution (Code § 2-123) which commands keeping the legislative, judicial and executive powers forever separate. There at page 691 of 199 Ga. at page 148 of 35 S.E.2d we quoted from McLeod v. Burroughs, 9 Ga. 213, which had quoted from Wilder v. Lumpkin, 4 Ga. 208, 212, as follows: 'A legislative exposition of a doubtful law is the exercise of a judicial power, and if it interferes with no vested rights, impairs the obligation of no contract, and is not in conflict with the primary principles of our social compact, it is in itself harmless, and may be admitted to retroactive efficiency; but if rights have grown up under even a law of somewhat ambiguous meaning, then the universal rule of our system--indeed of the English system of government, and of other systems which approximate to free government--applies. That rule is, the Courts declare what the law is, the Legislature declares what the law shall be.' It was further held there that the litigant 'is not subject to the peril of legislative constructions; if he were, then charters and grants would be but a mockery. Who would accept a charter if it was subject at all times to legislative construction; that is to say, subject to be impaired by law? No sane man, or half-witted set of men. The power to sit in judgment upon his own contracts by one of the parties, is nowhere conceded under any system of free government; that would be an enormity at which justice revolts.' And in Calhoun v. McLendon, 42 Ga. 405, supra, at page 408, it was said: 'In the dividing line of power between these co-ordinate branches we find here the boundary--construction belongs to Courts, le...