Simpson v. Bradley
| Decision Date | 14 November 1939 |
| Docket Number | No. 12871.,12871. |
| Citation | 5 S.E.2d 893 |
| Parties | SIMPSON, Solicitor-General, ex rel. v. BRADLEY. |
| Court | Georgia Supreme Court |
Rehearing Denied Nov. 30, 1939.
Mandate Conformed to Dec. 5, 1939.
See 6 S.E.2d 424.
Syllabus by the Court.
This contempt proceeding against a witness for refusing to testify, arising in a proceeding by a solicitor-general to revoke a previous order of the court admitting certain persons to practice law, which main pro ceeding was not a technical motion in arrest or motion to set aside, but was an independent proceeding quasi in rem at law, and invoked control by the court over its own officers, the "extraordinary service" ordered by the court therein was not illegal, so as to permit the witness to refuse to testify.
Error from Certiorari from Court of Appeals.
Proceeding by Frank Simpson, as Solicitor-General of Piedmont Circuit, for purpose of setting aside orders of the Superior Court of Jackson County admitting certain parties to practice of law, wherein J. D. Bradley was subpoenaed to testify as a witness. The witness refused to answer certain questions and produce certain documents and was adjudged in contempt. The Court of Appeals, 59 Ga.App. 844, 2 S.E.2d 238, reversed the judgment, and the Solicitor-General brings error.
Judgment of the Court of Appeals reversed.
The main case in which this contempt proceeding arose was based on a petition by the solicitor-general to the superior court, from information and at the instance of the Grievance Committee of the Georgia Bar Association, to revoke orders passed by the same court two years previously, admitting the defendants to practice law. It was alleged that the orders were obtained by "fraud perpetrated on the court" with respect to alleged false recitals in the applications for admission, as to the completion of required courses of law study and the obtaining of required certificates from law schools. The petition prayed for an order or rule nisi, requiring the defendants to show cause why the orders of admission should not be revoked, for an order of revocation, for a proper provision in the rule nisi for service on the defendants, and for such further orders from time to time as might appear to the court "to be proper under the facts and circumstances of this proceeding." The court ordered that the defendants be served by mailing copies of the petition and order to show cause, by registered mail addressed to their home addresses, at least fifteen days before the hearing. The defendants, being so served, appeared special-ly and attacked the jurisdiction on account of the service ordered and made. The court passed an order overruling the demurrers on this jurisdictional ground. While there were exceptions pendente lite, there was no writ of error from this judgment. The respondent witness, who was found guilty of contempt because of his refusal to give testimony in the main case, attacked the jurisdiction of the trial court and the contempt judgment, on the ground that, because of the illegal service ordered and made, the court had no jurisdiction of the main case. The Court of Appeals held that the contemnor could thus attack the jurisdiction in the main case, even though such jurisdiction had been unsuccessfully attacked for the same reasons by parties in the main case, and even though there was no writ of error from such judgment, where absence of jurisdiction appeared from the facts on the face of the record; that the service ordered and made by registered mail was illegal, under the Code, § 81-204, since that section required service by publication in equity cases, and since there was no provision for service by mail even if such a case were a legal proceeding; and that, by reason of the lack of jurisdiction in the main case, the order adjudging the respondent guilty of contempt was illegal. Bradley v. Simpson, 59 Ga.App. 844, 2 S.E.2d 238. The case arises here on a certiorari granted by this court.
Walter McElreath and Wm. A. Fuller, both of Atlanta, for plaintiff in error.
G. Seals Aiken, Bradley & Bradley and L. O. Kimberly, Jr., all of Atlanta, Joe Quillian, of Winder, and Randall Evans, Jr., of Thomson, for defendant in error.
1. Whatever may be the rules and restrictions governing technical motions in arrest of judgment and motions to set aside judgments as to the time of filing (Code, §§ 110-702, 110-703, 3-702; Regopoulas v. State, 116 Ga. 596, 42 S.E. 1014; Ford v. Clark, 129 Ga. 292, 58 S.E. 818; Moore v. Moore, 139 Ga. 597, 77 S.E. 820; Wright v. Martin, 153 Ga. 32, 35, 111 S.E. 190), it is nevertheless true that "in a proper proceeding * * * with rule nisi or process, and service upon the necessary parties, the courts of this state may exercise the jurisdiction, which obtained at common law, to set aside judgments for irregularities not appearing on the face of the record;" and such a petition may thus be brought at law as well as in equity. Union Compress Co. v. Leffler, 122 Ga. 640, 642, 50 S.E. 483; Dugan v. McGlann, 60 Ga. 353, 354; Perry v. Fletcher, 174 Ga. 180, 182, 162 S.E. 285; Dollar v. Fred W. Amend Co., 184 Ga. 432, 436-438, 191 S.E. 696; Code, §§ 37-219, 110-710, 110-711. "Fraud in procuring a judgment is ground for its reversal, both at Law and in Equity; it is an irregularity [in the broad sense of that term] which vacates it, " and "may be inquired into by the Court which rendered the judgment." Mobley v. Mobley, 9 Ga. 247, 251; Griffin v. Sketoe, 30 Ga. 300 (3, 4), 305. The distinction between technical motions in arrest or to set aside, and independent proceedings to annul judgments for fraud, lies in the fact that a motion in arrest or to set aside is an integral part of the previous litigation, and therefore must be between the parties thereto; Whereas a proceeding on account of alleged fraud, brought on a petition for process and service thereof, is an independent action, not in continuance of the original proceeding. Therefore it is not governed or limited by the rules pertaining to such technical motions with respect to the time of filing or the service required.
The main proceeding, from which this contempt case arose, can not be construed as a mere motion to set aside the previous judgment admitting persons to the practice of law, where not only was special service prayed and "extraordinary service" provided under the Code, § 81-204, but the independent petition was brought by a solicitor-general, who was not a party to the previous ex parte proceeding, but was an officer of the court, against attorneys who were also officers of the court, and invoked, not only the general power of the court over its own judgments and its jurisdiction at law as well as in equity in matters of fraud, but its inherent and statutory powers under the Code, § 24-104, par. 4, "to control, in furtherance of justice, the conduct of its officers and all other persons connected with a judicial proceeding before it, in every matter appertaining thereto, " and the conduct of attorneys, as its officers, with respect to orders obtained by representations to the court. See West v. Field, 181 Ga. 152 (5), 181 S.E. 661, 101 A.L.R. 465; Heath v. Miller, 117 Ga. 854 (5), 864, 44 S.E. 13; DeKras-ner v. Boykin, 54 Ga.App. 29, 34, 186 S.E. 701.
2. Code, § 81-204.
3. While, as a general rule, allegations of fact are to be construed most strongly against the pleader, yet, in the absence...
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Cummings v. Robinson, 14176.
... ... v. Pickett, 87 Ga. 734(1), 13 S.E. 750; Citizens & Southern Bank v. Union Warehouse & Compress Co, 157 Ga. 434(7, 10), 122 S.E. 327; Simpson v. Bradley, 189 Ga. 316(3), 319, 5 S.E.2d 893. In view of what has been said above and in previous decisions cited herein, we do ... ...
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Bradley v. Simpson, 27397.
...To review a judgment adjudging the witness in contempt, the witness brings error. Affirmed, conforming to mandate of the Supreme Court in 5 S.E.2d 893, reversing on certiorari a judgment in 59 Ga.App. 844, 2 S.E.2d 238. G. Seals Aiken, J. Ira Harrelson, and Bradley & Bradley, all of Atlanta......
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