Welborne v. State

Decision Date10 March 1902
Citation40 S.E. 857,114 Ga. 793
PartiesWELBORNE v. STATE.
CourtGeorgia Supreme Court

Syllabus by the Court.

1. A court created by a special act of the general assembly, which is located by the terms of the act at a county site, which has been expressly declared to be a city by an act incorporating the same, which has jurisdiction to try criminal cases below the grade of felony and civil jurisdiction over a portion or all of those classes of cases jurisdiction over which is not by the constitution exclusively vested in some other court, with territorial jurisdiction in both civil and criminal cases, either throughout the limits of the county or jurisdiction in one class of cases limited to the city, and in the other class coextensive with the limits of the county, with a jury of 12 to try all cases, both civil and criminal, if a trial by jury is demanded, is "a city court," within the meaning of that term as used in the constitution of this state. (a) A court of the character above described has by the terms of the constitution the power to grant new trials, and jurisdiction is also conferred by that instrument upon the supreme court to correct the errors of such court by writ of error, whether the power to grant new trials or the jurisdiction of the supreme court to review by writ of error is conferred by the act creating the court or not. (b) If the act creating the court provides that a jury of less than 12 shall try any case, the court is not "a city court," within the meaning of that term as used in the constitution. (c) If the act creating the court locates the same at any other place than a county site, or at a county site which has not been expressly incorporated as a city, the court thus created is not "a city court," within the meaning of that term as used in the constitution. (d) If the court has the requisites above referred to, it is immaterial what may be the other details prescribed in the act in reference to the manner of appointment of judge and other officers, practice, procedure, etc. (e) Whether a court having jurisdiction, territorial or otherwise, less than as above indicated is a "city court," within the meaning of that term as used in the constitution, is not now decided.

2. While the city court of Atlanta and the city court of Savannah are courts of purely statutory creation, they are named expressly in the constitution as courts from which a writ of error will lie to this court; and the general assembly has authority to make any change it deems fit in reference to the jurisdiction, practice, procedure, etc., of either of such courts in order to adapt the same to the existing conditions and needs of the city in which it is located, and no change in reference to such court will have the effect to take away the jurisdiction of this court to correct the errors of such court by writ of error.

3. The criminal court of Atlanta, established by the act of September 6, 1891, is a new and independent court, and not a part of the city court of Atlanta.

4. The general assembly has no authority to establish two or more city courts either in the city of Atlanta or the city of Savannah.

5. The act of September 6, 1891, which is entitled "An act to establish the criminal court of Atlanta and in pursuance thereof to amend an act establishing city court of Atlanta passed December 15, 1871, and acts amendatory thereof, and for other purposes" (Laws 1890-91, vol. 2, p. 935), does not, so far as the act provides for the withdrawal of criminal jurisdiction of the city court of Atlanta, that the judge of the city court of Atlanta may preside in the criminal court of Atlanta, that the judge of the criminal court may preside in the city court, and when so presiding therein the city court may sit in two divisions for the disposition of the business of that court, with two panels of jurors, one for each division, contain matter different from what is expressed in the title thereof.

6. Nor is the act above referred to subject to the objection that it refers to more than one subject-matter.

7. Nor is that portion of the act which withdraws criminal jurisdiction from the city court subject to the objection that it is an amendment or repeal of any part of the act creating the city court of Atlanta by a mere reference to its title.

8. The general assembly may provide that a city court may sit in two divisions, and it may also provide that the judge of another court may preside as judge of one of the divisions of the city court; and cases tried before either division of the city court are tried in the city court, and errors committed in the trial of such cases may be reviewed by this court on writ of error signed by the judge presiding in the particular case, whether such judge is a judge of the city court or not provided there is express statutory authority allowing such other judge to preside in the city court.

9. It follows from the foregoing that this court has no jurisdiction to review by writ of error the judgments of the criminal court of Atlanta, and the writ of error from that court will be dismissed. It likewise follows that this court has jurisdiction to review by writ of error the judgments of the city courts of Atlanta and Savannah, whether the judgments of the former court be rendered by the judge of that court or by the judge of the criminal court of Atlanta presiding in the second division of the city court, as well as other city courts coming within the description set out in the first headnote; and therefore jurisdiction is taken by this court in the different cases referred to in the opinion and which are now pending on writs of error.

Error from criminal court of Atlanta; A. E. Calhoun, Judge.

Monroe Welborne was convicted of crime, and brings error. Dismissed.

Alex W Stephens, for plaintiff in error.

E. R. Black, for defendant in error.

On a reargument upon the question of jurisdiction the following counsel appeared for the bar association: Hoke Smith, L. Z. Rosser, P. H. Brewster, C. T. Hopkins, A. C. King, R. R. Arnold, and Spencer R. Atkinson.

COBB J.

In the case of Welborne against State, pending in this court on a writ of error from the criminal court of Atlanta, the point was made that so much of the act creating that court as provided that criminal cases shall be tried in that court by a jury of 5 is unconstitutional, for the reason that the court is a city court, within the meaning of that term as used in the constitution, and that by the terms of that instrument juries in city courts must consist of 12 jurors. The investigation necessary to determine this question involved a consideration of the act creating the criminal court of Atlanta, as well as the various acts relating to the city court of Atlanta. During the progress of this investigation it became evident that the status, even if not the existence, of the criminal court of Atlanta, as well as that of the second division of the city court of Atlanta, was a matter the determination of which was not free from difficulty, and that the right of the supreme court to review the decisions of the city court of Atlanta, as it now exists was not altogether free from doubt. As there were many cases pending in this court on writs of error from those courts, we felt it our duty, on our own motion, to raise the question of jurisdiction in this court to review the judgments of those courts, that the doubts existing as to the question of jurisdiction might be removed, if possible, and in any event to determine the question of jurisdiction, so that litigants and their counsel could at least in the future have no question as to the remedies which the law gave them. Counsel in the various cases were notified that argument would be heard on these questions, and those interested in sustaining the jurisdiction of this court selected seven of their number to appear in this court and present their views, which was done in a very able and exhaustive brief, which was supplemented by an oral argument, in which three of the seven participated. No one appeared to attack the jurisdiction of this court. The argument was not limited to the status of the city court of Atlanta, but brought within its range all city courts now existing in this state. For this reason we have deemed it a fit opportunity to settle, so far as we can, the status of the city courts in this state, so that this matter, which has more than once been the occasion of some perplexity to this court, and about which there exists in the minds of those interested in the matter some doubt, to say the least, may be set at rest, if not for all time, certainly so long as the court stands as at present constituted. To this end we ourselves have raised the question of jurisdiction in different cases pending in this court from various city courts in the state which have been established in duly incorporated cities. The cases in which we have raised the question of jurisdiction are as follows: Hecht, Jr., & Sons against Snook & Austin Furniture Company, from the city court of Atlanta; Dodson Printers' Supply Co. against Harris, from the Second division of the city court of Atlanta; Brucker against O'Connor, from the city court of Richmond county; Susong against F. C. & P. Ry. Co., from the city court of Savannah; Travelers' Protective Association against Small, from the city court of Macon; Maxwell against Family Protective Union, from the city court of Athens; Welborne against State, from the criminal court of Atlanta; McGehee against State, from the city court of Moultrie; Gay against State, from the city court of Bainbridge; Lampkin et al. against Pike, from the city court of Jefferson; Owen against Palmour, from the city court of Hall county; Eastlick against Southern Railway Co., from the...

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3 cases
  • State Revenue Commission v. National Biscuit Co.
    • United States
    • Georgia Supreme Court
    • June 16, 1934
    ...648, 650; United States v. Wallace, 116 U.S. 398, 6 S.Ct. 408, 29 L.Ed. 675; Ivey v. State, 112 Ga. 175, 37 S.E. 398; Welborne v. State, 114 Ga. 804, 40 S.E. 857. state of Massachusetts had a law (St. 1909, c. 490, pt. 4, § 3, as amended by St. 1911, c. 502, § 1) providing for taxation of t......
  • Manry v. Hendricks
    • United States
    • Georgia Supreme Court
    • May 15, 1941
    ... ...          This ... court having no jurisdiction, under article 6, section 2, ... paragraph 5, of the constitution of this State, (Code, § ... 2-3005), the case is transferred to the Court of ...          Mrs ... Hendricks sued C. A. Manry in the superior court, ... complainant could have obtained in that court all the relief ... she here seeks. Compare Benton v. Hunter, supra; Welborne ... v. State, 114 Ga. 793, 796, 40 S.E. 857 ...          It is ... the duty of ... ...
  • Cuttino v. Mimms
    • United States
    • Georgia Court of Appeals
    • January 27, 1953
    ...question of its jurisdiction in all cases in which there may be any doubt as to the existence of such jurisdiction.' Welborne v. State, 114 Ga. 793, 796, 40 S.E. 857, 859; Tillman v. Groover, 25 Ga.App. 118, 102 S.E. 879; Peoples Loan Co. v. Allen, 198 Ga. 516, 32 S.E.2d 2. Where, on Februa......
1 books & journal articles

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