Williams v. Lawler Hosiery Mills, Inc.
| Decision Date | 09 October 1956 |
| Docket Number | No. 19451,19451 |
| Parties | T. V. WILLIAMS, State Revenue Commissioner, v. LAWLER HOSIERY MILLS, Inc. |
| Court | Georgia Supreme Court |
Eugene Cook, Atty. Gen., William L. Norton, Jr., H. Grady Almand, Asst. Attys. Gen., Ben F. Johnson, Jr., Broadus B. Zellars, Deputy Asst. Attys. Gen., Benjamin B. Blackburn, III, Atlanta, for plaintiff in error.
Shirley C. Boykin, Boykin & Boykin, Carrollton, for defendant in error.
Syllabus Opinion by the Court
The exception here is to a judgment denying a motion in arrest of judgment and for a new trial. On April 9, 1954, Charles D. Redwine, State Revenue Commissioner, proposed an assessment for sales and use tax against Lawler Hosiery Mills; a protest was filed by the taxpayer on May 1, 1954, and a hearing requested, which hearing was held on June 29, 1954, and the protest overruled. The taxpayer appealed from the order overruling his protest to Carroll Superior Court under the provisions of Code Ann.Supp. § 92-8446. The protest, which was overruled, set out certain objections to the Georgia Sales and Use Tax Act of 1951, Code, § 92-3401a et seq. upon the grounds that said act was unconstitutional as being in violation of enumerated sections of the Federal and State Constitutions, stating further that no tax was due the State under the said act. On July 21, 1954, a general demurrer was filed to the protest, along with certain special demurrers. On January 10, 1955, Redwine was succeeded in office by T. V. Williams, as State Revenue Commissioner. On October 6, 1955, the case came on to be heard during the regular October term of Carroll Superior Court. The trial judge disqualified himself from hearing the case, and the clerk of court appointed Emmett Smith as Judge pro hac vice, who, upon assuming the bench, and, in the absence of counsel for the State Revenue Commissioner, overruled the general and special demurrers which had been filed to the protest; a jury was impanelled, and the case proceeded to trial that day without the court taking cognizance of the fact that Charles D. Redwine was no longer State Revenue Commissioner, and in the absence of his counsel of record. At the conclusion of testimony, the court directed that the jury return a verdict for the taxpayer, which was done, and on the same day, October 6, 1955, judgment was entered for the taxpayer against Charles D. Redwine, State Revenue Commissioner. On February 6, 1956, during the same term of court, Williams filed the 'motion in arrest,' which was denied on March 7, 1956 Held:
1. There being no contention that the judge of the superior court was not disqualified to preside in the case, it was not essential to the validity of the appointment by the clerk of a judge pro hac vice to try the case that an effort should have been made by the judge to procure the services of another judge, or that the parties must have attempted and failed to agree in the selection of an attorney to try the case. Robinson v. McArthur, 166 Ga. 611, 144 S.E. 19; Bivins v. Bank of Richland, 109 Ga. 342, 34 S.E. 602.
2. 'The superior court has power, during the same term at which an order or judgment is rendered, to revoke or vacate it for meritorious cause.' and 'Such power is not lost during the term merely because the time for excepting to the judgment directly by writ of error has expired.' Deen v. Baxley State Bank, 192 Ga. 300, 15 S.E.2d 194, 195. See also Tyler v. Eubanks, 207 Ga. 46, 60 S.E.2d 130; Code, Chapter 110-7.
3. By Code Ann.Supp. § 92-8402 .
4. 'The courts of this state are bound to take notice of who are the public officers of the state where the law requires such officers to be commissioned by the Governor.' Bailey v. McAlpin, 122 Ga. 616(1), 50 S.E. 388.
5. 'The State can not be sued in any event without its express consent.' Roberts v. Barwick, 187 Ga. 691(1), 1 S.E.2d 713. But the State Musgrove v. Georgia Railroad & Banking...
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...liability in tort, the State may prescribe the terms and conditions upon which it consents to be sued. See Williams v. Lawler Hosiery Mills, Inc., 212 Ga. 617(5), 94 S.E.2d 699 (1956); also see Goolsby v. Regents of University System, 141 Ga.App. 605, 607, 234 S.E.2d 165 (1977). However, MA......
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