Worsham v. Murciiison
| Citation | 66 Ga. 715 |
| Parties | Worsham, administrator. vs. Murciiison. |
| Decision Date | 28 February 1881 |
| Court | Supreme Court of Georgia |
Practice in the Superior Court. Practice in the Supreme Court. New trial. Before John L. Hardeman, Esq.. Judge pro hac vice. Crawford Superior Court. March Term, 1880.
Reported in the decision.
Hall & Son; Isaac Hardeman, for plaintiff in error.
John Rutherford, by S. H. Jemison, for defendant.
A. H. Murchison, as an heir at law and distributee, brought his bill for account and settlement against the administrator of his father, Colin Murchison, who died in the year 1862.
The respondent filed his answer, setting up a settlement in full with complainant, and a receipt given to him by complainant in the year 1864, and also pleaded the statute of limitations and the act of 1869 as to all causes of action accruing prior to first of June, 1865.
On the bill, answer and proofs submitted on the trial at the September adjourned term, 1878, a verdict was had for the defendant.
During the term, an order was granted allowing the complainant thirty days in which to file his motion for a new trial and to prepare and file a brief of the evidence
Within the time allowed a brief of the testimony was agreed upon. A motion for a new trial was presented to the judge who presided in said cause, which was certified as correct and a rule nisi was granted " for the defendant to show cause why a new trial should not be had on the grounds therein stated."
On the brief of evidence the judge certified as to its being presented to him within the thirty days, but he entered no approval on the same. Judge Grice, who presided on said trial, having gone out of office, being succeeded by Judge Simmons. At the March term, 1880, said motion for a new trial, as appears from the record, by an order of John L. Hardeman, Esq., who signs the same as judge pro hac vice, was directed to be heard in vacation.
The order recited " that the above stated motion for a lew trial, haying been, by the order of the court upon the selection of the clerk, referred to John L. Hardeman, Esq., as judge pro hac vice, in place of the Hon. Thomas J. Simmons, disqualified to preside therein by reason of having been counsel in the case, it is therefore ordered, etc.
It appears further from the record that said cause, coming on to be heard before said John L. Hardeman, Esq., the defendant moved to dismiss said motion because said brief of evidence had never been approved by the court, which motion was overruled, and then and there, because said brief had been agreed upon by counsel, the same was approved by said John L. Hardeman, Esq., signing the same as judge pro hac vice. After hearing said motion for new trial, the said Hardeman allowed and granted the same upon various grounds therein stated, to which ruling, in not dismissing said motion for new trial, and in granting and allowing the same, defendant excepted and assigns the same as error.
When the case was called before this court, counsel for defendant in error moved to dismiss the same, because it did not appear "that John L. Hardeman had ever been appointed judge pro hac vice in this case, from any extract or entry to that effect from the minutes of the court below, and that this court has no jurisdiction to hear said cause."
1. While we think it is both proper and requisite that the evidence of the selection by counsel, as well as the appointment by the clerk, of a judge pro hac vice, should affirmatively appear in the record, in order that this court may be properly informed, yet the failure of such a record would not operate to a dismissal of the case here, but only to a reversal of the judgment complained of. For if the decision below being a mere nullity for the want of authority to pronounce it, this court would so declare by a reversal of the judgment thus illegally ren-dered, as was ruled in the case of Walker vs. Banks et alii, pronounced at the February term, 1880, and not yet published.
2. To grant this motion to dismiss would operate as a reversal of the judgment, and hence we have concluded to examine and pass upon the other questions made in the bill of exceptions, treating the motion as having been made before one duly qualified, as there is evidence in this record from the minutes of the court below...
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