Armistead v. Beavers

124 S.E. 61, 32 Ga. App. 464, 1924 Ga. App. LEXIS 468

• Court: Court of Appeals of Georgia
• Decided: June 16, 1924
• Docket: 15457
• Status: Published

Opinions

Stephens, J.

(After stating the foregoing facts.) We cannot agree with the learned trial judge that the paper issued by the police committee and served upon James L. Beavers, chief of police of the City of Atlanta, was a final judgment against James L. Beavers and not rendered without a hearing, or an opportunity to be heard, upon the part of the respondent. The paper upon its face purports that it will not go into effect and will not become final as against the respondent until after February 16, 1923, upon which date the respondent was by its terms required to appear and show cause why the charges contained in the paper should not be made the judgment of the committee. It therefore does not purport to be a final judgment. While it does recite that the police committee “does find, after careful investigation, and examination of his supervision of the police department, that James L. Beavers, chief of police of the City of Atlanta) is inefficient as said chief of police,” such language amounts to no more than a charge of inefficiency upon the part of the respondent as chief of police of the City of Atlanta. It calls upon the respondent to show cause why the “statement should not be entered)upon the minutes of the police committee as the judgment of the police committee declaring him, the said James L. Beavers, chief of police of the City of Atlanta, inefficient for the reasons embodied in the foregoing statement,” and therefore plainly indicates that it was not the intention of the committee to pass any judgment against the respondent until he had been given an opportunity to defend against the charges. This is the language of a rule nisi; and while perhaps a rule nisi should not have been issued in this-case,- and while perhaps- the better procedure would have been for the committee to state the charges against the respondent and notify him to defend, we cannot hold that for this reason a final judgment has been issued against the respondent, or that the respondent has been deprived of his right to defend.

A certiorari lies only to a final judgment; and, since no final judgment is here excepted to, the petition for certiorari was prematurely brought, and was therefore improperly sustained.

That the language of the paper indicates that the police committee, in the event that the respondent did not appear and answer the charges contained in the paper, would have proceeded to render judgment against the respondent without the taking of testimony is anticipatory, and cannot aid this court in determining whether or not the committee, in preparing the paper excepted to, issued a final judgment. Whenever the committee does render a final judgment against the respondent, whether upon his failure to appear and answer or otherwise, without basing the same upon evidence regularly introduced, sustaining the charges, it will be time to pass upon the regularity of such procedure.

Judgment reversed.

Jenkins, P. J., and Bell, J., concur.