Edwards v. Wheaton

181 S.E.2d 48, 227 Ga. 424, 1971 Ga. LEXIS 720

• Court: Supreme Court of Georgia
• Decided: March 18, 1971
• Docket: 26365
• Status: Published

Opinion

Mobley, Presiding Justice.

Appellant filed an action for damages against appellees. Judge Omer W. Franklin entered an order on June 24, 1970, reciting that he and Judge Marcus B. Calhoun were disqualified in the case, and requesting that Judge Ben A. Hodges, of the Waycross Circuit, preside. Several orders were entered by Judge Hodges. On September 9, 1970, appellees moved to quash and vacate the order of June 24, 1970, because it failed to set forth any findings of fact or conclusions of law to justify the finding that Judges Franklin and Calhoun were disqualified, and no evidence was presented to show any legal grounds for disqualification of these judges. In an order filed on November 3, 1970, Judge Calhoun held that he was not disqualified, and rescinded the order disqualifying him and requesting Judge Hodges to preside. Appellant filed a motion to quash the order of November 3, 1970, contending that it was a nullity, and asserting that Code Ann. § 24-102, dealing with the disqualification of judges, violates the due process clauses of the State and Federal Constitutions. After hearing this motion, Judge Calhoun entered an order finding that he was not legally disqualified to serve in the case and denying appellant’s motion. The appeal is from this judgment. Appellees have filed a motion to dismiss the appeal.

The trial judge did not certify that the judgment is of such importance to the case that immediate review should be had. The judgment is not a final judgment, or one of those which the General Assembly has provided may be the subject of direct appeal. Ga. L. 1965, p. 18; Ga. L. 1968, pp. 1072, 1073 (Code Ann. § 6-701). The appeal is therefore premature.

Appeal dismissed.

All the Justices concur. Argued March 8, 1971 Decided March 18, 1971. John S. Boswell, Sr., Jesse T. Edwards, for appellant. W. G. Elliott, for appellees.