Garner v. Wood

46 S.E.2d 488, 203 Ga. 297, 1948 Ga. LEXIS 303

• Court: Supreme Court of Georgia
• Decided: February 10, 1948
• Docket: 16107.
• Status: Published

Opinion

Duckworth, Presiding Justice.

The petition of Mrs. A. M. Garner, praying for the writ of prohibition and a declaratory judgment, brought against Honorable Jesse M. Wood, as Judge of the Criminal Court of Fulton County, shows that Claude Smith was convicted in the said court on six counts of an indictment charging the offense of lottery, and was given six separate sentences corresponding to the counts as follows: on count 10 the sentence was twelve months; on counts 11, 12, 13, 14, and 15 the sentence was a fine of $1000 and twelve months, which sentence expressly stated that it should be served at the expiration of the preceding sentence in the order numbered; and the sentence on count 15 contained this additional language: “Sentence suspended on payment of fine at discretion of court.” A motion for new trial was made, and a bond, on which the petitioner was surety for $15,000, was given. After the conviction had been affirmed the defendant paid all of the fines totaling $5000, and it is contended by the petitioner that, in virtue of the above-quoted portion of the sentence on- count 15, all of the sentences were suspended; and that she, as surety on the bond, is no longer liable. The exception here is to the judgment sustaining the general demurrer to the petition and dismissing the action. Held: Unless the quoted portion of the sentence on count 15 relates to the other five sentences as contended by the petitioner, it is obvious that no cause of action is stated in the petition. A mere reading of that sentence makes it unmistakably clear that the provision therein for a suspension of the sentence relates solely to that particular sentence and has no reference to the other sentences. It follows that the court did not err in sustaining the demurrer' and in dismissing the action. •

No. 16107. February 10, 1948. Wesley B. Asinof, for plaintiff. John I. Kelley, Solicitor, for defendant.

Judgment affirmed.

All the Justices concur, except Bell, J., absent on account of illness, and Wyatt, J., who took no part in the consideration or decision of this case.