Glenn v. State

50 S.E. 371, 122 Ga. 593, 1905 Ga. LEXIS 275

• Court: Supreme Court of Georgia
• Decided: March 25, 1905
• Status: Published

Opinion

Lamar, J.

(After stating the foregoing facts.) The plaintiff in error, having been convicted of a misdemeanor in the county court, applied for a writ of certiorari. The judge sanctioned the petition and. required the answer to be made before him on January 14, 1905. A formal writ was issued by the clerk, returnable to the April term of Stewart superior court. On January 14, the case was called by the judge, and, on motion of the petitioner, was continued until January 28. It was again continued by the judge, on his motion, until January 30. It was then dismissed because the solicitor-general had not been served as required by law. The plaintiff in error contends that this was a case to be heard in vacation, and was not one pending in the superior court, and therefore it was not necessary to serve the solicitor-general. Civil Code, § 5862. In support of this contention he cites Allen v. State, 51 Ga. 264. From an examination of that case it will be seen that the opinion nowhere discusses the point here involved, though from a note it appears that the matter had been passed on by the court. Inasmuch as jurisdiction to correct errors by writ of certiorari is in the superior court (Civil Code, § 5846), and not in the judge as a special tribunal, I am personally of the opinion that all such cases are to be treated as pending in the superior court, whether the writ has been made returnable in term or in vacation. And while a distinction seems to have heen recognized in Allen v. State, supra, and in McElhannon v. State, 112 Ga. 221, the judge here properly held that this case should be dismissed. If it should be treated as a case pending in the superior court, the solicitor-general was not served, and the dismissal was proper under Moore v. State, 96 Ga. 309; Culbreth v. State, 115 Ga. 242; Butts v. State, 90 Ga. 450. If it is not a superior-court ease, then neither the accuser nor the solicitor of the county court was served (Penal Code, § 767; Civil Code, § 4644), and the case was for that reason properly dismissed.

2. But the plaintiff in error insists that under the provisions of the Civil Code, § 4324, the court had no jurisdiction, since there was no written order continuing the case from January 28 to January 30. He contends, therefore, that on January 30 the judge had no jurisdiction to hear or determine the case or to make any order in reference thereto, but by operation of law the matter went over to the April term of Stewart superior court. This argument ignores the great and radical changes made by act of 1895, Civil Code, §§ 4323,4324. For most purposes, where a jury is not required, that statute vests in the judge during vacation the same ■powers which he could exercise in term. See Civil Code, §§4864, 4855. Parties are bound to take notice of the regular and adjourned. sessions of the court, and therefore are not entitled to special notice as to the time when their cases may be called. But as the hearing under Civil Code, §§4323, 4324, is not at a fixed timé and place, they are not bound to know when it will be had, and for that reason the ten days notice or waiver is essential to complete the jurisdiction in vacation. The purpose of the statute was not only to serve the convenience of parties but to enable the judge, if necessary, to devote all of his time during term to the hearing of jury business. The statute clothes him with the power to hear in vacation without'an order taken in term. On his own motion he may properly exercise the power and set the case to be heard in vacation. It may also be done on the application of a party. But in either event there must be ten days notice, so as to fully, and completely vest the judge with the same plenary authority over the case that he would have had in term time. But after the jurisdiction has thus been completely acquired, he may continue the hearing from, day to day, or from time to time; in each instance, of course, giving reasonable notice and fair opportunity to all the litigants, so that they may be present to exercise their right of being heard. The rule may be different where the hearing is by virtue of a term order under the Civil Code, § 5485 (Napier v. Heilker, 115 Ga. 168 ; A., K. & N. Ry. Co. v. Strickland, 114 Ga. 998; Wood v. Wiley Co., 117 Ga. 517), for there, the jurisdiction arises only by virtue of the order. Under the statute the judge had jurisdiction to set the ease for January 28. He had like jurisdiction to continue the hearing until January 30. The plaintiff in error had notice of the continuance to that date. His cotinsel was present to represent him. When the hearing began, the court had the same jurisdiction as it would have had in term. In dismissing the writ the judge followed the law; and his judgment is

Affirmed.

All the Justices concur.