J. W. Clayton & Co. v. Wallace

41 Ga. 268

• Court: Supreme Court of Georgia
• Decided: June 15, 1870
• Status: Published

Opinion

WARNER, J.

The error assigned to the judgment of the Court below in this case, was the refusal of the pro tempore Judge to hear and decide the motion for a new trial. The Superior Courts of this State are created and organized by the Constitution and laws thereof, and continue to exist, whether Judges be appointed to preside therein or not. A pro tempore Judge selected under the provisions of the Code for the trial of a case, may exercise all the functions of a Judge of the Superior Court in that case: Code, 240; Henderson v. Pope, 39th Georgia Reports, 361. In such cases, the functions of such pro tempore Judge extend to the hearing of a motion for a new trial in the case heard and' tried before him as such pro tempore Judge, although the presiding Judge of the Circuit may have resigned his office before the hearing of that motion; the hearing and deciding the motion for a new trial, is a part of the trial of that case: such pro tempore Judge derives his authority to hear and determine that special case from the public law of the State, and not from the presiding Judge of the Circuit, and having acquired jurisdiction to hear and determine the case under the public law of the *State, his functions as such pro tempore Judge continue until he shall have heal'd and decided the motion for a new trial in that case, notwithstanding the presiding Judge of the Circuit may have resigned his office before the hearing of that motion. In our judgment, it was error for said pro tempore Judge to refuse to hear and determine the motion for a new trial, upon the statement of facts contained in the record.

Let the judgment of the Court below be reversed.