Nally v. Howell

Supreme Court of Georgia

Nally v. Howell

487 S.E.2d 600, 268 Ga. 63, 97 Fulton County D. Rep. 1244, 1997 Ga. LEXIS 147

CourtSupreme Court of Georgia

DecidedApril 14, 1997

DocketS97A0201

StatusPublished

Cited by1 cases

This text of 487 S.E.2d 600 (Nally v. Howell) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Nally v. Howell, 487 S.E.2d 600, 268 Ga. 63, 97 Fulton County D. Rep. 1244, 1997 Ga. LEXIS 147 (Ga. 1997).

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Opinion

Thompson, Justice.

Following a contractual dispute between Paul Nally and Bennett Motor Express (“Bennett”), Nally met with Judge Shepherd Howell and presented him with an application for a criminal warrant, asserting Bennett and its executive officers had committed the ofíense of theft by taking. Judge Howell declined to issue a warrant, taking the position that the dispute should be pursued civilly, not criminally. Because Nally could not appeal in the absence of a written order, Nally filed a petition for mandamus to compel Judge Howell to render his refusal to issue a warrant in writing. The petition was dismissed for failure to state a claim and Nally appealed.

1. Mandamus will not issue to compel a judicial officer to issue an arrest warrant in the absence of a gross abuse of discretion. Chisholm v. Cofer, 264 Ga. 512 (448 SE2d 369) (1994); Jersawitz v. Bodiford, 258 Ga. 829 (377 SE2d 502) (1989). We find no abuse of discretion in the refusal to issue an arrest warrant in this case. Chisholm v. Cofer, supra.

2. In light of our ruling in Division 1, we need not decide whether Judge Howell’s refusal to issue an arrest warrant should have been reduced to a writing.

Judgment affirmed.

All the Justices concur.

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Thompson, Justice.

Following a contractual dispute between Paul Nally and Bennett Motor Express (“Bennett”), Nally met with Judge Shepherd Howell and presented him with an application for a criminal warrant, asserting Bennett and its executive officers had committed the ofíense of theft by taking. Judge Howell declined to issue a warrant, taking the position that the dispute should be pursued civilly, not criminally. Because Nally could not appeal in the absence of a written order, Nally filed a petition for mandamus to compel Judge Howell to render his refusal to issue a warrant in writing. The petition was dismissed for failure to state a claim and Nally appealed.

1. Mandamus will not issue to compel a judicial officer to issue an arrest warrant in the absence of a gross abuse of discretion. Chisholm v. Cofer, 264 Ga. 512 (448 SE2d 369) (1994); Jersawitz v. Bodiford, 258 Ga. 829 (377 SE2d 502) (1989). We find no abuse of discretion in the refusal to issue an arrest warrant in this case. Chisholm v. Cofer, supra.

2. In light of our ruling in Division 1, we need not decide whether Judge Howell’s refusal to issue an arrest warrant should have been reduced to a writing.

Judgment affirmed.

All the Justices concur.

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Bluebook (online)

487 S.E.2d 600, 268 Ga. 63, 97 Fulton County D. Rep. 1244, 1997 Ga. LEXIS 147, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nally-v-howell-ga-1997.

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