Porter v. Garmony

96 S.E. 426, 148 Ga. 261, 1918 Ga. LEXIS 286

Opinion

Beck, P. J.

(After stating the foregoing facts.) The court did not err in refusing to grant a mandamus absolute in this case. While we are of the 'opinion that so much of the order set forth in the statement of facts as purports to modify the original sentence in the case was void, and that the original sentence continued to be a valid, subsisting, and unexecuted sentence, proceedings' for a writ of mandamus were not maintainable under the facts. When the term at which the sentence imposed expired the judge was without authority to change it, and an order purporting to change and modify it was void. Mathews v. Swatts, 16 Ga. App. 208 (84 S. E. 980); Neal v. State, 104 Ga. 509 (30 S. E. 858, 42 L. R. A. 190, 69 Am. St. R. 175); Daniel v. Persons, 137 Ga. 826 (74 S. E. 260).

But there was another plain legal remedy. And where there is another existing remedy, mandamus will not lie. Civil Code, § 5440; Hall v. Martin, 136 Ga. 549 (71 S. E. 803). The defendant in the case, Hatfield, was under bond, and under this bond he was required to appear and abide the judgment of the court. If he failed to appear and his bond was forfeited, then it was the duty of the court to issue a bench warrant or simply an order to the sheriff to rearrest him and deliver him to the proper chain-gang authorities. With this plain, simple remedy existing, which was adequate to the enforcement of the valid existing sentence of the court, the writ of mandamus was unnecessary. If such an order or bench warrant had been issued and the sheriff had then refused to execute the same, mandamus proceedings might lie to compel the performance of this plain ministerial duty.

Judgment affirmed.

All the Justices concur.