Home Insurance v. Willis , 179 Ga. 509 ( 1934 )

Atkinson, J.

1. The city court of Lyons was created by the act approved August 27, 1931 (Ga. L. 1931, p. 343). In section 12 it was provided that the terms should commence on the fourth Monday in January, April, July, and October. In section 28 provision was made for trial by a jury of six, to be selected from a panel of twelve jurors, but there was no provision in the act for trial by twelve jurors. In section 30 power was expressed purporting to authorize the judge to grant new trials under the laws governing the grant of new trials in the superior courts. The act was amended by the act approved March 24, 1933 (Ga. L. 1933, p. 341), whereby provision was made for trial by twelve jurors to be selected from a panel of twenty-four. Beld:

(a) On account of failure to provide for trial by a jury of twelve jurors, the court as created by the act of 1931 was not a constitutional court within the meaning of section 2 of article 5 of the constitution (Civil Code, § 6502), relating to allowance of writs of error, and paragraph. 6 of section 4 of article 6 of the constitution (§ 6515), relating to the power of courts to grant new trials. Cone v. American Surety Co., 154 Ga. 841 (115 S. E. 481).

No. 9945. September 19, 1934. Rehearing denied September 24, 1934.

(5) This character of the court was changed by the amendatory act of March 24, 1933, supra, so as to provide for trial by a jury of twelve jurors, and thereby render the court such a constitutional court, and authorized to grant new trials. Civil Code, § 6078.

(e) A verdict and judgment rendered at the October term, 1932, could not be affected by a motion for new trial made during that term, because there was no valid law authorizing the court to grant a new trial. Consequently the judgment was final, and afforded the plaintiff in that judgment a vested right prior to the passage of the amending act of March 24, 1933. The amending act of 1933 supra, could not operate retroactively, so as to destroy such vested right by the grant of a new trial. Wilder v. Lumpkin, 4 Ga. 208 (4); Western Union Telegraph Co. v. Smith, 96 Ga. 569 (23 S. E. 899) ; Western Union Telegraph Co. v. Lumpkin, 99 Ga. 647 (26 S. E. 74); Harris v. Gano, 117 Ga. 934 (44 S. E. 11).

2. Applying the foregoing principles to the instant case, the judge did not err in overruling the demurrer to the petition as amended, and in appointing a receiver.

Judgment affirmed.

All the Justices concur, except Bell, J., who dissents. Smith, Smith & Bloodworth, B. P. Jaclcson, and W. H. Smith, for plaintiff in error. Safold & Sharpe, contra.