Liverpool & London & Globe Insurance v. Peoples Bank , 143 Ga. 355 ( 1915 )

Hill, J.

(Alter stating the foregoing facts.)

1. After a general term of the superior court has been organized by the presiding judge and put into operation, the term continues until finally adjourned by the presiding judge or by the operation of some provision of law. In King v. Sears, 91 Ga. 577 (18 S. E. 830), and Hines v. McLellan, 117 Ga. 845 (45 S. E. 279), the court took a recess until a fixed date, and it was held that this did -not end the term, but it continued in the interval; and this was the ruling in the former case, although in such interval a term of court was held in another county of the circuit. We need not determine just what express provisions of law would end a term of court without action on the part of the judge, 'as there is no contention that there was any statutory provision bringing the term of court to an end in this case before the judgment was rendered. The question is whether, although he did not in express words order an adjournment of the term of court, language and actions of the judge amounted to finally adjourning the term, though in an informal way? On the subject of what transpired the following appears. One of counsel for the garnishee made an affidavit of which the following is the substance: The September term, 1914, of Newton superior court convened on the third Monday, which was the 21st. day of that month, and continued in session daily until the afternoon of the following Friday, which was the 25th day of the month. On the afternoon of that day the judge of the court, who was presiding, discharged the jurymen for the term, with thanks, and directed them to call on the clerk for scrip fo'r their services. Shortly after the jurymen'had been discharged, the judge descended from the bench,' and since then np to the time of the making of the affidavit (November 14th) there was no visible evidence of the conrt being in session. The affiant added the statement: “In other words, the said court on said date, in common parlance, adjourned.” Counsel for the plaintiff in the original case, the defendant in the present case, stated that they had examined the minutes, and that there was no order of adjournment of the September term, 1914, thereof. The presiding judge added the following note: “The court transacted no business at the September term, 1914, of Newton superior court after I left the bench. I made no written order adjourning the court- at that term nor at any other term.”

While no exact formula of words is necessary in adjourning a term of court, the evidence and the note of the presiding judge leave in some doubt the question as to whether he intended by what he said and did to adjourn the term of the court finally,-and whether by the note he meant that that was his usual method of informally adjourning court, or whether there was no final adjournment of court but what happened amounted to a mere cessation of business without .an adjournment. Inasmuch, however, as the regular judge of the circuit, who presided during the week beginning September 21, 1914, refused to grant an injunction against the enforcement of the judgment which would have been entered in vacation if the term of court was finally adjourned on the 25th of September, and the same judge made the note to which we have referred, considering this fact in connection with those above set out, we can not declare that the judge finally adjourned the term of court on the date mentioned; and decline to so rule. In this connection see Pinnebad v. Pinnebad, 129 Ga. 267 (58 S. E. 879). The statement of the attorney, that, “in other words, the said court on said date, in common parlance, adjourned,” was evidently a mere statement of an opinion as to the effect of the facts he had already detailed.

In accordance with what we have said, treating the term of court as not having been finally adjourned when the judgment was entered, it was in time. What has been said in this division of the opinion represents the views of the majority of the Justices off this court. Justices Atkinson and Hill, concur in the ruling that, under the facts set forth in statements of counsel and the certificate of the judge, the court was not adjourned at the time when the judgment was rendered, but do not concur in any intimation that a different ruling might have been made except for the fact that the judge refused to enjoin the enforcement of the judgment.

2. The second headnote requires no elaboration.

The verdict was entered on the certified copy of the affidavit and bond, and complaint is made of this fact. The pleadings with respect to the issue against the garnishee consist of the answer of the garnishee and the traverse thereto. The entry of the verdict on the wrong paper will not invalidate it. Roberts v. State, 14 Ga. 18, 19; Sapp v. Parrish, 3 Ga. App. 234 (2), 236 (59 S. E. 821).

3. It is contended that it was understood by counsel for plaintiff in error that the traverse to the answer of the garnishee should not be tried until the termination of the litigation “which was pending, or in immediate prospect,” on the question of the liability of the plaintiff in error on a certain insurance policy in which- the defendant in fi. fa. was the beneficiary and plaintiff. Under the evidence, this contention affords no cause for an injunction.

4. Complaint is made that the verdict and 'judgment were entered against the garnishee pending a motion for a new trial by the defendant in fi. fa. It is insisted that the motion for a new trial and order nisi of the court thereon acted as a supersedeas, and that no judgment could be taken while such supersedeas was in effect. It appears affirmatively that a judgment was rendered against the defendant, and that there was no formal order of the court, in connection with the motion for new trial, superseding the judgment; and in such cases the statute declares that “A rule nisi for a new trial shall not operate as a supersedeas, unless so ordered by the court, in which case the court may demand bond and security for the eventual condemnation-money, when the exigency of the case requires it.” Civil Code (1910), §.6081. In such a case a judgment against the garnishee, duly entered pending a motion for new trial by the judgment 'debtor, without a supersedeas, furnishes a sufficient basis to proceed against the garnishee, subject to the result of the motion for new trial. Holbrook v. Evansville &c. R. Co., 114 Ga. 1 (39 S. E. 937). Applying the above principle to the present case, it was not error to enter up a judgment against the garnishee, where a motion for a new. trial was made but no order for a, supersedeas was taken.

5. ' There was no error in dissolving the restraining order previously granted, and in denying an injunction.

"We feel it our duty to call the attention of our brethren of the superior court bench to the great danger and possible wrongs which may arise to litigants and to the public from failing to formally adjourn a term of the superior court and leaving in doubt the question of whether the court is in session or not. A term of court ought to be formally adjourned, and the adjournment ought to be made a matter of record. If it is desired to adjourn a court to another term or take a recess, this should be placed upon the minutes, so that parties and counsel may know when to return to court and when to .anticipate the possibility that their cases may be taken up or disposed of. If the judge simply leaves the court-house and perhaps the county, with no certainty as to whether the court has been adjourned on remains in session, and with no way for counsel, parties, or witnesses to know whether they must still be on the lookout for those things which may happen in term time, or whether they can safely go until some fixed time in the future, and if the judge may at any uncertain time return and transact business suitable only to be done in term time, it will readily be seen that the gravest hardship may happen unintentionally by throwing parties interested in court business off of their guard as to whether court is in session or not in session, and as to whether they are bound to be on the watch for an indefinite time lest the judge may return to the county and their business be disposed of in their absence or when they are unprepared. Moreover such a practice leaves in a state of uncertainty the time within which motions for a new trial and writs of error must be presented.

Judgment affirmed.

All the Justices concur, except Fish, O. J., absent.