Fuqua v. Hadden , 190 Ga. 361 ( 1940 )

1. If the clerk of the trial court had transmitted the bill of exceptions and the record in this case within the time required by law, the case would have reached this court in ample time to be heard during the September term, 1939, to which it was returnable; but as it did not reach the Supreme Court until after the docket for that term had been closed, this court, according to former unanimous decisions, would not have jurisdiction to entertain the writ of error, under the law as it existed before the constitutional amendment of 1936 in reference to delay on the part of the clerk.

2. By that amendment it was provided that "if the transmittal of the record be unavoidably delayed by reason of the illness or death of the clerk of the trial court, or of some member of his family, so that the case has not been docketed in the Supreme Court before the close of the docket of the term to which it is by law returnable (the facts causing such unavoidable delay to be certified by the clerk in commission and by a judge of the trial court), the case shall be heard at the next term, which shall be regarded as its first term." The facts certified by the clerk as reasons for the delay in the present case, being foreign to any cause mentioned in the amendment, the provisions of the amendment are inapplicable, and the motion to dismiss the writ of error must be sustained.

3. The request of counsel for the plaintiff in error to review and overrule the decision in Palmer v. State, 173 Ga. 535 (160 S.E. 637), is denied.

No. 13200. MAY 23, 1940. 1. The bill of exceptions in this case was certified on August 11, 1939, and was filed on the same day in the office of the clerk of the trial court. It was transmitted to this court on December 18, 1939, together with certificate of the clerk as to reasons for the delay. It was received and filed in the office of the clerk of the Supreme Court on the following day, December 19. The docket of the Supreme Court for the September term, 1939, was closed by standing rule at noon of October 19, 1939. If the clerk of the trial court had transmitted the bill of exceptions with the record within the time required by law (Code, § 6-1001), the case would have reached this court in ample time to be heard during the September term to which it was returnable; but since it did not reach the Supreme Court until after the docket for that term had been closed, this court, according to former unanimous decisions, would not have jurisdiction to entertain the writ of error, and the motion to dismiss it should be sustained, unless the certificate of the clerk as to reasons for the delay should require a different ruling, in view of a constitutional amendment hereinafter quoted.Savannah Electric Co. v. Tuck, 132 Ga. 48 (63 S.E. 800);Branch v. Schlittler, 149 Ga. 482 (100 S.E. 567);Atlantic Coast Line Railroad Co. v. Georgia Sweet Potato Growers Association,171 Ga. 30 (154 S.E. 698); Dixie Realty Finance Co. v. Morgan,171 Ga. 348 (155 S.E. 468); Merritt v. Merritt, 171 Ga. 835 (156 S.E. 651); General Motors Acceptance Corporation v.Citizens Security Co., 171 Ga. 891 (156 S.E. 904);Griffeth v. House, 172 Ga. 662 (158 S.E. 414).

2. Under the foregoing decisions, no reason which the clerk might give for his delay would cure the defect, before the constitutional amendment relative to that subject as ratified on November 3, 1936. By that amendment it was provided that "if the transmittal of the record be unavoidably delayed by reason of the illness or death of the clerk of the trial court, or of some member of his family, so that the case has not been docketed in the Supreme Court before the close of the docket of the term to which it is by law returnable (the facts causing such unavoidable delay to be certified by the clerk in commission and by a judge of the trial court), the case shall be heard at the next term, which shall be regarded as its first term." Ga. L. 1935, p. 1238; Ga. Code Ann. Pocket Part, § 2-3006. The certificate of the clerk in the present case contained no reference to any cause mentioned in such amendment, but gave entirely different reasons for his delay. Accordingly, the amendment is inapplicable, and the writ of error must be dismissed, under the authorities cited. Any one who may care to make further examination of the law upon this subject is respectfully referred to the opinions in the foregoing cases, plus the following: Goodman v. Morris, 59 Ga. 60 (3); Davis v. Bennett, 72 Ga. 762; Logan v. Western Atlantic Railroad Co., 86 Ga. 493 (12 S.E. 586); Bank ofCulloden v. Bank of Forsyth, 119 Ga. 351 (46 S.E. 424);Temple Baptist Church v. Georgia Terminal Co., 128 Ga. 669,673 (58 S.E. 157); Earnhart v. Atlanta West Point RailroadCo., 133 Ga. 59 (65 S.E. 138). Writs of error were not dismissed in all of these last-mentioned cases. Some of them merely involved proper docketing as to term; but the principles discussed were the same as in cases where writs of error were dismissed. Without setting forth the reasoning adopted in the various decisions, which may be read as conveniently in their own places, we may observe that they were based in the main on construction of statutes and constitutional provisions relating to return term and time of hearing and decision, as to cases brought to the Supreme Court on writs of error. Statutes contrary to the constitution are of course subordinate to that instrument, and must fail unless they can be construed consistently with its provisions.

The decisions referred to in the first division were each concurred in by all the Justices, as were those listed in the second division, except the Earnhart case, in which it appears that one of the Justices was absent. Such unanimous decisions are binding as authority, so long as they are not reviewed and overruled in the manner prescribed by law. Code, § 6-1611. There is a request to review and overrule only the later decision inPalmer v. State, 173 Ga. 535 (supra), concurred in by five Justices, one Justice dissenting. In view of what has been said, this request is declined, and the motion to dismiss the writ of error is sustained.

Writ of error dismissed. All the Justices concur.