32 Ga. App. 464 | Ga. Ct. App. | 1924
Lead Opinion
(After stating the foregoing facts.) We cannot agree with the learned trial judge that the paper issued by the police committee and served upon James L. Beavers, chief of police of the City of Atlanta, was a final judgment against James L. Beavers and not rendered without a hearing, or an opportunity to be heard, upon the part of the respondent. The paper upon its face purports that it will not go into effect and will not become final as against the respondent until after February 16, 1923, upon which date the respondent was by its terms required to appear and show cause why the charges contained in the paper should not be made the judgment of the committee. It therefore does not purport to be a final judgment. While it does recite that the police committee “does find, after careful investigation, and examination of his supervision of the police department, that James L. Beavers, chief of police of the City of Atlanta) is inefficient as said chief of police,” such language amounts to no more than a charge of inefficiency upon the part of the respondent as chief of police of the City of Atlanta. It calls upon the respondent to show cause why the “statement should not be entered)upon the minutes of the police committee as the judgment of the police committee declaring him, the said James L. Beavers, chief of police of the City of Atlanta, inefficient for the reasons embodied in the foregoing statement,” and therefore plainly indicates that it was not the intention of the committee to pass any judgment against the respondent until he had been given an opportunity to defend against the charges. This is the language of a rule nisi; and while perhaps a rule nisi should not have been issued in this-case,- and while perhaps- the better procedure would have been for the committee to state the charges against the respondent and notify him to defend, we cannot hold that for this reason a final judgment has been issued against the respondent, or that the respondent has been deprived of his right to defend.
A certiorari lies only to a final judgment; and, since no final
That the language of the paper indicates that the police committee, in the event that the respondent did not appear and answer the charges contained in the paper, would have proceeded to render judgment against the respondent without the taking of testimony is anticipatory, and cannot aid this court in determining whether or not the committee, in preparing the paper excepted to, issued a final judgment. Whenever the committee does render a final judgment against the respondent, whether upon his failure to appear and answer or otherwise, without basing the same upon evidence regularly introduced, sustaining the charges, it will be time to pass upon the regularity of such procedure.
Judgment reversed.
Rehearing
ON MOTION ROE REHEARING.
The defendant in error moves for a rehearing upon the following grounds: (1) that the plaintiff in error was not a party to the judgment rendered in the lower court; (2) that this court has overlooked certain decisions of the Supreme Court of Georgia which the movant alleges establish the proposition that “no appeal or review by certiorari may be had at the instance of a tribunal, and no writ of error may be sued out by a court that is itself a party;” (3) that the alleged “Statement and judgment” sought to be reviewed by certiorari is no longer pending before the police committee of the general council of the City of Atlanta, and that for this reason the matter here pending has become moot.
Although the movant, as defendant in error, made no appearance, either by brief or argument, and therefore did not assist the court in arriving at its decision, and now for the first time presents to this court the questions raised in the motion for rehearing, this court, when the original opinion was written and the judgment of reversal was rendered, carefully considered all the grounds now relied upon by the defendant in error. This court at the time concluded that the case was one reviewable by this court, and that the plaintiff in error, since he was the defendant in certiorari to whom the writ of certiorari was directed and who answered the writ, and who therefore was necessarily the defendant in certiorari and a party to the judgment sustaining the certiorari, was
The contention that the question presented has beconie moot by reason of the action of the police committee of the general council o:f the City of Atlanta cannot be considered by this courts because it involves an issue of fact concerning which this court cannot take judicial notice; nor has it jurisdiction' to determine such an issue.
Where a losing party in this court has filed no brief, and made no argument, and therefore made no effort to assist the court in arriving at a decision, we question whether he' should be allowed, after an adverse judgment against him, to make a belated appearance by way of a motion for a rehearing. ■
Motion for a rehearing denied.
