109 Ga. 342 | Ga. | 1899
The defendant in error instituted an action against. W. W. Shipp as principal, and J. E. Bivins and J. E. D. Shipp as securities, on a promissory note. The defendant Bivins alone -pleaded to the action. It appears by the bill of exceptions that the wife of the presiding judge of the circuit, then present, was a sister of W. W. Shipp and J. E. D. Shipp, two of the defendants to the action, but that he was not in any way related to the defendant Bivins. It also appears that when the case was reached the parties failed to agree upon an attorney to preside in the case, and that the clerk of the court designated and appointed C. C. Duncan, a practicing attorney at the bar of said court,-to preside as judge pro hac vice. The case proceeded to trial, a verdict was returned against the defendants, and- a judgment was entered accordingly. The defendant Bivins made a motion for a new trial, which was overruled, and he excepted.
It is not necessary for us to enter into a discussion of the abstract question, whether, when the constitution fixes the qualification of a judge of the superior court, and prescribes the manner of his appointment or election, and requires of him an oath of office, some other person not so selected, and without taking the oath of office, may preside as judge of said court. Did the question rest in this case upon such facts alone,it might become a serious one, although this court in former rulings has declared legal the acts of an attorney selected by the parties to preside in a case where the presiding judge was disqualified; and it has also recognized as legal the acts of an attorney selected by the clerk to preside in a disqualified case. Henderson v. Pope, 39 Ga. 361; Clayton & Co. v. Wallace, 41 Ga. 268. In Drawdy v. Littlefield, 75 Ga. 215, it was expressly held, that where both parties agreed upon an attorney to preside as judge pro hac vice in place of the regular judge of the circuit, who was disqualified from presiding, a judgment rendered by such
Judgment affirmed.