118 Ga. App. 550 | Ga. Ct. App. | 1968
Statement of facts. This is an appeal
“Movant offered to withdraw Kenneth E. White, Jr., as arbitrator and to appoint James E. Hendrix as substitute arbitrator if the tax assessors objected to Kenneth E. White, Jr., as an arbitrator on the grounds of his relationship to the movant or if the tax assessors did not insist upon their objection to Kenneth E. White, Jr., to proceed with the arbitration. The tax assessors insisted upon their objections to Kenneth E. White, Jr., as an arbitrator and objected to the allowance of any substitution.
“The motion of the tax assessors to dismiss the application of Elizabeth Heard White is denied.
“After hearing argument of counsel, the objection of the tax assessors to Kenneth E. White, Jr. as an arbitrator is sustained.
“It is hereby considered, ordered and adjudged that the movant, Elizabeth Heard White, be and she is hereby allowed to substitute James E. Hendrix as the arbitrator named by the property owner. The said James E. Hendrix, as substitute arbitrator, and the respective arbitrators named by the tax assessors are hereby given a reasonable time within which to agree upon a third arbitrator. If after the lapse of a reasonable time said arbitrators are not able to agree upon a third arbitrator then upon application of either party the court will entertain a motion to name a third arbitrator.
“So ordered, this 1st day of July, 1968.”
The enumerations of error were as follows: “1. The court committed error in allowing the petitions in these cases to be filed in said court as set forth in the court’s order of June 25, 1968. 2. In entering its order of July 1, 1968. 3. The trial court committed error in failing to sustain paragraph 1 of appellants’ first defense, which pleaded that the petition of appellees stated no cause of action. 4. The trial court committed error in failing to sustain paragraph 2 of appellants’ first defense, which pleaded that the petition of appellees stated no cause of action for equitable relief, and in not dismissing said petition. 5. The trial court committed error in failing to sustain the motion of appellants set forth in paragraph 3 of their first defense, and in not dismissing said petition. 6. The trial court committed error in failing to sustain appellants’ motion to dismiss as contained in paragraph 4 of the first defense which objected to the prayers that the court allow a substitution of arbitrators, and in allowing a substitution of parties. 7. The court committed error in finding that James E. Hendrix was qualified as an appraiser when the court specifically refused to allow appellants to question the said Hendrix as to his qualifications.” Held:
Code § 92-6912 as amended by the Act of 1958 (Ga. L. 1958, p. 387), relating to the arbitration of disputes between the taxpayer and boards of tax assessors, provides that after the taxpayer and the board shall have named their respective arbitrators, “in the event the two arbitrators provided for in this section fail to name a third within 20 days after their appointment, he shall be named by the judge of the superior court of the county wherein the property lies.” It will be noted that the appointment of the third arbitrator must be made by the judge of the superior court of the county where the land lies rather than the court itself. The court itself has no jurisdiction of the matter, but the judge of that court has jurisdiction, but only an administrative jurisdiction to appoint the third arbitra
Even though there be error in the grant of part of the relief prayed for, this is not cause for reversal here as the errors alleged are harmless and a reversal would be of no benefit to the-appellant. Reid v. Caldwell, 114 Ga. 676 (40 SE 712); Smith v. Peacock, 114 Ga. 691 (40 SE 757, 88 ASR 53); Bullock v. Dunbar, 114 Ga. 754 (40 SE 783); Lee v. Pearson, 138 Ga. 646 (75 SE 1051); Fowler v. Parks, 138 Ga. 786 (76 SE 85); Turner v. State, 138 Ga. 808 (76 SE 349); Kelton v. John, 220 Ga. 272 (138 SE2d 316); Wright v. Savannah Transit Authority, 110 Ga. App. 710 (140 SE2d 149); Davis v. Mayor &c. of Jasper, 119 Ga. 57 (1) (45 SE 724); Burnham v. Burnham, 215 Ga. 57 (108 SE2d 706).
Under the stipulated facts, the original appointee was the husband and son-in-law respectively of the appellee taxpayers and was thus disqualified (Vestel v. Edwards, 143 Ga. 368 (2) (85 SE 187)), and the appellees were entitled to appoint a successor without any order of the court. See Candler v. Gilbert, 180 Ga. 679, 682 (9), supra. At this point, however, we run sharply counter to the contentions of the appellant who strenuously insists that the appointment of a disqualified arbitrator by the appellees constituted “a failure to avail themselves of the lawfully constituted tribunal to arbitrate the assessments,” as the demand for arbitration was ineffective when accompanied by the appointment of a disqualified arbitrator, citing as authority for their contention the third division of the opinion in
Assuming, without deciding, that the trial court erred in giving the two arbitrators “a reasonable time” in which to appoint the third arbitrator, we do not see how this ruling harmed the appellant or how a reversal on this point would be of benefit to the appellant. Whether the judge of the superior court should have immediately appointed the third arbitrator or whether the two arbitrators had a reasonable time to appoint the third or whether they had twenty days from the time the successor was appointed, which might have created a harmful error if the judge of the superior court had appointed the third prior to the expiration of such time, it is not necessary to decide. Certainly, at the time of this decision, a reasonable time and the twenty days have now expired. In any or all events and when this appeal is determined, the trial judge is in a position to appoint a third arbitrator, irrespective of time limitations, if the other arbitrators have failed to appoint. As of this moment, the time element is of no consequence, but only the fact of whether the two appointed have acted. It not appearing that the trial judge has named a third arbitrator within less than a proper time expiration, the error, if any, in granting the two arbitrators “a reasonable time” within which to appoint a third, is harmless and the appellant can derive no benefit from the reversal of the case on the grounds that the setting of a “reasonable time” was improper.
We have already determined that the trial judge had no jurisdiction to pass upon the qualification of the successor; however, a reversal would not benefit the appellants by permitting them in this proceeding in the court below to introduce evidence on the question or secure a disqualification of the successor arbitrator. While the rulings in this regard were probably void because of lack of jurisdiction of this subject matter in the proceeding then before the judge of the superior court, and thus subject to attack at any time or any place, we think it best that we affirm with direction that the judge of the superior court vacate his orders so there will be no question raised later that they are res judicata in a case properly involving the matters decided.
Whether, upon application of the ruling in American Mut. Liab. Ins. Co. v. Kent, 197 Ga. 733 (30 SE 599), overruling King v. Western Union Telegraph Co., 54 Ga. App. 388 (187 SE 888), the appeal in this case is from a final judgment, or whether it is not from a final judgment for the reason that the judge of the superior court by providing for the entertainment of a subsequent motion to appoint a third arbitrator may have retained jurisdiction to the extent that a case was still pending in the “court below” and the appeal thus be subject to dismissal for failure to secure a proper certificate from the trial judge under the provisions of Section 1 of the Act approved April 8, 1968 (Ga. L. 1968, p. 1072) we do not decide. Neither do we decide whether the appeal should be dismissed because the action
Judgment affirmed with direction.