10 Ga. App. 544 | Ga. Ct. App. | 1912
Before the arraignment of the plaintiff in error he filed a plea in abatement, which the court struck, and this ruling is the ground of exception presented by the writ of error. The plea in abatement conforms to the requirements laid down in McRae v. State, 71 Ga. 99, Mize v. State, 135 Ga. 295 (69 S. E. 173), Folds v. State, 123 Ga. 167 (51 S. E. 305), and Wall v. State, 126 Ga. 549 (55 S. E. 484), in that it was filed at the proper time; for, this being an accusation, of course there had been no opportunity for the defendant sooner to object. However, in our opinion the court properly struck the plea in abatement, for the reason that the title of the acting solicitor of the city court could not be brought in question by this plea. The court judicially knew that Mr. Bieh was the duly commissioned solicitor of the city court of Miller county, and, taking all of the allegations of the plea to be true, he was at least the de facto officer of the court. Furthermore, the plea was defective in that there was no statement that the office of the solicitor of the city court had been judicially ascertained to be vacant in a legal sense by reason of the fact that it had been judicially ascertained that Mr. Eich had moved his residence from the county of Miller to the county of Decatur. The exact point was decided by the Supreme Court in the case of Channell v. State, 109 Ga. 152 (34 S. E. 354), in which Justice Lewis, delivering the opinion of the court, says: “ Section 229 of the Political Code [Political Code of 1910, § 264] describes how offices in this State may be vacated, and one of the methods (see subdivision 5) for vacation is, ‘ By the incumbent ceasing to be a resident of the State, or of the county, circuit, or district for which he was elected. In the first case the office shall be vacated immediately; in the latter cases, from the time the fact is judicially ascertained.’ It is manifest from this provision that when an incumbent of an office has moved from the county for which he was elected to another county in this State, the office is not thereby immediately vacated, and does not become so until the fact has been judicially ascertained.”
It -can readily be seen that the court was not called upon to try two issues at once, — the validity of Mr. Eich’s title to the office, and the guilt of the accused, — in one and the same proceeding. 'The proper method of testing the validity of Mr. Eich’s title was by
'Judgment affirmej. Pottle, J., not presiding.