Gordon v. Gordon

Nov 9, 1899
Reporters:
, ,
Before:
Cobb
Cobb, J.

Ellen Gordon applied to the superior court for a rule nisi against George Gordon, calling upon him to show cause why he should not be attached for contempt for failing to pay an amount alleged to be due to her as alimony and attorney’s fees under an order previously passed by the superior court directing him to pay the sums mentioned. A corporation which had been served with process of garnishment, founded on the judgment against George Gordon for alimony and attorney’s fees, had answered that it was indebted to him in a given ‍‌‌‌​‌‌​‌​​‌​‌‌‌​‌​‌‌​​‌‌​‌‌​‌‌​‌​​‌​‌‌​‌​​‌‌‌​​​‌​‌​​​‌‌​​​‌‌​‌​‌​​‌‌‌​‌​​​‌‌​‌‌‌‌‌​‌​‌‌‌‌​​‌‌​​‍sum. In answer to the rule served on him George Gordon set up that his failure to pay the amount which he *263had been ordered to pay was due to the fact that he was unable to pay the same, and he prayed for a revision of the judg-ment fixing the alimony and that the same might be reduced. The judge reduced the amount which was due under the previous order fixing the alimony and attorney’s fees, directed that the amount so reduced should be paid out of the fund brought into court under the garnishment above referred to,- and ordered that the costs of the rule be divided equally between the parties. To this decision Ellen Gordon excepted.

When the case was called in this court a motion was made to dismiss the writ of error, because the subject-matter of the proceeding before the judge was such that a fast writ of error should have been sued out to review his judgment in this court, and as the bill of exceptions which was sued out was not tendered to the judge within twenty days from the date of the ‍‌‌‌​‌‌​‌​​‌​‌‌‌​‌​‌‌​​‌‌​‌‌​‌‌​‌​​‌​‌‌​‌​​‌‌‌​​​‌​‌​​​‌‌​​​‌‌​‌​‌​​‌‌‌​‌​​​‌‌​‌‌‌‌‌​‌​‌‌‌‌​​‌‌​​‍decision complained of, the same was not tendered within the time prescribed by law. The plaintiff in error contends that the subject-matter of the proceeding was such that the ordinary writ of error would lie to review the decision of the trial judge, and that as the bill of exceptions was tendered within thirty days, the case should be ordered transferred to the docket of the next term of this court.

1. The cases which must be brought to this court by fast writ of error are, (1) where an application for an injunction or receiver is granted or refused ; (2) applications for discharge in bail-trover cases; (3) applications for discharge in contempt cases; (4) granting or refusing applications for alimony, mandamus, or other extraordinary remedy ; (5) granting or refusing applications for attachment against fraudulent debtors; (6) all criminal cases; (7) all habeas corpus cases; (8) all cases where there has been a judgment rendered validating the issuance of bonds by counties, municipalities, and other political divisions of the State. Civil Code, §§5540, 4881; Acts 1897, pp. 53, 84. While the present case involves questions relating to contempt ‍‌‌‌​‌‌​‌​​‌​‌‌‌​‌​‌‌​​‌‌​‌‌​‌‌​‌​​‌​‌‌​‌​​‌‌‌​​​‌​‌​​​‌‌​​​‌‌​‌​‌​​‌‌‌​‌​​​‌‌​‌‌‌‌‌​‌​‌‌‌‌​​‌‌​​‍as well as questions relating, to alimony, it is neither an application for discharge in a contempt case, nor is there involved an original application for alimony, which was granted or refused. Such being true, thé case does *264not fall within the terms of the law above referred to, and therefore it was properly brought to this court under the rules governing ordinary writs of error.

2. The law requires the clerk of this court, upon receipt of any fast writ of error, to place it immediately on the docket of the circuit to which it belongs. Civil Code, § 5558. The purpose of this is to insure a speedy hearing, if the court is then in session. Civil Code, § 5540. In order to determine how to docket each case, it is absolutely necessary that the clerk should inspect the bill of exceptions filed in his office; and it is not sufficient that he should simply inspect the certificate of the judge, in order to determine to wffiat term the case is returnable. The law, and not the certificate of the trial judge, determines at which term a case shall be heard ‍‌‌‌​‌‌​‌​​‌​‌‌‌​‌​‌‌​​‌‌​‌‌​‌‌​‌​​‌​‌‌​‌​​‌‌‌​​​‌​‌​​​‌‌​​​‌‌​‌​‌​​‌‌‌​‌​​​‌‌​‌‌‌‌‌​‌​‌‌‌‌​​‌‌​​‍in this court. DeLoach v. Trammell, 72 Ga. 198. The inadvertence of the trial judge in signing a certificate to a bill of exceptions making a case returnable to a term to which it is not by law returnable should not result in having the case improperly docketed. Of course the action of the clerk in docketing the case is subject to review by the court, but upon him in the first instance devolves the duty of determining from an inspection of the bill of exceptions in each case whether a case should come to this court by a fast writ of error or by the ordinary writ of error.

3. The question as to whether the present case should have been brought to this court by a fast writ of error or by an ordinary writ of error is, to say the least of it, doubtful, and the clerk, therefore, took the sáfe course and placed the same on the docket of the present term, treating it as involving a question reviewable on fast writ of error. It being now determined that it was not proper to so docket the case, no harm has resulted ‍‌‌‌​‌‌​‌​​‌​‌‌‌​‌​‌‌​​‌‌​‌‌​‌‌​‌​​‌​‌‌​‌​​‌‌‌​​​‌​‌​​​‌‌​​​‌‌​‌​‌​​‌‌‌​‌​​​‌‌​‌‌‌‌‌​‌​‌‌‌‌​​‌‌​​‍to the parties, as an order will be passed directing that it be entered upon the docket of the next term. Kaufman v. Ferst, 55 Ga. 350; Jones v. Warnock, 67 Ga. 484; Smith v. Willis, 105 Ga. 840. If the clerk had docketed the case as one brought here by an ordinary writ of error, and it had been determined,that the case should have been brought to this court by a fast writ of error, on the call of the case at the next term the same would have been dismissed because not heard at the *265term to which it was by law returnable. See, in this connection, Bleyer v. Distillery Company, 70 Ga. 724; Davis v. Bennett, 72 Ga. 762. Motion sustained.

All the Justices concurring.