Gulf Refining Co. v. Miller, 151 Ga. 721

Gulf Refining Co. v. Miller

151 Ga. 721 | Ga. | 1921

Lead Opinion

Atkinson, J.

1. The city court of Pelham was created by special act of the legislature (Acts 1905, p. 325), in the town of Pelham in the county of Mitchell, and given limited civil and criminal jurisdiction over “all that portion of Mitchell county embraced in the 1194th District G. M. of said county.” The judge is given authority to hear and determine all civil cases of which the court has jurisdiction; but any party in a civil case is entitled to a trial by a jury, upon entering a demand therefor in writing by himself or his attorney on or before the call of the docket of the court to which the case is made returnable. Where a jury trial is demanded, lists of the names of 18 jurors are required to be furnished, and each side is allowed three peremptory challenges, thus leaving 12 jurors to try the case. Judicial cognizance is taken of the fact that the town of Pelham is a town separate and distinct from Camilla, which is the county-site of the county and not included in the 1194th district, being the territory over which the city court of Pelham has jurisdiction. The city court of Pelham thus established, though called a “city court,” is not such a court, within.the contemplation of the constitution of this State, as has inherent power to grant new trials. Welborne v. State, 114 Ga. 793 (40 S. E. 857). In section 36 of the act it is expressly declared that “ from said city- court of Pelham there shall be no appeal, but all errors committed by the said city court .of Pelham or the judge thereof, in judgments or rulings, or otherwise in the handling of cases, . . may be corrected by writ of certiorari, returnable to the superior court of Mitchell county.” It thus appears that the city court of Pelham was without inherent power under the constitution to grant new trials, and the express provision for correcting errors committed in the court was restricted to the remedy of certiorari to the superior court. The last-mentioned remedy will apply to any error of law committed by the judge, but could not apply to correct such a mistake as allowing disqualified jurors to serve on the jury, *725■where the disqualification was unknown to the court, the parties, or their attorneys, after due diligence and without fault of the party or his attorney, no issue ever having been presented as to the qualifications of the jurors and no ruling made by the court. If the city court of Pelham could entertain a motion in arrest of judgment, it could not grant such a motion on account of a mistake of the above character, because the mistake does not appear on the face of the record. Under the circumstances there is no provision of law for attacking the verdict on the ground of the disqualification of the jurors; and without the aid of equity an injured party would be remediless. The' Civil Code, § 4584, declares: “The judgment of a court of competent jurisdiction may be set aside by a decree, for fraud, accident, or mistake, or the acts of the adverse party unmixed with the negligence or fault of the peti■tioner.” In Wade v. Watson, 133 Ga. 608 (66 S. E. 922), it was held: “ The superior court, in the exercise of its equity jurisdiction, upon appropriate pleadings, has power to set aside a judgment of the Supreme Court which was obtained by fraud practiced upon the court in the procurement of the judgment by means of an entry of acknowledgment of service placed on the bill of exceptions by some one other than the defendant in error or his counsel, and without authority or consent of either of them.” The question there under consideration involved the setting aside, by a court of equity, of the judgment of another court of competent jurisdiction, on account of fraud. In the course of the opinion the case of Kohn v. Lovett, 43 Ga. 179, was cited and applied. After quoting from that decision it was said: “The ruling cited is relevant to the present case principa] ly because it holds that equity may interfere to prevent the enforcement of the judgment of another court, and even a judgment of the Supreme Court, where it appears that it was obtained by mistake unmixed with laches on the part of the party injuriously affected thereby. When it is considered that the power to correct on account of mistake also involves the power to correct on account of fraüd, the ruling quoted leaves no room for further discussion upon the proposition that it is in the power of the superior court, in the exercise of its equity jurisdiction and upon sufficient equitable pleading, to set' aside a judgment of the Supreme Court on account of fraud which resulted in the procurement of the judg*726ment.” The allegations of the petition make a typical case for equitable relief on the ground of mistake. The defendants in the damage suit requested the judge to purge the jury. There was compliance with this request on the part of the judge; and that the jurors were allowed to serve without their disqualifications being ascertained before verdict was on its facts a mistake upon the part of everybody, and certainly upon the part of the court and the defendants and their attorneys. If the disqualification was known to the jurors or the plaintiff and concealed by them, .their fraud in concealing it, coupled with the mistake of the defendants in innocently allowing them to serve, would be ground for equitable relief, just the same as if their disqualification as jurors had been overlooked by mistake of all the parties. The action was for unliquidated damages, and the defendants were entitled to a qualified jury to fix the amount of damages that should be awarded, as well as to determine the defendants’ liability for such damages. As the jurors were disqualified and served on the jury, injury will be presumed. Georgia Railroad v. Cole, 73 Ga. 713. The petition set forth a cause of action, in so far as it undertook to set aside the verdict rendered in the city court of Pelham; and it was erroneous to sustain the demurrer in its entirety.

2. As to all the alleged errors committed at the trial, the defendant had an adequate remedy at law by petition for certiorari; and the demurrer was properly sustained as to so much of the petition as sought by consolidation to draw the petition for cer-. tiorari into the equitable cause.

3. In the light of what is said in the first division, there was no merit in any other grounds of demurrer.

4. At the interlocutory hearing for injunction the evidence was conflicting as to the time at which the defendants were informed of the disqualification of the jurors. The evidence in behalf of the' defendants in the damage suit was to the effect that neither they non their sole attorney at law learned of the disqualification until after the verdict was returned. There was evidence for the plaintiff in the damage suit to the effect that the defendants were informed ' of the disqualification of the jurors after the ease was-submitted to the jury and before a verdict had been returned. If the defendants had knowledge of the disqualification, it was their *727duty to complain before the verdict was returned, if they desired to do so. If they did not complain and took the chance of a verdict being in their favor, they would not be heard afterwards to complain of the disqualification of the jurors. Georgia Railroad v. Cole, supra; Miller v. State, 139 Ga. 716 (78 S. E. 181). The matter of settling the conflict of evidence as to the time when these defendants learned of the disqualification of the jurors was a question, on interlocutory hearing, for determination by the trial judge, and his discretion in refusing the injunction will not be disturbed. As the judge sustained the demurrer to the petition, and in view of the language of the order refusing the injunction, it is probable that he was of the opinion at the interlocutory hearing that the petition did not state a cause of action, and based his decision in refusing an injunction on that erroneous understanding of the law, while if he had been, of the opinion that it stated a cause of action he would not have refused the injunction on account of the conflict of evidence above mentioned. Under the circumstances, while affirming the judgment refusing the injunction, direction is given that the judge again hear the application for injunction, in the light of what is said in this opinion.

- On the bill of exceptions assigning error on the judgment sustaining the demurrer, the judgment is reversed in part and affirmed in part. On the judgment on the bill of exceptions assigning error on the judgment refusing an interlocutory injunction, the judgment is affirmed, with direction.

All the Justices concur, except

Dissenting Opinion

George, J.

I dissent from the ruling in the second headnote, upon the ground that the case is within the general rule that equity, having assumed jurisdiction for one purpose, will take jurisdiction for all purposes. The judgment on demurrer should, as I think, be reversed generally. 1 '