114 Ga. 837 | Ga. | 1902
Jack Haskens and Jesse Webb were convicted, during the July term, 1901, of the superior court of Laurens county, of voluntary manslaughter, and were each sentenced to a term of five years in the penitentiary. On December 29,1901, they presented to the Honorable John C. Hart, judge of the superior courts of the Ocmulgee circuit, which embraces the county of Laurens, a motion to set aside the judgments and sentences against them, assigning various reasons why the same were illegal and void. On the day named the judge entered an order on the motion, reciting that as it was without merit a rule nisi thereon is denied. To this ruling the movants excepted. Their bill of exceptions was certified on January 6, 1902, and, after having been duly served upon the solicitor-general, was filed in the office of the clerk of the superior court on January 13, 1902. On January 14, 1902, the movants presented to this court a petition, in which were set forth the facts above referred to, and in addition thereto it was alleged that the movants,
Can the judge of a superior court entertain or pass upon a motion made in vacation to set aside a judgment of that court ? If he can not, then the decision of Judge Hart refusing to grant a rule nisi on the motion in the present case was correct, without reference to the reasons stated by him in his order which was entered on the motion. The judgments sought to be attacked are judgments of the superior court, that is, judgments rendered by the court at a regular term thereof. What control has the judge in vacation over the judgments of the superior court rendered in term time? The Civil Code, § 4325, answers this question. “Said judges can not exercise any power out of term time, except the authority is expressly granted; but they may, by order granted in term, render a judgment in vacation.” The code provides that either party to a judgment may move to set it aside for any defect not amendable which appears on the face of the record or pleadings, and that such motion “may be made at anytime within the statute of limitations.” Civil Code, §§ 5362-3. Unless the provision of the code just referred to authorizes a judge of the superior court to entertain a motion made in vacation to set aside a judgment, there is no express law giving this authority, so far as we have been able to find. Keeping in mind that the law in terms declares that the
The effect of this ruling is to construe the language of the code to mean that a motion to, set aside a judgment may be entertained by the court which rendered it, provided the same is presented during term and within three years from the date of its rendition. That the last day of the three years might happen to be at a time when the court was not in session would be no sufficient reason to authorize a ruling that the judge could exercise an authority in vacation'when
Judgment affirmed. Mandamus nisi discharged.