*1 tive instruction during closing argument specif- defendant ically it, and requested request not a curative instruction after the trial court sustained his objection closing argument.14 All the Justices concur. affirmed. Garnett,
E. Ronald for appellant. J. Daniel Craig, Attorney, District Charles R. Sheppard, Assis- Baker, tant Attorney, Attorney General, District Thurbert E. Paula K. General, Senior Attorney Gale, Assistant L. Deborah Assistant General, Attorney appellee. for
S97A1763. MATTHEWS MATTHEWS. Justice.
Thompson, discretionary We granted appeal in this divorce case and asked this question: Did the trial err in finding court that wife’s demand for (a)? a jury trial was under the provisions of OCGA 19-5-1 § Rosalind Matthews sued Lionel for and Matthews case for 14, was set trial the week of October 1996. Husband filed an answer on and October the trial court sounded the case at calendar call that same sought Because wife a continuance five days previously, trial court continued the case and set it down for a bench trial on November 25.
On November wife entered a pursuant (a). to OCGA 19-5-1 When wife did not at the § calendar call on November proceeded entered Thereafter, judgment case. a motion attacking the judgment, asserting hearing case motion, a jury. The trial court denied the that wife’s demand for a
1. A “[u]nless not entitled to a divorce case an provided issuable defense is filed as and a law in writing by either before the call of the case trial.” OCGA 19-5-1 see is no There doubt that husband presented issuable defense and that demanded a writing. Thus, we must decide whether wife’s demand was made on “the call of the Georgia trial.” Because no case answers this State, See Woodham jurisdictions definitively,
question
to the
of other
we have looked
law
for trial”
words “call of the case
conclude that the
[trial
reg-
court], in the
in time when the
mean that moment
cause and
and title
course, calls out
number
ular
trial;
are
that the
determines
*2
beginning
the
. . . This is the
words,
in
the
trial.
other
[Cits.]
meaning
accepted
“called
trial.”
of the term
1978).
(Mont.
Johnson,
P2d
1333
State v.
585
properly called this case for
the trial court
It
be said that
cannot
parties
determine that the
were
14
it did not
It
trial on October
because
in rul-
that the trial court erred
for trial.
follows
jury
ing
trial was
Cf.
v.
demand for
that wife’s
(demand
supra
jury
in
in
cannot be raised
divorce action
(156
18) (1967)
(1)
trial);
v.
court cannot by stipulation filed oral with bench trial a written stipulation open in the record. 9- made in court and entered OCGA 914) (1968). (163 Of McLarin, SE2d 11-39 McLarin v. voluntary party can, actions, a her course, a in divorce case impliedly Holloman, 228 a trial. waive a demand for Holloman 653) (1) (184 (1971); SE2d &c. Assoc. v. Rosser Ga. 247 Wise (247 (1978). App. A &c., 789, 795 Inc., 146 Ga. SE2d White making impliedly demand for a trial is waived where objection. Compare participates the demand Servisco, in a bench trial without (2) App. Atlanta, Inc. v. B. M. 147 Ga. 671 SE2d R. 10) (1978) App. Corp., T. 143 with Camilla Cotton Oil Co. v. C. I. Ga. County Bd. See also Henderson Registration App. In this &c., 126 Ga. expressly case, And, a did not consent to bench trial. inasmuch part all, said that she as did not take in the trial at it cannot be impliedly waived her trial demand. (2) (204 upon Easterling Easterling,
Relying 610) (1974), impliedly waive her husband asserts wife bar, case, In that as at demand. proceeding a to trial without asserted that the trial court erred jury. ruling merit, to that it be without In assertion — Easterling only thing that that court noted one failed at appear to trial. To the extent that Easterling can be read to a hold that by failing waives demand to at a non- call, jury trial calendar it disapproved. The issues raised in this case should have been to a jury. submitted It follows that wife enti- tled to a new trial. All reversed. the Justices concur. Justice, concurring. SEARS,
I concur in the judgment because, under the present statutory scheme, a jury may be until the moment the case is trial, called for and thus the demand this case was made. timely Insofar as that demand was not followed with a written oral stipu- consenting lation to a bench proceeding However, I jury. call upon legislature to reconsider wisdom of allowing divorce wait litigants to until moments before commencement of demand that their cases be tried jury. The rule is subject rife abuse by litigants attorneys, and their and frustrates judicial economic use of legal resources. *3 Jr., Dyches,
Donald E. appellant. Barr, Warner, Barr, & Lloyd Henifin, Karen D. for appellee.
S97A1798. THE FRANKLIN v. STATE.
Benham, Chief Justice. Leroy Clark died as result of a single heart, stab wound inflicted Homer appellant Franklin in the early morning hours of May 1995.1 The stabbing physical occurred altercation victim, between and the which took place approximately hours after parties’ sons had At time fought. fight, of the sons’ appellant had threatened the victim’s son. The fatal also stabbing May 27, grand jury charging The crime occurred on 1995. The returned a true bill felony 7,1995. August Appel with malice murder and criminal solicitation of a 18,1996, lant’s jury’s trial commenced March and concluded the next with the return guilty finding appellant guilty felony April verdicts murder and criminal solicitation. On 3,1996, appellant imprisonment given sentenced life for the murder conviction three-year Appellant’s concurrent term for the criminal solicitation conviction. motion April January 22, 1997, new and amended was denied June 1997. July 17, appeal July The notice was filed case was docketed this Court on appeal The was submitted for decision on briefs.