91 Ga. 47 | Ga. | 1892
On March 23, 1892, came on to be tried the case of Thompson et al. against Schaffber & Company, creditor’s bill, in which Hon. Marshall J. Clarke, the judge of the circuit, was disqualified; whereupon the deputy-clerk appointed a judge pro hac vice. The case went to trial, having been called out of its regular order on the docket and advanced for trial, at a regular 'bar meeting held on Saturday, March 19, 1892, by Judge' Clarke. There was no appearance or defence by the defendants. Various persons had been made parties plaintiff, among
The motion alleges the following: The judge pro hac vice was appointed by the deputy-clerk before the case was reached in its regular order on the docket, without any agreement of parties having been made and without the consent of the parties litigant. The judge pro hac vice erred in dismissing movants, because some of the parties plaintiff in the case were represented at the time and verdicts were taken in their favor, and the court should have ordered verdicts taken for or against all of the parties to the case, as co-complainants had the right at any time before verdict to offer evidence to the jury, and the court erred in dismissing them before they had the opportunity of doing so, and in dividing the case into sections or installments, trying part thereof, and letting the jury try a part of said case. The court erred in rendering a judgment in favor of Arnold, Constable & Co., who were not légally made parties to the bill, the order making them parties complainant having been granted by Judge Clarke on March 28, 1892, the
The answer to this motion sets forth the following : Prior to Friday, March 18, 1892, a written memorandum, in compliance with the rule of court, was handed to the clerk of the court by one of counsel for plaintiffs. On Saturday, March 19th, the case was, at a regular call of the docket, called by Judge Clarke and set for trial on Tuesday, March 22, 1892. The case was not reached on that day, and went over until the following day. Respondents deny that the case was called out of its order; it was properly called in obedience to the rule allowing cases to be advanced in which funds are held up, and was so advanced. Respondents deny that Judge Clarke had no authority or was disqualified from calling and setting the case for trial. The statement in movants’ petition that counsel who had been allowed fees out of the general fund, moved to dismiss movants for want of prosecution, is untrue. Respondents did not know and do not know that Hines, Shubrick & Felder represented parties plaintiff'; nor d'o they know that the statements made in the petition in reference to their leave of absence are true. Respondents are informed that C. Z. Blalock, of the firm of Blalock & Birney, had a leave of absence. The leave, however, was granted to him individually and not to the firm, and Mr. Birney, a member of the firm, was present at the bar meeting when the case was called and set for trial, and interposed no objection thereto. Respondents are informed that the firm of P. L. Mynatt & Son represented one of plaintiff's. They do not know whether P. L. Mynatt
Evidence was introduced as follows : Birney, of the firm of. Blalock & Birney, obtained a leave of absence from the call of the docket for the regular bar meeting on March 19th, and for the following week, for his partner Blalock, for providential cause. Blalock & Birney represented two of the plaintiff's dismissed, the matter being in charge of and under the control of Blalock. Birney did not charge his mind with the case and paid no attention to it afterwards, because he knew it to be controlled by the leave of absence obtained for his .partner. Birney had no knowledge of the case until after judgment and the fund had been divided. Hines, Shubrick & Pelder represented various parties who were dismissed. On March 12, 1892, at a regular bar meeting, the firm obtained leave of absence to March 26th, and were absent from court on that leave when the case was called and assigned for trial, and when the case was tried. The reason which prompted that firm to withdraw from the motion to reinstate was, that coun