J. W. Clayton & Co. v. Wallace

NEW TRIAL—PRO TEMPORE JUDGE*—FUNCTIONS— RIGHT TO HEAR MOTION FOR NEW TRIAL.—A practicing attorney in the -Superior Court of Fulton county, w.as selected by the parties litigant in a case pending in that Court, (the presiding Judge having been of counsel in the case,) to preside on the trial thereof, as provided by the 240th section of the Code, and after the trial of the cause by said pro tempore Judge, a motion was made for a new trial in the case, a rule nisi to show cause was granted, and_ a day appointed to hear the motion for a new trial. When the motion for a new trial came on to be heard, said pro tempore Judge refused to hear it, on the ground that he had no power to hear it, as, because the presiding Judge of the Circuit had resigned his office, there was no longer any disqualification existing: Held, That the Superior Courts of this State are created and organized by the Constitution and laws thereof, and continue to exist, whether Judges be appointed to preside therein or not; that a pro tempore Judge selected under the provisions of the Code for the trial of a case, may exercise all the functions of a Judge of the Superior Court in that case; that his functions as such pro tempore Judge in that case, continue and extend to the hearing of a motion for a new trial in the case heard and tried before him as such pro tempore Judge, although the presiding Judge of the Circuit may have resigned his office; that such pro tempore Judge derives his authority to hear and determine that special case from the law, and not from the presiding Judge of the Circuit, and having acquired jurisdiction to hear and determine the case under the law, his functions as such pro tempore Judge continue -until he shall have heard and decided the motion for a new trial in that case, notwithstanding the presiding Judge of the Circuit may have resigned his office before the hearing of the motion for a new trial; and that it was error for said pro tempore Judge to refuse to hear and determine the motion for a new trial upon the statement of facts contained in the record.

New Trial. Judge pro hac vice. Bill of Exceptions, Before Honorable John Collier, presiding by consent. Fulton County. Chambers. February, 1870. J. W. Clayton & Company sued Wallace, as Superintendent of the Western and Atlantic Railroad, for the non-delivery of certain corn entrusted to said Western and Atlantic Railroad, as a common-carrier. Judge Pope being of counsel *for plaintiffs, the parties agreed that the Honorable John Collier, a practising attorney of said Court, where said suit was pending, should preside therein and “exercise all the functions of a Judge, and to the extent of granting or refusing a new trial, signing and certifying bills of exceptions, or doing any other act which the Honorable John D. Pope might do if he were to preside in said case.” It was further agreed that the verdict in this case should control certain other specified cases. A trial was had before Judge Collier, selected as above, and resulted in a verdict for the defendant. A brief of the evidence was agreed upon, and a motion for a new trial was made by plaintiffs, on the grounds that the verdict was strongly against the weight of the evidence, and because of an alleged error in the charge to the jury. . This motion was set down for hearing before Judge Collier, in Chambers, on the 21st of February, 1870. Before that time Judge Pope resigned, and at that time no successor had been appointed. When the time for hearing arrived, Judge Collier refused to hear and decide the motion, upon the ground that Judge Pope having resigned, he, Collier, had no power to hear and determine said motion. Plaintiffs’ attorneys thereupon sued out their bill of exceptions, setting forth all the evidence, rulings and charges in the trial below, and had the same signed and certified by Judge Collier in the usual form. Under the usual mandate the entire record came here with said bill of exceptions. The only error assigned in the bill of exceptions was the refusal to hear and determine said motion f-or a new trial. When the cause was called here, counsel for defendant in error moved to dismiss the writ of error, upon the ground that mandamus was the only remedy for said refusal, and nothing else was complained of. This motion was overruled. Pending the argument, counsel for defendant were commenting upon the evidence, (which had not been read,) and insisting that no damage was done to the plaintiffs, because there was no merit in the motion for a new trial, when counsel for plaintiffs in error insisted that defendant’s counsel *were out of order. After argument upon the point, the Court held, that while they had the right to look into the evidence and say whether the motion for new trial should he granted, (even if Judge Collier had erred in refusing to decide upon the motion,) and might hear suggestions from defendant’s counsel, as amici curiae, on the evidence and charge of the Court, counsel for defendant had no right to argue that point, and confined them to the argument of the refusal to decide upon the motion for a new trial.