Hamby v. Pope , 229 Ga. 339 ( 1972 )

Gunter, Justice,

concurring specially. Hamby brought an action in the Superior Court of Cherokee County against Pope, Judge of Superior Court, which was entitled "Petition for Writ of Mandamus.” The complaint alleged that the defendant was a judge of superior court and was a resident of Cherokee County; it then alleged that the defendant was "engaged in acts and practices which constitute improper performance and defects in legal justice because of his failure to enforce the Constitution of the State of Georgia, Art. I, Sec. I, Par. IV (Code 2-104) and the provisions thereof; and plaintiff Hamby, brings this action to enjoin such acts and practices; and to compel proper enforcement thereof.”

The problem with the complaint filed by Hamby, a layman representing himself without the assistance of a member of the bar, is that it fails to state any official duty that he seeks to have perfomed by the defendant, a state official. For this reason the complaint was properly dismissed by Judge Sam B. Burtz, Judge of Cherokee Superior Court, for failure to state a claim upon which relief might be granted.

I am of the opinion that an action for the writ of mandamus may be brought against a judge of superior court in the county of his residence to compel the due performance of his official duties. See Code § 64-101. The judge against whom such an action is brought, being the defendant in the case, is of course disqualified from hearing the case, and another judge must preside. See Code § 24-2623.

In this case an action for mandamus was brought against a superior court judge, another superior court judge heard the case, he determined that the complaint failed to state a claim for which relief could be granted, and he dismissed the complaint.

This was all quite proper. The record in this case does not indicate to me that any error has been committed in the trial court.

I would affirm the judgment below for the reason stated herein.

I am authorized to state that Justice Hawes joins me in this special concurrence.