Beck v. State , 144 Ga. App. 361 ( 1977 )

McMurray, Judge.

This case involves the authority of one of the associate judges of the State Court of Dougherty County who acted as magistrate in the issuance of a search warrant. Certain gambling paraphernalia and other assets were seized in its execution. The defendants brought an action in the State Court of Dougherty County seeking the return of property seized from them during a search conducted pursuant to a warrant issued by John Tracy, acting as Judge of the State Court of Dougherty County.

The contention of the defendants, Beck and Hyman, is that John Tracy, an Albany lawyer, who acted as associate judge in the State Court of Dougherty County, had not been properly appointed to that position and therefore his acts in that capacity were void. The state court dismissed the action stating therein it was the court’s opinion it was an impermissible collateral attack on Tracy, who was not named as a defendant in the action. The defendants appeal. Held:

The City Court of Albany was created in 1897. See Ga. L. 1897, p. 408. It was thereafter amended from time to time until 1964, when the activities of the entire court were redefined (Ga. L. 1964, p. 3053). At that time the office of judge pro hac vice was created in which a practicing attorney could be appointed by taking the same oath as the judge of the City Court of Albany. In 1965, and again in 1969 (Ga. L. 1965, pp. 2505, 2507; 1969, pp. 2923, 2924), this Act was amended with reference to judges pro hac vice. Thereafter, by amendment, the name of the City Court of Albany was changed to the State Court of Dougherty County (Ga. L. 1974, p. 3777). Then, in order to create additional duties for the judges pro hac vice, among other things, the Act was amended to change the name of said appointed practicing attorneys (no number set out) to that of associate judges to act fully in the capacity as the judge of said court (see Ga. L. 1976, pp. 3176, 3180). The alleged associate judge who executed the warrant had taken the oath of office as a judge pro hac vice and was serving at the time of the latest amendment. The sole issue on appeal is whether or not he was an associate judge of said court even though he did not again take the exact same oath of office after the amendment of 1976.

1. The mere amendment changing the title of the appointed practicing attorneys who had taken the oath of office as judges pro hac vice to that of "associate judges of the State Court of Dougherty County” did not require that they take another oath of the judge of the said court since they already had been appointed and had taken the oath of said office. Since the court properly dismissed the complaint it is unnecessary for us to consider the language in the final order with reference to same being a mere collateral attack on the trial judge who was not named therein. See Hill v. Willis, 224 Ga. 263, 267 (161 SE2d 281); Sims T. V., Inc. v. Fireman’s Fund Ins. Co., 108 Ga. App. 41, 43 (131 SE2d 790); Hood Oil Co. v. Moss, 134 Ga. App. 477 (6) (214 SE2d 726).

Argued May 2, 1977 Decided December 5, 1977 Rehearing denied December 16, 1977 Malone & Percilla, Thomas Wm. Malone, III, for appellants. William S. Lee, District Attorney, for appellee.

2. However, the state also contends that even if the practicing attorney Tracy acted as associate judge de facto, the same was a completed judicial act. The search warrant was complete when issued. The return of the warrant after execution was a mere ministerial act requiring no exercise of judicial discretion. Williams v. State, 125 Ga. App. 170, 172 (3) (186 SE2d 756); Lewis v. State, 126 Ga. App. 123, 125 (2a) (190 SE2d 123). The provisions of Code Ann. § 27-310 (Ga. L. 1966, pp. 567, 570) as to such return does not require it to be made solely before Judge Tracy or before any sworn judicial officer of the State Court of Dougherty County, as the return could also be made "before any court of competent jurisdiction.”

Therefore, conceding he was a de facto officer, the exercise of judicial discretion (as to the judicial acts) was complete with Judge Tracy’s issuance of the search warrant and therefore the general rule protecting the actions of judicial officers de facto should be applied here. The public interest in protecting the certainty of judicial decrees and judgments has attached. See Hinton v. Lindsay, 20 Ga. 746; Stone v. Wetmore, 42 Ga. 601; Tarpley v. Carr, 204 Ga. 721 (51 SE2d 638).

Judgment affirmed.

Deen, P. J., Quillian, P. J., Webb and Banke, JJ., concur. Bell, C. J., Smith, Shulman and Birdsong, JJ., dissent.