Thigpen v. McMichael , 76 Ga. App. 470 ( 1948 )

For the reasons stated in the opinion, the petition for certiorari did not allege any error sufficient to warrant the issuance of a writ of certiorari, and the court did not err in refusing to sanction the petition.

DECIDED FEBRUARY 14, 1948. According to the allegations of the petition for certiorari filed in the Superior Court of Washington County, the plaintiff, Casey Thigpen, filed suit against the defendant H. N. McMichael, returnable to the November term, 1945, of the Justice's Court of the Ninety-Seventh District of Washington County. The trial resulted in a judgment for the defendant, and the plaintiff appealed to a jury in that court. The court failed, neglected, and refused to prepare a jury box for the trial of the appeal or to summon a jury. After considerable delay and an unsuccessful effort to secure a writ of mandamus directing the justice to proceed in the matter — "finally sometime in September, 1947, exact date being unknown to petitioner, said justice, attorney for defendant, H. N. McMichael, and Frank Rogers and wife, secretly prepared an alleged jury box for said district, but instead of placing in said box a list of all persons liable for jury service in Washington Superior Court, in said district residing, and otherwise complying with the provisions of § 6-403 of the Code of Georgia, they merely placed in said alleged box names of only seven persons. Immediately thereafter said justice, in presence of the said parties, as aforesaid, secretly drew from said alleged jury box names of said seven jurors, and had them summoned to appear as jurors in trial of petitioner's case, on third Monday in September, 1947, which was on September 15, 1947. Petitioner had been watching the situation, as he knew full well the evil intent of said justice in said case, and petitioner knew that said justice had not in public, on a regular court day, in conjunction with a constable, drawn a jury to try said case, and petitioner also not having been notified, and therefore petitioner did not appear in said justice court on September 15, 1947, and said justice promptly dismissed petitioner's case and appeal for lack of prosecution; petitioner has been unable to get an exact copy of decision and final judgment of September 15, 1947, dismissing his case and appeal, but is advised and believes same to be in substance, as follows: ``Plaintiff, Casey Thigpen, after having demanded same, having failed to appear in court for a jury trial, said case and appeal of said plaintiff is hereby dismissed for lack of prosecution. This September 15, 1947. W. A. Bell, N. P. Ex-off. J. P.'" The plaintiff in his petition for certiorari assigned this latter judgment of the court as error. The superior court refused to sanction the petition, and the plaintiff excepted. The plaintiff assigned error in his petition for certiorari upon the action of the justice's court in dismissing his case and appeal, on the ground that the judgment was void because the preparation of the jury box and the drawing of the jury were illegal, void, and a nullity by reason of the court's failure to prepare the jury box and draw the jury in accordance with the law as set forth in the Code, § 6-403; and upon the ground that the dismissal of the case and appeal was contrary to law. In has been held (a holding which to the writer's mind is untenable) that a void judgment is not reviewable by writ of certiorari. Levadas v. Beach, 117 Ga. 178 (43 S.E. 418);Murray v. State, 112 Ga. 7 (37 S.E. 111); McDonald v.Farmers Supply Co., 143 Ga. 552 (85 S.E. 861); Griggs v.Macon, 154 Ga. 519 (114 S.E. 899); Bass v.Milledgeville, 122 Ga. 177 (50 S.E. 59); Allied MortgageCompanies v. Gilbert, 189 Ga. 756 (8 S.E.2d 45); City ofCedartown v. Pickett, 193 Ga. 840 (20 S.E.2d 263). Nor will certiorari lie to correct errors or irregularities in the preparation of the jury box and the drawing of the jury, in the absence of proper objections raised and ruled on by the trial court, showing harm to the applicant for certiorari. Kitchens v. Kitchens, 62 Ga. App. 622 (9 S.E.2d 189); Shedd v.Stow, 18 Ga. App. 274 (2) (89 S.E. 352); Stephens v.McNaughton, 8 Ga. App. 42 (68 S.E. 459); Western AtlanticRailroad v. Steadley, 65 Ga. 264; Costly v. State,19 Ga. 614. Care should be exercised, however, in applying the rule that certiorari will not lie to review a void judgment, as there is a distinction to be drawn between judgments which are void and judgments which are merely voidable. "It is only jurisdictional defects which render a judgment void; mere irregularities or errors in the exercise of jurisdiction may or may not render the judgment reversibly erroneous, or voidable, but they do not render it void." 34 C. J., 509, § 811. This distinction was recognized, in a case involving a judgment in a justice's court, in Rogers v. Felker, 77 Ga. 46. See SingWah v. Singer, 110 Ga. 299 (34 S.E. 1027); Blocker v.Boswell, 109 Ga. 230 (34 S.E. 289). In the Rogers case it was held that, where a court, as a court, had jurisdiction of the parties and the subject-matter, mere irregularities or errors in the exercise of that jurisdiction rendered the judgment voidable but not void. In that case the justice was related to one of the parties within the fourth degree of consanguinity and therefore disqualified, and the Supreme Court affirmed the dismissal of an affidavit of illegality, intimating that the complainant's remedy was certiorari. In that line of cases exemplified by Levadas v.Beach, 117 Ga. 178 (supra), the trial court had no legal existence as a court or the judgment was void by virtue of the express provision of Code § 24-908 that judgments of justice's courts rendered at a time or place other than the time or place lawfully appointed are declared void.

The error of the court in dismissing the appeal for lack of prosecution, therefore, was not a void judgment, but merely a reversibly erroneous judgment as, under the terms of the ruling in Singer Manufacturing Co. v. Walker, 77 Ga. 649, an appeal to a jury is a de novo investigation and may not be dismissed for lack of prosecution. See, in this connection,Merry v. Wilds, 100 Ga. 425 (28 S.E. 444); Bethea v.Dixon, 72 Ga. App. 384 (33 S.E.2d 723), and cit.; GriffinMarble c. Works v. Padgett, 77 Ga. 497. Under the allegations of the petition for certiorari, the court dismissedthe case and the appeal. While, as we have said, the court had no authority to dismiss the appeal for lack of prosecution, it was proper to dismiss the case for such reason (Rousch v.Green, 2 Ga. App. 112, 58 S.E. 313; Bateman v. Smith GinCo., 98 Ga. 219, 25 S.E. 422); and the case having been dismissed, the entire proceeding was terminated and there was no necessity for dismissing the appeal. The plaintiff in certiorari did not, therefore, show error such as would warrant the issuance of the writ of certiorari, and the court did not err in refusing to sanction the petition for certiorari.

Judgment affirmed. Sutton, C. J., and Parker, J., concur.