Garland v. Tanksley , 99 Ga. App. 201 ( 1959 )

Carlisle, Judge,

dissenting. I dissent from the decision, judgment and action of the majority of the court in this case. In so acting and in so ruling, this court is exceeding its jurisdiction. The jurisdiction of the Court of Appeals is for the trial and correction of errors of law from the superior courts (and such other courts as are enumerated) in all cases in which such jurisdiction has not been conferred by the Constitution on the Supreme Court. Constitution, art. 6, sec. 2, par. 8 (Code, Ann., § 2-3708). With one exception (the issuing of a mandamus to compel the certification by the trial judge of a bill of exceptions —Code § 6-910), the jurisdiction of this court is appellate jurisdiction conferred by the orderly procedure of the bringing of a writ of error to this court. In the instant case, there is admittedly no writ of error, for a bill of exceptions has not even been prepared and the writ of error is not issued until the trial judge certifies the bill of exceptions. Code § 6-807. This court has no original jurisdiction. French v. Long, 97 Ga. App. 656 (104 S. E. 2d 155).

The petition in this case was purportedly brought under the provisions of Rule 51. The power of this court to order a supersedeas under that rule clearly extends only to those cases in which a writ of error is pending and not to any case where a writ of error might some day be issued.

Furthermore, the petitioner in this case, has no right under the provisions of the Act of 1939 to a supersedeas. The right granted in that case was expressly limited to civil contempts and not to criminal contempts. Code (Ann.) § 6-1009. I think that it is manifest that whether or not a supersedeas will be granted or refused in cases of criminal contempts lies solely within the discretion of the trial judge before whom the contempt is committed, and that this court, having no jurisdiction in this case, is establishing a dangerous precedent inimical to the orderly administration of justice in interfering with the discretion of the trial judge to control the conduct of counsel and parties in his court. See White v. George, 195 Ga. 465 (24 S. E. 2d 787), and White v. State, 71 Ga. App. 512 (31 S. E. 2d 78). Even if this court had jurisdiction, such discretion ought not to be controlled by this court or any other appellate court, except in cases where a clear showing of an abuse of such discretion is made, and I do not think that this court can say that such a showing has been made here.

I am authorized to say that Gardner, P. J., concurs with me in this dissent.