Rutledge v. Bullock , 44 Ga. 23 ( 1871 )

Warner, Judge.

This case came before the Court below on an affidavit of illegality to an execution which was issued on a judgment of a forfeited recognizance rendered against the defendants at the March Term, 1870, of DeKalb Superior Court. The main ground of illegality taken by the defendants in the affidavit, was that there was no Judge in the Atlanta Circuit, and that the Court was held by Judge Parrott, a Judge of another Circuit, who had no legal right or authority to hold the Court and render the judgment in said case under the following agreed statement of facts: “ That Judge Pope, the Judge of the Atlanta circuit resigned on the 3d day of January, 1870, and the Atlanta circuit was without any Judge until August, 1870, when Judge Lochrane was appointed to fill the vacancy. That the March Term of DeKalb Court, 1870, was held by Judge Parrott without the request or invitation of Judge Pope, but on the request of Governor Bullock, and that the judgment in the case was rendered on the 7th day of March, 1870, when the Court was held by Judge Parrott, the Judge of the Cherokee circuit, the Atlanta circuit being without a Judge.” The third section of the fifth article of the Constitution declares, %c there shall be a Judge of the Superior Courts for each judicial circuit. He may act in other circuits when authorized by law.” The 232d section of the Code declares, “ The jurisdiction of the Judges of the Superior Courts is co-extensive with the limits of this State, but they are not compelled to alternate unless required by law. By the 23Sd section of the Code it is declared, that “each of said Judges shall discharge all the duties required of him by the Constitution and laws for the circuit for which he was elected or appointed, although he may hold Courts in other circuits, and may also exercise other judicial functions for them, when permitted by law;” that is to say, the Judge of one circuit may hold Courts in other circuits in the State, and may also exercise'other judicial functions for other circuits when permitted by law, as to grant writs of injunction, certiorari, and other writs, whenever the resident Judge of a circuit is absent or interested, etc., as-provided by the 238th section of the Code. We are, therefore, of the opinion that the Judge of one circuit may rightfully and lawfully hold a Court in another and different circuit in the State than that for which he was appointed. But it is said if the Governor shall fail or refuse to appoint a Judge for a circuit when a vacancy occurs, as in this case, he can compel the people of the circuit to have their legal rights determined by any Judge in the State who he may think proper to force upon them. That may be so, but the failure of the Governor to perform his constitutional duty in making an appointment to fill a vacancy when it occurs, is one thing, for which he is responsible to the proper tribunal. The legal power and authority of a Judge of one circuit to hold a Court in another circuit of the State, is an entirely different thing. The failure of the Governor to appoint a Judge for the Atlanta circuit, however objectionable that failure in the performance of his official duty may have been, did not divest the Judge of the Cherokee circuit of the legal power and authority to hold a Court in the Atlanta circuit at the time appointed by law, of which all parties having business in that Court were bound to take notice.

Let the judgment of the Court below be affirmed.