Malcom Bros. v. Pollock

Gilbert, Justice.

The two questions shown in the headnote involve the same principles of law, and they may be answered together. The briefs of counsel so treat them. In the brief of the plaintiff in error, however, references are made to parts of the record for the purpose of explaining and enlarging the statement of facts contained in the questions. As repeatedly ruled, this court is limited to the questions as propounded by the Court of Appeals. If, in addition to the facts included in the questions, this court should consider other facts called to its attention by counsel, that would obviously result in this court answering questions not really propounded and not desired by the Court of Appeals. If counsel feel that the questions are not fairly appropriate to the issues pending in the Court of Appeals, the matter can be called to the attention of that court, and without doubt careful and necessary attention will be given thereto. The authorities cited by the Court of Appeals have been examined, but none is ’ decisive of the questions presented. Neither question calls for the application of a principle of substantive law as to the return of the verdict, but involves, properly speaking; a rule of expediency. This was the view of the court in Merchants Bank of Macon v. Rawls, 7 Ga. 191, 200 (50 Am. D. 394), where it was said: “The rule on this subject is more one of expediency than of principle.” Similar language was used in Hugley v. Holstein, 34 Ga. 572, 574, as follows: “The question in this ease is one of practice; and the rule to be established, one rather of expediency than of principle.” It is not shown in the propounded questions that the agreement of counsel required the verdict to be formally delivered in open court. The agreement was that it was to be “returned” to the sheriff. Obviously the duty of the sheriff would be to deliver the verdict to the clerk of the court the next morning, in the absence oNother agreement or specific instructions from the judge. It is to be presumed that the sheriff did his duty. This course of action is authorized under the Code of 1933, § 110-107, which provides: “Verdicts shall be received only in open court, in the absence of agreement of the parties.” This section is specific authority for receiving verdicts, by agreement, otherwise than in open court. The first question must therefore be answered in the negative, unless we shall hold that the other condition, viz., that it was returned “in the absence of the trial judge from the county, and never received in open court or other than as here indicated,” requires us to reach a different conclusion. The effect of the latter condition will be determined while considering at the same time the condition named in the latter part of the second question, viz., “ after the judge left and went to his home in another county,” followed by the query if “during his absence there was no valid or legally existing court and all the proceedings during his absence were nullities.”

In several cases this court has critized the action of the judge in temporarily absenting himself from the court-room during the trial of a case without suspending the trial. The action was ih each case, however, treated as an irregularity not requiring the grant of a new trial. The main cases discussed by counsel for the plaintiff in error, from which it is urged that this court should now hold that the absence of the trial judge from the court-room is a ground for granting a motion for a new trial, will now be considered. They are: O’Shields v. State, 81 Ga. 301 (6 S. E. 426); Pritchett v. State, 92 Ga. 65 (18 S. E. 536); Horne v. Rogers, 110 Ga. 362 (35 S. E. 715, 49 L. R. A. 176); Martin v. State, 10 Ga. App. 455 (73 S. E. 686). In the Horne case Mr. Justice Cobb, speaking for the court, entered into an elaborate consideration of the question. He stated, however, that the only decisions in point and discussed by him were those of Hayes v. State, 58 Ga. 35, and the O’Shields and Pritchett cases, supra. He explained that in the Hayes case a'new trial was ordered, but not solely on account of the absence of the judge during the examination of witnesses. Obviously, as recognized by Mr. Justice Cobb, that case is not a binding precedent. What was there said is obiter as applied to this case. In discussing the O’Shields and Prüchelt eases he very properly emphasized the importance and desirability of the presence of the judge at the trial, in all of which discussion we readily concur. But he added: “If it were an open question, we would hold that the presence of the judge at all stages of the trial is absolutely necessary,” etc. That declaration is not binding upon this court. It may be opportune to point out at this juncture that in the O’Shields and Pritchett cases the circumstances of the judge’s absence were quite different from those suggested in the propounded questions. In each of these cases, the absence of the judge was during the argument of counsel, the jury being in the box and needing the presence and protection of the judge against any improprieties or unlawful acts of counsel or spectators. This was true also in the Horne case, supra, in which Justice Cobb wrote the opinion. From the propounded questions it is clear that in the instant case all testimony and arguments were at an end, and that the judge absented himself from the courtroom only after the jury had retired to consider the case. It is a legal presumption that the jury was under the protection of a deputy sheriff as required by law, and thus removed from any influence that might, though unlawful, be possibly exerted in a court-room, and which the presence of the judge was needed to discountenance and avert, suppress when attempted, or properly condemn if in fact exerted. Under modern convenience of communication and transportation, the judge in the case in question, though physically absent, was able to respond without unreasonable delay, if his presence were actually needed while the jury was deliberating. Indeed it may now be possible for a judge, when summoned by telephone, to journey by automobile from a county adjoining that from which he absented himself, in less time than would have been required, when the older cases were decided, for the judge to reach the court-room from his home. Nor would it necessarily be an exaggeration to assert that the same contrast exists between the circumstances of the present day and those of the time in which Justice Cobb’s opinion was written, viz., in 1900. What we here point out is that, in a matter of expediency, the gravamen is not so much the technical fact of absence per se, but rather the supposed inaccessibility of the judge because of his absence; and that this inaccessibility, which might have been imputed under old conditions, does not in fact exist to-day.

In the Home case Justice Cobb further stated: “TJntil the present case, the three eases cited are all that are to be found in our reports relating to this question, and from these we deduce the rule applicable in such cases to be: The mere absence of the judge during the progress of the trial, when no'objection is made, will not necessarily require the granting of a new trial, when the absence is only for a few moments and for a necessary purpose; and in order for such absence to become reversible error, it must appear not only that objection was made to the judge’s failure to suspend the trial, but that the absence of the judge resulted in some harm to the losing party. In obedience to this rule, we are constrained to affirm the judgment in this case.” Then follows the declaration referred to hereinbefore, as to the court’s disposition to hold otherwise but for the binding authority of the O’Shields and Pritchett cases, which declaration by Mr. Justice Cobb, as we have stated, constitutes no obligation upon this court. To the changed conditions mentioned in the foregoing part of this opinion this court can not shut its eyes, and it can not say that a proper construction of the rule, as deduced from the other cases by Mr. Justice Cobb, will not permit of a similar holding here, that the absence of the judge in an adjoining county under the circumstances named in the propounded questions will not, as in the case of absence “only for a few moments,” authorize the grant of a motion for a new trial. In Martin v. State, supra, decided in 1911, the court said: “It must be admitted that any absence of the presiding judge when the trial is going on is an irregularity; and if the question were an open one, we should hold that any absence of the judge, no matter how brief, necessarily suspends a pending judicial proceeding. But, under rulings of the Supreme Court, there are occasions when a temporary absence of the judge, even though the trial is in active progress and the jury has not retired, can not be said to be harmful to either party. . . In the present case, however, the judge went beyond the jurisdiction of the court in which the trial was pending. The jurors could not be said to have been even constructively in his presence, and the presence of the-judge was indispensable to the legality of the court. If there is no judge, there is no court.” What was there said as to the disposition of the court to hold otherwise, but for the O'Shields and Pritchett cases, cited in that opinion, is not binding on this court. Attention was called to the fact that the judge left the proceedings and went to another county, and in a court therein granted a charter. That case also was decided at a time when automotive transportation and highways did not provide that celerity of travel which now obtains. This latter condition must be borne in mind when properly construing the further remark of the court that “Where the judge is within call of the jury and physically absent, but at a place so near by that he can easily return if needed, he may be presumed to be constructively present at the court-house; but this presumption can not be indulged when the judge goes to a place beyond the jurisdiction of the court in which the trial is being had.” (Italics ours.) Theoretically, it might be contended that the judge should be in court while the jury deliberates in seclusion, and until they return the verdict into the court-room, however long delayed; but, as a matter of practice and expediency, the ends of justice and equality of right and privilege between the parties are perfectly attained by treating as valid a return of the verdict under the circumstances named in the two propounded questions.

We must, or course, bear in mind that the first and fundamental object to be attained is the administration of justice pure and undefiled. Neither effort nor expense must be considered in order to protect that pure stream from pollution by outside interference and influence. Better that many verdicts be set aside and the work be done again than to administer that which is not justice. On the other hand, there is about as much danger of perverting justice in the setting aside of verdicts as against a bare conjecture or possibility of contamination. After a verdict has been reached by a jury the losing party almost invariably overestimates and exaggerates that which he assumes to be harmful. Verdicts which speak the truth and are supported by the law and the evidence should not be set aside except for a good reason. Trial courts should not be held to rules so strict and difficult that injustice may follow. . To illustrate by local conditions familiar to all of us, it is not difficult to conceive that a judge of the superior court of Fulton County might reside near the extreme end of the county. In traveling to and from tlie court-house it might be necessary or convenient or time-saving to travel a route which might incidentally cross another county line. For example, suppose the judge should reside in Fairburn or Palmetto, and in traveling the most direct route should cross Fulton and Clayton county lines. If in such a case he had left a jury under circumstances like those set out in the questions propounded to this court, and the jury arrived at a verdict, should it be for that reason sét aside even if the jury were kept together until the following day and the verdict returned in open court ? According to such a rule, if the judge should pass through a short stretch of Clayton County while a case was being considered by a jury, or a verdict agreed upon and being in the hands of the jury, the court would be automatically dissolved and everything rendered nugatory: Again, suppose the judge should be residing at Bolton near the county line, or in Druid Hills near another portion of the line, and while the jury was deliberating at night the judge should leave his home and cross the line for any purpose, under the argument presented the court would be automatically dissolved. Another illustration will show the undesirability of laying down too stringent a rule as to the presence of the judge at the court-house. It is the practice in Fulton County that the judge of the Stone Mountain. Circuit preside in the superior court of Fulton County on occasions when necessary to reduce the number of accumulated cases. Assuming that such judge resides in DeKalb County, which is a part of his circuit, he would be unable to return to his home at night in case he were engaged in holding court in Atlanta and a jury were still being held for the purpose of reaching a verdict. These are somewhat extreme instances; but the rule must be laid down as applicable to all possible contingencies. This court in the early cases above mentioned referred to these rules as expediencies, and we think that is a proper designation. It would be exceedingly inexpedient to lay down rules so difficult or so easily transgressed inadvertently as seriously to impair the administration of justice. These illustrations afford another reason why the answer to the propounded questions should be in the negative. The request of counsel for the plaintiff in error that we overrule the O’Shields and Pritchett cases is denied; and both of the certified questions are answered in the negative.

All the Justices concur; except Bussell,'G. J., and Atkinson, J., who dissent.