Huber v. State

140 Ga. App. 148 (1976) 230 S.E.2d 105

HUBER
v.
THE STATE.

52954.

Court of Appeals of Georgia.

Submitted October 5, 1976. Decided October 22, 1976.

Paul S. Weiner, for appellant.

William H. Ison, District Attorney, James W. Bradley, Assistant District Attorney, for appellee.

DEEN, Presiding Judge.

Appellant filed an appeal to the May term of the Superior Court of Clayton County from a judgment of the probate court of that county where he had sought to be relieved from the imposition of a $500 fine which he alleged had been imposed upon him after conviction of practicing law without a license, which conviction was affirmed in Huber v. State, 234 Ga. 357 (216 SE2d 73). The primary contention is that the defendant, being insolvent, is unable to pay the fine. The state responded and by answer and affidavit controverted these allegations. The case was transmitted June 30, 1975, and nothing further happened until December, when the state moved to dismiss for want of prosecution. In January the case was dismissed and this appeal followed.

"All appeals to the superior court shall be tried by a jury at the first term after the appeal has been entered, unless good cause shall be shown for continuance." Code § 6-601. While courts place cases on the calendar on notice, they also must do so upon proper request of a party. Code § 81A-140 (c). Where there is an appeal from an inferior judicatory to the superior court which the statute commands must be tried at the first term, the language is obligatory, especially where it concerns and affects the public interest as well as the interest of the appellant and failure to do so, unless excusable, will result in dismissal. Harvey v. Lissner, 124 Ga. App. 448 (184 SE2d 184) was dismissed at the second term of court, where no steps to secure trial at a proper time had been taken by the appellant.

Harvey was held to concern the public interest because it was an appeal from the assessment of taxes. In like manner this case, involving funds accruing to the state as a fine, is tinged with the same interest. The terms of court of the Superior Court of Clayton County are February, May, August and November. The appeal to the superior court was made and the record transmitted in June, 1975, and the case was not dismissed until two terms thereafter, on motion and hearing. No reason for the delay appears, and the decision is without error.

Judgment affirmed. Webb and Smith, JJ., concur.