Garland v. Tanksley, Judge., 99 Ga. App. 201, 107 S.E.2d 866 (1959)
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Felton, C. J., Townsend, Quillian and Nichols, JJ., concur. Gardner, P. J., and Carlisle, J., dissent.
Summary
Felton, C. J., Townsend, Quillian and Nichols, JJ., concur. Gardner, P. J., and Carlisle, J., dissent.
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Hamilton Lokey, W. Neal Baird, John L. Westmoreland, Theodore M. Forbes, Jr., Hoke Smith, Woodrow Tucker, Turner Parchal, David H. Gambrell, Devereaux F. McClatchey, J. Sidney Lanier, J. M. B. Bloodworth, Edgar A. Neely, Zack D. Cravey, Jr., Griffin Patrick, Jr., R. Emerson Gardner, E. W. Moise, Jack Broyles, Paul T. O'Connor, J. Corbett Peek, Jr., R. J. Reynolds, Jr., Harry J. Mehre, Jr., George B. Haley, Jr., J. C. Murphy, A. Ed Lane, Jr., James A. Stanfield, A. C. Latimer, Bruce F. Woodruff, George M. Hopkins, John M. Williams, Robert E. Hicks, Noah J. Stone, Walter M. Rodgers, Edwin L. Sterne, Elmo Holt, Glenn Frick, Charles M. Lokey, Henry L. Bowden, Wilbur Smith, M. D. McLenden, J. J. Goodwin, Russell G. Turner, Sr., J. A. Branch, Frank D. Foster, Welborn B. Cody, Frank Conner, W. S. Northcutt, Cleburne E. Gregory, Jr., H. Fred Gober, Alex McLennan, McChesney H. Jeffries, Allen C. Lockerman, Paul H. Anderson, H. C. Holbrook, Henry Troutman, Alex P. Gaines, Harry L. Greene, M. K. Pentecost, G. Ernest Tidwell, Ferdinand Buckley, John D. Jones, James H. Moore, Sanders McD. Marshall, Burt DeRieux, Ernest Brookins, Thomas C. Shelton, Ernest P. Rogers, Stonewall H. Dyer, Marjorie King, Walter V. Brady, Lynwood A. Maddox, Robert L Rivers, Joseph B. Kilbride, Mose S. Hayes, Barry Phillips, Henry M. Hatcher, Jr., Bates Block, Thomas Hal Clarke, Clarence H. Calhoun, Jr., Antha Mulkey, Lamar Sizemore, Philip H. Alston, Jr., John L. Moore, Jr., James Thomas, Frances Shackelford, Wm. B. Spann, Jr., Henry J. Miller, Hewitt H. Covington, James L. Alston, James K. Rankin, Edward E. Dorsey, Stanley P. Meyerson, Foy L. Hood, Herbert Johnson, Wm. F. Buchanan, James C. Grizzard, Walter W. Calhoun, Walter A. Smith, Newell Edenfield, Nolan Harmon, W. H. Major, James C. Howard, John K. Calhoun, Robert W. Speer, W. Glen Harlan, Henry M. Quillian, Terry P. McKenna, James C. Hill, John W. Chambers, Ferrin Y. Mathews, Robert S. Wiggins, Granger Hansell, John H. Boman, William L. Moore, John L. Westmoreland, Jr., briefs amici curiae for Judge Tanksley.William G. Grant, Paul Webb, Solicitor-General, Eugene L. Tiller, Carl B. Copeland, Lewis R. Slaton, contra.J. Walter LeCraw, William G. McRae, Benjamin B. Garland, Joe R. Edwards, J. Richmond Garland, G. Seals Aiken, Vester M. Ownby, Reuben A. Garland, for petitioner.
"The 'inherent powers' of a court are such as result from the very nature of its organization and are essential to its existence and protection and to the due administration of justice." 14 Am. Jur. 171. This includes such ancillary power as must from the necessity of the case be exercised in order that this court may, as provided by art. VI, sec. II, par. VIII, of the Constitution of Georgia, exercise its jurisdiction for the trial and correction of errors of law from the superior courts of this State relating to subject matter of which it has exclusive appellate jurisdiction. There it appears without contradiction that, without fault on the part of the plaintiff in error, a bill of exceptions to this court cannot be prepared in time to prevent the judgment of the trial court from becoming moot, thus resulting in loss of jurisdiction of the case by this court, the action of the trial court in rendering its judgment thus unreviewable on appeal because of a refusal to grant supersedeas amounts to an abuse of the discretion of the trial court, and this court, in such a case, will grant supersedeas in order that a proper bill of exceptions may be filed in this court so that the judgment of the trial court may be reviewed.
On the 23rd day of January, 1959, Judge Jeptha C. Tanksley, one of the Judges of the Superior Court of the Atlanta Judicial Circuit, cited Reuben A. Garland for contempt of court, the order of the contempt being as follows: "Paragraph 1. The above styled case having been tried in this court from January 12, 1959, through January 23, 1959, and Reuben A. Garland having appeared in this court throughout the trial as attorney for the defendant, George Michael Bright, and said Reuben A. Garland during said trial having wilfully made numerous inflammatory and prejudicial statements in the presence of the jury, and the said Reuben A. Garland having made numerous contemptuous and prejudicial remarks to the court, and the said Garland having wilfully suggested answers and information to witnesses while testifying after specific instructions from the court not to do so, all as appears in the testimony of the witnesses, Mrs. Janice Rothschild, Charles B. Smith, L. E. Rogers, Jimmie Dave DeVore, Mrs. Marilyn Craig and Lewis Glover in the record of said case, and it further appearing that the said conduct of Reuben A. Garland was intended by said Garland to be contemptuous of the court, and it further appearing that said conduct did interfere with the lawful administration of justice, and said conduct having occurred in open court and in the presence of the court.
"The said Reuben A. Garland, because of the conduct referred to in this Paragraph 1 of this order is now considered and adjudged to be in contempt of the court, and it is hereby ordered that he be confined in the jail of Fulton County for a period of twenty (20) days as punishment for said contemptuous conduct.
"Paragraph 2. It further appearing that the said Reuben A. Garland did during the testimony of the witness, R. E. Little, make numerous contemptuous remarks and arguments to the court, and it further appearing that the said Reuben A. Garland did, while this witness was testifying, refuse again and again to yield to, and to obey the instructions of the court, and it further appearing that said conduct was contemptuous of the court, and all of said conduct referred to in this Paragraph 2 of this order having occurred in open court and in the presence of the court, and having occurred during the testimony of R. E. Little, and being distinct and separate acts from than referred to in Paragraph 1 of this order, and said conduct having been contemptuous of the court, and having interfered with the lawful administration of justice, the said Reuben A. Garland, because of the conduct referred to in this Paragraph 2 of this order, is hereby considered and adjudged to be in contempt of court, and it is hereby ordered that he shall be confined in the jail of Fulton County for a period of twenty (20) days as punishment for this said contempt, said twenty (20) day period of confinement referred to in this Paragraph 2 of this order to follow immediately upon the termination and completion of the period of confinement ordered in Paragraph 1 of this order.
"Paragraph 3. The sheriff of this county, or his lawful deputy, is hereby ordered to remove the said Reuben A. Garland from the bar of this court to the Fulton County jail, and there to confine him for a period of twenty (20) days as provided in Paragraph 1 of this order.
"The sheriff of this county, or his lawful deputy, is further ordered, upon the termination of the confinement referred to in Paragraph 1 of this order, to immediately confine the said Reuben A. Garland in the Fulton County jail for a second period of twenty (20) days as provided in Paragraph 2 of this order."
Subsequently, Reuben A. Garland petitioned the said judge for supersedeas of said judgment of contempt alleging the following: "1. Applicant has been held in confinement under above order without bail since Friday evening, Jan. 23, 1959, and is now confined by the Sheriff of Fulton County in the county jail under said order.
"2. Applicant desires to appeal by writ of error from said judgment of contempt of court against him, and fellow members of the Atlanta bar are now engaged in preparing for presentation a bill of exceptions assigning error upon said judgment as soon as the necessary facts and exhibits can be gathered and typed.
"3. The court reporters who took down the testimony in the above stated trial have been given a legal request to transcribe and write out the testimony of the seven witnesses who were named in the court's order adjudging applicant in contempt, and to write out the questions and colloquies and responses which took place in connection with the testimony of said 7 witnesses, and said court reporters stated that it is impossible for said record to be written out for very many days -- possibly extending into weeks.
"4. The record of said testimony of said 7 witnesses and the colloquies and responses in connection with said testimony would be necessary to a proper consideration of the legal questions involved in an appeal from said judgment, particularly since said judgment referred to said witnesses by name and adjudged applicant guilty of contemptuous conduct toward the court during the testimony of the said 7 witnesses.
"5. Applicant was in a state of collapse at the conclusion of the above stated trial and at the time of his said adjudication of contempt, having just gone through 2 weeks of court trial of said case, during which night sessions were held on many nights, and applicant being so fatigued and worn out at many times during said trial that he was not in proper physical condition to go on with said trial but continued anyhow, to the detriment of his health.
"6. He is now ill and suffering greatly from his confinement in said jail, and because of his physical condition his continued confinement during the lengthy period involved in preparation of his appeal would result in cruel and unusual punishment not contemplated by the laws of this State to be inflicted during the period of an appeal.
"7. His physical condition is shown by a medical certificate attached hereto as Exhibit A.
"8. Unless a supersedeas is granted, the questions to be raised a writ of error in this case will become moot.
"Therefore, applicant prays that the court issue an order of supersedeas of the said judgment of Jan. 23, 1959, pending completion and presentation of the bill of exceptions above referred to within the time allowed by law, either without bond or with bond and security if the court deems that necessary or proper, or upon such other conditions as the court deems proper."
Upon the refusal of the said judge to supersede said judgment, Reuben A. Garland filed in this court a petition for supersedeas of said trial court judgment alleging as follows: "Reuben A. Garland, being now held in Fulton County jail under a contempt of court adjudication against him with a sentence of 40 days in jail, brings this application to the Court of Appeals of Georgia under its Rule 51 (
3. It appearing that this petitioner was sentenced for two separate contempts to serve the maximum of 40 days, and it further appearing that this petitioner will not be able to gain a review of the judgment of the trial court under which he is imprisoned unless a supersedeas is granted, this court holds that the trial court abused its discretion in denying the supersede as under these circumstances.
Amici curiae briefs have been filed in this case containing the names of many eminent attorneys. This court is grateful for the interest and good intentions of these men. We must emphasize that the question involved here is not the guilt or innocence of the attorney, as some of the statements in the briefs and some news reports indicate. For instance, the following statement is made in one of the briefs: "As an officer of the court every lawyer should assist in upholding the dignity of the court and obeying the law. When he fails in this duty the court should have the power to punish him. A lawyer should be the last person to claim to be above the law." And the brief refers to various other adjudications against the lawyer here involved, none of which are matters of record in this proceeding. For this court to pass on the merits of this case from hearsay and newspaper accounts would make this court contemptuous in the eyes of the world. We are not deciding whether Mr. Garland is guilty or not. What we are deciding is that not only are lawyers not above the law, but that judges are not. We are simply saying that no citizen of this State, whether he be lawyer or layman, can be deprived of a judicial review of his case to which he is entitled, by circumstances beyond his control which prevent him from bringing his appeal to an appellate court before his sentence is served and his case is moot.
Since the original decision of this court in this case and the granting of a motion for a rehearing, a writ of error has been filed in this court by Reuben A. Garland. The original order of this court granting a supersedeas under certain conditions until the final termination of this case is hereby modified as follows: In the event the petitioner desires to and does present a new application for supersedeas to the trial court within three days from the rendition of this decision and the same is granted by the trial court, this supersedeas ends; in the event it is denied by the trial court the petitioner will have three additional days after such denial in which to apply to this court for such a supersedeas if he desires to do so, and action on such application by this court will terminate the present supersedeas. The judgment of this court otherwise, as originally rendered, is adhered to and the foregoing opinion as amended is substituted for the original.
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,
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 supersede as 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,
I am authorized to say that Gardner, P. J., concurs with me in this dissent.
ON MOTION FOR REHEARING.
GARDNER, Presiding Judge and CARLISLE, Judge, dissenting.
When this case was before this court originally, we held that the Court of Appeals had no jurisdiction to issue the order which was concurred in by four of the judges of the Court of Appeals.
As we come now to consider the question of passing upon the motion for rehearing filed on behalf of the trial judge, we wish to reiterate that we are still of the opinion that the Court of Appeals has no jurisdiction in this case whatsoever.
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