Walker v. O'Connor

Wade, C. J. 1. , The death of a prominent- member of the bar shortly before the time for convening a term of the superior court is not such cause as will legally authorize the judge in vacation to adjourn the term. Civil Code (1910),- §§ 4873-5; Hoye v. State, 39, Ga. 718; Frank v. Horkan, 122 Ga. 38 (49 S. E. 800). See also Osgood v. State, 63 Ga. 791, 792; Allen v. State, 74 Ga. 769. The judge of Dade superior court issued an order in vacation, September 11, 1917, adjourning the next regular term of that court from the third Monday in September, 1917, to the third 'Monday in November, 1917, upon the unanimous petition of the bar of the county, setting forth that one of its members, who was of counsel -in a majority of the cases pending in the court, had died a few days before; to which petition counsel for the plaintiff in error in this case was a party; and by virtue of this order alone the adjournment of the court on the third Monday in September [24] was attempted in the absence of the judge. Under the provisions of the Civil Code (1910), §§ 4874, 4875, the adjournment was unlawful; and the fact that counsel for plaintiff in error had joined in the request that the regular term be adjourned to a later date did not estop him from raising the objection, when the court convened at the time fixed by the order of adjournment, that the adjournment was irregular and illegal; for it cannot be assumed that counsel consented to an illegal adjournment, but, on the contrary, the request may be treated as a request and agreement that the court be adjourned legally,—as, for instance, by the judge in person on the first day of the regular term. 2. The order of adjournment directed that the jurors drawn for the- regular September term should appear and serve at the adjourned term to be held on the third Monday in November, and they were actually present in the court on the day and hour set. It appears from the bill of exceptions that on the 19th day of November, 1917, (the day to which it was attempted to adjourn the September term), “before the court had convened and before the grand jury had been sworn, and before the case of J. T. Walker v. J. J. O’Conner” had been called, the judge passed an order reciting that some question had arisen as to' the legality of the adjournment of the regular September term from the third Monday in September, 1917, to the third Monday in November, 1917,. and that it further appeared that the business of the court necessitated the holding of a term thereof at that time, and ordered that the said superior court convene on the said 19th day of November, 1917, at 10 o’clock, a. m., for the purpose of dispatching all business therein or which might be brought to the attention thereof, and that for that purpose the grand and traverse jurors regularly drawn and summoned to the September term, 1917, should be in attendance for the purpose of serving as grand and traverse jurors at the said term commencing on the third Monday in November, 1917. The jurors, being actually then and there present in court, and being the jurors drawn for the previous regular term, were lawful jurors under the provisions of the Civil Code, § 4876, and under the terms of the order passed by the presiding judge requiring them to serve at the special term. Penal Code, § 880. The regular September term, not having been held at the time fixed by law, or legally adjourned to a subsequent date, had ended by operation of law before the special term was called, and the jurors [25] drawn for the said regular September term were therefore at the date of the special term jurors “of a previous term.” 3. Counsel for the plaintiff in error being present at the special term of court and declining to try the case made by the affidavit of illegality interposed by his client, the court did not err in dismissing the case, for want of prosecution. The affidavit of illegality was filed in April, 1917, and the case stood for trial at the next regular term after the filing, of the affidavit, or at any subsequent term. Civil Code (1910), § 5307. Judgment affirmed. Jenkins and Luke, JJ., concur.