(Laws 1806, Cobb's 1851 Digest, p. 460; Code 1863, §§ 238, 244; Code 1868, §§ 232, 238; Code 1873, §§ 242, 248, 5089; Code 1882, §§ 242, 248, 5136; Civil Code 1895, §§ 4316, 4322, 5839; Civil Code 1910, §§ 4832, 4845, 4851; Code 1933, §§ 24-2613, 24-2617.)
Cross references.- Time and place of trial, § 9-11-40.
JUDICIAL DECISIONS
Superior court judge may preside in any circuit. Daniels v. Towers, 79 Ga. 785, 7 S.E. 120 (1887).
Superior court judges may alternate though neither are disqualified. Harrison & Co. v. Hall Safe & Lock Co., 64 Ga. 558 (1880).
Powers to which Code section applicable.
- This Code section is applicable to the power of applying for mandamus. Glover v. Morris, 122 Ga. 768, 50 S.E. 956 (1905).
Former Civil Code 1895, § 5839 (see now O.C.G.A. § 15-6-12) was expressly applicable to powers conferred on judge by former Civil Code 1895, § 4321 (see now O.C.G.A. § 15-6-9). Burge v. Mangum, 134 Ga. 307, 67 S.E. 857 (1910).
This section is applicable to the power of granting injunctions. Carson v. Ennis, 146 Ga. 726, 92 S.E. 221, 1917E L.R.A. 650 (1917).
Designation of judge to act if resident judge is sick is not required. Pendergrass v. Duke, 144 Ga. 839, 88 S.E. 198 (1916).
Disqualification may be waived by all parties.
- When the judge is disqualified because of a relationship "to any party interested in the result of the case or matter," the judge's disqualification may be waived by all of the parties, and in the absence of such a waiver, the judge of any other circuit, who is qualified, may act and preside for the disqualified resident judge. Howard v. Warren, 206 Ga. 838, 59 S.E.2d 503 (1950).
Effect of disqualification.
- If the superior court judge was disqualified, the superior court judge of the other circuit may pass on an injunction without the previous designation by the disqualified judge. Galloway v. Mitchell County Elec. Membership Corp., 190 Ga. 428, 9 S.E.2d 903 (1940).
Superior court judge of another circuit may at interlocutory hearing pass chambers order on demurrer (now motion to dismiss). Galloway v. Mitchell County Elec. Membership Corp., 190 Ga. 428, 9 S.E.2d 903 (1940).
Complaint seeking extraordinary relief must be sanctioned by resident judge of circuit before the complaint can be filed unless the resident judge is disqualified to act, and, in case of the judge's disqualification, by the judge of some other circuit, who is qualified. Howard v. Warren, 206 Ga. 838, 59 S.E.2d 503 (1950).
Example of interested judge.
- Judge of the superior court, who is a depositor creditor of an insolvent bank in charge of the Superintendent of Banks (now commissioner of banking and finance) for purposes of liquidation, is pecuniarily interested and therefore disqualified to act in an action for accounting, injunction, and receiver, instituted by a principal against an agent and the superintendent (now commissioner), seeking to recover an interest in dividends due to an estate in control of the agent for the principal, which the superintendent (now commissioner) has wrongfully applied to the individual debt of the agent, and enjoining other similar impending misapplication of dividends due to the estate. Gaskins v. Gaskins, 181 Ga. 124, 181 S.E. 850 (1935).
Administrative judge may obtain senior judge from another district.
- O.C.G.A. § 15-5-5(2) does not prevent an administrative judge from obtaining the services of a senior judge from outside the administrative district because superior court judges, including senior judges, have jurisdiction to act in any circuit other than their own when the resident judge is disqualified. Shoemake v. Woodland Equities, Inc., 252 Ga. 389, 313 S.E.2d 689 (1984).
Judge serving in another circuit may sign sentence as member of circuit.
- If it appeared from the certificate of a judge overruling a motion to vacate a sentence that the judge was presiding in Fulton Superior Court at the time of resentencing, the passing and signing of the sentence by the judge was valid and the fact that the judge signed with the addition of the letters "A.J.C.," meaning the Atlanta Judicial Circuit, where the judge was at that time presiding, presented no reason why the sentence should have been set aside. Fluker v. State, 187 Ga. 418, 1 S.E.2d 29 (1939).
Court having jurisdiction may invalidate fraudulent judgment.
- An exception to the general rule, that the several superior courts of this state have no extraterritorial jurisdiction enabling the court of one county to set aside a judgment rendered by that of a different county, is the rule which provides that a court having jurisdiction of the person of one who obtained a judgment by fraud may invalidate and set aside such judgment. Boroughs v. Belcher, 211 Ga. 273, 85 S.E.2d 422 (1955).
Absence of regular judge does not appear on record.
- Since the record of a certiorari case showed that the petition was sanctioned by the judge of another circuit than that in which the case was pending, but did not show that the judge of the latter circuit was absent therefrom, but, upon a subsequent motion to dismiss the writ on that ground before the resident judge certified that the resident judge had, in fact, been absent and overruled the motion, such ruling was not error. Prescott v. Carter, 76 Ga. 103 (1885).
Motions to dismiss.
- Petition presented to judge acting under authority of this section not subject to demurrer (now motion to dismiss) on ground that the petition did not allege that judge had jurisdiction. Roberson v. Orr, 158 Ga. 34, 122 S.E. 781 (1924).
Courts have no compulsory process outside boundaries of this state. Wallace v. State, 134 Ga. App. 708, 215 S.E.2d 703 (1975).
Cited in Cobb v. State, 59 Ga. App. 695, 2 S.E.2d 116 (1939); First Nat'l Ins. Co. of Am. v. Thain, 107 Ga. App. 100, 129 S.E.2d 381 (1962); Stokes v. Fortson, 234 F. Supp. 575 (N.D. Ga. 1964); Fuller v. Williams, 150 Ga. App. 730, 258 S.E.2d 538 (1979); Williams v. Fuller, 244 Ga. 846, 262 S.E.2d 135 (1979); Luangkhot v. State, 292 Ga. 423, 736 S.E.2d 397 (2013).
OPINIONS OF THE ATTORNEY GENERAL
Power of nonresident judge to hear matters when originating court in vacation.
- Former Code 1933, §§ 24-2613 and 24-2617 (see now O.C.G.A. § 15-6-12), when read in light of former Code 1933, § 24-2616 and Ga. L. 1968, p. 1104, § 9 (see now O.C.G.A. §§ 9-11-40(b) and15-6-9), confers authority on the nonresident superior court judge in chambers in the judge's own circuit to hear and determine by interlocutory or final judgment, in accordance with Ga. L. 1968, p. 1104, § 9, any matter in a case from the originating superior court which arises while the originating superior court is in vacation. (However, see now O.C.G.A. § 15-6-19.) 1975 Op. Att'y Gen. No. U75-68.
RESEARCH REFERENCES
Am. Jur. 2d.
- 46 Am. Jur. 2d, Judges, § 21 et seq.
C.J.S.- 48A C.J.S., Judges, §§ 65, 79, 83.
ALR.
- Authority of judge in respect of unfinished business of another judge, 54 A.L.R. 952; 58 A.L.R. 848.
Right of party, in course of litigation, to challenge title or authority of judge or of person acting as judge, 144 A.L.R. 1207.