(Orig. Code 1863, §§ 246, 247; Code 1868, §§ 240, 241; Code 1873, §§ 250, 251; Code 1882, §§ 250, 251; Civil Code 1895, §§ 4326, 4328; Civil Code 1910, §§ 4855, 4857; Code 1933, §§ 24-2623, 24-2624.)
Cross references.- Impeachment, Ga. Const. 1983, Art. III, Sec. VII.
Judge's exercise of power outside own court, Ga. Const. 1983, Art. VI, Sec. I, Para. III.
Recusal, Uniform Superior Court Rules, Rule 25.
Law reviews.- For article, "Judicial Retirement, Discipline and Removal," see 3 Ga. St. B. J. 197 (1966). For article discussing the inefficiency of mandamus and impeachment as remedies for judicial inaction, see 5 Ga. St. B. J. 467 (1969).
JUDICIAL DECISIONS
Former Civil Code 1910, §§ 4855, 4856, 4857, and 4858 (see now O.C.G.A. §§ 15-6-13 and15-6-14) provided three methods to secure judge of another circuit, if the resident judge is disqualified for any of the reasons specified by former Civil Code 1910, § 4642 (see now O.C.G.A. § 15-1-8). Shuford v. Shuford, 141 Ga. 407, 81 S.E. 115 (1914).
Former Civil Code 1895, §§ 4326 and 4328 (see now O.C.G.A. § 15-6-13) did not apply to proceedings originating and triable in chambers, but former Civil Code 1895, §§ 4316, 4322, and 5839 (see now O.C.G.A. § 15-6-12) governed such cases. Glover v. Morris, 122 Ga. 768, 50 S.E. 956 (1905); Burge v. Mangum, 134 Ga. 307, 67 S.E. 857 (1910) (decided prior to Ga. Const. 1976, Art. VI, Sec. IV, Para. VIII; see Ga. Const. 1983, Art. VI, Sec. I, Para. VI).
Third judge may hear rule nisi motion granted by replacement judge.
- If rule nisi on motion is granted by a judge presiding for a regular judge, the motion may be heard by still another judge, procured by the disqualified judge of the circuit. Allen v. State, 102 Ga. 619, 29 S.E. 470 (1897).
Duty of judge limited if motion to recuse.
- When a trial judge in a case pending in that court is presented with a motion to recuse accompanied by an affidavit, the judge's duty will be limited to passing upon the legal sufficiency of the affidavit, and if, assuming all the facts alleged in the affidavit to be true, recusal would be warranted, then another judge must be assigned to hear the motion to recuse. State v. Fleming, 245 Ga. 700, 267 S.E.2d 207 (1980).
If trial judge is disqualified in case, it is the trial judge's duty to provide a qualified judge. Dupriest v. Reese, 104 Ga. App. 805, 123 S.E.2d 161 (1961).
Exercise of discretion by disqualified judge with regard to selection of successor judge is properly limited to the disqualified judge's participation in the adoption by the judicial district of an impartial procedure for the selection. Ferry v. State, 245 Ga. 698, 267 S.E.2d 1 (1980).
This section does not apply to multi-judge judicial circuits and consequently a successor judge can be selected from the disqualified judge's own judicial circuit or judicial administrative district. Ferry v. State, 245 Ga. 698, 267 S.E.2d 1 (1980).
Assignment to judge in another circuit not required.
- While this section empowers a judge to assign any case in which the judge is disqualified for any reason, there is no requirement that the case must be assigned to a judge in another circuit if there is a judge in the disqualified judge's own circuit who is not disqualified from hearing the case. Ferry v. State, 151 Ga. App. 436, 260 S.E.2d 351 (1979), aff'd, 245 Ga. 698, 267 S.E.2d 1 (1980).
State court judge may preside when properly designated.
- State court judge is a member of the bar, and when properly designated, is competent to preside in the seat of a senior superior court judge who is unable to preside due to illness. Fielding v. Fielding, 236 Ga. 114, 223 S.E.2d 85 (1976).
Senior judge without jurisdiction to certify bill of exceptions.
- Because a superior court judge emeritus (now senior judge) has not been granted constitutional or statutory authority to serve as a superior court judge, except when the Governor is authorized to call upon the judge to do so or the judge is selected to serve as such in a civil case under former Code 1933, § 24-2625 or § 24-2626 (see now O.C.G.A. § 15-6-13 or O.C.G.A. § 15-6-14), it necessarily follows that a superior court judge emeritus (now senior judge) not within these exceptions is wholly without jurisdiction or power to certify a bill of exceptions (see now O.C.G.A. §§ 5-6-49 and5-6-50) in a case tried by a superior court judge. Chambers v. Wynn, 217 Ga. 381, 122 S.E.2d 571 (1961).
Cited in Paulk v. Smith, 56 Ga. App. 53, 192 S.E. 68 (1937); Cobb v. State, 59 Ga. App. 695, 2 S.E.2d 116 (1939).
RESEARCH REFERENCES
Am. Jur. 2d.
- 46 Am. Jur. 2d, Judges, §§ 80 et seq., 168 et seq., 209 et seq.
C.J.S.- 48A C.J.S., Judges, § 163.
ALR.
- Power of judge pro tempore or special judge, after expiration of period for which he was appointed, to entertain motion or assume further jurisdiction in case previously tried before him, 134 A.L.R. 1129.
Power of court to remove or suspend judge, 53 A.L.R.3d 882.
Misconduct in capacity as judge as basis for disciplinary action against attorney, 57 A.L.R.3d 1150.
Substitution of judge in state criminal trial, 45 A.L.R.5th 591.