General Consideration

This Code section is a codification of preexisting law. Central Bank v. Gibson, 11 Ga. 453 , 1852 Ga. LEXIS 63 (1852).

Language in the latter part of this Code section does not mean that parties can confer upon a court, by agreement or waiver, jurisdiction as to a subject matter. The statute was a codification of the preexisting law, and it has been declared that it was the same in effect after the adoption of the Code as before that time. Rosenthal v. Langley, 180 Ga. 253 , 179 S.E. 383 , 1935 Ga. LEXIS 236 (1935).

Code section does not mean that parties can confer subject matter jurisdiction on court. —

Last sentence of this Code section does not mean that parties, by agreement or waiver, can confer jurisdiction of subject matter on the court, and as to the subject matter the court is limited by the power conferred upon the court by law. Champion v. Rakes, 155 Ga. App. 134 , 270 S.E.2d 272 , 1980 Ga. App. LEXIS 2491 (1980).

Extent of relief against nonresident not served in this state. —

Extent of available judicial relief in reference to alimony against a nonresident defendant, who is not personally served in this state, or does not acknowledge service, or who does not voluntarily submit to the jurisdiction of the court by appearing and pleading, is confined to the seizure and utilization of such property as the defendant may own, situated within the jurisdiction of the court. Hicks v. Hicks, 193 Ga. 446 , 18 S.E.2d 754 , 1942 Ga. LEXIS 405 (1942).

Suit brought in county where neither defendant resided. —

Suit to remove from the record a certain year’s support proceeding as a cloud upon the title of described land in plaintiff’s possession was one in equity and not one respecting title to land, and should have been brought in the county of a defendant against whom substantial relief was sought; since the suit was brought in a county where neither defendant resided, the court was without jurisdiction of the subject matter and such jurisdiction could not be conferred by consent or waived by the parties. Sweatman v. Roberts, 213 Ga. 112 , 97 S.E.2d 320 , 1957 Ga. LEXIS 316 (1957).

Forum selection clause cannot confer subject matter jurisdiction. —

Trial court erred in entering an order enjoining the appellants from the appellants alleged continuing trespass on the appellee’s premises because the trial court lacked subject matter jurisdiction as the premises were located in South Carolina; and the forum selection clause could not confer subject matter jurisdiction to the trial court as forum selection clauses did not address subject matter jurisdiction, but rather personal jurisdiction. MSM Poly, LLC v. Textile Rubber & Chem. Co., 353 Ga. App. 538 , 839 S.E.2d 4 , 2020 Ga. App. LEXIS 41 (2020).

Attachment proceedings. —

If a defendant in an attachment, at the time the attachment was issued and levied, resided in the county where it was returnable, but prior to the filing of the declaration changed the defendant’s domicile to another county, the court wherein the attachment was pending did not have jurisdiction to render a general judgment against the defendant since the defendant had not appeared and made a defense, nor replevied the property levied upon. Varn v. Chapman, 137 Ga. 300 , 73 S.E. 507 , 1912 Ga. LEXIS 2 (1912).

Appeals. —

Without proper and timely filing of a notice of appeal, dismissal is required in spite of the fact of consent given by opposing counsel to the late appeal as parties may not give jurisdiction to a court by consent, express or implied, as to the person or subject matter of an action. Clark v. State, 182 Ga. App. 752 , 357 S.E.2d 109 , 1987 Ga. App. LEXIS 2662 (1987).

Appellate court needs to assess jurisdiction before proceeding. —

Appellate court was unable to address the merits of the business owner’s appeal because the court was unable to determine whether the court had subject matter jurisdiction as it was necessary to determine if the power company properly filed a motion for contempt or impermissibly attempted to initiate a new civil action. Cowart v. Georgia Power Company, 354 Ga. App. 748 , 841 S.E.2d 426 , 2020 Ga. App. LEXIS 218 (2020).

Subject Matter Jurisdiction

Agreement of parties. —

Jurisdiction cannot be conferred upon a court or administrative body, such as the Department of Industrial Relations (now State Board of Workers’ Compensation), by the agreement or consent, past or present, of the parties if jurisdiction over the subject matter of the claim or controversy does not actually exist. City Council v. Reynolds, 50 Ga. App. 482 , 178 S.E. 485 , 1935 Ga. App. LEXIS 184 (1935).

Jurisdiction of subject matter of suit cannot be conferred by agreement or consent, or be waived or “based on an estoppel of a party to deny that it exists.” Langston v. Nash, 192 Ga. 427 , 15 S.E.2d 481 , 1941 Ga. LEXIS 472 (1941).

Consent of parties cannot give court jurisdiction of subject matter when the court has none by law, and if the court discovers from the record that a judgment has been rendered by a court having no jurisdiction of the subject matter, and the case is brought to the Georgia Supreme Court for review upon writ of error (see now O.C.G.A. §§ 5-6-49 and 5-6-50 ), the Supreme Court will of the court’s own motion reverse the judgment. Sweatman v. Roberts, 213 Ga. 112 , 97 S.E.2d 320 , 1957 Ga. LEXIS 316 (1957).

Waiver. —

As to the subject matter, the jurisdiction of a court is limited by the power conferred upon the court by law, and cannot be given additional jurisdiction by waiver. Thomas v. Calhoun Nat'l Bank, 157 Ga. 475 , 121 S.E. 808 , 1924 Ga. LEXIS 179 (1924).

Subject matter jurisdiction is not amenable to waiver. In re C.F., 199 Ga. App. 858 , 406 S.E.2d 279 , 1991 Ga. App. LEXIS 723 (1991).

Equity jurisdiction. —

Although an agreement by parties is entitled to consideration, the parties cannot by waiver or consent confer equity jurisdiction on a court when the court is otherwise without jurisdiction. Sherrer v. Hale, 248 Ga. 793 , 285 S.E.2d 714 , 1982 Ga. LEXIS 673 (1982).

Waiver as to rights of parties. —

Parties, by consent, express or implied, cannot give jurisdiction to court as to the person or the subject matter. It may be waived, however, as to the person, so far as the rights of the parties themselves are concerned. Lott v. City of Waycross, 152 Ga. 237 , 110 S.E. 217 , 1921 Ga. LEXIS 58 (1921).

Provision in agreement ineffective to confer jurisdiction. —

Provision in an agreement to submit to arbitration for an appeal to the superior court is ineffective to confer on the superior court jurisdiction to entertain the appeal. Jurisdiction as to the subject matter cannot be conferred by consent. Georgia Power Co. v. Friar, 47 Ga. App. 675 , 171 S.E. 210 , 1933 Ga. App. LEXIS 598 (1933), aff'd, 179 Ga. 470 , 175 S.E. 807 , 1934 Ga. LEXIS 312 (1934).

Jurisdiction held not conferred by implied consent. —

When the City of Augusta and claimant, a member of the city’s fire department, made a written agreement for the payment of a stipulated weekly compensation to the claimant as an “employee” for the claimant’s temporary total disability, and the Department of Industrial Relations (now State Board of Workers’ Compensation) made an award confirming the agreement, without any question being presented as to whether the claimant was actually an employee or an officer of the city, and the claimant, after the conclusion of the payments under such agreement and award, filed a new application to the department for additional compensation to cover a permanent partial loss of use of the claimant’s left hand resulting from the original injury, and when under the undisputed facts presented at the hearing of the second claim, and the foregoing rulings, the claimant was actually a public officer and not an employee of the city within the intent of the Workers’ Compensation Act (O.C.G.A. T. 34, C. 9), it was error for the department to take jurisdiction of the new and additional claim since jurisdiction could not be thus imposed by implied consent any more than by the express consent of the city. City Council v. Reynolds, 50 Ga. App. 482 , 178 S.E. 485 , 1935 Ga. App. LEXIS 184 (1935).

No jurisdiction by consent after time for exercising such has expired. —

If jurisdiction may not be given by consent before the time is ripe for jurisdiction to attach, jurisdiction may not be given by consent after the time for exercising jurisdiction has expired. Pal Theatre, Inc. v. Tarver, 60 Ga. App. 817 , 5 S.E.2d 277 , 1939 Ga. App. LEXIS 178 (1939).

Effect of Lack of Jurisdiction

Power of court over subject matter is sine qua non to valid judgment, and may not be waived by consent of the parties. Champion v. Rakes, 155 Ga. App. 134 , 270 S.E.2d 272 , 1980 Ga. App. LEXIS 2491 (1980).

Judgment is nullity absent jurisdiction. —

Suit in a court having no jurisdiction of the subject matter resulting in a judgment for the defendant is a nullity. Western Union Tel. Co. v. Taylor, 84 Ga. 408 , 11 S.E. 396 , 1889 Ga. LEXIS 277 (1889).

Void judgment will be reversed on review. —

When, in consideration of a case, it is discovered from the record that a judgment has been rendered by a court having no jurisdiction of the subject matter, that judgment will be reversed. Cutts v. Scandrett, 108 Ga. 620 , 34 S.E. 186 , 1899 Ga. LEXIS 311 (1899).

Invalid decision is not res judicata. —

If a court is wholly without jurisdiction of a given subject matter, an attempted decision of issues on that subject is invalid, and will not operate as res judicata in a subsequent suit concerning the subject matter in a court of competent jurisdiction. Dix v. Dix, 132 Ga. 630 , 64 S.E. 790 , 1909 Ga. LEXIS 374 (1909).

No consent or waiver of parties can make void judgment legal. —

If the court has no jurisdiction over the subject matter of a suit, parties cannot confer jurisdiction by agreement. The judgment in a case where the court is without jurisdiction is void, and no consent or waiver of the parties litigant can make it a legal judgment of a court of law or equity. O'Brien v. Harris, 105 Ga. 732 , 31 S.E. 745 , 1898 Ga. LEXIS 706 (1898).

Appellate court could not address the merits of the defendant’s enumerations of errors as the power company did not properly invoke the jurisdiction of the trial court when the company attempted to initiate a new civil action by filing a contempt proceeding because an action for contempt was ancillary to the primary action and, as such, was not a pleading but a motion; thus, it was improper for the power company to initiate a new civil action to enforce contempt of an order from a prior case, and the trial court was without jurisdiction to consider the power company’s improperly filed contempt proceeding. Cowart v. Georgia Power Company, 354 Ga. App. 748 , 841 S.E.2d 426 (2020).

Waiver

Jurisdiction of person may be waived. —

This section has been construed to permit a party to waive lack of jurisdiction over the party’s person. McGahee v. Hilton & Dodge Lumber Co., 112 Ga. 513 , 37 S.E. 708 , 1900 Ga. LEXIS 224 (1900); Sanford v. Tanner, 114 Ga. 1005 , 41 S.E. 668 , 1902 Ga. LEXIS 860 (1902).

It is permissible to waive jurisdiction over the person provided the court has jurisdiction of the subject matter of the suit. Southern Express Co. v. Bankr. Elec. Co., 126 Ga. 472 , 55 S.E. 254 , 1906 Ga. LEXIS 416 (1906).

Jurisdiction of a person may be waived. Harper v. Allen, 41 Ga. App. 736 , 154 S.E. 651 , 1930 Ga. App. LEXIS 1076 (1930).

Jurisdiction of a person may be waived in connection with acknowledgement of service. Georgia Creosoting Co. v. Moody, 41 Ga. App. 701 , 154 S.E. 294 , 1930 Ga. App. LEXIS 1060 (1930).

Consent to jurisdiction through forum selection clause. —

O.C.G.A. § 15-1-2 did not prohibit a party from waiving the defense of lack of personal jurisdiction by consensually subjecting itself to jurisdiction of the court through a forum selection clause in a contract. Apparel Resources Int'l, Ltd. v. Amersig S.E., Inc., 215 Ga. App. 483 , 451 S.E.2d 113 , 1994 Ga. App. LEXIS 1276 (1994).

Filing of general demurrer (now motion to dismiss) is equivalent to plea to merits within this rule. Harper v. Allen, 41 Ga. App. 736 , 154 S.E. 651 , 1930 Ga. App. LEXIS 1076 (1930).

Failure to plead jurisdiction waives irregularities. —

If a defendant appears and pleads to the merits, without pleading to the jurisdiction and without any protestation as to process or service, the defendant thereby admits the jurisdiction of the court and waives all irregularities of the process, or of the absence of process and the service thereof. Harper v. Allen, 41 Ga. App. 736 , 154 S.E. 651 , 1930 Ga. App. LEXIS 1076 (1930).

Defendant’s appearance in support of motion. —

In case of a judgment void for want of personal service of process, the defendant does not waive the question of jurisdiction or validate the void judgment by an appearance after judgment in support of a motion to set the judgment aside. Hicks v. Hicks, 193 Ga. 446 , 18 S.E.2d 754 , 1942 Ga. LEXIS 405 (1942).

Rights of Third Persons

Language refers to interferences with legal rights of third persons. —

The language “but not so as to prejudice third persons” does not refer to mere inconvenience and expense in defending an action properly brought, but to interferences with legal rights of third persons. Odgen Equip. Co. v. Talmadge Farms, Inc., 132 Ga. App. 834 , 209 S.E.2d 260 , 1974 Ga. App. LEXIS 1840 (1974).

Parties may not waive jurisdiction to prejudice of third parties. —

Parties defendant to an equitable action who appear and plead to the merits without excepting to the jurisdiction thereby waive any objection to the jurisdiction of the person so far as those defendants are concerned; but parties cannot waive jurisdiction to the prejudice of third parties. White v. North Ga. Elec. Co., 139 Ga. 587 , 77 S.E. 789 , 1913 Ga. LEXIS 520 (1913).

Purchasers from defendant are bound by defendant’s waiver. —

Though a defendant may not so waive a want of jurisdiction as to defendant’s person as to affect third persons, yet purchasers from defendant whose rights originate after the judgment against defendant’s rendered after such waiver by defendant are bound by defendant’s waiver on the principle of estoppel. Glennville Bank v. Deal, 146 Ga. 127 , 90 S.E. 958 , 1916 Ga. LEXIS 623 (1916).

Error to join another party when no jurisdiction. —

When, to an action at law brought by a resident of Polk County against a defendant residing in Fulton County, an answer in the nature of a cross action (now counterclaim) was filed, in which substantial equitable relief was prayed against the plaintiff and a third party who was also a resident of Polk County, it was erroneous to make the latter, over defendant’s objection, a party, and to refuse on defendant’s motion to dismiss the cross action as to defendant, the ground of such objection and motion being that the court had no jurisdiction to grant as to defendant the relief sought. Terhune v. Pettit, 195 Ga. 793 , 25 S.E.2d 660 , 1943 Ga. LEXIS 291 (1943).

Section on point where third parties involved. —

Since former Code 1933, § 3-202 (see now O.C.G.A. § 9-10-30 ) can be reconciled with Ga. Const. 1976, Art. VI, Sec. XIV, Para. III (see now Ga. Const. 1983, Art. VI, Sec. II, Para. III), as to venue of equity cases only on the ground of waiver, then former Code 1933, § 24-112 (see now O.C.G.A. § 15-1-2 ), and particularly the latter portion thereof, was directly on point in a case involving third parties. Terhune v. Pettit, 195 Ga. 793 , 25 S.E.2d 660 , 1943 Ga. LEXIS 291 (1943).

General Consideration

Inherent powers. —

Every court possesses inherent powers not specifically granted. Johnson v. State, 177 Ga. 881 , 171 S.E. 699 , 1933 Ga. LEXIS 456 (1933).

Inherent power of courts should never be impaired or destroyed to such an extent that the court cannot exercise a power necessary to the court’s proper functioning. Evans v. State, 69 Ga. App. 178 , 24 S.E.2d 861 , 1943 Ga. App. LEXIS 42 (1943).

Transfer of cause to another court. —

Unless expressly authorized, a court has no authority to transfer a case from itself to another court, and thereby give the other court possession of the case to hear and determine the case, although the other court would have had jurisdiction of the cause if the case had come to the court by due process. Burgess v. Nabers, 122 Ga. App. 445 , 177 S.E.2d 266 , 1970 Ga. App. LEXIS 897 (1970), but see Ga. Const. 1983, Art. VI, Sec. I, Para. VIII .

Appointment of foreperson of grand jury. —

In the absence of a statute to the contrary, the judge of the superior court has inherent power as the presiding officer of the court to appoint the foreperson of a grand jury from the number of those duly selected and required to serve. This authority vested in the judge by law is not affected by the custom of permitting the members of the grand jury to elect a foreperson. Peeples v. State, 178 Ga. 675 , 173 S.E. 850 , 1934 Ga. LEXIS 134 (1934).

Refusal to accept pro se filings. —

Trial court properly refused to accept plaintiff’s pro se filings since plaintiff was represented by counsel at the time of the filings. Jacobsen v. Haldi, 210 Ga. App. 817 , 437 S.E.2d 819 , 1993 Ga. App. LEXIS 1378 (1993), cert. denied, No. S94C0309, 1994 Ga. LEXIS 259 (Ga. Jan. 28, 1994).

Expert evaluation of criminal defendant. —

Superior court of the county in which defendant was convicted of murder had authority, on defendant’s motion for new trial, to order an expert evaluation of defendant, who was incarcerated beyond the boundaries of the county in which the court sat. Zant v. Brantley, 261 Ga. 817 , 411 S.E.2d 869 , 1992 Ga. LEXIS 25 (1992).

Board of Workers’ Compensation does not have same powers or jurisdiction as courts. —

Georgia Industrial Commission (now State Board of Workers’ Compensation) is not a court of general jurisdiction, nor even of limited common-law jurisdiction, but is an industrial commission made so by express terms of the act of the legislature to administer the act’s provisions as provided therein. As such, the administrative commission possesses only such jurisdiction, powers, and authority as are conferred upon the commission by the legislature, or such as arise therefrom by necessary implication to carry out the full and complete exercise of the powers granted. No power of reopening or rehearing a case on the case’s merits, in which a decree has been entered, and of determining anew the liability or nonliability of the employer, is granted, except as provided by former Code 1933, § 114-709 (see now O.C.G.A. § 34-9-104 ). Dempsey v. Chevrolet Div., 102 Ga. App. 408 , 116 S.E.2d 509 , 1960 Ga. App. LEXIS 634 (1960). (See also Ga. Const. 1983, Art. VI, Sec. I, Para. I specifically empowering General Assembly to confer quasi-judicial powers on agencies).

Magistrate’s power in dispossessory proceeding. —

Magistrate court had the authority to enter an order in a dispossessory action directing the landlord to perform repairs to the tenant’s apartment since a magistrate court was entitled to exercise such powers as were necessary in aid of the court’s jurisdiction, or to protect or effectuate the court’s judgments. H. J. Russell & Co. v. Manuel, 264 Ga. App. 273 , 590 S.E.2d 250 , 2003 Ga. App. LEXIS 1466 (2003), cert. denied, No. S04C0595, 2004 Ga. LEXIS 253 (Ga. Mar. 8, 2004).

Clarification of new trial order in criminal action. —

In an action in which a superior court granted defendant’s motion for a new trial, as amended, based on a finding that a jury charge was erroneous and harmful, a second order which clarified that the new trial was to be held on only one of the multiple offenses of which defendant had been convicted was a proper clarification order under O.C.G.A. § 15-1-3(6) , rather than an improper reconsideration order; the content and context of the second order indicated that the order was clearly for clarification purposes, based on the state’s request for clarification, and the superior court had previously denied reconsideration of the new trial order because reconsideration was requested out of term. Barlow v. State, 279 Ga. 870 , 621 S.E.2d 438 , 2005 Ga. LEXIS 722 (2005).

Discretion of Court

Discretion in regulating and controlling business of court is necessarily confided to judge. Simpkins v. State, 149 Ga. App. 763 , 256 S.E.2d 63 , 1979 Ga. App. LEXIS 2022 (1979).

Pursuant to the court’s inherent power under O.C.G.A. § 15-1-3(3) and (4), the superior court did not abuse the court’s discretion, or usurp the authority of the county sheriff by ordering the sheriff to transport county jail inmates represented by the county public defender to the county courthouse for pre-arraignment meetings as those actions helped to ensure that the inmates received effective assistance of counsel. Brown v. Incarcerated Pub. Defender Clients Div. 3, 288 Ga. App. 859 , 655 S.E.2d 704 , 2007 Ga. App. LEXIS 1311 (2007), cert. denied, No. S08C0709, 2008 Ga. LEXIS 406 (Ga. Apr. 21, 2008).

Power to order defense counsel access to inmates. —

Orders directing prison or jail authorities to allow visits by defense team members under appropriately specified conditions are proper; trial courts have authority to control, in the furtherance of justice, the conduct of their officers and all other persons connected with a judicial proceeding before them. State v. Rowe, 308 Ga. 806 , 843 S.E.2d 537 , 2020 Ga. LEXIS 345 (2020).

Requiring party to submit to physical examination. —

It is within the discretion of the court to require the plaintiff, suing for a physical injury alleged to be permanent, to submit to an examination by competent physicians. Richmond & D.R.R. v. Childress, 82 Ga. 719 , 9 S.E. 602 , 1889 Ga. LEXIS 324 (1889).

Physical exam not required. —

No abuse of discretion arises when an examination is not ordered. City of Cedartown v. Brooks, 2 Ga. App. 583 , 59 S.E. 836 , 1907 Ga. App. LEXIS 454 (1907).

Decision to retain jury. —

Decision of retaining jury in session lies within discretion of court. Simpkins v. State, 149 Ga. App. 763 , 256 S.E.2d 63 , 1979 Ga. App. LEXIS 2022 (1979).

Requiring a jury to deliberate until the hour of 4 A.M. is not such an abuse of discretion requiring reversal if the jury already reached an agreement on two of three counts and indicated the jury was making progress toward reaching agreement on the third and last count. Simpkins v. State, 149 Ga. App. 763 , 256 S.E.2d 63 , 1979 Ga. App. LEXIS 2022 (1979).

Denial of mistrial. —

Since the defendant contended the trial court erred in refusing to grant a mistrial based on plaintiff’s behavior in that while plaintiff testified plaintiff was unresponsive, sobbed constantly, and made direct emotional speeches to the jury, but the record indicated that the trial court was monitoring plaintiff’s testimony and instructed plaintiff on several occasions to be more responsive, no manifest abuse of discretion by the trial court in denying the motion for mistrial was found. Southern Ry. v. Lawson, 256 Ga. 798 , 353 S.E.2d 491 , 1987 Ga. LEXIS 661 (1987).

Denial of sanctions for defense counsel’s improper remarks informing the jury that opposing counsel was representing plaintiffs on a contingent-fee basis was not an abuse of discretion since issues as to the amount of damages, addressed by the improper remarks, were not reached by the jury, and therefore no harm resulted. Stoner v. Eden, 199 Ga. App. 135 , 404 S.E.2d 283 , 1991 Ga. App. LEXIS 386 (1991), cert. denied, No. S91C0904, 1991 Ga. LEXIS 703 (Ga. May 15, 1991).

Appellate review of discretion. —

Discretion of the judges in all matters pertaining to contempt of their authority and mandates will never be controlled unless grossly abused. Crute v. Crute, 86 Ga. App. 96 , 70 S.E.2d 727 , 1952 Ga. App. LEXIS 884 (1952).

Discretion in regulating and controlling the business of the court is necessarily confided to the judge, who is invested with wide discretion in the exercise of which a reviewing court should never interfere unless it is made to appear that wrong or oppression has resulted from an abuse of discretion. Atlanta Newspapers, Inc. v. Grimes, 216 Ga. 74 , 114 S.E.2d 421 , 1960 Ga. LEXIS 391 (1960); Barkett v. Jones, 142 Ga. App. 835 , 237 S.E.2d 400 , 1977 Ga. App. LEXIS 1394 (1977).

If the legal rights of the parties are not prejudiced or denied, a reviewing court will not interfere with the discretion of the trial court in matters of practice in the hearing and disposition of causes before the court unless this discretionary power has been exercised in an illegal, unjust, or arbitrary manner. Bradford v. Parrish, 111 Ga. App. 167 , 141 S.E.2d 125 , 1965 Ga. App. LEXIS 907 (1965); Grossman v. Glass, 143 Ga. App. 464 , 238 S.E.2d 569 , 1977 Ga. App. LEXIS 2367 (1977).

Reviewing court will not undertake to control the wide discretion vested in the trial court in the exercise of this fundamental power unless it is made to appear that wrong or oppression has resulted from an abuse of such discretion reposed in the court. Young v. Champion, 142 Ga. App. 687 , 236 S.E.2d 783 , 1977 Ga. App. LEXIS 1405 (1977).

Denial of motion to correct judgment proper. —

Trial court properly denied a motion to correct a judgment entered against two debtors and the debtors’ guarantors, five years and eight months after the expiration of the term of court in which the judgment was entered, as the debtors failed to show any entitlement to relief or exception as to why the debtors could not have timely sought the relief requested, and O.C.G.A. § 15-1-3(6) was unavailing because that section did not enable a court to change a judgment in substance or in any material respect. De La Reza v. Osprey Capital, LLC, 287 Ga. App. 196 , 651 S.E.2d 97 , 2007 Ga. App. LEXIS 851 (2007), cert. denied, No. S07C1928, 2007 Ga. LEXIS 819 (Ga. Oct. 29, 2007).

Preserving and Enforcing Order

Duty of administering justice and maintaining dignity and authority of court. —

Every court’s judges are charged with the duty of administering justice and with maintaining the dignity and authority of the court. Johnson v. State, 177 Ga. 881 , 171 S.E. 699 , 1933 Ga. LEXIS 456 (1933).

Power to control proceeding of court is subject to proviso that in so doing a judge does not take away or abridge any right of a party under the law. State v. Colquitt, 147 Ga. App. 627 , 249 S.E.2d 680 , 1978 Ga. App. LEXIS 2872 (1978).

Inherent power to preserve and enforce order. —

Every court has power to preserve and enforce order in the court’s immediate presence, and as near thereto as is necessary to prevent interruption, disturbance, or hindrance to the court’s proceedings. Atlanta Newspapers, Inc. v. Grimes, 216 Ga. 74 , 114 S.E.2d 421 , 1960 Ga. LEXIS 391 (1960).

It is fundamental that every court possesses inherent power to preserve and enforce order and compel obedience to the court’s judgments and orders, to control the conduct of the court’s officers and all other persons connected with the judicial proceedings before the court, and to inflict summary punishment for contempt upon any person failing and refusing to obey any lawful order. Jackson v. State, 225 Ga. 553 , 170 S.E.2d 281 , 1969 Ga. LEXIS 562 (1969); Farmer v. Holton, 146 Ga. App. 102 , 245 S.E.2d 457 , 1978 Ga. App. LEXIS 2179, 1978 Ga. App. LEXIS 3247 (1978), cert. denied, 440 U.S. 958, 99 S. Ct. 1499 , 59 L. Ed. 2 d 771, 1979 U.S. LEXIS 1190 (1979).

Court may control conduct of press. —

Courts have the power to determine the manner in which the courts shall operate in order to administer justice with dignity and decorum, and in such manner as shall be conducive to fair and impartial trials, and ascertainment of the truth uninfluenced by extraneous matters or distractions, and may stop conduct of representatives of the press in any field of activity interfering with the orderly conduct of court procedure or creating distractions interfering therewith. Atlanta Newspapers, Inc. v. Grimes, 216 Ga. 74 , 114 S.E.2d 421 , 1960 Ga. LEXIS 391 (1960).

Spoliation of evidence. —

Trial court did not err by precluding the testimony of defendant’s expert regarding possible causes of an accident deduced from an examination of the wrecked car as a sanction for the spoliation of the vehicle against an order of the court directing preservation. R.A. Siegel Co. v. Bowen, 246 Ga. App. 177 , 539 S.E.2d 873 , 2000 Ga. App. LEXIS 1182 (2000).

Trial court erred in attributing bad faith to the plaintiff based upon the wrecker service’s destruction of the truck because there was no way to construe the evidence so as to conclude that the wrecker service was acting as the plaintiff’s agent when the service disregarded counsel’s repeated requests to preserve the truck, and the striking of the plaintiff’s complaint as a sanction was an abuse of discretion. Wilkins v. City of Conyers, 47 Ga. App. 469 , 819 S.E.2d 885 , 2018 Ga. App. LEXIS 545 (2018).

Power to punish for contempt. —

All courts are clothed with the inherent power to punish for contempt. West v. Field, 181 Ga. 152 , 181 S.E. 661 , 1935 Ga. LEXIS 47 (1935).

Discretion as to contempt power. —

Question whether contempt has been committed is for trial court, and that court’s adjudication will not be interfered with unless there has been an abuse of discretion. Berman v. Berman, 232 Ga. 342 , 206 S.E.2d 447 , 1974 Ga. LEXIS 945 (1974); Rutledge v. State, 151 Ga. App. 615 , 260 S.E.2d 743 , 1979 Ga. App. LEXIS 2661 (1979).

Disobedience to lawful court order. —

Disobedience to lawful order of court is obstruction of justice, and for such a violation the court, in order to compel respect or compliance, may punish for contempt. Griggers v. Bryant, 239 Ga. 244 , 236 S.E.2d 599 , 1977 Ga. LEXIS 874 (1977).

Summary contempt power. —

Although summary punishment is always and rightly regarded with disfavor, there is no doubt that the summary contempt power is still available to courts, under the appropriate circumstances, to control judicial proceedings. Farmer v. Strickland, 652 F.2d 427, 1981 U.S. App. LEXIS 10844 (5th Cir. 1981), cert. denied, 455 U.S. 944, 102 S. Ct. 1440 , 71 L. Ed. 2 d 656, 1982 U.S. LEXIS 884 (1982).

Court may apply less harsh sanctions. —

Under certain circumstances, the court may decide the sanctions provided by statute are too severe and apply less harsh measures under the court’s inherent power to enforce obedience. Millholland v. Oglesby, 223 Ga. 230 , 154 S.E.2d 194 , 1967 Ga. LEXIS 473 (1967).

Notice and hearing on constructive contempt. —

In cases of constructive contempt of court if the alleged contumacious conduct is disobedience to a mandate of the court, not an act in the presence of the court or so near thereto as to obstruct the administration of justice, the law requires that a rule nisi issue and be served upon the accused, giving the accused notice of the charges against the accused, and that the accused be given an opportunity to be heard. Anthony v. Anthony, 240 Ga. 155 , 240 S.E.2d 45 , 1977 Ga. LEXIS 1428 (1977).

Purpose of notice to accused. —

Notice given by the rule nisi is to afford the accused a reasonable time in which to prepare the accused’s defense to the charge that the accused has violated the court’s order. Anthony v. Anthony, 240 Ga. 155 , 240 S.E.2d 45 , 1977 Ga. LEXIS 1428 (1977).

Contempt of order when actual notice exists. —

Person may be held in contempt of a court order entered in a proceeding in which the person was not a party, if it is shown that the person sought to be held in contempt had actual notice of the order. Anthony v. Anthony, 240 Ga. 155 , 240 S.E.2d 45 , 1977 Ga. LEXIS 1428 (1977).

Probate court may punish for contempt. —

Court of ordinary (now probate court) has jurisdiction of matters pertaining to the estates of deceased persons, jurisdiction over administrators, jurisdiction to compel administrators to account for the assets of an estate in their possession or custody, and jurisdiction in such cases to attach and punish for contempt. Melton v. Jenkins, 50 Ga. App. 615 , 178 S.E. 754 , 1935 Ga. App. LEXIS 241 (1935).

Order containing contempt of court provision valid. —

Judge of superior court, upon a finding that the administrator had in the administrator’s possession, custody, and control, money which belonged to the estate of the deceased, and which the administrator failed and refused to pay into court for distribution among the heirs at law, as directed by a valid judgment of the court of ordinary (now probate court), acted within the judge’s powers, not only in rendering a judgment ordering that the administrator pay the amount which the administrator held to the several heirs at law, to be applied against the judgment rendered in the court of ordinary (now probate court), but also in ordering that upon the administrator’s failure to do so within seven days the administrator be adjudged in contempt of court and be committed to the common jail of the county. Lewis v. Grovas, 62 Ga. App. 625 , 9 S.E.2d 282 , 1940 Ga. App. LEXIS 382 (1940).

Whether undisputed conduct amounts to contempt is question of law. —

It is a question of law for the court to decide whether the courtroom conduct which is factually undisputed amounts to criminal contempt of court. Farmer v. Strickland, 652 F.2d 427, 1981 U.S. App. LEXIS 10844 (5th Cir. 1981), cert. denied, 455 U.S. 944, 102 S. Ct. 1440 , 71 L. Ed. 2 d 656, 1982 U.S. LEXIS 884 (1982).

Evidence not required for contempt in judge’s presence. —

When the contempt occurs totally in the presence of the judge, there is no necessity for the production of evidence. Indeed, there is no burden of persuading the trier of fact as there is no fact finding process to be conducted. Farmer v. Strickland, 652 F.2d 427, 1981 U.S. App. LEXIS 10844 (5th Cir. 1981), cert. denied, 455 U.S. 944, 102 S. Ct. 1440 , 71 L. Ed. 2 d 656, 1982 U.S. LEXIS 884 (1982).

No evidentiary standard of proof required for conduct in judge’s presence. —

If the contumacious conduct is committed in the presence of the court in the immediate view of the judge, it is unnecessary for the court to apply any evidentiary standard of proof in order to summarily hold the contemnor in contempt of court. Farmer v. Strickland, 652 F.2d 427, 1981 U.S. App. LEXIS 10844 (5th Cir. 1981), cert. denied, 455 U.S. 944, 102 S. Ct. 1440 , 71 L. Ed. 2 d 656, 1982 U.S. LEXIS 884 (1982).

Protection of client’s rights no excuse. —

Once an objection has been made by an attorney and the court has made the court’s considered ruling, subsequent contumacious conduct will not be excused merely for the fact that the conduct was committed by an officer of the court during court proceedings in an attempt to protect the rights of the attorney’s client. Farmer v. Strickland, 652 F.2d 427, 1981 U.S. App. LEXIS 10844 (5th Cir. 1981), cert. denied, 455 U.S. 944, 102 S. Ct. 1440 , 71 L. Ed. 2 d 656, 1982 U.S. LEXIS 884 (1982).

Shackling of defendant. —

Because the record did not reveal any specific actions of the appellant justifying the use of restraints, the shackling of the appellant, which continued throughout the trial, injected partiality into the trial, infringed upon the appellant’s presumption of innocence and prevented the fundamental fairness which attends a trial by jury. Pace v. State, 212 Ga. App. 489 , 442 S.E.2d 307 , 1994 Ga. App. LEXIS 293 (1994).

Use of an electronic prisoner restraint device shielded from the jury’s view was permissible. Young v. State, 269 Ga. 478 , 499 S.E.2d 60 , 1998 Ga. LEXIS 436 (1998), overruled in part, Whitehead v. State, 287 Ga. 242 , 695 S.E.2d 255 , 2010 Ga. LEXIS 412 (2010).

Trial court did not abuse the court’s discretion by ordering the defendant to wear a restraint belt during trial as the defendant pointed to no assertions that the defendant made during the trial that wearing the restraint belt had an adverse effect on the defendant or that the belt prevented the defendant from assisting the defendant’s attorney. Campbell v. State, 333 Ga. App. 829 , 777 S.E.2d 507 , 2015 Ga. App. LEXIS 535 (2015).

Compelling Obedience to Judgments, Orders, and Process

Judgment or decree to enforce prior judgment. —

If it is brought to the attention of the judge that the judge’s judgment upon the same issue in granting an interlocutory injunction against the enforcement of certain tax assessments by the mayor and council is being set at naught and disregarded, the judge can entertain an ancillary proceeding and render such judgment or decree as would enforce the judge’s prior judgment until it should be reversed; and an objection based on lack of jurisdiction of the judge to issue an injunction upon the amendment is without merit. City of Macon v. Ries, 180 Ga. 371 , 179 S.E. 529 , 1935 Ga. LEXIS 262 (1935).

Power of Court of Appeals to enforce judgments. —

Court of Appeals has the power to entertain a petition for mandamus or prohibition in order to enforce the court’s judgments. Raybestos-Manhattan, Inc. v. Moran, 248 Ga. 461 , 284 S.E.2d 256 , 1981 Ga. LEXIS 1061 (1981).

Change in venue does not eliminate court’s power. —

When the venue is changed, the first court does not lose power to enforce the court’s judgment changing the venue. Ruffin v. State, 28 Ga. App. 40 , 110 S.E. 311 , 1921 Ga. App. LEXIS 475 (1921).

Superior court rendering the final order placing the custody of the parties’ minor child in the appellant retains jurisdiction to enforce the court’s order by attachment for contempt, notwithstanding the fact that subsequent to the rendition of the order the appellant may have removed the appellant’s residence to another county. Ogletree v. Watson, 223 Ga. 618 , 157 S.E.2d 464 , 1967 Ga. LEXIS 631 (1967).

Jurisdiction to enforce retained despite change of residence. —

Superior court, awarding alimony in virtue of the court’s jurisdiction originally invoked by plaintiff in divorce suit, had jurisdiction to enforce the court’s payment by attachment for contempt against the plaintiff after the plaintiff changed the plaintiff’s residence to another county. Curtright v. Curtright, 187 Ga. 122 , 200 S.E. 711 , 1938 Ga. LEXIS 801 (1938).

Trial court retained jurisdiction to enforce stock levy order and to compel judgment debtor to reconvey corporate assets. —

Trial court that ordered a judgment debtor to convey shares of stock to the court for levy and execution retained jurisdiction for the purpose of enforcing the levy orders, pursuant to O.C.G.A. § 15-1-3(3) and Ga. Const. 1983, Art. VI, Sec. I, Para. IV, and compelling the debtor to reconvey assets of the corporation to the judgment creditor, the new shareholder. Clark v. Chapman, 301 Ga. App. 117 , 687 S.E.2d 146 , 2009 Ga. App. LEXIS 1345 (2009).

Action should not be dismissed because of witness’ disobedience to court order. —

Action by a father for the loss of the services of his minor child should not be dismissed because the child, after reaching majority, refused to obey an order of the court in which the action was pending requiring the child to submit to a physical examination. Bagwell v. Atlanta Consol. S. Ry., 109 Ga. 611 , 34 S.E. 1018 , 1900 Ga. LEXIS 269 (1900).

Interference with receiver’s possession of property. —

One who dispossesses the receiver of property consigned to that person by the court dispossesses the court, and of course becomes in contempt of court; and one may be punished for contempt and the property may be restored. A contempt of court being complete by dispossessing the receiver, the fact that no injunctive order has been passed does not affect the case. Coker v. Norman, 162 Ga. 351 , 133 S.E. 740 , 1926 Ga. LEXIS 186 (1926).

Refusal to answer writ of certiorari. —

When a person has been tried and convicted in the county court, and has petitioned the judge of the superior court for a writ of certiorari, and the petition is sanctioned, and the writ issued, and the judge of the county court refuses to answer as required by the writ, the judge of the superior court, in term time, has power to attach the county court judge for contempt. Pittman v. Hagans, 91 Ga. 107 , 16 S.E. 659 , 1892 Ga. LEXIS 521 (1892).

Party late for trial. —

Public housing tenant’s answer was struck since the tenant was five minutes late for trial after having been warned not to be late. Truitt v. Housing Auth., 235 Ga. App. 92 , 507 S.E.2d 781 , 1998 Ga. App. LEXIS 1273 (1998), cert. denied, No. S99C0333, 1999 Ga. LEXIS 242 (Ga. Feb. 26, 1999).

Enforcement of custody provisions of Georgia divorce judgment. —

Georgia court which issued a divorce judgment that has not been modified by a court of another state with jurisdiction to do so may hear a Georgia-resident, non-custodial parent’s allegations of contumacious conduct leveled against the nonresident custodial parent; a Georgia court has the statutory power to compel obedience to the court’s judgments, as well as the inherent power to enforce the court’s orders through contempt proceedings, and the Uniform Child Custody Jurisdiction Act, O.C.G.A. § 19-9-81 et seq., does not provide the exclusive means by which a party may seek enforcement of the custody provisions of a Georgia judgment. Dyer v. Surratt, 266 Ga. 220 , 466 S.E.2d 584 , 1996 Ga. LEXIS 74 (1996).

Authority to strike wife’s pleadings in divorce for nonappearance. —

It was not an abuse of discretion for a trial court to strike a wife’s pleadings in a divorce after the wife failed to appear at a final custody hearing because: (1) O.C.G.A. § 15-1-3 gave the trial court such authority for the wife’s wilful refusal to participate; (2) the wife was warned to check for notices of upcoming hearing dates; and (3) despite proper notice, the wife chose not to participate or state why. Pennington v. Pennington, 291 Ga. 165 , 728 S.E.2d 230 , 2012 Ga. LEXIS 504 (2012).

Revocation of bail bond for violations. —

Since the defendant was charged with battery against a specific female victim, the trial court had authority to revoke defendant’s bail bond following defendant’s violation of conditions thereof that forbade the defendant to threaten, harass, stalk, or abuse the victim. Clarke v. State, 228 Ga. App. 219 , 491 S.E.2d 450 , 1997 Ga. App. LEXIS 1086 (1997), cert. denied, No. S97C2105, 1998 Ga. LEXIS 77 (Ga. Jan. 8, 1998).

Refusal of order to testify. —

Defendant’s criminal contempt conviction was reversed as the trial court relied on another court’s ex parte immunity grant in ordering the defendant to testify and neither court made a finding that defendant’s testimony was “necessary to the public interest” as required by former O.C.G.A. § 24-9-28 (see now O.C.G.A. § 24-5-507 ); the state had to grant a valid immunity as broad in scope as the privilege the state replaced and show the applicability of that state immunity to the witness. In re Long, 276 Ga. App. 306 , 623 S.E.2d 181 , 2005 Ga. App. LEXIS 1237 (2005).

Trial court’s failure to use proper Fifth Amendment analysis. —

Trial court did not engage in the required analysis for a witness asserting a Fifth Amendment privilege, but merely declared that answering the questions concerning knowledge of the court’s order regarding removing a child from a father’s home would not incriminate the witness; at a minimum, such knowledge would establish a link in the chain of evidence needed to prove the witness was in contempt of that order and the trial court’s finding of contempt based on the witness’s refusal to answer the question was improper. In re Tidwell, 279 Ga. App. 734 , 632 S.E.2d 690 , 2006 Ga. App. LEXIS 685 (2006).

Conduct of Officers and Other Persons

Paragraph (4) codifies ancient right. —

Paragraph (4) is a codification of a right which has inhered in courts from ancient times. Lowe v. Taylor, 180 Ga. 654 , 180 S.E. 223 , 1934 Ga. LEXIS 453 (1934).

Order for deposit into court registry authorized. —

In a trespass action against a sign leasing corporation for unauthorized placement of a sign, the trial court did not abuse the court’s discretion in ordering the corporation to deposit income from operation of the sign into the court’s registry. Courtesy Leasing, Inc. v. Christian, 266 Ga. 187 , 465 S.E.2d 443 , 1996 Ga. LEXIS 29 (1996).

Broad powers given to trial courts by paragraph (4) of O.C.G.A. § 15-1-3 to manage the cases over which the courts preside authorized the trial court to order the deposit into the registry of funds. Such funds were due by the plaintiffs to the defendants under a prior settlement agreement which the plaintiffs alleged was breached by the defendants since the action made entitlement to the funds an issue and, under the allegations of the complaint, the plaintiffs may have been excused from further performance under the agreement by the defendants’ breach. Eichelkraut v. Camp, 236 Ga. App. 721 , 513 S.E.2d 267 , 1999 Ga. App. LEXIS 306 (1999).

Inherent power. —

Courts have the inherent power to adequately control, in furtherance of justice, officers, parties, jurors, witnesses, and others connected with a pending case. Crosby v. Potts, 8 Ga. App. 463 , 69 S.E. 582 , 1910 Ga. App. LEXIS 220 (1910).

Control is essential. —

It is essential that control of persons referred to in paragraph (4) be exercised in a matter which is before the court. Lowe v. Taylor, 180 Ga. 654 , 180 S.E. 223 , 1934 Ga. LEXIS 453 (1934).

Attorney conduct. —

Attorney at law admitted to practice in the courts of this state is an officer of the courts, and as such, is as much subject to the power of the court to control the conduct of persons present in the courtroom as others are subject thereto. Kellar v. State, 226 Ga. 432 , 175 S.E.2d 654 , 1970 Ga. LEXIS 552 (1970).

Contempt against a lawyer was affirmed when the lawyer failed to appear at the call of the client’s case, failed to file a conflict letter, failed to notify the trial court of the lawyer’s unavailability, failed to notify the client that the lawyer would not be in court, and, after being haled into court to explain the lawyer’s conduct, the lawyer failed to acknowledge that the lawyer had not complied with Ga. Unif. Super. Ct. R. 17.1(B) regarding notification of conflicts and had, thus, inconvenienced both the court and the lawyer’s client, and lastly, displayed contumacious behavior at the contempt hearing. In re Herring, 268 Ga. App. 390 , 601 S.E.2d 839 , 2004 Ga. App. LEXIS 924 (2004).

Contempt against lawyer without consideration of evidence erroneous. —

Juvenile court erred by summarily holding an attorney in contempt based on a per se rule. The juvenile court determined that a per se rule existed that an attorney was in contempt when the attorney claimed ineffectiveness against themselves, but no such per se rule existed and, therefore, it was error to have adjudicated the attorney in contempt. Morris v. State, 295 Ga. App. 579 , 672 S.E.2d 531 , 2009 Ga. App. LEXIS 41 (2009).

Self-representation. —

As the right to represent oneself does not evaporate when an attorney is hired, a court errs in barring a party from representing oneself because an appearance has been made for the attorney by other attorneys; however, the court is not required to accept random appearances and filings by both the client and attorneys. If a party and the party’s attorneys are unable to coordinate their efforts so that they speak with one voice, the court is empowered to appoint a leading counsel who shall be the spokesperson. Cherry v. Coast House, Ltd., 257 Ga. 403 , 359 S.E.2d 904 , 1987 Ga. LEXIS 844 (1987), cert. denied, 484 U.S. 1060, 108 S. Ct. 1015 , 98 L. Ed. 2 d 981, 1988 U.S. LEXIS 702 (1988).

Disclosure by plaintiff applying for relief. —

Court has inherent power to enforce disclosure by plaintiff applying to the court’s forum for relief. Millholland v. Oglesby, 223 Ga. 230 , 154 S.E.2d 194 , 1967 Ga. LEXIS 473 (1967).

Court can compel attendance of witness under the court’s power to control all persons connected with a judicial proceeding before the court. Western & Atl. R.R. v. Denmead, 83 Ga. 351 , 9 S.E. 683 , 1889 Ga. LEXIS 67 (1889).

Bail or jail of witness to secure presence. —

Court, in order to secure the presence of a witness in a criminal case, and to prevent the witness leaving the jurisdiction of the court prior to the trial, may require that the witness give bail for the witness’s appearance, and, in default of the witness’s giving bail, cause the witness to be held in confinement. Crosby v. Potts, 8 Ga. App. 463 , 69 S.E. 582 , 1910 Ga. App. LEXIS 220 (1910).

If it is necessary in order to secure the attendance of a witness at court to make the witness testify, the court has ample authority to secure the witness’s attendance by requiring the witness to give bail, or in default thereof, to go to jail. Pullen v. Cleckler, 162 Ga. 111 , 132 S.E. 761 , 1926 Ga. LEXIS 115 (1926).

Imprisonment of witness defaulting on bond. —

No court should order a witness to be imprisoned in default of bond, except from grave necessity; unless the witness’s testimony is material and important, and unless there is strong likelihood that, if the witness is not restrained by confinement or bond, the witness will violate the mandates of the subpoena and flee the limits of the state, the power should not be exercised. Lowe v. Taylor, 180 Ga. 654 , 180 S.E. 223 , 1934 Ga. LEXIS 453 (1934).

“Extraordinary service” not illegal such that witness could refuse to testify. —

In a contempt proceeding against a witness for refusing to testify, arising in a proceeding by a solicitor general (now district attorney) to revoke a previous order of the court admitting certain persons to practice law, which main proceeding was not a technical motion in arrest or motion to set aside, but was an independent proceeding quasi in rem at law, and invoked control by the court over the court’s own officers, “extraordinary service” ordered by the court was not illegal so as to permit the witness to refuse to testify. Simpson v. Bradley, 189 Ga. 316 , 5 S.E.2d 893 , 1939 Ga. LEXIS 709 (1939).

Payment for court reporting services. —

O.C.G.A. § 15-1-3 gives no authority, by in personam order, to compel the payment of private contractual obligations incurred by an attorney for court reporting services. Augustine v. Clifton, 248 Ga. 553 , 284 S.E.2d 432 , 1981 Ga. LEXIS 1098 (1981).

Claim for money in attorney’s hands by person other than client. —

When, as the result of a lawsuit instituted by an attorney for a client, money has come into the hands of the attorney, the defendant in that suit who claims title to the money, but who is not the client of the attorney, cannot enforce the client’s claim by rule against the attorney. Blanch v. Roberson, 69 Ga. App. 423 , 25 S.E.2d 720 , 1943 Ga. App. LEXIS 102 (1943).

Money in hands of attorney. —

Right to rule an attorney, for money alleged to be in the attorney’s hands as such, depends upon the existence of the relation of attorney and client and is limited to the client. Haygood v. Haden, 119 Ga. 463 , 46 S.E. 625 , 1904 Ga. LEXIS 235 (1904); Blanch v. Roberson, 69 Ga. App. 423 , 25 S.E.2d 720 , 1943 Ga. App. LEXIS 102 (1943).

Party sanctioned. —

Trial court was within the court’s authority to strike the party’s answer and counterclaim and to bar the presentation of evidence after the party failed to personally appear throughout the litigation and disregarded multiple orders. Bayless v. Bayless, 280 Ga. 153 , 625 S.E.2d 741 , 2006 Ga. LEXIS 3 (2006).

No intimidation of defendant. —

There was no merit to the defendant’s claim of ineffective assistance of counsel in that the trial court intimidated the defendant by admonishing the defendant about making objections during the trial; since the defendant was represented by counsel, the defendant had no right to personally make evidentiary objections or otherwise assume the role of co-counsel. Phillips v. State, 278 Ga. App. 439 , 629 S.E.2d 130 , 2006 Ga. App. LEXIS 350 (2006).

Oaths

Authority of commissioners to administer oaths. —

If a court is composed of commissioners, any one of the commissioners may administer oaths. Broadwater v. State, 10 Ga. App. 458 , 73 S.E. 691 , 1912 Ga. App. LEXIS 564 (1912).

Competency of reader of oath immaterial when in presence of court. —

When the reading of the oath by another person is in the presence of the court, the competency of the person reading the oath is immaterial. Richards v. State, 131 Ga. App. 362 , 206 S.E.2d 93 , 1974 Ga. App. LEXIS 1423 (1974).

Court’s job to swear witnesses. —

With regard to a defendant’s convictions for incest and child molestation, the trial judge did not exhibit undue bias against the defense by reminding defense counsel that the swearing of witnesses fell within the dominion of the court. Hubert v. State, 297 Ga. App. 71 , 676 S.E.2d 436 , 2009 Ga. App. LEXIS 357 (2009), cert. denied, No. S09C1250, 2009 Ga. LEXIS 583 (Ga. Sept. 8, 2009).

Amendments

1.In General

Power to amend is broad and liberal. —

Power to amend process given under the authority of paragraph (6) of this section is fully as broad and liberal as that allowed for the amendment of other pleadings. Everett v. McCary, 93 Ga. App. 474 , 92 S.E.2d 112 , 1956 Ga. App. LEXIS 774 (1956).

Death of party. —

Fact that the husband died prior to the entry of the judgment nunc pro tunc would not alter the power of the court to complete and amend the court’s records so as to make the records speak the truth. Moore v. Moore, 229 Ga. 600 , 193 S.E.2d 608 , 1972 Ga. LEXIS 695 (1972).

Effect of correction on nonparties. —

Judgment cannot be corrected so as to bind person not party to suit. Thompson v. American Mtg. Co., 122 Ga. 39 , 49 S.E. 751 , 1905 Ga. LEXIS 108 (1905).

Application for discretionary appeal from probation revocation. —

Defendant’s filing of an application for discretionary appeal from a revocation of probation acted as a supersedeas to the same extent as a notice of appeal and thereby deprived the trial court of jurisdiction to enter an amended revocation order. Bryson v. State, 228 Ga. App. 84 , 491 S.E.2d 184 , 1997 Ga. App. LEXIS 1041 (1997).

2.Scope of Power to Amend

Power to render records truthful. —

All courts have inherent power to amend their records to speak the truth. Vaughn v. Fitzgerald, 112 Ga. 517 , 37 S.E. 752 , 1900 Ga. LEXIS 225 (1900).

Every court has the power to amend and control the court’s processes and orders so as to make the orders conform to law and justice, and to amend the court’s records to conform to the truth. Cox v. LeRoy, 130 Ga. App. 388 , 203 S.E.2d 863 , 1973 Ga. App. LEXIS 1328 (1973).

Every court has the inherent power and duty to correct the court’s own records to make the records speak truth. Willis v. Jackson, 148 Ga. App. 432 , 251 S.E.2d 341 , 1978 Ga. App. LEXIS 3184 (1978).

Court may correct court’s own records. —

If based solely on the record, and without the necessity for the introduction of extrinsic evidence, the court may, on the court’s own motion and without notice, enter a judgment and decree correcting the court’s own records nunc pro tunc at a later date; and since such entry simply perfects the record as between the parties the entry relates back to the time when the entry should have been entered, although a different rule would apply to sureties, intervening bona fide purchasers, or innocent third parties. Swindell v. Swindell, 208 Ga. 727 , 69 S.E.2d 197 , 1952 Ga. LEXIS 320 (1952), overruled in part as stated in Sigal v. Sigal, 289 Ga. 814 , 716 S.E.2d 206 , 2011 Ga. LEXIS 718 (2011); Moore v. Moore, 229 Ga. 600 , 193 S.E.2d 608 , 1972 Ga. LEXIS 695 (1972).

Correction of errors and mistakes. —

Every court, whether the court exercises exclusive or concurrent jurisdiction, is vested with inherent power to control and amend the court’s records, judgments, and processes, and to correct errors and mistakes in those records, judgments, and processes. Ellis v. Clarke, 173 Ga. 618 , 160 S.E. 780 , 1931 Ga. LEXIS 367 (1931).

Court whose sole purpose is to deal fairly and do justice to all parties can accomplish this purpose only by acting upon true and correct records; and if errors or mistakes are found in the court’s records, whether they be honest mistakes or deliberate alterations, the court in the exercise of the court’s inherent power can and should correct all such records. Beecher v. Carter, 189 Ga. 234 , 5 S.E.2d 648 , 1939 Ga. LEXIS 676 (1939).

Motion to vacate order must be based on meritorious reason. —

While a motion to vacate an order or judgment is one addressed to the court’s sound discretion, such a motion should not be granted unless founded upon a meritorious reason. Drain Tile Mach., Inc. v. McCannon, 80 Ga. App. 373 , 56 S.E.2d 165 , 1949 Ga. App. LEXIS 843 (1949).

3.Timing of Changes and Relation Back

Control during term over orders and judgments. —

Court of record has plenary control of the court’s orders and judgments during term rendered, and may amend, correct, modify, supplement, or vacate the orders and judgments; the exercise of this power during the term will not be disturbed unless there is an abuse thereof. Drain Tile Mach., Inc. v. McCannon, 80 Ga. App. 373 , 56 S.E.2d 165 , 1949 Ga. App. LEXIS 843 (1949).

During the term at which a judgment or ruling is made, the judge, in the exercise of the judge’s own discretion to correct errors and to promote justice, has plenary power to amend, modify, revise, supplement, or even supersede, revoke, or vacate such previous judgment or ruling. Shockley v. Henselee, 114 Ga. App. 227 , 150 S.E.2d 689 , 1966 Ga. App. LEXIS 691 (1966).

Final order must be set aside during same term entered. —

Trial judge can set aside a final order entered provided that the order is set aside during the same term in which the order is entered. Donnelly v. Stynchcombe, 246 Ga. 118 , 269 S.E.2d 10 , 1980 Ga. LEXIS 982 (1980).

Power to correct at subsequent term. —

Judge had power at the subsequent term, in the direct proceeding against the defendant, after due notice and a hearing, to correct the paper inadvertently signed as a sentence and entered upon the minutes of the court, so that the paper conforms to the actual sentence orally pronounced. Pulliam v. Jenkins, 157 Ga. 18 , 121 S.E. 679 , 1923 Ga. LEXIS 356 (1923).

Revising judgment at subsequent term. —

Judgment may be revised or amended, or entered of record, nunc pro tunc, on proper motion, at a term subsequent to that at which the judgment was rendered so as to make the judgment speak the truth of the decision that was actually rendered, or to make the judgment conform to the verdict; but the judgment must be amended by an inspection of the record, including the pleadings and the verdict, without resort to extraneous evidence. Allen v. Community Loan & Inv. Corp., 78 Ga. App. 611 , 51 S.E.2d 872 , 1949 Ga. App. LEXIS 942 (1949).

Amendment of judgment after term and after affirmation on appeal. —

Court may amend a judgment to make the judgment conform to the verdict, not only after the term in which the judgment was rendered, but after the case has been affirmed by an appellate court. Kerr v. Noble, 124 Ga. App. 722 , 185 S.E.2d 807 , 1971 Ga. App. LEXIS 1081 (1971).

Notice of change made at subsequent term. —

If done at same term, court may make correction without notice to anyone; if at a subsequent term, the correction must be upon notice to the parties at interest. Ellis v. Clarke, 173 Ga. 618 , 160 S.E. 780 , 1931 Ga. LEXIS 367 (1931).

Material amendments at subsequent term require notice. —

Judgment regular on the judgment’s face cannot at a subsequent term be amended in a material respect, even though the amendment makes the judgment conform to the original judgment as orally rendered if there has been no proceeding brought for that purpose, with due notice to parties whose rights are to be affected. Crowell v. Crowell, 191 Ga. 36 , 11 S.E.2d 190 , 1940 Ga. LEXIS 595 (1940).

Amendment to assert statute of limitations defense. —

Trial court did not abuse the court’s discretion by permitting the insurance company to amend the company’s answer to raise a statute-of-limitations defense to the tree service company owner’s (owner’s) personal injury claims after the entry of the pre-trial order because the owner failed to show any prejudice since the other defendants had raised the statute-of-limitations defense by the time the insurance company did, so the owner was on notice that the defense would be considered by the trial court. Popham v. Landmark Am. Ins. Co., 340 Ga. App. 603 , 798 S.E.2d 257 , 2017 Ga. App. LEXIS 106 (2017).

Disposition of motion to revise or vacate. —

Motion to revise or vacate an order or judgment not founded on a verdict made during the term at which rendered cannot be determined by any fixed rule, but the disposition thereof by the court depends on the circumstances of the case. Drain Tile Mach., Inc. v. McCannon, 80 Ga. App. 373 , 56 S.E.2d 165 , 1949 Ga. App. LEXIS 843 (1949).

Incorrect docket entry that case is settled. —

Entry on the issue docket of a superior court that a case is settled is prima facie true and cannot be collaterally attacked; but, in the absence of a signed order entered on the minutes of the court, such docket entry does not constitute a dismissal of the case, and may be set aside in a direct proceeding for that purpose in the exercise of the authority of the court to correct the court’s records to make the records speak the truth. Head v. Yeomans, 189 Ga. 335 , 6 S.E.2d 704 , 1939 Ga. LEXIS 737 (1939).

Relation back of amendment to judgment. —

Based solely on the record, and without the necessity for the introduction of extrinsic evidence, the court may, on the court’s own motion and without notice, enter such judgment and decree nunc pro tunc at a later date; and since such entry simply perfects the record, as between the parties the entry relates back to the time when the entry should have been entered. Swindell v. Swindell, 208 Ga. 727 , 69 S.E.2d 197 , 1952 Ga. LEXIS 320 (1952), overruled in part as stated in Sigal v. Sigal, 289 Ga. 814 , 716 S.E.2d 206 , 2011 Ga. LEXIS 718 (2011); Moore v. Moore, 229 Ga. 600 , 193 S.E.2d 608 , 1972 Ga. LEXIS 695 (1972).

Amendment to judgment to make the judgment conform to the verdict relates back to that which was amended. Further, the court may act on the court’s own motion if a nunc pro tunc judgment is based solely on the record. Kerr v. Noble, 124 Ga. App. 722 , 185 S.E.2d 807 , 1971 Ga. App. LEXIS 1081 (1971).

Judgment nunc pro tunc. —

Generally, a judgment entered nunc pro tunc relates back to the time when the judgment should have been entered and completes the record. If there are no intervening equities, the judgment so entered will sustain a plea of res judicata between the parties as to the matter involved in the litigation. Walden v. Walden, 128 Ga. 126 , 57 S.E. 323 , 1907 Ga. LEXIS 46 (1907).

Trial court did not err in entering a final divorce decree nunc pro tunc and ordering monthly installments of lump-sum alimony to begin almost five months before entry of the judgment because entry of the judgment nunc pro tunc and commencement of lump-sum alimony soon after the verdict was advantageous to a common law husband as the monthly payments thereof were $500 less than the monthly amount of temporary alimony. Norman v. Ault, 287 Ga. 324 , 695 S.E.2d 633 , 2010 Ga. LEXIS 474 (2010).

Trial court’s entry of a divorce decree nunc pro tunc under O.C.G.A. § 15-1-3(6) , which eliminated a “transition period” from supervised to unsupervised visitation between the husband and the children, was error as the court had orally announced that the court was providing the transition period for the welfare of the parties’ two children. Sigal v. Sigal, 289 Ga. 814 , 716 S.E.2d 206 , 2011 Ga. LEXIS 718 (2011).

4.Restrictions on Substantive Changes

Substantive or material changes in judgment barred. —

This section does not enable a court to change a judgment in substance or in any material respect. Crowell v. Crowell, 191 Ga. 36 , 11 S.E.2d 190 , 1940 Ga. LEXIS 595 (1940).

No power to include what was not actually decided. —

Power to amend and revise does not include power to supply judicial omissions so as to include what a court might or should have decided, but did not actually so decide. Allen v. Community Loan & Inv. Corp., 78 Ga. App. 611 , 51 S.E.2d 872 , 1949 Ga. App. LEXIS 942 (1949).

Amendment of judgment so as not to follow verdict of jury not allowed. —

When founded on verdicts of a jury, and not the acts of the judge, the court may not amend the judgment so as not to follow the verdict. Cox v. LeRoy, 130 Ga. App. 388 , 203 S.E.2d 863 , 1973 Ga. App. LEXIS 1328 (1973); Wimberly v. Medaris, 143 Ga. App. 805 , 240 S.E.2d 200 , 1977 Ga. App. LEXIS 2512 (1977).

Additional pleadings with material changes not allowed after judgment. —

While the superior court has the power and duty of correcting errors in the court’s records, this rule does not authorize the court to allow, filed subsequent to judgment, additional pleadings which will materially change the pleadings on which the judgment was rendered; hence, if the plaintiff’s amended motion for a new trial was heard and overruled, the trial judge did not err in disallowing a second amendment to the motion, offered several weeks after the date of the judgment overruling the original motion for the purpose of perfecting the assignments of error contained in the first amendment to the motion for a new trial. Nickerson v. Porter, 189 Ga. 671 , 7 S.E.2d 231 , 1940 Ga. LEXIS 351 (1940).

Modification of order denying attorney’s fees not authorized. —

If the trial court determined as a matter of law that there was no claim under an insurance policy, there could be no recovery of attorney’s fees under O.C.G.A. § 33-4-6 , and the court was without power to modify the court’s order denying an attorney’s fees award to plaintiff after the term of court expired in which that order was made. State Farm Mut. Auto. Ins. Co. v. Johnson, 242 Ga. App. 591 , 530 S.E.2d 492 , 2000 Ga. App. LEXIS 272 (2000).

5.Clerical Corrections

Court may order clerk to correct clerical error. —

If the clerk of the superior court, in issuing the writ of certiorari, made a clerical error in dating the writ, the judge of that court may pass an order authorizing the clerk to correct such error so as to make the writ bear the true date of issuance. Neal v. Neal, 122 Ga. 804 , 50 S.E. 929 , 1905 Ga. LEXIS 335 (1905).

Substantive changes not allowed. —

Power of courts to correct clerical errors and misprints and to make the record speak the truth by nunc pro tunc amendments after the term does not enable the courts to change their judgments in substance or in any material respect. Rogers v. Rigell, 183 Ga. 455 , 188 S.E. 704 , 1936 Ga. LEXIS 256 (1936).

Clerical omission or irregularity may be cured by amendment. —

If the process contains a command to the defendant to appear in court at a certain time for a specified purpose, and if this process is actually executed by the proper officer, the mere fact that the formal direction to the officer to execute the process is omitted therefrom would be at most a mere clerical omission or irregularity, which could be cured by amendment. Gay v. Sylvania Cent. Ry., 79 Ga. App. 362 , 53 S.E.2d 713 , 1949 Ga. App. LEXIS 656 (1949).

6.Illustrative Cases

Process is amendable so as to be made to “conform to law and justice.” Minsk v. Cook, 48 Ga. App. 567 , 173 S.E. 446 , 1934 Ga. App. LEXIS 131 (1934).

Process properly served its purpose despite defect. —

If, by virtue of a process, although defective, a defendant has been properly served by one lawfully authorized to effect the service, although the process was not so directed to the officer, and if that process has properly put the defendant on notice of the proceeding, and when defendant’s appearance will be required, such process has properly served its purpose. Gay v. Sylvania Cent. Ry., 79 Ga. App. 362 , 53 S.E.2d 713 , 1949 Ga. App. LEXIS 656 (1949).

Continuing jurisdiction to enter judgment on jury verdict. —

Court of record, in the exercise of the court’s inherent power, has continuing jurisdiction to enter judgment on a jury verdict at any time. Jefferson v. Ross, 250 Ga. 817 , 301 S.E.2d 268 , 1983 Ga. LEXIS 648 (1983) (overruling Maroska v. Williams, 146 Ga. App. 130 , 245 S.E.2d 470 , 1978 Ga. App. LEXIS 2223 (1978)).

Failure to state length of sentence. —

Record which fails to state length of sentence may be corrected. Tyler v. State, 125 Ga. 46 , 53 S.E. 818 , 1906 Ga. LEXIS 36 (1906).

Transcript of charge to jury may be corrected. Georgia Ry. & Elec. Co. v. Carroll, 143 Ga. 93 , 84 S.E. 434 , 1915 Ga. LEXIS 301 (1915).

Failure to instruct jury to pronounce determinate sentence. —

Since the jury pronounced an indeterminate sentence of three to five years, when in fact the jury should have been instructed to pronounce a determinate sentence, and the court, evidently convinced of the error, changed the sentence to three years, any errors involved were trifling and were harmless. Powell v. State, 115 Ga. App. 791 , 156 S.E.2d 188 , 1967 Ga. App. LEXIS 1258 (1967).

Record of judgment is amendable to show true relation of parties as disclosed by execution. Saffold v. Banks, 69 Ga. 289 , 1882 Ga. LEXIS 211 (1882).

Record of illegal judgment. —

Judge of a court of record may of the judge’s own motion, when approving the minutes at the close of the term, expunge therefrom a judgment which the court is, as to the subject matter, without jurisdiction to render. Scott v. Hughes, 124 Ga. 1000 , 53 S.E. 453 , 1906 Ga. LEXIS 684 (1906).

Setting aside judgment. —

Failure of a defendant to appear and plead, in consequence of a misunderstanding between defendant and defense counsel, does not afford a meritorious reason for granting a motion to set aside a judgment, even though made during the term when the judgment was yet in the breast of the court. Drain Tile Mach., Inc. v. McCannon, 80 Ga. App. 373 , 56 S.E.2d 165 , 1949 Ga. App. LEXIS 843 (1949).

Laches not grounds for vacating dismissal. —

Laches of plaintiff is not a sufficient reason for the court to exercise the court’s plenary power and vacate an order dismissing a case for want of prosecution since neither the plaintiff nor plaintiff’s counsel are present on the call of the case for trial. Drain Tile Mach., Inc. v. McCannon, 80 Ga. App. 373 , 56 S.E.2d 165 , 1949 Ga. App. LEXIS 843 (1949).

Power of court to enter order accurately reflecting trial of case. —

Trial court, if no adverse rights have intervened, has jurisdiction nunc pro tunc to enter an order of dismissal accurately reflecting what occurred upon the trial of the case. Israel v. Joe Redwine Ins. Agency, 120 Ga. App. 14 , 169 S.E.2d 347 , 1969 Ga. App. LEXIS 664 (1969).

Power to require clerk to recall incorrect execution. —

It was within the power of the court to compel obedience to the court’s judgments, orders, and process in an action or proceeding therein. This general power conferred by the law upon the courts and the specific power providing for rule nisi against officers contained in former Code 1933, § 24-209 (see now O.C.G.A. § 15-13-4 ) authorized a proceeding when an execution was issued by the clerk contrary to the terms of the judgment and was paid by the defendant in fi. fa. and marked satisfied by the clerk. The court had the power to have the clerk recall such an execution and offer to refund the money paid to the clerk by the defendant in fi. fa. Miller Serv., Inc. v. Miller, 77 Ga. App. 413 , 48 S.E.2d 761 , 1948 Ga. App. LEXIS 569 (1948).

Corrections of mistake in minutes must not prejudice rights of third person. Barefield v. Bryan, 8 Ga. 463 , 1850 Ga. LEXIS 77 (1850).

Entry of order 24 years after issuance. —

If an order granted 24 years previously had not been placed upon the minutes of the court by the clerk, the judge ordered it done in order to make the minutes speak the truth. Ellis v. Clarke, 173 Ga. 618 , 160 S.E. 780 , 1931 Ga. LEXIS 367 (1931).

Reducing oral order to writing. —

Language “amend its own records” includes amending the record by reducing to writing an order which had previously existed only as an oral statement and was, therefore, not properly a part of the record at all, although it had been recognized as such during the trial of the case. Maloy v. Planter's Whse. & Lumber Co., 142 Ga. App. 69 , 234 S.E.2d 807 , 1977 Ga. App. LEXIS 1478 (1977).

If the plaintiff files an amendment to the plaintiff’s complaint and a motion to add parties, a proposed (unsigned) order granting the motion is placed in the file at the same time as the motion, a hearing on the motion is held, and the trial court, in the exercise of the court’s discretion, orally grants the motion, all within the limitations period, but, through oversight, the court omits the actual signing of the order, the trial court does not err in later entering a nunc pro tunc order so as to correct the court’s own oversight and to make the record speak the truth. Savannah Iron & Fence Corp. v. Mitchell, 168 Ga. App. 252 , 308 S.E.2d 569 , 1983 Ga. App. LEXIS 2739 (1983).

Motion to revoke or set aside order of incorporation. —

Motion to revoke and set aside an order of incorporation on the grounds that the movant had acquired prior use to the name used by the corporation, that its use would cause confusion and cloud titles of petitioners’ property, and that it was improvidently granted because the movant was not given notice before the order of incorporation, and praying that it be set aside, is not an equity case within the meaning of that term as used in Ga. Const. 1976, Art. VI, Sec. II, Para. IV (see now Ga. Const. 1983, Art. VI, Sec. VI, Paras. II, III), defining the jurisdiction of the Supreme Court. The grounds of the motion are not relievable only in equity. On the contrary, the motion is one to set aside an order of the court on an alleged legal ground and a court has jurisdiction with rule nisi or process to grant the relief prayed. Methodist Episcopal Church S., Inc. v. Decell, 60 Ga. App. 843 , 5 S.E.2d 66 , 1939 Ga. App. LEXIS 188 (1939).

Coerced compliance with settlement agreement outside term. —

If county and jail inmates entered a settlement agreement whereby the county would take steps over an 18-month period to improve health services, but the county was held in contempt and given the opportunity to purge itself of contempt, the mere fact that the trial court’s later order was beyond the original 18 month settlement terms did not prevent the trial court from finding the county had not purged the contempt; the expiration of the term did not halt the trial court’s lawful efforts to coerce compliance, particularly when those efforts began long before the agreement was due to expire. DeKalb County v. Adams, 262 Ga. App. 243 , 585 S.E.2d 178 , 2003 Ga. App. LEXIS 874 (2003), cert. denied, No. S03C1680, 2003 Ga. LEXIS 969 (Ga. Nov. 10, 2003).

Error to deny motion to set aside consent order when one party did not consent. —

Because both a wife and her counsel read and signed a settlement agreement reached during a divorce hearing, the agreement was enforceable even though some details remained to be decided, and it could not be rescinded based on a claimed error in the award of a home to the husband. However, a consent order based on the agreement should have been set aside under O.C.G.A. § 15-1-3(6) because the wife did not consent to the order and the trial court had the duty to determine whether the agreement was equitable. Buckner v. Buckner, 294 Ga. 705 , 755 S.E.2d 722 , 2014 Ga. LEXIS 176 (2014).

Revival of dormant judgment in workers’ compensation cases. —

In an action wherein a workers’ compensation claimant revived a lump-sum judgment of $37,747.08 plus accrued interest, which had become dormant against an employer, the trial court properly refused to amend the 2006 judgment that revived the judgment to provide for weekly disability payments as the term of court ended and, therefore, the trial court had no authority to amend or alter that 2006 judgment. However, the trial court should have issued a writ of execution for the payments that became due after July 27, 2000, as those payments had not become dormant. Taylor v. Peachbelt Props., 293 Ga. App. 335 , 667 S.E.2d 117 , 2008 Ga. App. LEXIS 932 (2008).

Disqualification of counsel. —

Trial court did not err by granting the wife’s motion to disqualify counsel in a wrongful death action after finding that the lawyers repeatedly and intentionally contacted the wife’s expert with the objective of interfering with the expert’s appearance as a witness; the natural and foreseeable result of co-counsel’s phone calls to the witness’s employer was to have the expert pressured into withdrawing from the case. WellStar Health Sys. v. Kemp, 324 Ga. App. 629 , 751 S.E.2d 445 , 2013 Ga. App. LEXIS 902 (2013), cert. denied, No. S14C0418, 2014 Ga. LEXIS 228 (Ga. Mar. 10, 2014), cert. denied, No. S14C0417, 2014 Ga. LEXIS 229 (Ga. Mar. 10, 2014).

General Consideration

Use of contumacious language in court. —

Fact that the court has made a ruling which seems completely unjustified or beyond the authority of the court does not give the aggrieved party the license to use contumacious language in the presence of the court concerning such a ruling. White v. State, 105 Ga. App. 616 , 125 S.E.2d 239 , 1962 Ga. App. LEXIS 994, rev'd, 218 Ga. 290 , 127 S.E.2d 668 , 1962 Ga. LEXIS 485 (1962).

Acts occurring before domestication of foreign judgment. —

Trial court’s contempt power is not limited to contempt acts occurring after date of domestication of foreign judgment. Martin v. Martin, 244 Ga. 68 , 257 S.E.2d 903 , 1979 Ga. LEXIS 1106 (1979).

Presenting motion in good faith. —

Attorney may not be held in contempt of court merely for presenting in good faith a motion which the attorney has a right to make, nor may an attorney be held in contempt merely because, having filed such a motion, the attorney fails to prevail on the motion. In re McLarty, 152 Ga. App. 399 , 263 S.E.2d 194 , 1979 Ga. App. LEXIS 2940 (1979).

Lack of intent to violate order. —

Contemnor’s testimony that contemnor had no intent to violate an order is not binding on the court. Schiselman v. Trust Co. Bank, 246 Ga. 274 , 271 S.E.2d 183 , 1980 Ga. LEXIS 1078 (1980).

Powers of Courts

1.In General

Disobeying or resisting lawful order. —

Several courts of this state have power to attach and punish for contempt any party who disobeys or resists any lawful order granted by such courts. Crawford v. Manning, 12 Ga. App. 54 , 76 S.E. 771 , 1912 Ga. App. LEXIS 21 (1912).

Compliance with intent and spirit of decrees. —

Trial court has power to see that there be compliance with the intent and spirit of the court’s decrees and no party should be permitted to take advantage of the letter of a decree to the detriment of the other party. Davis v. Davis, 243 Ga. 421 , 254 S.E.2d 370 , 1979 Ga. LEXIS 921 (1979); Kaufmann v. Kaufmann, 246 Ga. 266 , 271 S.E.2d 175 , 1980 Ga. LEXIS 1076 (1980).

Trial judge best qualified to determine contempt. —

Trial judge is the one best qualified to determine whether or not the plaintiff, as a witness, placed oneself in contempt. Crute v. Crute, 86 Ga. App. 96 , 70 S.E.2d 727 , 1952 Ga. App. LEXIS 884 (1952).

Misbehavior of officer of court. —

Powers of court are applicable to misbehavior of any officer of the court in the officers’ official transactions. West v. Field, 181 Ga. 152 , 181 S.E. 661 , 1935 Ga. LEXIS 47 (1935).

O.C.G.A. § 15-1-4(a)(2) is intended to impose upon officers of the courts engaged in the officers’ official transactions a higher duty to the court than is demanded of the broader group of individuals listed in § 15-1-4(a)(3) who are arguably subject to the contempt powers only for failure to comply with those commands of the court spread upon the record in written form. In re Smith, 211 Ga. App. 493 , 439 S.E.2d 725 , 1993 Ga. App. LEXIS 1545 (1993), cert. denied, No. S94C0546, 1994 Ga. LEXIS 527 (Ga. Feb. 18, 1994).

Indictable act may be treated as contempt. —

That given act may be indictable does not deprive court of power of dealing with the act as contempt of court. Bradley v. State, 111 Ga. 168 , 36 S.E. 630 , 1900 Ga. LEXIS 509 (1900).

Court may handle contempt at any time. —

Court has jurisdiction and is empowered to deal with the matter of contempt at any time during the progress of the litigation before the court. West v. Field, 181 Ga. 152 , 181 S.E. 661 , 1935 Ga. LEXIS 47 (1935).

Court may not modify previous decree in contempt order; however, a court may always interpret and clarify the court’s own orders. The test to determine whether an order is clarified or modified is whether the clarification is reasonable or whether the clarification is so contrary to the apparent intention of the original order as to amount to a modification. Kaufmann v. Kaufmann, 246 Ga. 266 , 271 S.E.2d 175 , 1980 Ga. LEXIS 1076 (1980).

Confinement for contempt was abuse of discretion since father demonstrated inability to pay child support. —

Despite the fact that sufficient evidence supported a civil contempt finding, the trial court erred in continuing a father’s incarceration after the father established an inability to pay the child support arrearage and the court lacked any authority to confine the father in a diversion center or to place the father in a work release program pursuant to O.C.G.A. § 15-1-4(c) . Gallaher v. Breaux, 286 Ga. App. 375 , 650 S.E.2d 313 , 2007 Ga. App. LEXIS 780 (2007).

Civil contempt for failing to pay child support and alimony. —

Supreme Court of Georgia has long held that a person is not entitled to a jury trial on the issue of ability to pay or contempt for failure to pay alimony and child support and while none of the opinions appear to address the plain meaning of O.C.G.A. § 15-1-4(b) or its similarly worded predecessor statutes, this is ultimately of no consequence as the Georgia Court of Appeals is bound by these decisions and must apply them. Bernard v. Bernard, 347 Ga. App. 429 , 819 S.E.2d 688 , 2018 Ga. App. LEXIS 535 (2018).

2.Limits Imposed by Legislature

Limits on exercise of power. —

This Code section is designed to limit courts in exercise of contempt power. Wood v. Georgia, 370 U.S. 375, 82 S. Ct. 1364 , 8 L. Ed. 2 d 569, 1962 U.S. LEXIS 846 (1962).

Power to define, classify, and punish contempt. —

All constitutional courts have the inherent power to define and punish contempt and this right was not denied or limited by this section. Jones v. State, 39 Ga. App. 1 , 145 S.E. 914 , 1928 Ga. App. LEXIS 465 (1928); Evans v. State, 69 Ga. App. 178 , 24 S.E.2d 861 , 1943 Ga. App. LEXIS 42 (1943); Vines v. State, 69 Ga. App. 175 , 24 S.E.2d 864 , 1943 Ga. App. LEXIS 41 (1943).

Power of constitutional court to define and classify contempt of court was not limited by this section. Cobb v. State, 187 Ga. 448 , 200 S.E. 796 , 1939 Ga. LEXIS 408 (1939).

Power to define may not be abridged or taken away by legislature. —

As to courts created by the Constitution, the right to define contempt cannot be abridged or taken away by legislative action. In re Fite, 11 Ga. App. 665 , 76 S.E. 397 , 1912 Ga. App. LEXIS 135 (1912).

If the court is created by the Constitution, the legislature cannot, without express constitutional authority, define what is contempt, and declare that the court shall have jurisdiction over no acts except those specified. Cobb v. State, 187 Ga. 448 , 200 S.E. 796 , 1939 Ga. LEXIS 408 (1939).

Georgia Const. 1976, Art. I, Sec. II, Para. VI (see now Ga. Const. 1983, Art. I, Sec. II, Para. IV) does not confer authority upon the legislature to define what is contempt, and to declare that the court shall have jurisdiction over no acts except those specified, because the power to punish contempt is inherent in every court of record. Wood v. State, 103 Ga. App. 305 , 119 S.E.2d 261 , 1961 Ga. App. LEXIS 932 (1961), rev'd, 370 U.S. 375, 82 S. Ct. 1364 , 8 L. Ed. 2 d 569, 1962 U.S. LEXIS 846 (1962).

Legislature has power to prescribe punishment. —

Georgia Const. 1976, Art. I, Sec. II, Para. VI (see now Ga. Const. 1983, Art. I, Sec. II, Para. IV) does not confer authority to define contempt, but only the power to prescribe the punishment after conviction. Cobb v. State, 187 Ga. 448 , 200 S.E. 796 , 1939 Ga. LEXIS 408 (1939).

Limits on power of judges to punish contempt. —

Whatever may have been the power of judges at common law to adjudge, as for a contempt of court, any person for an act done or writing published calculated to bring the court or the judge into contempt and lower the person’s authority, the power of the judges in Georgia to punish for a criminal contempt of court was limited by law as provided in this section. Townsend v. State, 54 Ga. App. 627 , 188 S.E. 560 , 1936 Ga. App. LEXIS 719 (1936).

This Code section, insofar as the statute sought to limit the jurisdiction of a constitutional court to punish contempts to certain specified acts, is not binding upon such courts; the courts may go beyond the provisions of the statute in order to preserve and enforce the court’s constitutional powers by treating as contempt acts which clearly invade the court’s powers. Cobb v. State, 187 Ga. 448 , 200 S.E. 796 , 1939 Ga. LEXIS 408 (1939); Atlanta Newspapers, Inc. v. State, 216 Ga. 399 , 116 S.E.2d 580 , 1960 Ga. LEXIS 485 (1960); Wood v. State, 103 Ga. App. 305 , 119 S.E.2d 261 , 1961 Ga. App. LEXIS 932 (1961), rev'd, 370 U.S. 375, 82 S. Ct. 1364 , 8 L. Ed. 2 d 569, 1962 U.S. LEXIS 846 (1962).

3.Inherent Powers

Power to punish contempt is inherent in every court of record. Cobb v. State, 187 Ga. 448 , 200 S.E. 796 , 1939 Ga. LEXIS 408 (1939).

Inherent power of courts should never be impaired or destroyed to such an extent that the courts cannot exercise a power necessary to the court’s proper functioning. Evans v. State, 69 Ga. App. 178 , 24 S.E.2d 861 , 1943 Ga. App. LEXIS 42 (1943).

This Code section did not restrict the inherent power of the court to punish for contempt, but criminal contempt involves some disrespectful or contumacious conduct towards the court. In re Brookins, 153 Ga. App. 82 , 264 S.E.2d 560 , 1980 Ga. App. LEXIS 1688 (1980).

Power to punish direct criminal contempt. —

Courts have inherent power to punish direct criminal contempts committed in the court’s presence summarily and without hearing, the judge being aware by use of the judge’s own senses of what has transpired. Martin v. Waters, 151 Ga. App. 149 , 259 S.E.2d 153 , 1979 Ga. App. LEXIS 2474 (1979).

Summary contempt power available although disfavored. —

Although summary punishment is always and rightly regarded with disfavor, there is no doubt that the summary contempt power is still available to courts, under appropriate circumstances, to control judicial proceedings. Farmer v. Strickland, 652 F.2d 427, 1981 U.S. App. LEXIS 10844 (5th Cir. 1981), cert. denied, 455 U.S. 944, 102 S. Ct. 1440 , 71 L. Ed. 2 d 656, 1982 U.S. LEXIS 884 (1982).

Inherent and legislative authority to punish for contempt. —

Constitutional courts of Georgia have inherent and legislative authority to punish for contempt any person in disobedience of the court’s judgments, orders, and processes. In re Boswell, 148 Ga. App. 519 , 251 S.E.2d 596 , 1978 Ga. App. LEXIS 3206 (1978).

Courts have inherent power to preserve and enforce order. —

It is fundamental that every court possesses the inherent power to preserve and enforce order and compel obedience to the court’s judgments and orders, to control the conduct of the court’s officers and all other persons connected with the judicial proceedings before the court and to inflict summary punishment for contempt upon any person failing and refusing to obey any unlawful order of such court. Farmer v. Holton, 146 Ga. App. 102 , 245 S.E.2d 457 , 1978 Ga. App. LEXIS 2179, 1978 Ga. App. LEXIS 3247 (1978), cert. denied, 440 U.S. 958, 99 S. Ct. 1499 , 59 L. Ed. 2 d 771, 1979 U.S. LEXIS 1190 (1979).

Contempt

1.In General

Removal, concealment, or destruction of documents. —

It is contempt of court to remove, conceal, or destroy, for the purpose of defeating the court’s jurisdiction, documents which are known to be the subject matter of proceedings pending before the court. Crute v. Crute, 86 Ga. App. 96 , 70 S.E.2d 727 , 1952 Ga. App. LEXIS 884 (1952).

Contempt will lie for failure to pay alimony award even though the decree contains no specific command to pay. Martin v. Martin, 244 Ga. 68 , 257 S.E.2d 903 , 1979 Ga. LEXIS 1106 (1979).

Motion which contains false accusations and filed to denigrate court. —

Motion which contains knowingly false accusations against the court and which is filed for the purpose of denigrating the court or impugning the court’s integrity must certainly be characterized as contumacious. In re McLarty, 152 Ga. App. 399 , 263 S.E.2d 194 , 1979 Ga. App. LEXIS 2940 (1979).

Contempt of grand jury. —

Whether the contempt be regarded as one of the court or of the grand jury, the result is the same since if there is a contempt of the grand jury, this is also a contempt of the court, as the grand jury is a constituent part of the court, and anyone whose conduct interferes with or has a tendency to obstruct the grand jury may be found to be in contempt. Wood v. State, 103 Ga. App. 305 , 119 S.E.2d 261 , 1961 Ga. App. LEXIS 932 (1961), rev'd, 370 U.S. 375, 82 S. Ct. 1364 , 8 L. Ed. 2 d 569, 1962 U.S. LEXIS 846 (1962).

Intimidation of witnesses. —

It is contempt of court to threaten or to endeavor to intimidate a witness in a pending action. Renfroe v. State, 104 Ga. App. 362 , 121 S.E.2d 811 , 1961 Ga. App. LEXIS 683 (1961) (for comment, see 24 Ga. B. J. 544 (1962), overruled on other grounds), In re Crane, 1985 Ga. LEXIS 524, 253 Ga. 667 , 324 S.E.2d 443 (1985).

Any interference or attempt to interfere with witnesses by means of bribery, intimidation, inducements, or other unlawful means, in order to induce the witnesses to testify falsely, or to change or modify the witnesses’ testimony, or to suppress facts, constitutes contempt, which it is the duty of the courts to guard against zealously and to punish. Renfroe v. State, 104 Ga. App. 362 , 121 S.E.2d 811 , 1961 Ga. App. LEXIS 683 (1961) (for comment, see 24 Ga. B. J. 544 (1962), overruled on other grounds), In re Crane, 1985 Ga. LEXIS 524, 253 Ga. 667 , 324 S.E.2d 443 (1985).

Procuring witness to testify in case contrary to previous testimony. —

It is contempt of court to attempt by unlawful means to procure a witness to testify in a case contrary to the witness’s previous testimony, even though the testimony so sought is the truth. Renfroe v. State, 104 Ga. App. 362 , 121 S.E.2d 811 , 1961 Ga. App. LEXIS 683 (1961) (for comment, see 24 Ga. B. J. 544 (1962), overruled on other grounds), In re Crane, 1985 Ga. LEXIS 524, 253 Ga. 667 , 324 S.E.2d 443 (1985).

Statements intended to coerce witness. —

It was contempt of court for the accused to make to the father and brother of the witness statements intending that the statements should be communicated to the witness since such statements naturally tended to coerce and were expected to coerce the witness. Herring v. State, 165 Ga. 254 , 140 S.E. 491 , 1927 Ga. LEXIS 367 (1927); Herring v. State, 37 Ga. App. 594 , 141 S.E. 89 , 1928 Ga. App. LEXIS 517 (1928).

Refusal of appointed counsel to represent defendant. —

Having invoked the judicial powers of the court in relation to a motion for new trial, an attorney appointed to represent an indigent defendant has the responsibility to resolve the issues presented thereby within the parameters of time established by the court. By utterly ignoring the scheduled date and thereafter stating categorically that the attorney would no longer represent the defendant, the attorney exposes oneself to a contempt action. Jordan v. State, 166 Ga. App. 627 , 305 S.E.2d 165 , 1983 Ga. App. LEXIS 3255 (1983).

Offering proof in jury’s absence. —

Summary punishment for contempt was authorized since counsel insisted on making a tender of proof after the jury was excused for the night and without the judge’s approval instead of waiting for the jury to begin the jury’s deliberations the next day. Heilman v. DOT, 162 Ga. App. 547 , 290 S.E.2d 189 , 1982 Ga. App. LEXIS 2238 (1982).

What contempt order regarding child support must contain. —

Words “willful refusal” and “ability to pay” are not words of art which must appear in every contempt order regarding child support. Rather, it is only necessary that the order specify sufficient facts to show that the respondent was in contempt of court. Floyd v. Floyd, 247 Ga. 551 , 277 S.E.2d 658 , 1981 Ga. LEXIS 795 (1981).

Confinement for failure to pay child support. —

When, on motion for contempt, an order is entered requiring payment of sums for child support which are past due, a person can be ordered to jail by a subsequent order, entered after a hearing finding that the prior order has been disobeyed. Floyd v. Floyd, 247 Ga. 551 , 277 S.E.2d 658 , 1981 Ga. LEXIS 795 (1981).

Suspension of sheriff not authorized punishment. —

Superior court was authorized to inflict summary punishment for contempt predicated upon the wilful failure of a sheriff, an officer of the court, to obey an oral direction by the court to transfer a defendant to a jail in another county, but was not authorized to temporarily suspend the sheriff, an elected officer, from the sheriff’s position. In re Irvin, 171 Ga. App. 794 , 321 S.E.2d 119 , 1984 Ga. App. LEXIS 2340 (1984), aff'd in part and rev'd in part, 254 Ga. 251 , 328 S.E.2d 215 , 1985 Ga. LEXIS 672 (1985).

Sheriff’s failure to obey unfiled order. —

Sheriff, as an officer of the court, could be held in contempt for failure to produce documents pursuant to a court order which, although not filed, was reduced to writing and delivered into the hands of sworn deputies for service on the sheriff. In re Smith, 211 Ga. App. 493 , 439 S.E.2d 725 , 1993 Ga. App. LEXIS 1545 (1993), cert. denied, No. S94C0546, 1994 Ga. LEXIS 527 (Ga. Feb. 18, 1994).

Protection of client’s rights no excuse. —

Once an objection has been made by an attorney and the court has made the court’s considered ruling, subsequent contumacious conduct will not be excused merely for the fact that the conduct was committed by an officer of the court during court proceedings in an attempt to protect the rights of the attorney’s client. Farmer v. Strickland, 652 F.2d 427, 1981 U.S. App. LEXIS 10844 (5th Cir. 1981), cert. denied, 455 U.S. 944, 102 S. Ct. 1440 , 71 L. Ed. 2 d 656, 1982 U.S. LEXIS 884 (1982).

Failure to answer calendar calls. —

Evidence that the attorney failed to answer two calendar calls was sufficient to support a judgment of contempt. In re Brant, 230 Ga. App. 283 , 496 S.E.2d 321 , 1998 Ga. App. LEXIS 121 (1998), cert. denied, No. S98C0752, 1998 Ga. LEXIS 549 (Ga. May 14, 1998).

Failure to pay wife car insurance proceeds. —

In a civil contempt order in a divorce case, the husband was properly ordered to pay $1,500 for each day that passed without him paying the wife insurance proceeds after he had disregarded a consent order to title a car in the wife’s name and an oral order to pay her the insurance proceeds after the car was totalled, and he could avoid the daily payments simply by paying the proceeds; furthermore, the fact that the order to pay the proceeds was oral did not mean that the order was ineffective as a matter of law. Chatfield v. Adkins-Chatfield, 282 Ga. 190 , 646 S.E.2d 247 , 2007 Ga. LEXIS 405 (2007).

Evidence sufficient for contempt. —

Evidence was clearly sufficient under the reasonable doubt standard to find the appellants in willful contempt for disobedience or resistance by an officer of the court to a lawful command of the court. In re Farmer, 212 Ga. App. 372 , 442 S.E.2d 251 , 1994 Ga. App. LEXIS 246, cert. denied, 513 U.S. 867, 115 S. Ct. 185 , 130 L. Ed. 2 d 119, 1994 U.S. LEXIS 6262 (1994).

Trial court properly held a corporation in civil contempt after the corporation ordered services from a credit bureau pursuant to a temporary restraining order (TRO), yet the corporation refused to pay for the services since the TRO did not require that the corporation order services, the corporation ordered services after the credit bureau refused to provide the corporation with the new select service, the corporation failed to meet the corporation’s burden of proof to show that the corporation was unable to pay for the services, no balance sheets or lists of assets and liabilities were presented, and there was no showing that the corporation made an effort to borrow the money or to make partial payments. Hamilton Capital Group, Inc. v. Equifax Credit Info. Servs., 266 Ga. App. 1 , 596 S.E.2d 656 , 2004 Ga. App. LEXIS 286 (2004).

Landowners were properly held in civil contempt for violating subdivision’s restrictive covenants; using one of their two lots for ingress and egress to their other lot and maintaining a road between the lots were violations of the covenants, and the trial court’s judgment provided that the landowners refrain from further covenant violations. Korowotny v. Outback Prop. Owners Ass'n, 291 Ga. App. 236 , 661 S.E.2d 857 , 2008 Ga. App. LEXIS 448 (2008).

Criminal contempt finding against an attorney and an order disallowing the attorney from seeking payment from the county for legal services to two indigent defendants under a theory of quantum meruit was upheld as the attorney failed to appear in court as commanded, provided no notice of a scheduling conflict, and failed to show that the attorney made any attempt to comply with Ga. Unif. St. Ct. R. 17.1. In re Otuonye, 279 Ga. App. 468 , 631 S.E.2d 500 , 2006 Ga. App. LEXIS 611 (2006).

Attorneys were properly held in criminal contempt under O.C.G.A. § 15-1-4(a)(3). To the extent that the attorneys believed that the trial court erred by ordering the attorneys to proceed based on an alleged conflict of interest, the attorney’s remedy was to appeal, not to disobey the trial court’s direct order. Britt v. State, 282 Ga. 746 , 653 S.E.2d 713 , 2007 Ga. LEXIS 847 (2007).

Attorney was properly found in direct criminal contempt under O.C.G.A. § 15-1-4 for failure to appear at trial because while the attorney claimed that the attorney did not receive seven days’ notice of the trial date under Ga. Unif. Super. Ct. R. 32.1, the attorney’s remedy was to seek a continuance as the attorney had received the trial court’s directive to appear by fax and telephone call. In re Beckstrom, 295 Ga. App. 179 , 671 S.E.2d 215 , 2008 Ga. App. LEXIS 1256 (2008), cert. denied, No. S09C0614, 2009 Ga. LEXIS 104 (Ga. Mar. 9, 2009).

Summary contempt finding improper against attorney. —

Juvenile court erred by summarily holding an attorney in contempt based on a per se rule. The juvenile court determined that a per se rule existed that an attorney was in contempt when the attorney claimed ineffectiveness against themselves, but no such per se rule existed and, therefore, it was error to have adjudicated the attorney in contempt. Morris v. State, 295 Ga. App. 579 , 672 S.E.2d 531 , 2009 Ga. App. LEXIS 41 (2009).

Order holding an attorney in contempt pursuant to O.C.G.A. § 15-11-5 and otherwise was improper because, inter alia, the trial court immediately imposed punishment and did not provide the attorney the opportunity to speak in the attorney’s own behalf, the attorney was not put on notice that a continuation of the offending conduct would have constituted contempt, it was highly unlikely that the attorney’s allegedly offending conduct should have had any impact on the deliberations of the factfinder, a juvenile judge, and the trial court acted without warning and had obviously lost the court’s patience with the attorney and the attorney’s client and imposed sanctions for contempt when other actions might have achieved the same result without the disruption to the case that these contempt citations had caused. In re Hughes, 299 Ga. App. 66 , 681 S.E.2d 745 , 2009 Ga. App. LEXIS 842 (2009).

2.Civil and Criminal Contempt

Civil and criminal contempt compared. —

Contempt may be civil or criminal; in the former, the proceeding in attachment is to enforce compliance with an order of court made for the protection of some right of the complaining party, while in criminal contempt, the proceeding is to punish the offender for disrespect to or contumacious conduct towards the court. Wagner v. Commercial Printers, Inc., 203 Ga. 1 , 45 S.E.2d 205 , 1947 Ga. LEXIS 552 (1947).

Contempt of court may be either civil or criminal, and criminal contempt, either direct or indirect. A direct criminal contempt relates to contumacious conduct, whether by word or deed, committed in the actual presence of the court. An indirect, or constructive contempt, consists of contumacious conduct outside the presence of the court which amounts to an obstruction of the administration of justice. Clark v. State, 90 Ga. App. 330 , 83 S.E.2d 45 , 1954 Ga. App. LEXIS 703 (1954).

Basis for contempt action. —

Basis for contempt action is “willful” refusal to comply with judgment or order of court. Griggers v. Bryant, 239 Ga. 244 , 236 S.E.2d 599 , 1977 Ga. LEXIS 874 (1977).

Attachment for contempt is either civil or criminal, or both; in the former, the attachment, being remedial, is merely to compel obedience to an order requiring the payment of money, or to do some act for the benefit of a party litigant, and when the party ordered fails to comply, not out of disrespect to the court, but for other causes within or outside the party’s control. Evans v. White, 178 Ga. 262 , 172 S.E. 913 , 1934 Ga. LEXIS 27 (1934).

“Criminal contempt” defined. —

“Criminal contempt” is that which involves some disrespectful or contumacious conduct toward the court. It involves action by the court to compel respect thereto, to vindicate the court’s authority, and to enforce the lawful processes and actions of the court. It is direct and punishable summarily without notice and opportunity to be heard if committed in the presence of the court, and is exempt from those due process requirements. Farmer v. Holton, 146 Ga. App. 102 , 245 S.E.2d 457 , 1978 Ga. App. LEXIS 2179, 1978 Ga. App. LEXIS 3247 (1978), cert. denied, 440 U.S. 958, 99 S. Ct. 1499 , 59 L. Ed. 2 d 771, 1979 U.S. LEXIS 1190 (1979).

“Direct criminal contempt” defined. —

“Direct criminal” contempt is one involving misbehavior in presence of court or so near thereto as to obstruct the administration of justice. Martin v. Waters, 151 Ga. App. 149 , 259 S.E.2d 153 , 1979 Ga. App. LEXIS 2474 (1979); In re Jones, 198 Ga. App. 228 , 401 S.E.2d 278 , 1990 Ga. App. LEXIS 1599 (1990).

“Criminal contempt” with unconditional imprisonment. —

“Criminal contempt” with unconditional imprisonment may be used to preserve the court’s authority and to punish disobedience of the court’s orders. Hopkins v. Hopkins, 244 Ga. 66 , 257 S.E.2d 900 , 1979 Ga. LEXIS 1105 (1979).

“Civil contempt” defined. —

“Civil contempt” is conditional punishment which coerces contemnor to comply with court order. Hopkins v. Hopkins, 244 Ga. 66 , 257 S.E.2d 900 , 1979 Ga. LEXIS 1105 (1979).

Civil contempt for failing to pay child support and alimony. —

Trial court’s orders finding an ex-husband in civil contempt for failing to pay his ex-wife child support and alimony and incarcerating him until he purged the contempt were affirmed because the evidence established he was willfully failing or refusing to pay as he was living a comfortable life, drew a significant salary per month, had cash accounts with thousands of dollars in them, and no evidence of debt or borrowing money was presented. Bernard v. Bernard, 347 Ga. App. 429 , 819 S.E.2d 688 , 2018 Ga. App. LEXIS 535 (2018).

Proceedings originating as “civil contempt” may require “criminal contempt” treatment. —

Court may find that a contempt proceeding originated and pursued by a party seeking “civil contempt” should be treated as one for “criminal contempt.” Schiselman v. Trust Co. Bank, 246 Ga. 274 , 271 S.E.2d 183 , 1980 Ga. LEXIS 1078 (1980).

No right to counsel in direct criminal contempt case against court officer. —

Trial court had the power to inflict summary punishment on the contemnor as the contemnor was, as required by statute, an officer of the court (an attorney) who committed misbehavior in representing a client in the courtroom as the contemnor refused to proceed with the client’s defense once the trial court denied the contemnor’s request for continuance; also, the trial court did not violate the contemnor’s rights as the contemnor did not have a right to a hearing or a right to counsel in the contemnor’s direct criminal contempt case. In re Willis, 259 Ga. App. 5 , 576 S.E.2d 22 , 2002 Ga. App. LEXIS 1607 (2002).

Authority to enforce child support. —

Given the court’s continuing, exclusive jurisdiction, a trial court possessed authority to enforce the child support provisions of a divorce decree prospectively and as to past violations. In exercising that authority, the trial court, as a matter of Georgia law, was able to impose contempt sanctions for willful violations of the court’s decree. Baars v. Freeman, 288 Ga. 835 , 708 S.E.2d 273 , 2011 Ga. LEXIS 246 (2011).

Contempt power in divorce action. —

Trial court erred in holding that the court lacked subject matter jurisdiction to hold the daughter in contempt of the divorce decree under O.C.G.A. § 15-1-4(a)(3) because the daughter, acting as the ex-husband’s power of attorney, had full knowledge of the order requiring the payment of the retirement benefits and aided in the non-payment of the funds in violation of the divorce decree and settlement agreement. Sullivan v. Bunnell, 340 Ga. App. 283 , 797 S.E.2d 499 , 2017 Ga. App. LEXIS 58 (2017), cert. denied, No. S17C1260, 2017 Ga. LEXIS 655 (Ga. Aug. 14, 2017).

Evidence of criminal contempt sufficient. —

Evidence that the defendant directed loud, threatening comments toward several of the state’s witnesses, engaging in behavior that created a clear and present danger to the orderly administration of justice was sufficient to support the trial court’s finding that the defendant was guilty of criminal contempt. Moton v. State, 332 Ga. App. 300 , 772 S.E.2d 393 , 2015 Ga. App. LEXIS 289 (2015).

Evidence was sufficient to support the trial court’s finding of criminal contempt because the attorney voluntarily signed three petitions for scire facias without ensuring that the proper case number had been assigned to them; the attorney’s actions were not merely negligent as the actions were in derogation of the attorney’s responsibilities and duties as an officer of the court; although the attorney took some steps to remedy the discrepancy, the attorney did not follow through and personally ensure that the proper case number was utilized before filing the fourth petition; and the attorney did not do everything the attorney could have to ensure compliance with the trial court’s orders not to file a fourth identical petition. In re Dillon, 344 Ga. App. 200 , 808 S.E.2d 436 , 2017 Ga. App. LEXIS 579 (2017), cert. denied, No. S18C0718, 2018 Ga. LEXIS 517 (Ga. Aug. 2, 2018).

No waiver of counsel shown in contempt proceeding. —

Trial court judgment finding the defendant, an attorney, in criminal contempt was reversed because there was no evidence that the attorney waived the right to counsel. In re Thompson, 339 Ga. App. 106 , 793 S.E.2d 462 , 2016 Ga. App. LEXIS 588 (2016), cert. dismissed, No. S17C0587, 2017 Ga. LEXIS 415 (Ga. May 15, 2017), cert. denied, No. S17C0587, 2017 Ga. LEXIS 465 (Ga. May 30, 2017).

No right to jury trial for contempt in paying support. —

Ex-husband was not entitled to a jury trial because the Supreme Court of Georgia has long held that a person is not entitled to a jury trial on the issue of ability to pay or contempt for failure to pay alimony and child support. Bernard v. Bernard, 347 Ga. App. 429 , 819 S.E.2d 688 , 2018 Ga. App. LEXIS 535 (2018).

3.Acts Not Constituting Contempt

No contempt if court order violated not directed at person. —

Person cannot be held in contempt when court order violated was not directed at that person or there was no active interference with the performance of the court order. Yarbrough v. First Nat'l Bank, 143 Ga. App. 399 , 238 S.E.2d 758 , 1977 Ga. App. LEXIS 2339 (1977).

Absence of judgment on jury verdict. —

While the failure to comply with a judgment of court ordering one to pay alimony as found by a jury is punishable as a contempt, if, in the trial of a divorce action, before the jury’s verdict is made the judgment of the court, the defendant, in whose favor a verdict for alimony has been returned, moves for a mistrial which is granted, the plaintiff cannot subsequently be held in contempt of court for failure to pay alimony as found by the jury since no judgment was ever entered upon the verdict. Harris v. Harris, 213 Ga. 751 , 101 S.E.2d 706 , 1958 Ga. LEXIS 270 (1958).

Failure to pay money judgment. —

If a court of equity should render a simple decree for money on a simple money verdict, the failure to pay the decree would not be contempt, nor could compulsory process against the person of the party in default be resorted to in order to enforce payment. London v. London, 149 Ga. App. 805 , 256 S.E.2d 33 , 1979 Ga. App. LEXIS 2040 (1979).

Refusal or failure to pay money judgments is in no sense a contempt of court and imprisonment for such failure would be imprisonment for debt pure and simple. London v. London, 149 Ga. App. 805 , 256 S.E.2d 33 , 1979 Ga. App. LEXIS 2040 (1979).

Agreement with court by one not party to pending cause. —

Mere informal and voluntary agreement which is entered into with the court by one who is not a party to a cause pending before the court and in which there is no express command or prohibition of court directed to such volunteer may not constitute the basis for contempt proceedings predicated upon the failure of the volunteer to honor the agreement. In re Norris, 154 Ga. App. 173 , 267 S.E.2d 788 , 1980 Ga. App. LEXIS 2080 (1980).

Remarks by nonparty to separation agreement that allegedly violate the agreement. —

It was error to hold a mother’s friend in criminal contempt of a separation agreement on the ground that the friend had made disparaging remarks to a child about the child’s father. The alleged comments did not occur in the trial court’s presence, but were repeated by the child in an in camera conference, so there was no direct contempt; furthermore, there was no constructive contempt because the friend was not a party to the separation agreement and was not shown to have had notice of the provision the friend allegedly violated; moreover, the friend had not received due process in that the friend had no notice of the allegations and was not given the opportunity to defend against the allegations or even to respond to the allegations. In re Harris, 289 Ga. App. 334 , 657 S.E.2d 259 , 2008 Ga. App. LEXIS 78 (2008).

Failure to obey order of court without jurisdiction not contempt. —

While an unsuperseded order within the jurisdiction of a court must be obeyed, even though erroneous, and disobedience thereof is a contempt of court, yet if the court is without jurisdiction the order is a nullity, and a failure to obey the order is not a contempt. Campbell v. Gormley, 185 Ga. 65 , 194 S.E. 177 , 1937 Ga. LEXIS 680 (1937).

Failing and refusing to appear in accordance with bond. —

If one indicted for a bailable offense has been arrested and has given bond for one’s appearance and fails to appear, one can be rearrested on a new warrant, but there is no law in this state authorizing one’s punishment for contempt of court for failing and refusing to appear in accordance with the terms of the bond. Paseur v. State, 152 Ga. App. 599 , 263 S.E.2d 500 , 1979 Ga. App. LEXIS 3058 (1979).

Publication in newspaper about pending case. —

Because the United States Supreme Court opinion construed language, “or so near thereto as to obstruct the administration of justice,” in a federal statute similar to language in this section so as to refer only to geographical nearness and not to an act committed away from the courthouse, the Georgia Court of Appeals was constrained to hold that a publication made in a newspaper about a pending case cannot be contempt of court so as to be summarily punishable. Atlanta Newspapers, Inc. v. State, 101 Ga. App. 105 , 113 S.E.2d 148 , 1960 Ga. App. LEXIS 805 (1960) (for comment, see 12 Mercer L. Rev. 284 (1960)).

Null decree. —

Remarriage of the parties to original divorce decree nullified that decree and restored the parental rights of the parties to the same extent as if no divorce had been granted; consequently, the defendant could not be held in contempt for failing to comply with that decree. Warren v. Warren, 213 Ga. 81 , 97 S.E.2d 349 , 1957 Ga. LEXIS 307 (1957).

No contempt when once enjoined act now permitted. —

If the basis for an injunction no longer exists because the authority to do that which was prohibited is subsequently granted, an action for contempt will not lie. Partain v. City of Royston, 248 Ga. 420 , 284 S.E.2d 15 , 1981 Ga. LEXIS 1045 (1981).

Refusal to obey unreasonable visitation order. —

Mother would not be held in contempt of court for denying father court-ordered child visitation rights since the order was unreasonable in that the father had been indicted for molesting the child, the child was to be a witness against the father, and the child became physically ill when told about the impending visit. Beckham v. O'Brien, 176 Ga. App. 518 , 336 S.E.2d 375 , 1985 Ga. App. LEXIS 2888 (1985).

Late arrival of district attorney for court appearance. —

A 15-minute delay in county solicitor’s (now district attorney) arrival for a court appearance while the solicitor was conducting business of the State Court of Coffee County, Georgia, did not constitute a sufficient predicate from which any rational trier of fact would find the essential elements of the criminal contempt charge against the solicitor without reasonable doubt. In re Hayes, 185 Ga. App. 818 , 366 S.E.2d 204 , 1988 Ga. App. LEXIS 50 (1988).

Evidence of contempt not sufficient. —

Children of the fiduciary’s incompetent ward failed to show that the fiduciary was in contempt of a settlement agreement since the fiduciary, who was the ward’s second wife, failed to turn over the family heirloom silver to the children, but the agreement only required that the fiduciary do so “to the extent such heirlooms can be located,” and the children failed to carry the children’s burden of proof that the fiduciary had the silver and would not or could not turn the silver over to the children. Head v. Head, 234 Ga. App. 469 , 507 S.E.2d 214 , 1998 Ga. App. LEXIS 1271 (1998).

Order regarding custody of a child directed to natural mother, not to prospective parent and counsel. —

Trial court erred in holding a prospective adopter and the adopter’s attorney in criminal contempt for purportedly willfully violating an order regarding the custody of the minor child at issue as the trial court’s order regarding custody of the child was directed to the obligations of the natural mother only and no willful disobedience of the order was shown by the adopter and the attorney filing for a change of custody in another county to which the adopter had moved. In re Hadaway, 290 Ga. App. 453 , 659 S.E.2d 863 , 2008 Ga. App. LEXIS 345 (2008).

4.Contempt and Free Speech

No protection for contempt of court. —

Constitutional right of freedom of speech or of press was not intended as refuge for the contemner or slanderer or libelor. Contempt of court, slander, and libel constitute abuses of the privilege for the commission of which the offenders are justly and lawfully punishable. In re Fite, 11 Ga. App. 665 , 76 S.E. 397 , 1912 Ga. App. LEXIS 135 (1912).

Constitutional guaranties do not bar punishment for contempt. —

Due process, freedom of speech, and equal protection clauses of the Constitution of the United States do not bar punishment for contempt of court. Wood v. State, 103 Ga. App. 305 , 119 S.E.2d 261 , 1961 Ga. App. LEXIS 932 (1961), rev'd, 370 U.S. 375, 82 S. Ct. 1364 , 8 L. Ed. 2 d 569, 1962 U.S. LEXIS 846 (1962).

No protection under free speech for certain acts. —

If an order of court forbidding the use of threats, violence, and intimidation for the purpose of preventing others from engaging in employment during a labor strike is violated, the violator can find no protection under the constitutional guaranty of free speech. Lassiter v. Swift & Co., 204 Ga. 561 , 50 S.E.2d 359 , 1948 Ga. LEXIS 484 (1948).

Contempt of court is abuse of liberty of free speech. —

Punishment for contempt of court is not prevented by the constitutional guaranty of freedom of speech since contempt of court is an abuse of the liberty of speech. Wood v. State, 103 Ga. App. 305 , 119 S.E.2d 261 , 1961 Ga. App. LEXIS 932 (1961), rev'd, 370 U.S. 375, 82 S. Ct. 1364 , 8 L. Ed. 2 d 569, 1962 U.S. LEXIS 846 (1962).

Contempt not to be used to expose errors in judgment. —

Errors in judgment or unsubstantiated opinions may be exposed, but not through punishment for contempt for expression. Under our system of government, counterargument and education are the weapons available to expose these matters, not abridgment of the rights of free speech and assembly. Wood v. Georgia, 370 U.S. 375, 82 S. Ct. 1364 , 8 L. Ed. 2 d 569, 1962 U.S. LEXIS 846 (1962).

Procedure

1.In General

Divorce and alimony proceedings. —

Contempt applications must be filed in county where divorce and alimony decree was entered, and this is so regardless of the fact that the respondent (the alleged contemnor) may not be a resident of that county, either having moved therefrom after the decree was entered or perhaps having never resided there. Austin v. Austin, 245 Ga. 487 , 265 S.E.2d 788 , 1980 Ga. LEXIS 828 (1980).

Rulings on motions to dismiss. —

Contempt of court cannot be properly punished by rulings upon demurrers (now motions to dismiss) to the petition. Atlantic Ref. Co. v. Farrar, 171 Ga. 371 , 155 S.E. 327 , 1930 Ga. LEXIS 358 (1930).

Whether undisputed conduct amounts to contempt is question of law. —

It is a question of law for the court to decide whether the courtroom conduct which is factually undisputed amounts to criminal contempt of court. Farmer v. Strickland, 652 F.2d 427, 1981 U.S. App. LEXIS 10844 (5th Cir. 1981), cert. denied, 455 U.S. 944, 102 S. Ct. 1440 , 71 L. Ed. 2 d 656, 1982 U.S. LEXIS 884 (1982).

Knowledge of restraining order. —

An order restraining the defendant from indorsing and cashing a check fairly comprehended disposition of the proceeds in the event of the collection of the funds by the defendant; and if the defendant, having cashed the check and received the proceeds before being served and informed of the restraining order, disposed of such proceeds after knowledge of the restraining order, the court did not err in adjudging the defendant in contempt for so doing. Reid v. McRae, 190 Ga. 323 , 9 S.E.2d 176 , 1940 Ga. LEXIS 457 (1940).

Violator may be held in contempt until court order set aside. —

Until a court order concerning a divorce settlement is set aside for whatever reason, the party protesting the order can be held in contempt for violating the order’s provisions. Paisley v. Huddlestun, 244 Ga. 418 , 260 S.E.2d 478 , 1979 Ga. LEXIS 1259 (1979).

O.C.G.A. § 9-11-6(d) has no application to citation for contempt. —

Ga. L. 1967, p. 226, §§ 5 and 6 (see now O.C.G.A. § 9-11-6(d) ) applied to written motions in a pending case and had no application to a citation for contempt which was an independent proceeding authorized under former Code 1933, § 24-105 (see now O.C.G.A. § 15-1-4 ). Gibson v. Gibson, 234 Ga. 528 , 216 S.E.2d 824 , 1975 Ga. LEXIS 1178 (1975).

When court should call upon fellow judge to adjudicate contempt charges. —

In a criminal contempt proceeding in which the trial judge has been called upon to rule on an attack on the judge’s own impartiality and when marked personal feelings are manifested on both sides, the court should call upon one of the trial judge’s fellow judges to adjudicate the contempt charges. In re McLarty, 152 Ga. App. 399 , 263 S.E.2d 194 , 1979 Ga. App. LEXIS 2940 (1979).

Substitute judge may be preferable to handle contempt after trial. —

If a judge does not act the instant the contempt is committed, but waits until the end of the trial, on balance, it is generally wise if the marks of the unseemly conduct have left personal stings to ask a fellow judge to take the judge’s place. Spruell v. State, 148 Ga. App. 99 , 250 S.E.2d 807 , 1978 Ga. App. LEXIS 3032 (1978).

Summary punishment for contempt may be delayed until after trial. —

While the trial judge, upon the occurrence in the judge’s presence of contempt, may immediately and summarily punish the contempt, summary punishment may be delayed until after trial if the trial judge believes that the exigencies of the trial require such action. Spruell v. State, 148 Ga. App. 99 , 250 S.E.2d 807 , 1978 Ga. App. LEXIS 3032 (1978).

Award of custody of minor child to plaintiff was erroneous in proceeding for contempt as the question of custody of a child was not before the court. Warren v. Warren, 213 Ga. 81 , 97 S.E.2d 349 , 1957 Ga. LEXIS 307 (1957).

Contempt punishment cannot be mingled with judgment in proceeding to obtain damages and injunction. —

Court can apply the proper punishment for any contempt that exists, but that cannot be mingled with a judgment in a proceeding to obtain damages and injunction ad interim. Atlantic Ref. Co. v. Farrar, 171 Ga. 371 , 155 S.E. 327 , 1930 Ga. LEXIS 358 (1930).

No appeal absent final judgment. —

If the trial court issues an order finding the appellant in contempt of court but does not impose punishment, no final judgment has been entered and the case is still pending in the court below and an appeals court cannot review the lower court’s decision. In re Crudup, 149 Ga. App. 214 , 253 S.E.2d 802 , 1979 Ga. App. LEXIS 1789 (1979), overruled in part, Hamilton Capital Group, Inc. v. Equifax Credit Info. Servs., 266 Ga. App. 1 , 596 S.E.2d 656 , 2004 Ga. App. LEXIS 286 (2004).

Compelling disclosure of attorney’s knowledge as to client. —

Though, as a general rule, all communications on the part of the client to an attorney are privileged, and therefore the attorney cannot be compelled to disclose the communications, still, in a civil proceeding, if there is evidence sufficient to authorize the court to adjudge that the attorney knows the identity and residence of the client, and the injury is restricted to that question alone, the attorney may be compelled to disclose the attorney’s knowledge as to the residence of the client in order that the client may be served with a copy of the petition and process since otherwise the rights of the petitioner, if any, would be denied. West v. Field, 181 Ga. 152 , 181 S.E. 661 , 1935 Ga. LEXIS 47 (1935).

Right to rule attorney is limited to client. —

Provision of law for a summary rule against an attorney at law is penal in its nature and must be strictly construed; consequently, the right to rule an attorney for money alleged to be in the attorney’s hands as such attorney depends on the existence of the relation of attorney and client and is limited to the client. Blanch v. Roberson, 69 Ga. App. 423 , 25 S.E.2d 720 , 1943 Ga. App. LEXIS 102 (1943).

Right to rule an attorney at law and compel the attorney to pay over money which the attorney has collected is limited to the client. It follows that if, as the result of a lawsuit instituted by an attorney for the client, money has come into the hands of the attorney, the defendant in that suit who claims title to the money, but who is not the client of the attorney, cannot enforce the client’s claim by rule against the attorney. Blanch v. Roberson, 69 Ga. App. 423 , 25 S.E.2d 720 , 1943 Ga. App. LEXIS 102 (1943).

2.Procedural Issues

A.Proof

Burden and standard of proof. —

Under the law, the burden is on the moving party to show the facts necessary to establish contempt. This burden must be carried by clear and convincing evidence. While proof beyond a reasonable doubt is not required, the authorities sometimes say that more than preponderance of proof is required. FTC v. Blaine, 308 F. Supp. 932, 1970 U.S. Dist. LEXIS 13162 (N.D. Ga. 1970).

Burden of establishing the fact of contempt is on the party asserting contempt. Martin v. Waters, 151 Ga. App. 149 , 259 S.E.2d 153 , 1979 Ga. App. LEXIS 2474 (1979).

Charge imposed additional burden on plaintiffs. —

Only burden resting on the plaintiffs was to prove that the defendants disobeyed the injunction in the manner alleged in the petition. If the charge imposed upon the plaintiffs the additional burden of establishing the right to have the plant closed, this was an additional burden of proof impossible to carry, for as this court has pointed out, under the law of contempt, such relief was not available in the proceedings to have the defendants cited for disobedience of an injunction granted in a case when no money or other property was sued for. A charge imposing a heavier or different burden than that required by the law of the case is hurtful error and requires the granting of a new trial. Bennett v. Bagwell & Stewart, Inc., 216 Ga. 290 , 116 S.E.2d 288 , 1960 Ga. LEXIS 450 (1960).

Burden of proof in civil contempt case. —

Defendant was charged with civil contempt in that the act complained of was one in violation of an injunctive order which was issued to protect the right of the employer to be free from violence towards the employer’s property or the employer’s employees and those persons seeking to work for the employer, either upon the employer’s property or at any place; being a civil case a preponderance of the evidence would be sufficient to authorize a verdict against the defendant. Wagner v. Commercial Printers, Inc., 203 Ga. 1 , 45 S.E.2d 205 , 1947 Ga. LEXIS 552 (1947).

Order recited facts which warranted contempt finding. —

If the order holding the defendant in contempt recited that the conduct found to be contumacious occurred in open court and in the presence of the court and that the contemnee willfully refused to obey the court’s orders and repeatedly attempted to argue after having been fully heard, and after the opinion of the court had been pronounced, and that the conduct of defendant was intended by the defendant to be contemptuous of the court and that the conduct interfered with the lawful administration of justice, the order recited facts which warranted the trial judge in holding the defendant in contempt of court. Boatright v. State, 106 Ga. App. 801 , 128 S.E.2d 559 , 1962 Ga. App. LEXIS 859 (1962).

Evidence that individuals had actual knowledge of court order necessary for finding of contempt. —

To sustain a judgment holding individuals who were not parties to main suit and were not named in court order forbidding the use of threats, violence, and intimidation in labor dispute in contempt, the evidence must show that those individuals acted after having actual knowledge of the court’s order. Lassiter v. Swift & Co., 204 Ga. 561 , 50 S.E.2d 359 , 1948 Ga. LEXIS 484 (1948).

Sufficient evidence to establish contempt if defendant’s purpose to influence juror. —

Evidence authorized a finding that the defendant was guilty of contempt in that there was a deliberate purpose or calculation to improperly influence a juror designate (one who had been drawn as a juror), and that that purpose or calculation was accompanied by a definite act or declaration on the part of the contemnor in an effort to carry that purpose of calculation into effect; the failure of the undertaking was immaterial except as to the punishment to be inflicted. Summers v. State ex rel. Boykin, 66 Ga. App. 648 , 19 S.E.2d 28 , 1942 Ga. App. LEXIS 260 (1942).

Violation of decree presumed deliberate. —

Without evidence to show otherwise, it is assumed that a person violates a decree deliberately. Sanborn v. Sanborn, 224 Ga. 792 , 164 S.E.2d 563 , 1968 Ga. LEXIS 951 (1968).

Contempt committed in judge’s presence. —

If the contumacious conduct is committed in the presence of the court in the immediate view of the judge, it is unnecessary for the court to apply any evidentiary standard of proof in order to summarily hold the contemnor in contempt of court. Farmer v. Strickland, 652 F.2d 427, 1981 U.S. App. LEXIS 10844 (5th Cir. 1981), cert. denied, 455 U.S. 944, 102 S. Ct. 1440 , 71 L. Ed. 2 d 656, 1982 U.S. LEXIS 884 (1982).

When the contempt occurs totally in the presence of the judge, there is no necessity for the production of evidence. Indeed, there is no burden of persuading the trier of fact as there is no fact-finding process to be conducted. Farmer v. Strickland, 652 F.2d 427, 1981 U.S. App. LEXIS 10844 (5th Cir. 1981), cert. denied, 455 U.S. 944, 102 S. Ct. 1440 , 71 L. Ed. 2 d 656, 1982 U.S. LEXIS 884 (1982).

Elements of proof in child support cases. —

Both a parent’s ability to pay child support and a parent’s willful refusal to do so are essential to finding the parent in contempt for failure to pay such support in accordance with a court order. Floyd v. Floyd, 247 Ga. 551 , 277 S.E.2d 658 , 1981 Ga. LEXIS 795 (1981).

B.Defenses

Defenses to both civil and criminal contempt are that the order was not sufficiently definite and certain, was not violated, or that the violation was not willful (e.g., inability to pay or comply). Schiselman v. Trust Co. Bank, 246 Ga. 274 , 271 S.E.2d 183 , 1980 Ga. LEXIS 1078 (1980).

Inability to comply with order. —

Ordinarily, one charged with contempt of court for failure to comply with a court order makes a complete defense by proving that one is unable to comply. A court will not imprison a witness for failure to produce documents which one does not have unless one is responsible for the document’s unavailability, or is impeding justice by not explaining what happened to the documents. FTC v. Blaine, 308 F. Supp. 932, 1970 U.S. Dist. LEXIS 13162 (N.D. Ga. 1970).

Thing ordered done must be within power against whom order directed. —

It is essential to constitute contempt that thing ordered to be done be within power of person against whom order is directed. In re Brookins, 153 Ga. App. 82 , 264 S.E.2d 560 , 1980 Ga. App. LEXIS 1688 (1980).

Court’s sentence in defendant’s absence is void. —

Sentence of court, imposed upon defendant in defendant’s absence, is absolutely void, and cannot be enforced against the defendant. Martin v. Waters, 151 Ga. App. 149 , 259 S.E.2d 153 , 1979 Ga. App. LEXIS 2474 (1979).

C.Enforcement of Orders

Tardiness or failure of party or witness to appear. —

If a witness or litigant who has been ordered to appear at a given time is tardy in arrival, or does not make an appearance as ordered, the question arises whether the delay or nonappearance was a willful and contumacious flaunting of the appearance ordered by the rule nisi, whether it was accidental, or whether it was due to some unavoidable cause; the normal procedure when a party or witness who has been ordered to appear does not do so is to arrest a party or witness under a bench warrant at which time the cause of the delay can be inquired. Martin v. Waters, 151 Ga. App. 149 , 259 S.E.2d 153 , 1979 Ga. App. LEXIS 2474 (1979).

Procedure when person failed to respond to rule nisi. —

Proper course to pursue is to issue an attachment for the person who has failed to respond to the rule nisi for contempt, have the person arrested and brought into court, and to deal with the person in the manner provided by law. Martin v. Waters, 151 Ga. App. 149 , 259 S.E.2d 153 , 1979 Ga. App. LEXIS 2474 (1979).

Court retains jurisdiction to enforce payment of alimony by attachment for contempt. —

Superior court awarding alimony by virtue of the court’s jurisdiction originally invoked by plaintiff in a divorce suit had jurisdiction to enforce payment by attachment for contempt against plaintiff after plaintiff changed plaintiff’s residence to another county. Curtright v. Curtright, 187 Ga. 122 , 200 S.E. 711 , 1938 Ga. LEXIS 801 (1938).

Enforcement of alimony judgment through contempt for nonpayment. —

Valid judgment for alimony may be enforced by attachment for contempt for nonpayment not arising from lack of ability to pay since the judgment goes further and expressly commands the payment of support which is a duty in which society has a substantial interest. Wilson v. Chumney, 214 Ga. 120 , 103 S.E.2d 552 , 1958 Ga. LEXIS 345 (1958).

Attachment of county court judge by superior court. —

When a person has been tried and convicted in the county court, and has petitioned the judge of the superior court for a writ of certiorari, and the petition is sanctioned, and the writ issued, and the judge of the county court refuses to answer as required by the writ, the judge of the superior court, in term time, has power to attach the county court judge for contempt. Pittman v. Hagans, 91 Ga. 107 , 16 S.E. 659 , 1892 Ga. LEXIS 521 (1892).

Appropriation of funds by receiver. —

If a receiver has been directed by the court to deposit a fund arising from the sale of the property of the debtor in banks, subject to be withdrawn only on the debtor’s check when the check has been countersigned by the judge presiding in the court which appointed the receiver, and in violation of the receiver’s duty, and in disregard of the order of the court, the receiver obtains such fund from the banks on checks not countersigned, and appropriates the checks to the receiver’s own use, then, regardless of the question whether or not the bank is liable for such wrongful payment, such receiver is in direct contempt of the court, whose officer the judge is. The receiver may be attached and punished for contempt in disregarding the orders of the court, and also for a failure or refusal, when so ordered, to pay into court the fund so misappropriated. Evans v. White, 178 Ga. 262 , 172 S.E. 913 , 1934 Ga. LEXIS 27 (1934).

Failure to recognize custody of receiver. —

If a receiver is appointed for goods which are stored in a warehouse, such goods are in the possession of the receiver, and the custody of the property by the receiver of the court is the custody of the court, and a failure of the warehouseman to recognize such possession by the receiver and by the court would subject the warehouseman to attachment for contempt. United Bonded Whse., Inc. v. Jackson, 208 Ga. 552 , 67 S.E.2d 761 , 1951 Ga. LEXIS 429 (1951).

Refusal to comply with order. —

If a judgment is passed in a habeas corpus case, awarding the custody of a minor child to the child’s grandparents, and requiring the grandparents to surrender the child to the child’s father at stated intervals upon the father’s application therefor, and the grandparents refuse to comply with this provision in the order, the grandparents may be attached and punished for contempt. Crawford v. Manning, 12 Ga. App. 54 , 76 S.E. 771 , 1912 Ga. App. LEXIS 21 (1912).

Acts of attorneys which do not constitute misbehavior as officer of court. —

While attorneys as officers of the court are under a duty to maintain the integrity and dignity of the court and respect for the court’s authority, for acts committed outside the presence of the court which do not constitute misbehavior as an officer of the court in an official transaction or disobedience or resistance of any lawful writ, etc., of the court, attorneys are no more amenable to attachment and summary punishment for contempt of court than are other persons. Townsend v. State, 54 Ga. App. 627 , 188 S.E. 560 , 1936 Ga. App. LEXIS 719 (1936).

Misbehavior of attorney as officer of court may properly be punished by attachment for contempt. West v. Field, 181 Ga. 152 , 181 S.E. 661 , 1935 Ga. LEXIS 47 (1935).

Enforcement of order against representative of party. —

Since a court has the authority to hold any witness in contempt for failing or refusing to appear and testify on a relevant matter, a fortiori the power lies to enforce the court’s order as to a matter in furtherance of the jurisdiction of the court to one representing oneself to be counsel for a party before the court. In re Boswell, 148 Ga. App. 519 , 251 S.E.2d 596 , 1978 Ga. App. LEXIS 3206 (1978).

3.Due Process

Contemnor entitled to due process requirements. —

Due process demands that the contemnor be cited, given notice, and allowed an opportunity to defend or excuse oneself. Moody v. State, 131 Ga. App. 355 , 206 S.E.2d 79 , 1974 Ga. App. LEXIS 1421 (1974).

Opportunity to be heard. —

If a criminal contempt act is not in the court’s immediate presence, due process requires that the accused be given an opportunity to be heard. Martin v. Waters, 151 Ga. App. 149 , 259 S.E.2d 153 , 1979 Ga. App. LEXIS 2474 (1979).

Written notice of alleged indirect contempt. —

Requirement of reasonable notice in a case involving an alleged indirect contempt is not satisfied by a showing that the accused was present in court at the time of trial and adjudication and had actual notice then and there of what was going on, but rather contemplates and necessitates a written notice fairly and fully informing the accused of the specific acts of contempt with which the accused is charged, and so given as to afford a reasonable time to make a defense. Crocker v. Crocker, 132 Ga. App. 587 , 208 S.E.2d 602 , 1974 Ga. App. LEXIS 1751 (1974).

Respondent entitled to notice of allegations of contempt. —

Respondent in a citation for contempt is entitled to be apprised of the acts which respondent is charged with committing in violation of the injunctive order so that the respondent may be prepared to defend against such allegations on the hearing. Hortman v. Georgia Bd. of Dental Exmrs., 214 Ga. 560 , 105 S.E.2d 732 , 1958 Ga. LEXIS 491 (1958).

Moving party’s pleadings put contemnor on notice that proceeding is civil and criminal. —

If a person is on notice that the person is being tried for contempt and the movant seeks “such other sanctions as is appropriate to ensure the enforcement and the observance” of the court’s order or seeks “such other relief as may be appropriate,” the contemnor is on notice that the proceeding is both civil and criminal in nature and that criminal sanctions may be imposed in an appropriate case. Schiselman v. Trust Co. Bank, 246 Ga. 274 , 271 S.E.2d 183 , 1980 Ga. LEXIS 1078 (1980).

Issuance and service of rule nisi required if constructive contempt alleged. —

In cases of constructive contempt of court, if the alleged contumacious conduct is disobedience to a mandate of the court, not an act in the presence of the court or so near thereto as to obstruct the administration of justice, the law requires that a rule nisi issue and be served upon the accused, giving the accused notice of the charges against the accused, and that the accused be given an opportunity to be heard. Crocker v. Crocker, 132 Ga. App. 587 , 208 S.E.2d 602 , 1974 Ga. App. LEXIS 1751 (1974).

Failure to give requisite rule nisi to alleged contemner may be waived. Crocker v. Crocker, 132 Ga. App. 587 , 208 S.E.2d 602 , 1974 Ga. App. LEXIS 1751 (1974).

Waiver of failure to give requisite rule nisi cannot be imputed unless it be shown that the notice was unequivocally waived. Crocker v. Crocker, 132 Ga. App. 587 , 208 S.E.2d 602 , 1974 Ga. App. LEXIS 1751 (1974).

Purpose of notice given by rule nisi. —

Notice given by rule nisi is to afford accused reasonable time in which to prepare the accused’s defense to the charge that the accused violated the court’s order. Crocker v. Crocker, 132 Ga. App. 587 , 208 S.E.2d 602 , 1974 Ga. App. LEXIS 1751 (1974).

No requirement for service of rule nisi if contemner voluntarily appears. —

If a contemner voluntarily appears and defends against the contempt proceedings, it is not required that the contemner be served with a rule nisi. Crocker v. Crocker, 132 Ga. App. 587 , 208 S.E.2d 602 , 1974 Ga. App. LEXIS 1751 (1974).

Omission of word “criminal” in notice of contempt proceeding is not fatal if the notice fully described the conduct charged, there is no showing that the contemnor was prejudiced by the failure to clearly denominate the nature of the contempt proceeding, and the contemnor was accorded all rights due a defendant in a “criminal contempt” proceeding. Schiselman v. Trust Co. Bank, 246 Ga. 274 , 271 S.E.2d 183 , 1980 Ga. LEXIS 1078 (1980).

Direct summary criminal contempt in presence of court is exempt from two due process requirements. —

There is a type of contempt of court which is exempt from the due process requirements of notice and hearing. This is the direct summary criminal contempt “arising in the presence of the court which tends to scandalize it and hinder or obstruct the orderly processes of the administration of justice, the preservation of order and decorum in the court,” etc., and which is committed “in the face of” or “in the immediate presence of” the judge. Moody v. State, 131 Ga. App. 355 , 206 S.E.2d 79 , 1974 Ga. App. LEXIS 1421 (1974).

Direct summary criminal contempt which arises in the presence of the court and tends to scandalize it and hinder or obstruct the orderly processes of the administration of justice, the preservation of order and decorum in the court, etc., is exempt from the due process requirements of notice and hearing. Spruell v. State, 148 Ga. App. 99 , 250 S.E.2d 807 , 1978 Ga. App. LEXIS 3032 (1978); In re McLarty, 152 Ga. App. 399 , 263 S.E.2d 194 , 1979 Ga. App. LEXIS 2940 (1979).

Discretion of court to allow hearing if direct contempt. —

If a direct contempt is committed in the presence of the court, the offender is not entitled as a matter of right to a hearing before the court; the court may act on the court’s own knowledge of the facts and proceed to impose punishment for the contempt; or the court may in the court’s discretion allow a hearing; the refusal to allow a hearing does not deprive the defendant of the due process of law guaranteed by the state and federal Constitutions. Martin v. Waters, 151 Ga. App. 149 , 259 S.E.2d 153 , 1979 Ga. App. LEXIS 2474 (1979).

If contempt is direct or in presence of court, no service of any commitment is necessary. Hall v. Martin, 177 Ga. 238 , 170 S.E. 41 , 1933 Ga. LEXIS 155 (1933).

4.Jury Trials

No constitutional right to jury trial. —

Power to punish contempts summarily is incident to courts of record, and to try a case of contempt without the intervention of a jury violates no constitutional provision. In re Fite, 11 Ga. App. 665 , 76 S.E. 397 , 1912 Ga. App. LEXIS 135 (1912).

Defendants in a contempt case do not have a constitutional right to a jury trial even on pure questions of fact. Bennett v. Bagwell & Stewart, Inc., 216 Ga. 290 , 116 S.E.2d 288 , 1960 Ga. LEXIS 450 (1960).

Right to a jury trial did not extend to special summary proceedings including show cause hearings since the issue was whether a party should be held in civil contempt for violation of a previously issued injunction or order. Peacock v. Spivey, 278 Ga. App. 338 , 629 S.E.2d 48 , 2006 Ga. App. LEXIS 324 (2006).

Trial court did not err in refusing to allow for a jury trial regarding the contempt action against the ex-husband relating to a child support and attorney fee arrearage because the Georgia Supreme Court has long held that a person is not entitled to a jury trial on the issue of ability to pay or contempt for failure to pay alimony and child support. McCarthy v. Ashment, 353 Ga. App. 270 , 835 S.E.2d 745 , 2019 Ga. App. LEXIS 643 (2019), cert. denied, No. S20C0707, 2020 Ga. LEXIS 628 (Ga. Aug. 10, 2020).

No trial by jury except if expressly provided by statute. —

Respondent in contempt proceedings is not entitled to a trial by jury except if a jury trial is expressly provided by statute. Branch v. Branch, 219 Ga. 601 , 135 S.E.2d 269 , 1964 Ga. LEXIS 342 (1964).

Determination of questions of fact. —

Every court has power to compel obedience to the court’s judgments, orders, and processes; and in a proceeding for contempt growing out of the alleged violation by the defendant therein of a mandamus absolute, the judge can determine all questions of fact without the intervention of a jury, except in the cases provided for in this section. Gaston v. Shunk Plow Co., 161 Ga. 287 , 130 S.E. 580 , 1925 Ga. LEXIS 346 (1925).

Class of contempt proceedings wherein jury trial is required. —

Respondent was not entitled to a trial by a jury in a contempt proceeding on the issue of whether or not the respondent violated an injunctive order prohibiting the respondent from practicing dentistry without a license as such case did not fall within the class of proceedings for contempt provided for in this section wherein a jury trial was required. Hortman v. Georgia Bd. of Dental Exmrs., 214 Ga. 560 , 105 S.E.2d 732 , 1958 Ga. LEXIS 491 (1958).

Refusal to pay alimony. —

If there is a refusal to pay alimony, a court of record may punish for contempt without a jury trial. Lee v. Lee, 97 Ga. 736 , 25 S.E. 174 , 1895 Ga. LEXIS 566 (1895); Briesnick v. Briesnick, 100 Ga. 57 , 28 S.E. 154 , 1896 Ga. LEXIS 534 (1896); Stokes v. Stokes, 126 Ga. 804 , 55 S.E. 1023 , 1906 Ga. LEXIS 550 (1906).

This section does not require a jury trial if the respondent was cited for refusing to pay alimony judgment. Branch v. Branch, 219 Ga. 601 , 135 S.E.2d 269 , 1964 Ga. LEXIS 342 (1964).

Proceedings in chancery. —

Presiding judge, if the judge deems it proper, may determine for oneself, without aid of a jury, all questions of fact arising upon the auditor’s report; but inasmuch as the case upon which the contempt proceedings were founded is one in which the court is exercising chancery powers, this court sees no reason why the judge may not, if such course seems advisable to the judge, invoke the aid of a jury in arriving at a proper conclusion upon the questions of fact presented. It is a matter of discretion as to what method the judge will adopt to arrive at the actual truth to be ascertained. Bennett v. Bagwell & Stewart, Inc., 216 Ga. 290 , 116 S.E.2d 288 , 1960 Ga. LEXIS 450 (1960).

Interference with Administration of Justice

Misbehavior and disobedience that obstructs administration of justice. —

This section shall extend only to cases of misbehavior of any person or persons in the presence of the courts or so near thereto as to obstruct the administration of justice, the misbehavior of any of the officers of the courts in the officer’s official transactions, and the disobedience or resistance by any officer of the courts, party, juror, witness, or other person or persons to any lawful writ, process, order, rule, decree, or command of the courts. Wood v. State, 103 Ga. App. 305 , 119 S.E.2d 261 , 1961 Ga. App. LEXIS 932 (1961), rev'd, 370 U.S. 375, 82 S. Ct. 1364 , 8 L. Ed. 2 d 569, 1962 U.S. LEXIS 846 (1962).

Because sufficient evidence existed to support a criminal contempt finding against an attorney based on that attorney’s refusal to obey the trial judge’s order to continue the representation of the attorney’s criminal client, the trial judge was authorized to summarily find the attorney in contempt of court for directly disobeying an order of the court, misbehaving in the presence of the court, and obstructing the administration of justice. Lee v. State, 283 Ga. App. 369 , 641 S.E.2d 615 , 2007 Ga. App. LEXIS 63 (2007), cert. denied, No. S07C0847, 2007 Ga. LEXIS 366 (Ga. May 14, 2007).

Misbehavior not in immediate presence of court. —

Although misbehavior so as to obstruct the administration of justice is being subject to “summary punishment,” that must yield to the fundamental constitutional right to due process of law if the misbehavior is not in the immediate presence of the court, so that it may “act on its own knowledge of the facts,” summary punishment is not authorized, and due process demands that the contemnor be cited, given notice, and allowed an opportunity to defend or excuse the contemnor. McDaniel v. State, 202 Ga. App. 409 , 414 S.E.2d 536 , 1992 Ga. App. LEXIS 15 (1992), overruled in part, Felix v. State, 271 Ga. 534 , 523 S.E.2d 1 , 1999 Ga. LEXIS 786 (1999).

Disobedience to lawful order of court is obstruction of justice, and for such a violation the court, in order to compel respect or compliance, may punish for contempt. Griggers v. Bryant, 239 Ga. 244 , 236 S.E.2d 599 , 1977 Ga. LEXIS 874 (1977).

Obstruction of justice is abuse of liberty of speech and press. —

Constitution of Georgia guarantees the liberty of speech and of the press but does not protect an abuse of that liberty and obstructing the administration of justice by the courts of this state is an abuse of that liberty and will subject the abuser to punishment for contempt of court. McGill v. State, 209 Ga. 500 , 74 S.E.2d 78 , 1953 Ga. LEXIS 294 (1953); Atlanta Newspapers, Inc. v. State, 216 Ga. 399 , 116 S.E.2d 580 , 1960 Ga. LEXIS 485 (1960).

Liberty of press subordinate to independence of judiciary and administration of justice. —

Inherent power of the courts to punish any publication calculated to interfere with the administration of justice is not restricted by the constitutional guaranties of liberty of the press for liberty of the press is subordinate to the independence of the judiciary and the proper administration of justice. McGill v. State, 209 Ga. 500 , 74 S.E.2d 78 , 1953 Ga. LEXIS 294 (1953).

No contempt if newspaper articles do not obstruct administration of justice. —

Criticisms in newspaper articles which do not obstruct the administration of justice in the court do not constitute contempt of court. Townsend v. State, 54 Ga. App. 627 , 188 S.E. 560 , 1936 Ga. App. LEXIS 719 (1936).

Defective rule for contempt when publications could not have obstructed justice. —

Rule for contempt issued by superior court judge based on a series of newspaper articles is fatally defective if the publications complained of were true, the publication related to a matter in another court and in no wise referred to the court issuing the rule and if the publication could not have obstructed or impaired the administration of justice in the court. McGill v. State, 209 Ga. 500 , 74 S.E.2d 78 , 1953 Ga. LEXIS 294 (1953).

Sufficient showing that alleged conduct could obstruct administration of justice needed. —

Alleged conduct of the defendant in uttering a certain phrase to the solicitor general (now district attorney) in the presence of the grand jury was not in the immediate presence or “face” of the court, but was under this section “so near thereto as to obstruct the administration of justice,” provided the alleged conduct of the contemnor showed that such conduct could obstruct the administration of justice. Adams v. State, 89 Ga. App. 882 , 81 S.E.2d 507 , 1954 Ga. App. LEXIS 602 (1954).

Objectionable question by attorney. —

Attorney’s question in a criminal trial that purportedly “elicited testimony that his client was not found guilty at ... previous trial” did not justify a finding of contempt. In re Healy, 241 Ga. App. 266 , 526 S.E.2d 616 , 1999 Ga. App. LEXIS 1610 (1999).

Misbehavior by attorney found. —

Trial court did not err in the manner in which the court handled the defendant’s summary punishment for contempt of court for misbehavior in the court’s presence or so near thereto as to obstruct the administration of justice after the defendant failed to appear before the trial court with the client the defendant was representing, particularly given the defendant’s representation to the trial court via telephone that the defendant would be in court in a few minutes. In re Omole, 258 Ga. App. 725 , 574 S.E.2d 912 , 2002 Ga. App. LEXIS 1567 (2002).

Discretion of Court

Regulating behavior of court officers. —

Trial court has very wide discretion in regulating and controlling the behavior of court officers in the conduct of the proceedings before the court, and this discretion will not be interfered with unless flagrantly abused. In re McLarty, 152 Ga. App. 399 , 263 S.E.2d 194 , 1979 Ga. App. LEXIS 2940 (1979).

Determining whether orders violated. —

In cases of contempt, the trial judge is vested with discretion in determining whether the judge’s orders have been violated and how such infringements should be treated, and the Supreme Court will not disturb the judge’s judgment unless it appears that the judge has abused the judge’s discretion. Reid v. McRae, 190 Ga. 323 , 9 S.E.2d 176 , 1940 Ga. LEXIS 457 (1940).

Trial court in contempt case has wide discretion to determine whether orders have been violated. The court’s determination will not be disturbed on appeal in the absence of an abuse of discretion. Kaufmann v. Kaufmann, 246 Ga. 266 , 271 S.E.2d 175 , 1980 Ga. LEXIS 1076 (1980).

Judgment not disturbed absent abuse of discretion. —

Judgment rendered on a hearing of a contempt case will not be disturbed by the Supreme Court unless the judge has grossly abused the sound discretion vested in the judge in such a case. Wagner v. Commercial Printers, Inc., 203 Ga. 1 , 45 S.E.2d 205 , 1947 Ga. LEXIS 552 (1947).

Trial court’s adjudication of contempt will not be interfered with unless there is a gross, enormous, or flagrant abuse of discretion. Renfroe v. State, 104 Ga. App. 362 , 121 S.E.2d 811 , 1961 Ga. App. LEXIS 683 (1961) (for comment, see 24 Ga. B. J. 544 (1962)).

Discretion of the judges of the superior courts in all matters pertaining to contempt of the judges’ authority and mandates will never be controlled unless grossly abused. White v. State, 105 Ga. App. 616 , 125 S.E.2d 239 , 1962 Ga. App. LEXIS 994, rev'd, 218 Ga. 290 , 127 S.E.2d 668 , 1962 Ga. LEXIS 485 (1962); Miller v. Kaylor, 116 Ga. App. 668 , 158 S.E.2d 260 , 1967 Ga. App. LEXIS 922 (1967).

It is fundamental that every court possesses the inherent power to preserve and enforce order and compel obedience to the court’s judgments and orders, to control the conduct of the court’s officers and all other persons connected with the judicial proceedings before the court, and to inflict summary punishment for contempt upon any person failing and refusing to obey any lawful order of such court. An appellate court will not undertake to control the wide discretion vested in the trial court in the exercise of this fundamental power unless it is made to appear that wrong or oppression has resulted from an abuse of such discretion reposed in the court. Jackson v. State, 225 Ga. 553 , 170 S.E.2d 281 , 1969 Ga. LEXIS 562 (1969); Young v. Champion, 142 Ga. App. 687 , 236 S.E.2d 783 , 1977 Ga. App. LEXIS 1405 (1977).

Questions of contempt if committed in the actual presence of the court are for the court treated with contempt, and the trial court’s adjudication of contempt will not be interfered with unless there is a flagrant abuse of discretion. Farmer v. Holton, 146 Ga. App. 102 , 245 S.E.2d 457 , 1978 Ga. App. LEXIS 2179, 1978 Ga. App. LEXIS 3247 (1978), cert. denied, 440 U.S. 958, 99 S. Ct. 1499 , 59 L. Ed. 2 d 771, 1979 U.S. LEXIS 1190 (1979).

Denial of sanctions for defense counsel’s improper remarks informing the jury that opposing counsel was representing plaintiffs on a contingent-fee basis was not an abuse of discretion since issues as to the amount of damages, addressed by the improper remarks, were not reached by the jury, and therefore no harm resulted. Stoner v. Eden, 199 Ga. App. 135 , 404 S.E.2d 283 , 1991 Ga. App. LEXIS 386 (1991), cert. denied, No. S91C0904, 1991 Ga. LEXIS 703 (Ga. May 15, 1991).

Failure to establish conflict of interest. —

Trial court did not abuse the court’s discretion by not disqualifying the ex-wife’s attorney after an alleged conflict of interest was established because the attorney denied there was a conflict after having talked briefly to the ex-husband’s mother, and filed an affidavit from the law firm’s administrator to that effect. McCarthy v. Ashment, 353 Ga. App. 270 , 835 S.E.2d 745 , 2019 Ga. App. LEXIS 643 (2019), cert. denied, No. S20C0707, 2020 Ga. LEXIS 628 (Ga. Aug. 10, 2020).

General Consideration

Opinions limiting grounds for disqualification to only those enumerated in O.C.G.A. § 15-1-8 overruled. —

Because in Stephens v. Stephens, 249 Ga. 700 , 292 S.E.2d 689 (1982) the Supreme Court made clear that Canon 3E of The Code of Judicial Conduct provides “a broader rule of disqualification” than that provided in O.C.G.A. § 15-1-8 , and both the statute and the canon provide grounds for recusal, to the extent that the below cases follow the prior rule, the following opinions are overruled: Bevil v. State, 220 Ga. App. 1 , 467 S.E.2d 586 , 1996 Ga. App. LEXIS 16 (1996), cert. denied, No. S96C0830, 1996 Ga. LEXIS 548 (Ga. Apr. 25, 1996), cert. denied, 519 U.S. 930, 117 S. Ct. 300 , 136 L. Ed. 2 d 218, 1996 U.S. LEXIS 6175 (1996); Johnson v. State, 208 Ga. App. 453 , 430 S.E.2d 821 , 1993 Ga. App. LEXIS 599 (1993); Brannen v. Prince, 204 Ga. App. 866 , 421 S.E.2d 76 , 1992 Ga. App. LEXIS 1032 (1992), overruled, Smith v. Finch, 285 Ga. 709 , 681 S.E.2d 147 , 2009 Ga. LEXIS 395 (2009); Mapp v. State, 204 Ga. App. 647 , 420 S.E.2d 615 , 1992 Ga. App. LEXIS 971 (1992). Gillis v. City of Waycross, 247 Ga. App. 119 , 543 S.E.2d 423 , 2000 Ga. App. LEXIS 1436 (2000).

Timing of objection relative to judge’s disqualification. —

Objection relative to the disqualification of a judge by reason of relationship or interest should generally be brought to the judge’s attention before petitioning for the writ of prohibition. Riner v. Flanders, 173 Ga. 43 , 159 S.E. 693 , 1931 Ga. LEXIS 256 (1931).

Circumstances under which justice disqualified. —

When the Constitution under consideration increased the membership of the Supreme Court from six to seven, and a justice had been appointed to fill the seventh place, and thus the very existence of the office the justice occupied was dependent upon the outcome of the case under consideration, since the justice’s participation in the case would presuppose the validity of the instrument under attack the justice should not participate because the validity of the instrument should be determined by the court as constituted prior to the alleged adoption of the instrument under which the justice claimed office. Wheeler v. Board of Trustees, 200 Ga. 323 , 37 S.E.2d 322 , 1946 Ga. LEXIS 396 (1946).

When considering the issue of disqualification, both O.C.G.A. § 15-1-8 and Canon 3C of the Code of Judicial Conduct should be considered and applied. Kurtz v. State, 233 Ga. App. 186 , 504 S.E.2d 51 , 1998 Ga. App. LEXIS 931 (1998).

Workers’ compensation. —

Since former Code 1933, § 114-101 et seq. (see now O.C.G.A. T. 34, C. 9) provided for a different judicial procedure than cases at common law, the apparent conflict between former Code 1933, § 114-708 (see now O.C.G.A. § 34-9-103 ), wherein provision was clearly made for the single director who made the workers’ compensation award to participate with the full board in review of the award, and former Code 1933, § 24-102 (see now O.C.G.A. § 15-1-8 ), providing for the disqualification of a judicial officer in a case in which the officer had presided in any inferior judicature, when the officer’s ruling or decision was the subject of review, must be resolved in favor of the participation of the single director with the full board in accordance with the plain intention of the General Assembly as disclosed by the language of former Code 1933, § 114-708 (see now O.C.G.A. § 34-9-103 ). Wiley v. Bituminous Cas. Co., 76 Ga. App. 862 , 47 S.E.2d 652 , 1948 Ga. App. LEXIS 472 (1948).

Effect of judge’s disqualification. —

Granting of a motion to make a later term the appearance term and to perfect service in the meantime necessarily requires the exercise of a judicial function, facts are to be considered, and the judgment should be made accordingly, and therefore it cannot be said that the orders drawn into question in this case were mere formal or ministerial acts such as could have been performed irrespective of the judge’s disqualification to preside at other stages of the proceeding. Smith v. Queen Ins. Co. of Am., 41 Ga. App. 587 , 153 S.E. 785 , 1930 Ga. App. LEXIS 1005 (1930).

Disqualification does not extend to formal acts for bringing case. —

Disqualification will not extend to mere formal acts designed to bring a case before a proper tribunal for adjudication, but will prohibit the hearing of the case or the making or passing of any order in relation thereto which is justiciable in its nature including orders for the purpose of extending time for service and appearance and issuance of new process. Smith v. Queen Ins. Co. of Am., 41 Ga. App. 587 , 153 S.E. 785 , 1930 Ga. App. LEXIS 1005 (1930).

Act of judicial nature by disqualified judge is voidable. Allen v. State, 102 Ga. 619 , 29 S.E. 470 , 1897 Ga. LEXIS 661 (1897).

Violation of basic philosophy for judge to act as own trier of fact. —

For a judicial officer to bring one’s own case before oneself as a trier of fact violates the basic philosophy on which the judicial system is founded, that every phase of litigation is to be heard and decided by a disinterested magistrate. Bonds v. Powl, 140 Ga. App. 140 , 230 S.E.2d 133 , 1976 Ga. App. LEXIS 1375 (1976).

Disqualification of trial judge will not cause release of prisoner on writ of habeas corpus. —

Prisoner under sentence by a court of competent jurisdiction will not be released on writ of habeas corpus because of the disqualification of the judge who presided in the trial court. Wood v. Clarke, 188 Ga. 697 , 4 S.E.2d 659 , 1939 Ga. LEXIS 611 (1939).

Construction of Statutory Language

1.In General

Language of this Code section, being remedial in nature, should be liberally construed, and the word “cause” (now “case”) should not be limited to a suit or proceeding in court. Murray County v. Pickering, 195 Ga. 182 , 23 S.E.2d 436 , 1942 Ga. LEXIS 722 (1942).

Liberal construction of words “of counsel” intended. —

Words “of counsel” in this section cannot be so restricted as to include only representation in a suit or proceeding in court. That section must be given a liberal construction so as to effect the intent of the legislature. Scogin v. State, 138 Ga. App. 859 , 227 S.E.2d 780 , 1976 Ga. App. LEXIS 2347 (1976); King v. State, 246 Ga. 386 , 271 S.E.2d 630 , 1980 Ga. LEXIS 1118 (1980).

2.Party

“Party” construed. —

Word “party” referred to would include any one pecuniarily interested in the result of the case, and would not be limited to a person who is a party to the record. Dobbins v. City of Marietta, 148 Ga. 467 , 97 S.E. 439 , 1918 Ga. LEXIS 375 (1918); Parks v. Citizens Bank, 40 Ga. App. 523 , 150 S.E. 438 , 1929 Ga. App. LEXIS 624 (1929).

Word “party” will include any person who is pecuniarily interested in the result of the suit, although not a party to the record and not necessarily bound by the judgment therein. Smith v. Queen Ins. Co. of Am., 41 Ga. App. 587 , 153 S.E. 785 , 1930 Ga. App. LEXIS 1005 (1930).

Proper construction to be placed upon the word “party” is the broad meaning which would include any one pecuniarily interested in the result of the case, and not the narrow and technical meaning which would limit the rule to a person who was a party to the record. Dennard v. State, 46 Ga. App. 513 , 168 S.E. 311 , 1933 Ga. App. LEXIS 127 (1933).

Word “party” as used in this section is not restricted to technical limitation of party to case, but includes those who are interested in the result of the case, although not parties to the case. Georgia Power Co. v. Watts, 184 Ga. 135 , 190 S.E. 654 , 1937 Ga. LEXIS 480 (1937); Gray v. Barlow, 241 Ga. 347 , 245 S.E.2d 299 , 1978 Ga. LEXIS 939 (1978).

Interest of person not party to record which will disqualify judge is pecuniary interest in result of litigation. Gray v. Barlow, 241 Ga. 347 , 245 S.E.2d 299 , 1978 Ga. LEXIS 939 (1978).

3.Pecuniary Interest

Construction of “pecuniarily interested.” —

Words “pecuniarily interested,” as employed in this section, should be construed to mean pecuniarily interested “in one side or the other of the case — a loss in the subject matter, or a gain dependent upon the result of the issue.” Dennard v. State, 46 Ga. App. 513 , 168 S.E. 311 , 1933 Ga. App. LEXIS 127 (1933).

“Pecuniary interest” means direct pecuniary interest in result of particular case. Robinson v. State, 86 Ga. App. 375 , 71 S.E.2d 677 , 1952 Ga. App. LEXIS 960 (1952).

“Pecuniary interest” does not include interest in costs. —

History of this section confirms the view that the “pecuniary interest” in a cause or proceeding referred to does not include an interest in the costs. Dennard v. State, 46 Ga. App. 513 , 168 S.E. 311 , 1933 Ga. App. LEXIS 127 (1933).

Pecuniary interest in costs is not synonymous with “pecuniary interest” in case. —

Costs are the fees allowed officers of courts for their services in a judicial proceeding; though incidental to a suit are independent of the issue. There is no liability upon a party for costs until judgment, fixing that liability, and pecuniary interest in costs, the amount of which is fixed by law, is not synonymous with “pecuniary interest” in a case. Wellmaker v. Terrell, 3 Ga. App. 791 , 60 S.E. 464 , 1908 Ga. App. LEXIS 432 (1908).

Exhaustive Grounds for Disqualification

Statutory grounds exclusive. —

It is the general rule that statutory grounds of disqualification are exclusive. Elliott v. Hipp, 134 Ga. 844 , 68 S.E. 736 , 1910 Ga. LEXIS 373 (1910); Luke v. Batts, 11 Ga. App. 783 , 76 S.E. 165 , 1912 Ga. App. LEXIS 177 (1912).

Statutory grounds are exhaustive. —

Statutory grounds of disqualification of judicial officer, as contained in this section, are exhaustive. York v. State, 42 Ga. App. 453 , 156 S.E. 733 , 1931 Ga. App. LEXIS 2 (1931); Scott v. State, 53 Ga. App. 61 , 185 S.E. 131 , 1936 Ga. App. LEXIS 9 (1936), aff'd, 184 Ga. 164 , 190 S.E. 582 , 1937 Ga. LEXIS 460 (1937); De Krasner v. Boykin, 54 Ga. App. 38 , 186 S.E. 749 , 1936 Ga. App. LEXIS 449 (1936); Blakeman v. Harwell, 198 Ga. 165 , 31 S.E.2d 50 , 1944 Ga. LEXIS 368 (1944); Jones v. State, 219 Ga. 848 , 136 S.E.2d 358 , 1964 Ga. LEXIS 423, cert. denied, 379 U.S. 935, 85 S. Ct. 330 , 13 L. Ed. 2 d 345, 1964 U.S. LEXIS 105 (1964); Daniel v. Yow, 226 Ga. 544 , 176 S.E.2d 67 , 1970 Ga. LEXIS 590 (1970).

This section sets forth the statutory grounds for disqualification of a judicial officer. Those grounds have been held to be exhaustive. J.B. v. State, 139 Ga. App. 545 , 228 S.E.2d 712 , 1976 Ga. App. LEXIS 1880 (1976).

Prejudice or bias not based on pecuniary or relationship interest. —

Grounds of disqualification of a judge, set forth in this section, are exhaustive, and do not include alleged prejudice or bias that is not based on a pecuniary or relationship interest. Elder v. Camp, 193 Ga. 320 , 18 S.E.2d 622 , 1942 Ga. LEXIS 393 (1942); Columbian Peanut Co. v. Pope, 69 Ga. App. 26 , 24 S.E.2d 710 , 24 S.E.2d 711 , 1943 Ga. App. LEXIS 7 (1943); Smith v. State, 74 Ga. App. 777 , 41 S.E.2d 541 , 1947 Ga. App. LEXIS 696, cert. denied, 332 U.S. 772, 68 S. Ct. 86 , 92 L. Ed. 357 , 1947 U.S. LEXIS 1884 (1947); Yeargin v. Hamilton Mem. Hosp., 229 Ga. 870 , 195 S.E.2d 8 , 1972 Ga. LEXIS 809 (1972).

Bias or prejudice is not legal ground for disqualification. —

Circumstances in which a trial judge may be disqualified are set out in this section. These grounds are exhaustive, and bias or prejudice on the part of a judge is not legal ground for disqualification. Stevenson v. Stevenson, 222 Ga. 47 , 148 S.E.2d 388 , 1966 Ga. LEXIS 394 (1966).

Courts may not add other grounds of disqualification. —

In order to disqualify a judge there must exist a ground authorized by law to disqualify the judge; it is not for the courts to add other grounds of disqualification. Blakeman v. Harwell, 198 Ga. 165 , 31 S.E.2d 50 , 1944 Ga. LEXIS 368 (1944); Mapp v. State, 204 Ga. App. 647 , 420 S.E.2d 615 , 1992 Ga. App. LEXIS 971 (1992).

Pecuniary Interest or Relationship

1.In General

Relationship to one of defendants. —

If an injunction was granted against several defendants, and later an attachment proceeding was brought against some of the defendants for an alleged violation of such injunction, the judge of the superior court was not disqualified to hear and determine the attachment proceeding because of a relationship to one of the defendants against whom the injunction was issued, but who was not among the parties charged in the attachment proceeding, and who did not appear to have any interest therein. Tomlin v. Rome Stove & Range Co., 183 Ga. 183 , 187 S.E. 879 , 1936 Ga. LEXIS 193 (1936).

Relationship of defendant to wife of judge. —

Fact that the wife of the judge who entered the default was a first cousin to the wife of the defendant does not disqualify the judge. Edison Provision Co. v. Armour & Co., 51 Ga. App. 213 , 179 S.E. 829 , 1935 Ga. App. LEXIS 633 (1935).

Judge not disqualified by having worked with crime victim. —

Judge is not prohibited from presiding over a criminal case in which the alleged victim is one with whom the judge has worked by either O.C.G.A. § 15-1-8 or Canon 3 of the Code of Judicial Conduct. Smith v. State, 189 Ga. App. 27 , 375 S.E.2d 69 , 1988 Ga. App. LEXIS 1295 (1988).

Membership in organization not per se disqualification. —

Judge is not per se disqualified to try a cause when one of the parties to which is a church, lodge, or society of which the judge is a member. Blakeman v. Harwell, 198 Ga. 165 , 31 S.E.2d 50 , 1944 Ga. LEXIS 368 (1944).

Son of judge prosecuting not disqualifying. —

If in a criminal prosecution, the son of the judge trying the case is assisting in the prosecution of the case but would not reap any pecuniary gain personally by reason of the conviction, such an interest is one which is not direct, certain, and immediate so as to require the judge to disqualify oneself. DeLoach v. State, 78 Ga. App. 482 , 51 S.E.2d 539 , 1949 Ga. App. LEXIS 911 (1949).

Judge erred in holding oneself qualified to preside if prohibited relationship existed. —

If the judge of the trial court was disqualified by virtue of a relationship within the prohibited degree to one of the attorneys for the plaintiff, who was the judge’s brother, and who, by virtue of the nature of the attorney’s employment, had a pecuniary interest in the subject matter of the litigation, the trial judge erred in holding oneself qualified to preside in the case. Western & Atl. R.R. v. Michael, 43 Ga. App. 703 , 160 S.E. 93 , 1931 Ga. App. LEXIS 525 (1931), aff'd, Western & A. R. Co. v. Michael, 175 Ga. 1 , 165 S.E. 37 , 1932 Ga. LEXIS 177 (1932).

No new trial when relationship to judge discovered after trial. —

If a judge presiding in the trial of a criminal case is related to the defendant within the fourth (now sixth) degree of consanguinity, and neither the defendant nor defendant’s counsel has knowledge of the existence of such relationship until after the trial, the mere fact that such relationship existed will not require the grant of a new trial. Parker v. State, 146 Ga. 131 , 90 S.E. 859 , 1916 Ga. LEXIS 624 (1916); Dixon v. State, 26 Ga. App. 13 , 105 S.E. 39 , 1920 Ga. App. LEXIS 239 (1920).

Writ of prohibition will lie to restrain judge from proceeding in action in which the judge is disqualified by reason of interest or relationship, although the court over which the judge presides may have jurisdiction of the cause. Riner v. Flanders, 173 Ga. 43 , 159 S.E. 693 , 1931 Ga. LEXIS 256 (1931).

Circumstances where pecuniary interest disqualification ineffective. —

Although the justices of the Supreme Court may be disqualified on account of pecuniary interest in the subject matter of the litigation, nevertheless the Supreme Court justices must decide such a case if there is no other tribunal to do so, and none can be legally constituted. Wheeler v. Board of Trustees, 200 Ga. 323 , 37 S.E.2d 322 , 1946 Ga. LEXIS 396 (1946).

2.Interest of Judge

At common law, judge must have had interest in case, or the judge was not disqualified. Roberts v. Roberts, 115 Ga. 259 , 41 S.E. 616 , 1902 Ga. LEXIS 382 (1902); Tibbs v. City of Atlanta, 125 Ga. 18 , 53 S.E. 811 , 1906 Ga. LEXIS 17 (1906).

Judge is not disqualified because judge is interested in subject to be decided if judge has no direct and immediate interest in the judgment to be pronounced. To work a disqualification, the interest must be a direct, certain, and immediate interest, and not one which is indirect, incidental, or remote. DeLoach v. State, 78 Ga. App. 482 , 51 S.E.2d 539 , 1949 Ga. App. LEXIS 911 (1949).

To work disqualification, interest must be direct, certain, and immediate interest, and not one which is indirect, incidental, or remote. A judge is not disqualified because the judge is interested in the question to be decided if the judge has no direct and immediate interest in the judgment to be pronounced. Beasley v. Burt, 201 Ga. 144 , 39 S.E.2d 51 , 1946 Ga. LEXIS 435 (1946).

Interest which disqualifies a judge from presiding in case is a direct pecuniary, or direct property interest, or one which involves some individual right or privilege in the subject matter of the litigation whereby a liability or pecuniary gain must occur on the event of the suit. Blakeman v. Harwell, 198 Ga. 165 , 31 S.E.2d 50 , 1944 Ga. LEXIS 368 (1944).

Interest which disqualifies judge from presiding in case is a direct pecuniary or property interest in the subject matter of the litigation whereby a liability or pecuniary gain would occur on the outcome of the suit. Adams v. McGehee, 211 Ga. 498 , 86 S.E.2d 525 , 1955 Ga. LEXIS 367 (1955).

O.C.G.A. §§ 15-1-8 , 15-6-4 , and 15-19-58 did not conflict with one another so as to be unconstitutional because O.C.G.A. § 15-1-8 provided that judges should not be disqualified from sitting in a proceeding because the judge was a policyholder of any mutual insurance company; O.C.G.A. § 15-6-4 provided for qualifications for state superior court judges, and O.C.G.A. § 15-19-58 allowed the state bar to seek injunctive relief against parties engaging in the unauthorized practice of law. Alyshah v. Georgia, No. 1:06-CV-0928-TWT, 2006 U.S. Dist. LEXIS 66546 (N.D. Ga. Sept. 1, 2006), aff'd, 230 Fed. Appx. 949, 2007 U.S. App. LEXIS 18581 (11th Cir. 2007).

Disqualifying interest may be personal one to judge, but the general rule is that the interest must be pecuniary in nature, and not remote, uncertain, speculative, or merely incidental with a distinction between a property interest and such interest as results from a feeling of sympathy or bias that would disqualify a juror. Blakeman v. Harwell, 198 Ga. 165 , 31 S.E.2d 50 , 1944 Ga. LEXIS 368 (1944).

To work disqualification, liability or pecuniary gain or relief to judge must occur upon event of suit, not result remotely in the future from the general operation of laws and government upon the status fixed by the decision. Beasley v. Burt, 201 Ga. 144 , 39 S.E.2d 51 , 1946 Ga. LEXIS 435 (1946).

Requirement of impartiality disqualifies judge from acting in case in which judge has interest. Blakeman v. Harwell, 198 Ga. 165 , 31 S.E.2d 50 , 1944 Ga. LEXIS 368 (1944).

Interest of judge in bank not party to proceeding does not act as disqualification. —

Fact that the judge was a stockholder in a different bank which held a lien on a portion of the land in controversy would not disqualify the judge to preside in a proceeding to enjoin trespass, such other bank not being a party, and no question as to the validity or priority of the bank’s lien being involved. Manry v. First Nat'l Bank, 195 Ga. 163 , 23 S.E.2d 662 , 1942 Ga. LEXIS 723 (1942).

Depositor creditor relationship to bank disqualified judge to act in proceedings. —

Judge of the superior court, who is a depositor creditor of an insolvent bank in the charge of the state superintendent of banks (now commissioner of banking and finance) for purposes of liquidation, is pecuniarily interested and therefore disqualified to act in a suit for accounting, injunction, and receiver instituted by a principal against an agent and the superintendent of banks seeking to recover an interest in dividends due to an estate in control of the agent for the principal, which the superintendent of banks 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 Ga. LEXIS 39 (1935).

Salary supplement from county did not constitute a pecuniary interest or partiality. —

Although the judges of a judicial circuit received a salary supplement from a county, the judges did not have a direct pecuniary interest in the outcome of a lawsuit, accordingly, there was no basis for recusal of the judges based on a financial interest or partiality under O.C.G.A. § 15-1-8(a)(1) and Ga. Code Jud. Conduct Canon 3(E)(1)(c)(iii). Jones County v. A Mining Group, LLC, 285 Ga. 465 , 678 S.E.2d 474 , 2009 Ga. LEXIS 281 (2009).

Common interest with general taxpayers not disqualification. —

Interest which a judge has in a public matter in common with other general taxpayers is not sufficient to disqualify the judge. The judge’s interest must be direct and immediate before the judge will be disqualified. City of Valdosta v. Singleton, 197 Ga. 194 , 28 S.E.2d 759 , 1944 Ga. LEXIS 241 (1944).

Crime victim’s relationship to a county commissioner did not require disqualification of superior court judges because the commission provided supplemental salaries to sitting judges. Kelly v. State, 238 Ga. App. 691 , 520 S.E.2d 32 , 1999 Ga. App. LEXIS 906 (1999).

Signing petition did not disqualify probate judge from calling and holding special election. —

Fact that the ordinary (now probate judge) was one of those who signed, as an individual, a petition requesting the call of a special election for the purpose of submitting to the qualified voters of the county the question of taxing, legalizing, and controlling alcoholic beverages and liquors did not show that the ordinary (now probate judge) was disqualified because the ordinary (now probate judge) was pecuniarily interested in the matter before the ordinary (now probate judge), or that the ordinary (now probate judge) was otherwise disqualified from calling and holding the special election. McCluney v. Stembridge, 206 Ga. 321 , 57 S.E.2d 203 , 1950 Ga. LEXIS 348 (1950).

Judge’s ownership of stock. —

Probate court judge’s ownership of stock in a bank which was a party to the proceeding disqualified the judge from hearing the matter pursuant to paragraph (a)(1) of O.C.G.A. § 15-1-8 and the judge should have granted a motion to recuse. White v. SunTrust Bank, 245 Ga. App. 828 , 538 S.E.2d 889 , 2000 Ga. App. LEXIS 1107 (2000).

3.Disqualification

It is pecuniary interest of attorney in result of case which disqualifies judge when one or more of the counsel for a party in whose behalf the fees are asked is related to the judge within the degree referred to in the statute declaring when a judge should be disqualified. Roberts v. Roberts, 115 Ga. 259 , 41 S.E. 616 , 1902 Ga. LEXIS 382 (1902); Chadwick v. State, 87 Ga. App. 900 , 75 S.E.2d 260 , 1953 Ga. App. LEXIS 877 (1953).

Relationship to counsel for party will disqualify judge only when counsel has pecuniary interest in case. Young v. Harris, 146 Ga. 333 , 91 S.E. 37 , 1916 Ga. LEXIS 729 (1916).

Judge not disqualified unless related attorney has interest in litigation. —

Judge is not disqualified to preside in a case on ground of relationship to one of the attorneys for the plaintiff within the degree of relationship that would disqualify the judge, unless the attorney related to the judge has an interest in the litigation. Atlantic Coast Line R.R. v. McDonald, 50 Ga. App. 856 , 179 S.E. 185 , 1935 Ga. App. LEXIS 295, cert. denied, 296 U.S. 621, 56 S. Ct. 143 , 80 L. Ed. 441 , 1935 U.S. LEXIS 904 (1935).

Disqualification required when judge’s spouse an equity partner in law firm representing a party to a case. —

Supreme court justice disqualified self from any case in which lawyers from a law firm represented a party because the justice’s spouse was an equity partner who normally shared the firm’s profits from all cases, and O.C.G.A. § 15-1-8 and Ga. Code Jud. Conduct Canon 3(E)(1)(c)(iii) required disqualification from all cases in which the firm represented a party; disqualification is required when a judge has a spouse who is an equity partner at the law firm representing a party to a case because it is imperative that the public has faith and trust in the impartiality of the justice system, and any appearance of impropriety that may exist is enhanced when the relative at issue is the judge’s spouse. Friends of the Chattahoochee, Inc. v. Longleaf Energy Assocs., LLC, 285 Ga. 859 , 684 S.E.2d 632 , 2009 Ga. LEXIS 604 (2009).

Close relationship of party to presiding judge will be presumed beneficial, and not prejudicial, to that party, and if waived by the opposite party affords no ground for a new trial. Guthrie v. Peninsular Naval Stores Co., 26 Ga. App. 458 , 107 S.E. 260 , 1921 Ga. App. LEXIS 480 (1921).

Relationship to stockholder of corporation. —

Judge is disqualified to sit in a case in which a corporation is a party, when a holder of stock of the corporation is related to the judge by consanguinity or affinity within the sixth degree, according to the civil law, whether the stockholder is a party to the case or not, and that is true of the holder of “preferred stock” which pays a fixed dividend of income out of the earned profits of the corporation. Georgia Power Co. v. Watts, 184 Ga. 135 , 190 S.E. 654 , 1937 Ga. LEXIS 480 (1937).

Relationship to mayor of city as party. —

Close familial relationship between the mayor, who was the judge’s mother, and the judge could impede the impartiality of the judge’s judgment in presiding over the adjudication of matters involving the city; such a perceived bias or prejudice suffices for disqualification. In re Judge No. 97-61, 269 Ga. 425 , 499 S.E.2d 319 , 1998 Ga. LEXIS 447 (1998).

Judge not disqualified if relative’s interest is insufficient. —

Just as a judge is not disqualified merely because of an interest in some abstract legal question that is presently involved and which may arise in some future litigation affecting the judge or the judge’s property rights, so an interest of like nature by the judge’s relative would not disqualify the judge. In neither case would there be pecuniary interest in the result of the litigation within the meaning of the law. City of Valdosta v. Singleton, 197 Ga. 194 , 28 S.E.2d 759 , 1944 Ga. LEXIS 241 (1944).

Plaintiff unharmed by defendant’s wife’s relationship to judge. —

It was not an abuse of discretion to deny the plaintiff’s motion to set aside the verdict and judgment on the ground that the original trial judge, as the second cousin of the defendant’s wife, was disqualified because the judge was allegedly related within a prohibited degree of consanguinity since the relationship was not revealed to the parties until after the verdict, and since the plaintiff was not harmed by the alleged disqualification in that the trial judge to whom the case was assigned after the original judge disqualified oneself entered judgment for the plaintiff. Roper v. Durham, 256 Ga. 845 , 353 S.E.2d 476 , 1987 Ga. LEXIS 641 (1987).

Payment of bonus to judge’s son. —

Mere fact that attorney representing party to pending case might give a bonus to a judge’s son, the judge’s new associate, at end of year is too remote and speculative to work disqualification of the judge. Stephens v. Stephens, 249 Ga. 700 , 292 S.E.2d 689 , 1981 Ga. LEXIS 1123 (1981).

Disqualification not removed by death of family member. —

Disqualification of a judge to preside in a case in which the husband of the judge’s sister is a stockholder in a corporation which is a party is not removed upon the death of the sister, if she leaves children, issue of the marriage, in life at the time of the trial. Georgia Power Co. v. Moody, 186 Ga. 343 , 197 S.E. 844 , 1938 Ga. LEXIS 611 (1938).

Bias or Prejudice

Bias or prejudice not disqualification. —

This section does not provide that bias or prejudice is a ground to disqualify a trial judge from presiding in the case. Jones v. State, 219 Ga. 848 , 136 S.E.2d 358 , 1964 Ga. LEXIS 423, cert. denied, 379 U.S. 935, 85 S. Ct. 330 , 13 L. Ed. 2 d 345, 1964 U.S. LEXIS 105 (1964); P.D. v. State, 151 Ga. App. 662 , 261 S.E.2d 413 , 1979 Ga. App. LEXIS 2739 (1979).

Personal bias or prejudice is not ground of disqualification, and the statutory grounds of disqualification are exhaustive. Clenney v. State, 229 Ga. 561 , 192 S.E.2d 907 , 1972 Ga. LEXIS 675 (1972).

Prejudice, bias, or prejudgment ordinarily not ground of disqualification. —

Prejudice or bias on the part of the judge, not based on interest, nor on any other ground not named in the statute, is, as a general rule, not assignable as a ground for disqualification. Tibbs v. City of Atlanta, 125 Ga. 18 , 53 S.E. 811 , 1906 Ga. LEXIS 17 (1906).

This section, providing under what circumstances judges shall be disqualified, specifies only matters in which the judges have a pecuniary interest or are related within the sixth degree to any party interested in the result of the matter. The statutory grounds named in that section are exhaustive. Prejudice, bias, or prejudgment or even an exhibition or partisan feeling, when not arising from these grounds, is ordinarily not assignable as a ground of disqualification. Robinson v. State, 86 Ga. App. 375 , 71 S.E.2d 677 , 1952 Ga. App. LEXIS 960 (1952).

Prejudice or bias not based on pecuniary or relationship interest. —

Prejudice or bias, not based on interest, will not disqualify the ordinary (now probate judge) from presiding in a contest. Moore v. Dugas, 166 Ga. 493 , 143 S.E. 591 , 1928 Ga. LEXIS 337 (1928).

Alleged prejudice or bias of a judge, which is not based on an interest either pecuniary or relationship to a party within a prohibited degree, affords no legal ground of disqualification. Jones v. State, 219 Ga. 848 , 136 S.E.2d 358 , 1964 Ga. LEXIS 423, cert. denied, 379 U.S. 935, 85 S. Ct. 330 , 13 L. Ed. 2 d 345, 1964 U.S. LEXIS 105 (1964); McRae v. State, 116 Ga. App. 407 , 157 S.E.2d 646 , 1967 Ga. App. LEXIS 836 (1967); Daniel v. Yow, 226 Ga. 544 , 176 S.E.2d 67 , 1970 Ga. LEXIS 590 (1970); P.D. v. State, 151 Ga. App. 662 , 261 S.E.2d 413 , 1979 Ga. App. LEXIS 2739 (1979).

Prejudice or bias against party’s attorney not per se grounds for disqualification. —

Any alleged prejudice or bias against the party’s attorney rather than the party personally is not, per se, grounds for disqualification. Mann v. State, 154 Ga. App. 677 , 269 S.E.2d 863 , 1980 Ga. App. LEXIS 2339 (1980); Head v. State, 160 Ga. App. 4 , 285 S.E.2d 735 , 1981 Ga. App. LEXIS 2852 (1981); Baxter v. State, 176 Ga. App. 154 , 335 S.E.2d 607 , 1985 Ga. App. LEXIS 2857 (1985).

Requirements for alleged bias to be disqualifying. —

In order to be disqualifying, alleged bias of judge must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from the judge’s participation in the case. Carter v. State, 246 Ga. 328 , 271 S.E.2d 475 , 1980 Ga. LEXIS 1128 (1980).

For recusal, the alleged bias or prejudice of the trial judge needed to be of such a nature and intensity to prevent the defendant from obtaining a trial uninfluenced by the court’s prejudgment. Bitt Int'l Co. v. Fletcher, 259 Ga. App. 406 , 577 S.E.2d 276 , 2003 Ga. App. LEXIS 116 (2003).

Allegations of prejudice which are insufficient grounds for disqualification. —

Allegations of judicial prejudice against counsel based upon events or circumstances occurring outside the ambit of the then pending action are not sufficient grounds for disqualification of the judge. Mann v. State, 154 Ga. App. 677 , 269 S.E.2d 863 , 1980 Ga. App. LEXIS 2339 (1980).

Prior knowledge of facts of case has relevance merely as to any bias or prejudice of judge. It does not make the judge an “invisible witness” or a visible witness and provides no legal ground for the judge’s disqualification. Stevenson v. Stevenson, 222 Ga. 47 , 148 S.E.2d 388 , 1966 Ga. LEXIS 394 (1966).

Approval of order by judge does not show bias or prejudice to prevent review. —

Simply because a judge has approved the order in a case does not show bias or prejudice so as to prevent the judge from reviewing the judge’s action fairly and impartially. Daniel v. Yow, 226 Ga. 544 , 176 S.E.2d 67 , 1970 Ga. LEXIS 590 (1970).

State of Georgia did not violate O.C.G.A. § 9-4-7 or O.C.G.A. § 15-1-8 by arresting and incarcerating plaintiff for contempt after the plaintiff willfully violated a consent order enjoining the unauthorized practice of law because such claims were barred by the Eleventh Amendment in that the state had not waived sovereign immunity. Alyshah v. Georgia, No. 1:06-CV-0928-TWT, 2006 U.S. Dist. LEXIS 66546 (N.D. Ga. Sept. 1, 2006), aff'd, 230 Fed. Appx. 949, 2007 U.S. App. LEXIS 18581 (11th Cir. 2007).

Circumstances under which judge should disqualify oneself. —

Under Canon 3C(1)(a) of the Georgia Code of Judicial Conduct, a judge should disqualify oneself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances when the judge has a personal bias or prejudice concerning a party or the party’s lawyer; consequently, if bias or prejudice of a judge has been shown concerning a party, it is error for the judge to hear and decide the case. Savage v. Savage, 234 Ga. 853 , 218 S.E.2d 568 , 1975 Ga. LEXIS 1305 (1975); Mann v. State, 154 Ga. App. 677 , 269 S.E.2d 863 , 1980 Ga. App. LEXIS 2339 (1980).

Judicial prejudice does not arise from unfavorable rulings. —

Defendant’s complaints of bias and prejudice stemmed from the trial court’s rulings with which the defendant did not agree, such as allowing into evidence the document defendant signed agreeing not to return to the airport and not allowing into evidence a prior judge’s statements in a trial for a similar charge that resulted in an acquittal; these rulings did not show bias against the defendant simply because the rulings were favorable to the prosecution and violated neither O.C.G.A. § 15-1-8 nor Ga. Code Jud. Conduct Canon 3(E). Williams v. State, 257 Ga. App. 589 , 571 S.E.2d 571 , 2002 Ga. App. LEXIS 1233 (2002).

Cases in Which Judge Has Served of Counsel

Case where judge “has been of counsel” means particular case being tried, and the fact that the judge has represented the party in another case will not disqualify the judge. Cox v. State, 85 Ga. App. 702 , 70 S.E.2d 100 , 1952 Ga. App. LEXIS 813 (1952).

Judge in case in which judge was consulted at bar. —

Trial judge should have had no part of case concerning which the judge had been consulted while at bar. Mendenhall v. Hopper, 453 F. Supp. 977, 1978 U.S. Dist. LEXIS 17845 (S.D. Ga. 1978), aff'd, 591 F.2d 1342, 1979 U.S. App. LEXIS 16391 (5th Cir. 1979).

Earlier representation of party. —

If judge participated in negotiations on plaintiff’s behalf, such judge is disqualified from sitting on case to which plaintiff is a party. Smith v. Queen Ins. Co. of Am., 41 Ga. App. 587 , 153 S.E. 785 , 1930 Ga. App. LEXIS 1005 (1930).

If an attorney advises a person that a certain instrument or permit or license gives the person a legal right, and afterwards a controversy arises between such person and another as to whether or not it does confer such right, and the attorney has come to the bench, the attorney cannot sit in judgment between those persons in that controversy, but is disqualified to do so by virtue of such professional relation to the former party on the subject of that controversy. Smith v. Queen Ins. Co. of Am., 41 Ga. App. 587 , 153 S.E. 785 , 1930 Ga. App. LEXIS 1005 (1930).

No disqualification if representation not in same cause or matter. —

Fact that the ordinary (now probate judge) of county of administratrix’s residence had as a practicing attorney represented administratrix in the application as an individual for appointment as administratrix in another county did not disqualify the ordinary (now probate judge) to approve the new bond and to issue the certificate necessary in transferring the administration of administratrix’s residence since these acts were not in the same cause or matter in which the ordinary (now probate judge) had been of counsel. Head v. Waldrup, 197 Ga. 500 , 29 S.E.2d 561 , 1944 Ga. LEXIS 275 (1944).

“Of counsel” disqualification not applicable. —

Judge is not disqualified to preside in a given case merely because previously, as an attorney at law for one or both of the parties, the judge may have drawn the contract on which the action or defense is founded. Luke v. Batts, 11 Ga. App. 783 , 76 S.E. 165 , 1912 Ga. App. LEXIS 177 (1912); Carson v. Blair, 31 Ga. App. 60 , 121 S.E. 517 , 1923 Ga. App. LEXIS 725 (1923).

Georgia district attorney is “of counsel” in all criminal cases or matters pending in the district attorney’s circuit; this includes the investigatory stages of matters preparatory to the seeking of an indictment as well as the pendency of the case. King v. State, 246 Ga. 386 , 271 S.E.2d 630 , 1980 Ga. LEXIS 1118 (1980).

Judge who was district attorney when defendant was sentenced should not have participated in later ex parte proceedings by defendant to correct alleged clerical errors in the court’s records of the judge’s sentence, although the judge did not personally prosecute the defendant. Prater v. State, 222 Ga. App. 486 , 474 S.E.2d 684 , 1996 Ga. App. LEXIS 882 (1996), cert. denied, No. S96C1945, 1996 Ga. LEXIS 1153 (Ga. Nov. 22, 1996).

Previous activities of judge would serve as grounds for disqualification. —

Investigation of criminal activities in the county, including those of the defendant, conducted by the G.B.I. under authorization from the trial court judge during the judge’s former tenure as district attorney was a matter in which the judge “served as a lawyer” within the meaning of Canon 3C(1)(b) of the Georgia Code of Judicial Conduct, and “in which the judge has been of counsel” within the meaning of this section. King v. State, 246 Ga. 386 , 271 S.E.2d 630 , 1980 Ga. LEXIS 1118 (1980).

No violation if record does not show judicial officer has been “of counsel” in proceeding. —

If the record did not show that the attorney who acted as the judicial officer in an appealed attachment proceeding ever acted as attorney for the appellee in any way which involved the subject matter of the appeal, there was no violation of this section. Kitson v. Hawke, 231 Ga. 157 , 200 S.E.2d 703 , 1973 Ga. LEXIS 617 (1973).

Judge may sit in cause or proceeding if agreement in writing. —

No judge or justice of any court can sit in any cause or proceeding in which the judge has been of counsel unless the opposite party or that party’s counsel agrees in writing that the judge may preside. Faulkner v. Walker, 36 Ga. App. 636 , 137 S.E. 909 , 1927 Ga. App. LEXIS 203 (1927).

Order ratifying sale based on original order when judge was counsel is voidable. East Rome Town Co. v. Cochran, 81 Ga. 359 , 8 S.E. 737 , 1888 Ga. LEXIS 133 (1888).

Previous Judicial Contact

Presiding at earlier criminal inquiry. —

Judge of the superior court is not disqualified from presiding at the trial of an indictment merely because previously thereto the judge held a court of inquiry and bound the prisoner over. Smith v. State, 74 Ga. App. 777 , 41 S.E.2d 541 , 1947 Ga. App. LEXIS 696, cert. denied, 332 U.S. 772, 68 S. Ct. 86 , 92 L. Ed. 357 , 1947 U.S. LEXIS 1884 (1947).

Presiding at earlier hearing on request for restraining order. —

In a prosecution for family violence aggravated assault, the fact that the trial court had issued the victim a temporary restraining order (TRO) did not require the court to recuse itself sua sponte because: 1) it did not violate O.C.G.A. § 15-1-8(a)(3) since the TRO was not the subject of review at the defendant’s criminal trial; and 2) there was no showing under Ga. Code Jud. Conduct Canon 3(E)(1) that the trial court’s “impartiality might reasonably be questioned.” Hargrove v. State, 299 Ga. App. 27 , 681 S.E.2d 707 , 2009 Ga. App. LEXIS 832 (2009).

Trial judge not disqualified to preside over perjury charge. —

Trial judge in a charge of perjury is not disqualified for the reason that the judge presided in the trial of a case in which the alleged perjury was committed. Smith v. State, 74 Ga. App. 777 , 41 S.E.2d 541 , 1947 Ga. App. LEXIS 696, cert. denied, 332 U.S. 772, 68 S. Ct. 86 , 92 L. Ed. 357 , 1947 U.S. LEXIS 1884 (1947).

No error in overruling motion to disqualify. —

Since the only ground in a motion to disqualify a judge in a criminal trial was that the judge’s decision at the interlocutory hearing would depend on the “legality and constitutionality” of the judge’s own previous order, which the movant attacked, the judge did not err in overruling the motion and in declining to have another judge pass upon the case. Elder v. Camp, 193 Ga. 320 , 18 S.E.2d 622 , 1942 Ga. LEXIS 393 (1942).

Court properly denied the defendant’s motion for an out-of-time appeal based on the defendant’s contention that, four days before the defendant entered the defendant’s guilty plea in 2000, the trial judge erroneously denied the defendant’s motion to recuse the trial judge because the fact that the trial judge in the judge’s previous capacity as district attorney prosecuted the defendant on another charge not currently pending before the judge was not, alone, a ground for disqualification and the trial judge ensured that the judge’s name was redacted as district attorney from the previous indictment. Leverette v. State, 291 Ga. 834 , 732 S.E.2d 255 , 2012 Ga. LEXIS 738 (2012).

Trial of case if judge drew indictment. —

Judge is not qualified to try a criminal case in which the judge personally drew the indictment and otherwise participated. Faulkner v. Walker, 36 Ga. App. 636 , 137 S.E. 909 , 1927 Ga. App. LEXIS 203 (1927).

Judge who is party to contract cannot determine if the contract has been completed. Mayor of Macon v. Huff, 60 Ga. 221 , 1878 Ga. LEXIS 427 (1878).

Personal knowledge of facts in case. —

Judge is not disqualified because judge may have personal knowledge of some facts involved in case. Atlantic & Birmingham Ry. v. Mayor of Cordele, 128 Ga. 293 , 57 S.E. 493 , 1907 Ga. LEXIS 88 (1907).

No disqualification if judge consulted on another matter or cause. —

Judge is not disqualified to try a murder case merely because the judge was consulted as to the method of distribution of the estate before the judge’s appointment. Woolfolk v. State, 85 Ga. 69 , 11 S.E. 814 , 1890 Ga. LEXIS 4 (1890).

Knowing waiver required to allow participation. —

By requiring the consent of the parties, paragraph (a)(3) of O.C.G.A. § 15-1-8 requires a knowing waiver; thus, an employer did not waive the employer’s right to challenge the review board’s decision regarding a workers’ compensation award since it was not disclosed that the administrative law judge who originally issued the award would be participating in the matter as a member of the review board. Arrow Co. v. Hall, 212 Ga. App. 365 , 441 S.E.2d 794 , 1994 Ga. App. LEXIS 250 (1994).

Denial of due process if judge fails to disqualify. —

Failure by a judge to disqualify oneself which serves to deprive the defendant of an unbiased trier of fact is a denial of due process. Mendenhall v. Hopper, 453 F. Supp. 977, 1978 U.S. Dist. LEXIS 17845 (S.D. Ga. 1978), aff'd, 591 F.2d 1342, 1979 U.S. App. LEXIS 16391 (5th Cir. 1979).

Judge’s former law firm’s pecuniary interests in recovery as disqualification. —

While the judge might not have been required to grant a motion to recuse under the circumstances in the case, it could not be concluded that by a voluntary recusal the judge acted improperly, based on the possible appearance of impropriety resulting from the judge’s former law firm’s pecuniary interests in recovering against defendant hospital’s insurer. Head v. Brown, 259 Ga. App. 855 , 578 S.E.2d 555 , 2003 Ga. App. LEXIS 285 (2003), cert. denied, No. S03C0951, 2003 Ga. LEXIS 579 (Ga. June 2, 2003).

Judge’s prior prosecution of defendant. —

Trial court did not err by denying defendant’s motion for a new trial which asserted that the trial court erred since the county district attorney’s office and the trial judge should have recused themselves from the case, sua sponte, as a result of a district attorney previously representing defendant on unrelated criminal charges, and the trial judge’s prior prosecution of the defendant in 1994 as the evidence undisputedly showed that the defendant and defense counsel were aware of the potential conflicts at the onset of the prosecution and made deliberate, strategic decisions not to seek disqualification of either the county district attorney’s office or the trial judge. Lemming v. State, 292 Ga. App. 138 , 663 S.E.2d 375 , 2008 Ga. App. LEXIS 599 (2008).

Recusal

Procedure when trial judge presented with 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 Ga. LEXIS 904 (1980); Mann v. State, 154 Ga. App. 677 , 269 S.E.2d 863 , 1980 Ga. App. LEXIS 2339 (1980); Penney v. State, 157 Ga. App. 737 , 278 S.E.2d 460 , 1981 Ga. App. LEXIS 1996 (1981); Riggins v. State, 159 Ga. App. 791 , 285 S.E.2d 579 , 1981 Ga. App. LEXIS 2814 (1981).

Judge did not err in failing to recuse oneself. —

Trial judge did not err in refusing to recuse oneself, and in failing to refer the matter to an appropriate forum, although the defendant sued the judge in connection with this prosecution, since the defendant had shown no cause for speculation that the judge was so influenced by the filing of a lawsuit as to have infected the trial with personal bias and prejudice. Mapp v. State, 204 Ga. App. 647 , 420 S.E.2d 615 , 1992 Ga. App. LEXIS 971 (1992).

If the judge in a criminal prosecution had no knowledge during the trial of the judge’s spouse’s representation of the victim in a civil action against the defendant, the judge was not obligated to recuse oneself. Robertson v. State, 225 Ga. App. 389 , 484 S.E.2d 18 , 1997 Ga. App. LEXIS 249 (1997).

Juvenile court judge was not required to grant a recusal motion because of the judge’s “contempt” for home schooling since the hearing transcript did not show any bias, much less contempt, but that the judge attempted to clarify the exact terms of the juvenile’s probation; such did not exemplify a display of deep antagonism which made a fair trial impossible. In the Interest of A.H., 259 Ga. App. 608 , 578 S.E.2d 247 , 2003 Ga. App. LEXIS 214 (2003).

Defendant’s argument on appeal that the trial judge should have been recused because the judge had previously heard the evidence during an earlier probation revocation hearing was waived because the defendant failed to make a written motion; further, there was no duty for the judge to have recused oneself sua sponte as there was no violation of a specific standard of O.C.G.A. § 15-1-8 or of Ga. Code Jud. Conduct Canon 3(E)(1)(a), which was the only possibly applicable prohibition in that Canon, as no bias or prejudice was shown. Phillips v. State, 267 Ga. App. 733 , 601 S.E.2d 147 , 2004 Ga. App. LEXIS 769 (2004).

In a drug trafficking case, the trial judge did not err in failing to sua sponte move for recusal because the judge was the district attorney when the defendant was previously convicted of drug charges and because the judge had recently presided over the defendant’s probation revocation hearing. The defendant failed to present any citations to the record showing specific conduct or remarks by the trial judge that would have supported a claim that the judge harbored a bias toward the defendant to the extent that sua sponte recusal was necessary. Brown v. State, 307 Ga. App. 99 , 704 S.E.2d 227 , 2010 Ga. App. LEXIS 1101 (2010).

Trial judge’s refusal to sua sponte recuse oneself after being made aware that the judge was named as a defendant in a federal lawsuit the defendant filed pro se on the same day that the defendant’s criminal trial commenced was not error since the defendant failed to show any cause for speculation that the judge was so influenced by the filing of a lawsuit as to have been infected with a bias of such intensity that it prevented the defendant from obtaining a fair trial. Robinson v. State, 312 Ga. App. 736 , 719 S.E.2d 601 , 2011 Ga. App. LEXIS 1038 (2011).

Trial judge did not err by failing to recuse oneself because the defendant did not move for a recusal and there was no duty for a trial judge to sua sponte recuse oneself absent a violation of a specific standard of O.C.G.A. § 15-1-8 or Ga. Code Jud. Conduct Canon 3. Fitzpatrick v. State, 317 Ga. App. 873 , 733 S.E.2d 46 , 2012 Ga. App. LEXIS 834 (2012).

Judge was not related to the mother in a divorce action as it was the judge’s son that was married to the mother’s aunt and, thus, the judge was not required to be recused. Lacy v. Lacy, 320 Ga. App. 739 , 740 S.E.2d 695 , 2013 Ga. App. LEXIS 271 (2013).

Trial judge in a divorce case was not required to be recused because the mother’s reference on a social networking website to a meeting between the judge and the mother’s father did not support a conclusion that a reasonable person would have considered the judge biased and impartial in the divorce action. Lacy v. Lacy, 320 Ga. App. 739 , 740 S.E.2d 695 , 2013 Ga. App. LEXIS 271 (2013).

Trial court did not err by failing to recuse based on the trial judge’s alleged extra-judicial professional contact and involvement with the county school superintendent, about whom the defendants made the false report of a crime, through the trial judge’s position at a local college because the defendants cited to no evidence that the two had any actual contact or involvement, much less of the extent of such a relationship; and the defendants cited to no evidence regarding actual involvement between the trial court and the school board; thus, the defendants’ allegations simply were not enough reasonably to call into question the trial judge’s impartiality. Marlow v. State, 339 Ga. App. 790 , 792 S.E.2d 712 , 2016 Ga. App. LEXIS 684 (2016), cert. denied, No. S17C0817, 2017 Ga. LEXIS 495 (Ga. June 5, 2017), cert. denied, No. S17C0823, 2017 Ga. LEXIS 502 (Ga. June 5, 2017).

Trial judge did not err in failing to recuse based on having been previously involved in a serious automobile accident with the defendant’s uncle because the defendant never filed a motion to recuse the judge despite knowing about an alleged auto accident before the trial and only waited until being tried, convicted, and sentenced to raise the issue. Shelton v. State, 350 Ga. App. 774 , 830 S.E.2d 335 , 2019 Ga. App. LEXIS 401 (2019).

Defendant could not use defendant’s own misconduct, in engaging in harassing telephone calls to the judge’s chambers and the judge’s appropriate response thereto, as grounds to compel the judge to recuse oneself. Baptiste v. State, 229 Ga. App. 691 , 494 S.E.2d 530 , 1997 Ga. App. LEXIS 1434 (1997).

Remarks which are ill-advised, but not heard by jury. —

Even though judge’s remarks may be ill-advised, if the remarks are not expressed before the jury that tried the case and could not have influenced the decision of the jury, no reversible error appears. Harkey v. State, 159 Ga. App. 112 , 282 S.E.2d 648 , 1981 Ga. App. LEXIS 2511 (1981).

Judge has duty to deny legally insufficient motion. —

It is as much the duty of a judge not to grant the motion to recuse when the motion is legally insufficient as it is to recuse when the motion is meritorious. The simple filing of an affidavit does not automatically disqualify a judge. Penney v. State, 157 Ga. App. 737 , 278 S.E.2d 460 , 1981 Ga. App. LEXIS 1996 (1981).

Motion to recuse properly denied. —

In a buyer’s action against sellers and an executor for specific performance of land purchase agreements, the trial court did not err when the court denied the buyer’s motion to recuse on the ground that the presiding judge had previously sold property to the executor because the real estate transaction that formed the basis of the motion to recuse was completed on April 12, 2004, which was well before the outbreak of the dispute in January 2007; there is no Georgia authority for the proposition that a judge previously represented by counsel in an unrelated matter must be recused from a case in which the same counsel represents a party now appearing. Simprop Acquisition Co. v. L. Simpson Charitable Remainder Unitrust, 305 Ga. App. 564 , 699 S.E.2d 860 , 2010 Ga. App. LEXIS 752 (2010).

Judge should have assigned motion to recuse to another judge. —

Trial judge erred in not assigning a motion to recuse to another judge as a reasonable question about the judge’s impartiality was raised by affidavits stating that: 1) the judge’s nephew had represented a party in the dispute that led to the lawsuit; 2) a partner from the nephew’s law firm represented that party in the litgation; and 3) the partner talked to the trial judge about the case. Mayor & Aldermen of Savannah v. Batson-Cook Co., 291 Ga. 114 , 728 S.E.2d 189 , 2012 Ga. LEXIS 488 (2012).

Strategic decision not to move for recusal was not ineffective assistance and did not warrant a new trial. —

Defendant’s ineffective assistance of counsel claim did not warrant a new trial in a prosecution for rape, kidnapping, aggravated stalking, and two counts of stalking; because of a variety of factors including the limited nature of a state witness’s trial testimony, defense counsel made a strategic decision not to seek recusal of the trial judge, who was the brother of the challenged witness, and counsel discussed with the defendant the reasons for not seeking recusal. Pirkle v. State, 289 Ga. App. 450 , 657 S.E.2d 560 , 2008 Ga. App. LEXIS 117 (2008), cert. denied, No. S08C0954, 2008 Ga. LEXIS 506 (Ga. May 19, 2008).

Motion to recuse improperly denied. —

Decisions to deny a motion to recuse because the motion and affidavit did not meet the requirements of Ga. Unif. Super. Ct. R. 25.3 are reviewed de novo. Therefore, the following appellate decisions that employed the abuse of discretion standard were overruled: Moore v. State, 722 S.E.2d 160 (2012); Grant v. State, 695 S.E.2d 420 (2010); Ga. Kidney & Hypertension Spec. v. FreseniuUSA Marketing, 662 S.E.2d 245 (2008); Adams v. State, 659 S.E.2d 711 (2008); Keller v. State, 648 S.E.2d 714 (2007); Hill v. Clayton County Bd. of Commrs., 640 S.E.2d 38 (2006); and In re J.E.T., 604 S.E.2d 623 (2004). Mayor & Aldermen of Savannah v. Batson-Cook Co., 291 Ga. 114 , 728 S.E.2d 189 , 2012 Ga. LEXIS 488 (2012).

Sexual relationship with public defender meant judge should be recused. —

Trial court properly granted five defendants a new trial because the trial judge violated both O.C.G.A. § 15-1-8 and Ga. Code Jud. Conduct Canon 3 by failing to be recused for each trial as a result of a sexual relationship between the judge and the public defender who represented either the defendants or their codefendants. State v. Wakefield, 324 Ga. App. 587 , 751 S.E.2d 199 , 2013 Ga. App. LEXIS 890 (2013), cert. denied, No. S14C0422, 2014 Ga. LEXIS 402 (Ga. May 19, 2014), cert. denied, No. S14C0421, 2014 Ga. LEXIS 403 (Ga. May 19, 2014).

Waiver

Disqualification of judge may be waived. —

While a judge is disqualified when related to any party interested in the results of the case by consanguinity or affinity within the sixth degree, according to the civil law, whether a party to the case or not, that disqualification may be waived. Georgia Power Co. v. Watts, 184 Ga. 135 , 190 S.E. 654 , 1937 Ga. LEXIS 480 (1937).

Waiver may be express or implied. —

Disqualification of a presiding judge on account of relationship to a party or to one of the attorneys who has a contingent fee in the case may be waived, expressly or impliedly. Shuford v. Shuford, 141 Ga. 407 , 81 S.E. 115 , 1914 Ga. LEXIS 226 (1914).

Waiver of disqualification of judge may be effected expressly by agreement, or impliedly by proceeding without objection with the trial of the case with knowledge of the disqualification. Georgia Power Co. v. Watts, 184 Ga. 135 , 190 S.E. 654 , 1937 Ga. LEXIS 480 (1937); J.B. v. State, 139 Ga. App. 545 , 228 S.E.2d 712 , 1976 Ga. App. LEXIS 1880 (1976).

Disqualification is waived by failing to make point, having knowledge of disqualification, during trial. Shuford v. Shuford, 141 Ga. 407 , 81 S.E. 115 , 1914 Ga. LEXIS 226 (1914); Morris v. State, 18 Ga. App. 759 , 90 S.E. 729 , 1916 Ga. App. LEXIS 1247 (1916).

Consent of parties. —

No judge can preside in any case in which the judge is related to either party within the fourth (now sixth) degree of consanguinity or affinity, without the consent of all the parties at interest. Burch v. State, 18 Ga. App. 290 , 89 S.E. 341 , 1916 Ga. App. LEXIS 305 (1916); Dennard v. State, 46 Ga. App. 513 , 168 S.E. 311 , 1933 Ga. App. LEXIS 127 (1933).

This section expressly contemplates that disqualified judge may preside with consent of parties at interest; such disqualification may be waived, and it is not essential that the waiver be made expressly or in writing. Wood v. Clarke, 188 Ga. 697 , 4 S.E.2d 659 , 1939 Ga. LEXIS 611 (1939).

Written consent of the parties is necessary if the judge was formerly counsel, while a waiver based on relationship may be oral. Shope v. State, 106 Ga. 226 , 32 S.E. 140 , 1898 Ga. LEXIS 67 (1898).

Waiver of disqualification need not be in writing. —

Provision that no ordinary (now probate judge) may preside in any case or matter when the ordinary (now probate judge) is related by affinity or consanguinity to any party interested in the result of the case within the sixth degree may be waived, and such waiver need not be in writing. Byrd v. Riggs, 211 Ga. 493 , 86 S.E.2d 285 , 1955 Ga. LEXIS 366 (1955).

Disqualification does not absolutely rob court of jurisdiction. —

Since disqualification is a thing which may be waived, the disqualification’s existence does not absolutely rob the court of jurisdiction in the particular case so that the court’s action is coram non judice and may be collaterally attacked. Wood v. Clarke, 188 Ga. 697 , 4 S.E.2d 659 , 1939 Ga. LEXIS 611 (1939).

Judge of other circuit may act and preside in absence of waiver of disqualification. —

When the judge is disqualified because of 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 Ga. LEXIS 370 (1950).

General Consideration

Code section permits appointment without apparent limitation. —

O.C.G.A. § 15-1-9.1 permits the mutual appointment of judges by judges to sit in every judicial office in the state without apparent limitation. Dominguez v. Enterprise Leasing Co., 197 Ga. App. 664 , 399 S.E.2d 269 , 1990 Ga. App. LEXIS 1447 (1990).

Procedure on vacation of judgeship while habeas action pending. —

Capital habeas corpus cases assigned to a superior court judge who vacates the judgeship while the habeas action is pending should be returned to the president of the Council of Superior Court Judges for reassignment. Potts v. Zant, 263 Ga. 634 , 437 S.E.2d 325 , 1993 Ga. LEXIS 833 (1993).

Judge appointed to fill vacancy created by resignation. —

Judgment entered by a judge, who was appointed by the chief county magistrate judge upon a request for “assistance” made by the superior court chief judge, was not void, even though the judge was appointed to fill a vacancy created by the resignation of a superior court judge, which vacancy should have been filled by the governor. Dominguez v. Enterprise Leasing Co., 197 Ga. App. 664 , 399 S.E.2d 269 , 1990 Ga. App. LEXIS 1447 (1990).

Effect of failure to object to appointment. —

If there was no objection to the appointment of a magistrate sitting as a superior court judge prior to the commencement of the trial, the issue of whether the order of appointment complied with the statute was not preserved for appeal. Bennett v. Jones, 218 Ga. App. 714 , 463 S.E.2d 158 , 1995 Ga. App. LEXIS 857 (1995), cert. denied, No. S96C0198, 1996 Ga. LEXIS 295 (Ga. Jan. 19, 1996); Albright v. Peterson, 247 Ga. App. 203 , 539 S.E.2d 919 , 2000 Ga. App. LEXIS 1196 (2000), cert. denied, No. S01C0552, 2001 Ga. LEXIS 473 (Ga. June 4, 2001).

Substitution of trial judge after death was proper. —

Defendant failed to show any harm resulting from the substitution of the trial judge after the death of the original trial judge, and O.C.G.A. § 15-1-9.1(b)(2)(B) permitted the substitution by necessity. Collins v. State, 326 Ga. App. 181 , 756 S.E.2d 269 , 2014 Ga. App. LEXIS 141 (2014).

Appellate review precluded. —

Defendants’ failure to raise defendant’s O.C.G.A. § 15-1-9.1 claims prior to the trial precluded appellate review of issues relating to the appointment of the trial judge. Oliver v. State, 273 Ga. App. 754 , 615 S.E.2d 846 , 2005 Ga. App. LEXIS 610 (2005).

Defendant was not entitled to a new trial merely because the order appointing the senior judge under O.C.G.A. § 15-1-9.1(b)(2) was defective as that issue was raised for the first time in the new trial motion which precluded appellate review. Williams v. State, 290 Ga. App. 829 , 661 S.E.2d 563 , 2008 Ga. App. LEXIS 294 (2008).

Authority of Court

Authority of recused judge to select replacement. —

Although a recused state court judge was without authority to select the judge’s own replacement, defendants waived any objection to the appointed judge sitting as trial judge since the parties stipulated to the qualification of the specially appointed judge to preside over the trial. State v. Evans, 187 Ga. App. 649 , 371 S.E.2d 432 , 1988 Ga. App. LEXIS 846 (1988).

Senior judge had authority to sign an order to conclude a matter the senior judge had earlier presided over, even though the senior judge had been authorized by the chief judge of the circuit “to preside” on four specific days prior to the date the senior judge signed the order. Morris v. Clark, 189 Ga. App. 228 , 375 S.E.2d 616 , 1988 Ga. App. LEXIS 1363 (1988).

Validity of designation. —

O.C.G.A. § 15-1-9.1 does not require that the designation of a judge be made by the chief judge of the requesting court and the fact that a designation was not filed in the court minutes until the day after commencement of a trial did not violate the authority of the designated judge such that the entire proceeding would be rendered void. Marsh v. Resolution Trust Corp., 211 Ga. App. 216 , 439 S.E.2d 75 , 1993 Ga. App. LEXIS 1480 (1993).

Order designating magistrate judge to assist the Superior Court of Fulton County was valid since: (1) the order explicitly provided the length of service; (2) the order designated the scope of the magistrate judge’s duties such as assisting with the routine matters that would normally appear before the presiding judge, and other matters arising therefrom; and (3) the order cloaked the magistrate judge with all the authority and powers exercised by the Fulton County Superior Court judges regularly presiding in the Atlanta Judicial Circuit. Giles v. State, 257 Ga. App. 65 , 570 S.E.2d 375 , 2002 Ga. App. LEXIS 1045 (2002), cert. denied, No. S03C0059, 2002 Ga. LEXIS 995 (Ga. Oct. 28, 2002).

Magistrate presiding over petitioner’s trial for rape and kidnapping with bodily harm was not tainted by fact that the trial court designated the magistrate to preside over the trial; the designation involved an intra-county designation and intra-county designations were not required to comply with O.C.G.A. § 15-1-9.1(f) in order for the magistrate to validly preside over a trial. Lewis v. McDougal, 276 Ga. 861 , 583 S.E.2d 859 , 2003 Ga. LEXIS 626 (2003).

Georgia Supreme Court’s overruling of Hicks v. State, 231 Ga. App. 552 , 499 S.E.2d 341 (1998) to the extent the decision held that an intra-county designation order had to comply with O.C.G.A. § 15-1-9.1(f) , the Georgia appellate courts’ rejection of the contention that the failure to file the designation on the minutes of the court prior to the commencement of the proceedings voided the proceedings, and defendant’s failure to challenge the designation of the trial court to preside over defendant’s trial until after the trial occurred meant that the validity of the trial court’s presiding over the trial could not be reviewed on appeal, and, thus, could not be a ground for reversal. Cammer v. State, 263 Ga. App. 277 , 587 S.E.2d 656 , 2003 Ga. App. LEXIS 1187 (2003), cert. denied, No. S04C0231, 2004 Ga. LEXIS 76 (Ga. Jan. 20, 2004).

There was no error in a magistrate presiding over the defendant’s trial as O.C.G.A. § 15-1-9.1(f) applied only when a request for magistrate judges to assist trial court judges was for a judge outside the county. Salgado v. State, 268 Ga. App. 18 , 601 S.E.2d 417 , 2004 Ga. App. LEXIS 827 (2004).

O.C.G.A. § 15-1-9.1(b)(2) requires only that one judge of the requesting court be unable to preside over the case because the plaintiff presented no evidence to show that this requirement was not met, the judge held proper jurisdiction to preside over the plaintiff’s case and was immune from the plaintiff’s lawsuit. Bush v. Reeves, No. 1:05-CV-1315-TWT, 2005 U.S. Dist. LEXIS 38050 (N.D. Ga. Dec. 22, 2005).

Authority of superior court judge to reconsider and revoke order of designated judge. —

Superior court judge had the authority to reconsider and revoke a pretrial bond that was set by another judge who was presiding in the superior court judge’s place by designation; the designated judge should not have granted the bond to the defendant after expressly finding that the defendant was likely to intimidate witnesses or otherwise interfere with the administration of justice. Rooney v. State, 217 Ga. App. 850 , 459 S.E.2d 601 , 1995 Ga. App. LEXIS 617 (1995).

Magistrate judge had authority to issue permanent restraining order. —

Defendant’s stalking convictions, based on violations of a permanent restraining order (PRO), were not invalid on grounds the PRO was issued by a magistrate judge, as the chief judge of superior court, as authorized by O.C.G.A. § 15-1-9.1(b)(2), had requested magistrates to assist the superior court by hearing petitions under the Georgia Stalking Statute, O.C.G.A. § 16-5-94 . Seibert v. State, 294 Ga. App. 202 , 670 S.E.2d 109 , 2008 Ga. App. LEXIS 1137 (2008).

Magistrate had authority to accept guilty plea, but superior court judge could set aside sentence. —

Although a magistrate who was appointed to preside at a county drug court pursuant to O.C.G.A. § 15-1-9.1(b)(2) had authority to accept a defendant’s guilty plea to marijuana possession, the superior court judge had the power to set aside the sentence, which was not reduced to writing, pursuant to O.C.G.A. § 17-7-93(b) , and give notice of intent to impose a harsher sentence. Surh v. State, 303 Ga. App. 380 , 693 S.E.2d 501 , 2010 Ga. App. LEXIS 63 (2010), cert. denied, No. S10C1274, 2010 Ga. LEXIS 705 (Ga. Oct. 4, 2010).

Appointment not improper. —

Because defendant’s claim that a trial judge was not properly appointed under O.C.G.A. § 15-1-9.1(b)(2) was first raised on a motion for new trial, the motion was thus untimely; in any event, the judge’s previous appointments by separate orders to preside over other superior court matters for specified periods of time did not render the judge a de facto superior court judge in violation of the constitutional requirement that all superior court judges be elected, Ga. Const. 1983, Art. VI, Sec. VII, Para. I, and thus defendant failed to establish that counsel’s failure to object to the allegedly improper appointment of the judge was ineffective assistance. Moreland v. State, 279 Ga. 641 , 619 S.E.2d 626 , 2005 Ga. LEXIS 517 (2005).

It was proper under O.C.G.A. § 15-1-9.1(b)(2) for the chief judge of the magistrate court to appoint one of the magistrates to hear superior court cases after the chief judge of the superior court made a written request for judicial assistance. Dorsey v. State, 291 Ga. App. 706 , 662 S.E.2d 800 , 2008 Ga. App. LEXIS 612 (2008).

Duration of Appointment

Request for assistance was temporary. —

Trial court erred in ruling on the constitutionality of O.C.G.A. § 15-1-9.1(b)(2)(D) as the intra-county request for judicial assistance was for temporary assistance pursuant to § 15-1-9.1(b)(2)(C) since the judicial order setting forth the request and response for judicial assistance was of limited duration and was subject to termination at any time, upon receipt of 30 days’ notice from the superior, state, or juvenile court announcing that court’s withdrawal. Earl v. Mills, 278 Ga. 128 , 598 S.E.2d 480 , 2004 Ga. LEXIS 525 (2004).

Indefinite appointment of assistant judges or district attorney. —

State court judge does not have the authority to order the indefinite appointment of assistant judges or solicitors (now district attorneys) whose positions are not authorized by local law or to finance those positions through a court-created fund comprised of moneys withheld from the county treasury. Cramer v. Spalding County, 261 Ga. 570 , 409 S.E.2d 30 , 1991 Ga. LEXIS 423 (1991).

Order appointing judge held invalid. —

Trial court correctly granted the defendant’s motion to suppress evidence seized from the defendant’s computer because the order appointing a visiting judge to sign the warrant for the search failed to specify either the scope or length of the assisting judge’s service, violating the standards required under O.C.G.A. § 15-1-9.1(f) , and rendering the warrant null. State v. Kelley, 302 Ga. App. 850 , 691 S.E.2d 890 , 2010 Ga. App. LEXIS 247 (2010).

Request for intra-county judicial assistance not permanent. —

Superior, state, and juvenile courts did not take improper permanent action by renewing an order requesting intra-county judicial assistance, which made the order span two terms of court. Earl v. Mills, 278 Ga. 128 , 598 S.E.2d 480 , 2004 Ga. LEXIS 525 (2004).

Other

Separate court not created. —

Intra-county request for judicial assistance under O.C.G.A. § 15-1-9.1(b)(2)(C) did not create a separate court, but was a constitutionally-permitted request for intra-county judicial assistance since the request and response set out the matters to be handled by the two juvenile court judges, who had agreed to assist the superior court; accordingly, the intra-county request and response were neither an unconstitutional creation of a class of court in violation of Ga. Const. 1983, Art. VI, Sec. I, Para. I, nor an unconstitutional usurpation of legislative authority by members of the judiciary in violation of Ga. Const. 1983, Art. VI, Sec. I, Para. VII. Earl v. Mills, 278 Ga. 128 , 598 S.E.2d 480 , 2004 Ga. LEXIS 525 (2004).

General Consideration

Not a court of first instance. —

Supreme Court is in no respect a court of first instance. Vanderford v. Brand, 126 Ga. 67 , 54 S.E. 822 , 1906 Ga. LEXIS 319 (1906).

No review of questions not ruled on by trial judge. —

Supreme Court is a court for the correction of errors, and has no original jurisdiction; the Supreme Court will not pass upon questions on which no ruling has ever been made by a trial judge. South View Cem. Ass'n v. Hailey, 199 Ga. 478 , 34 S.E.2d 863 , 1945 Ga. LEXIS 347 (1945).

If defendant in custody proceeding raises for first time on appeal, factual issues and an attack on the validity of the divorce, the questions cannot be considered by the Supreme Court. Beggs v. Beggs, 208 Ga. 415 , 67 S.E.2d 135 , 1951 Ga. LEXIS 381 (1951).

Constitutionality of statutes. —

If constitutional questions are raised for the first time in a petition for certiorari to the superior court from a judgment rendered in a recorder’s court of Atlanta, the superior court could not consider, and the Supreme Court is without jurisdiction to review, the assignment of error that the ordinance under which the plaintiff in error was convicted in the recorder’s court is unconstitutional. Worth v. Borough of Atlanta, 175 Ga. 377 , 165 S.E. 245 , 1932 Ga. LEXIS 254 (1932).

If statutes are not attacked as being unconstitutional in the trial court, such an attack, enumerated as error and argument in the brief of counsel before the Supreme Court, will not be passed upon. Turk v. State Hwy. Dep't, 226 Ga. 245 , 174 S.E.2d 791 , 1970 Ga. LEXIS 493, transferred, 122 Ga. App. 555 , 177 S.E.2d 847 , 1970 Ga. App. LEXIS 948 (1970).

Certification of question authorized. —

Court of Appeals was authorized to certify a question to the Supreme Court as to the constitutionality of retroactive application of the cap on damages recoverable against the state provided in O.C.G.A. § 50-21-26 . Department of Human Resources v. Phillips, 223 Ga. App. 520 , 478 S.E.2d 598 , 1996 Ga. App. LEXIS 1158 (1996).

Case sent by mistake to Court of Appeals retained on docket of Supreme Court. —

If a case is sent to the Court of Appeals by mistake, and the case is transmitted therefrom and decided to be within the jurisdiction of the Supreme Court, such case will be retained and entered on the docket of that court for hearing and determination. Dawson v. State, 130 Ga. 127 , 60 S.E. 315 , 1908 Ga. LEXIS 242 (1908); Mitchell v. Masury, 132 Ga. 360 , 64 S.E. 275 , 1909 Ga. LEXIS 112 (1909).

Affirmance and Reversal

Duty of Supreme Court. —

It is the duty of the Supreme Court not only to grant judgments of affirmance or reversal, but any other order, direction, or decree required, and if necessary to make a final disposition of the cause. Harris v. Hull, 70 Ga. 831 , 1883 Ga. LEXIS 468 (1883).

General authority of Supreme Court. —

Supreme Court is authorized to make final disposition of a case and to give the case such direction as is consistent with the law and justice applicable to the case, and as will prevent the unnecessary protraction of litigation. Robinson v. Wilkins, 74 Ga. 47 , 1884 Ga. LEXIS 354 (1884); Ross v. Rambo, 195 Ga. 100 , 23 S.E.2d 687 , 1942 Ga. LEXIS 728 (1942).

One great purpose in establishing the Supreme Court (or the Court of Appeals) was to terminate suits, and with this view, it is made the court’s duty not only to grant judgments of affirmance or reversal, but any other order, direction, or decree required, and if necessary to make a final disposition of the cause, and the court is empowered to give to the cause in the court below such direction as may be consistent with the law and justice of the case. Gray v. Watson, 54 Ga. App. 885 , 189 S.E. 616 , 1936 Ga. App. LEXIS 788 (1936).

General authority of Court of Appeals. —

Under Ga. Const. 1976, Art. VI, Sec. II, Para. VIII (see now Ga. Const. 1983, Art. VI, Sec. V, Para. III), the Court of Appeals has, as to cases within the court’s peculiar jurisdiction, the same powers as the Supreme Court has within that court’s jurisdiction. Finley v. Southern Ry., 5 Ga. App. 722 , 64 S.E. 312 , 1909 Ga. App. LEXIS 113 (1909).

Court of Appeals may make final disposition of the case and give such directions as are consistent with the law and justice applicable to the cause and as will prevent unnecessary protraction of litigation. Parks v. Parks, 89 Ga. App. 725 , 80 S.E.2d 837 , 1954 Ga. App. LEXIS 564 (1954).

Amendment of judgment by Court of Appeals. —

Court of Appeals has power to direct that verdict and judgment be so amended as to meet the ends of justice and comply with the law. Parks v. Parks, 89 Ga. App. 725 , 80 S.E.2d 837 , 1954 Ga. App. LEXIS 564 (1954).

Reviewing court to apply law existing at time of judgment. —

Reviewing court should apply law as the law exists at the time of the court’s judgment rather than the law prevailing at rendition of judgment under review, and may therefore reverse a judgment that was correct at the time the judgment was rendered and affirm a judgment that was erroneous at the time, if the law has been changed in the meantime and if such application of the new law will impair no vested right under the prior law. Osteen v. Osteen, 244 Ga. 445 , 260 S.E.2d 321 , 1979 Ga. LEXIS 1275 (1979).

Judgment affirmed when in accordance with direction of Supreme Court. —

If judgment of a lower court is in accordance with the direction of the Supreme Court, the judgment will be affirmed. Loyd v. Hicks, 32 Ga. 499 , 1861 Ga. LEXIS 219 (1861).

Distinction between reversals for different reasons. —

Dismissal of a writ of error (see now O.C.G.A. §§ 5-6-49 and 5-6-50 ) because a judgment of reversal would be in effect a nullity is a different thing from the reversal of a judgment upon proof of facts which have transpired since the judgment was rendered. In the one instance, review is refused because review would be useless, while in the other instance, to reverse the judgment of the lower court would be to hold that the judge erred because of the proof of the existence of facts which have occurred since the judge’s judgment was rendered, and hence were not before the judge when the judge made the decision. Marietta Chair Co. v. Henderson, 119 Ga. 65 , 45 S.E. 725 , 1903 Ga. LEXIS 32 (1903).

Harmless error if execution of amended judgment conforms to original judgment. —

If court erred in amending judgment but execution conformed to the original judgment, the error was harmless and correctible. Kicklighter v. Burkhalter, 177 Ga. 187 , 170 S.E. 75 , 1933 Ga. LEXIS 144 (1933) (decided prior to Civil Practice Act of 1966).

If sentence is partly illegal, Supreme Court will direct that illegal part be stricken out. Newman v. State, 101 Ga. 534 , 28 S.E. 1005 , 1897 Ga. LEXIS 259 (1897).

If fine imposed is excessive, the sentence may be corrected by reducing the fine. Phillips v. City of Atlanta, 87 Ga. 62 , 13 S.E. 201 , 1891 Ga. LEXIS 93 (1891).

Fine for contempt that exceeds the legal amount may be corrected by reducing the fine. Warner v. Martin, 124 Ga. 387 , 52 S.E. 446 , 1905 Ga. LEXIS 721 (1905).

Reversal of judgment in cases of multiple defendants. —

Appellate court can reverse the judgment as to only one of three defendants if a joint motion for new trial is filed, and, a fortiori, it can reverse the judgment as to one defendant only if the appellants themselves separate the appellants’ cause by filing separate motions for new trial and coming to the court on separate bills of exceptions (see now O.C.G.A. §§ 5-6-49 and 5-6-50 ). Gray v. Watson, 54 Ga. App. 885 , 189 S.E. 616 , 1936 Ga. App. LEXIS 788 (1936).

Powers over Inferior Tribunals

Power to compel signing of bill of exceptions. —

Supreme Court has power to compel a judge to sign a bill of exceptions (see now O.C.G.A. §§ 5-6-49 and 5-6-50 ), if the judge unlawfully refuses to do so. Taylor v. Reese, 108 Ga. 379 , 33 S.E. 917 , 1899 Ga. LEXIS 261 (1899).

Appellate courts have authority to require judge of trial court to sign bill of exceptions (see now O.C.G.A. §§ 5-6-49 and 5-6-50 ) by means of mandamus. Garland v. Tanksley, 99 Ga. App. 201 , 107 S.E.2d 866 , 1959 Ga. App. LEXIS 1028 (1959).

Limits on authority to grant mandamus. —

Appellate courts do not have the authority to grant mandamus to compel a superior court judge to approve brief of evidence presented to the judge in connection with a motion for new trial pending in that court. Central R.R. v. Miller, 91 Ga. 83 , 16 S.E. 256 , 1892 Ga. LEXIS 512 (1892).

Limits on authority to compel grant of supersedeas. —

Appellate courts do not have the authority to compel grant of supersedeas to stay execution of judgment in criminal case while pending on bill of exceptions (see now O.C.G.A. §§ 5-6-49 and 5-6-50 ). Spann v. Clark, 47 Ga. 369 , 1872 Ga. LEXIS 345 (1872); Vanderford v. Brand, 126 Ga. 67 , 54 S.E. 822 , 1906 Ga. LEXIS 319 (1906).

Power of Supreme Court greater than superior court. —

Powers of the Supreme Court are much more ample in the matter of awarding direction than are those of the superior court to shape what may be termed special proceedings or results without direction from the Supreme Court. Powell v. Augusta & S.R.R., 77 Ga. 192 , 3 S.E. 757 , 1887 Ga. LEXIS 92 (1887).

Appellate court may not aid litigant absent writ of error. —

Appellate court cannot aid a petitioner in taking any step in the superior court in a case pending in that court if no writ of error (see now O.C.G.A. §§ 5-6-49 and 5-6-50 ) has been sued out or applied for, except for the purpose of preventing the case from becoming moot and thus divesting the court of jurisdiction. Garland v. Gray, 108 Ga. App. 303 , 132 S.E.2d 834 , 1963 Ga. App. LEXIS 618 (1963).

Power to Establish Rules of Practice and Regulate Admission to Bar

For discussion of constitutionality of Ga. L. 1963, p. 70, § 1 (see now O.C.G.A. § 15-19-30 et seq.), relating to establishment of a unified bar, and the relative power of the legislative and judiciary to establish disciplinary rules and regulations for attorneys, see Sams v. Olah, 225 Ga. 497 , 169 S.E.2d 790 , 1969 Ga. LEXIS 548 (1969), cert. denied, 397 U.S. 914, 90 S. Ct. 916 , 25 L. Ed. 2 d 94, 1970 U.S. LEXIS 3008 (1970).

Creation of unified state bar is judicial function. —

In proposing that the Supreme Court create a unified bar, the General Assembly did not have the authority to circumscribe the court by denying the court the right to adopt rules and regulations on the court’s own initiative. Since the court had the power to create the State Bar, the court must necessarily also have the power to make rules for the government of this administrative arm of the court. Sams v. Olah, 225 Ga. 497 , 169 S.E.2d 790 , 1969 Ga. LEXIS 548 (1969), cert. denied, 397 U.S. 914, 90 S. Ct. 916 , 25 L. Ed. 2 d 94, 1970 U.S. LEXIS 3008 (1970).

State Bar Act authorizes adoption of disciplinary rules and regulations. —

Purpose of Ga. L. 1963, p. 70, § 1 (see now O.C.G.A. § 15-19-30 et seq.) was to initiate the creation of the State Bar of Georgia. That law eliminated any conflicting claims of coordinate branches of government to such power. Furthermore, that law’s adoption encouraged the court to exercise the court’s inherent power in this regard. In response thereto, but in the exercise of an inherent judicial function, the Supreme Court acted and the State Bar of Georgia was created. Although the article was not essential for such action, it is a valid legislative enactment and not subject to constitutional attack. The rules and regulations are therefore not a nullity. Sams v. Olah, 225 Ga. 497 , 169 S.E.2d 790 , 1969 Ga. LEXIS 548 (1969), cert. denied, 397 U.S. 914, 90 S. Ct. 916 , 25 L. Ed. 2 d 94, 1970 U.S. LEXIS 3008 (1970).

Promulgation of rule absent statutory provision. —

In absence of statutory provision, when no rule has been prescribed, the Supreme Court will promulgate a rule. McCowan v. Brooks, 113 Ga. 384 , 39 S.E. 112 , 1901 Ga. LEXIS 277 (1901).

Disqualification of an attorney to represent codefendants must be raised prior to trial; otherwise, any disqualification could result in manufactured error. Brown v. State, 247 Ga. 298 , 275 S.E.2d 52 , 1981 Ga. LEXIS 683 (1981), cert. denied, 454 U.S. 882, 102 S. Ct. 366 , 70 L. Ed. 2 d 192 (1981), overruled, Wilson v. Zant, 249 Ga. 373 , 290 S.E.2d 442 , 1982 Ga. LEXIS 1137 (1982).

General Consideration

Equal protection. —

O.C.G.A. § 15-6-3 , combined with O.C.G.A. § 17-7-171 , does not deprive defendants of equal protection of the law despite the possibility of relatively longer trial waitings than in those circuits with more terms of court per year. Henry v. State, 263 Ga. 417 , 434 S.E.2d 469 , 1993 Ga. LEXIS 643 (1993).

Ga. L. 1996, p. 627, which establishes two terms of court for the City Court of Atlanta, is constitutional and does not violate equal protection. Cross v. State, 272 Ga. 282 , 528 S.E.2d 241 , 2000 Ga. LEXIS 283 (2000).

When the legislature deals with superior courts in fixing the terms at which the courts are to be held in the several counties, the legislature does so by general and not by special legislation. Burge v. Mangum, 134 Ga. 307 , 67 S.E. 857 , 1910 Ga. LEXIS 179 (1910); Geer v. Bush, 146 Ga. 701 , 92 S.E. 47 , 1917 Ga. LEXIS 453 (1917); Geer v. Colquitt Hdwe. & Furn. Co., 146 Ga. 811 , 92 S.E. 515 , 1917 Ga. LEXIS 512 (1917); Norris v. McDaniel, 207 Ga. 232 , 60 S.E.2d 329 , 1950 Ga. LEXIS 402 (1950).

Act fixing terms of a superior court and providing for attendance of grand juries thereat is a general law. Long v. State, 160 Ga. 292 , 127 S.E. 842 , 1925 Ga. LEXIS 139 (1925); Brown v. State, 242 Ga. 602 , 250 S.E.2d 491 , 1978 Ga. LEXIS 1295 (1978).

Effect of amendment changing dates of terms of court. —

Amendment of O.C.G.A. § 15-6-3 , so as to change the dates of commencement of terms of court, was not an ex post facto law as applied to the defendant, who was not at any time entitled to discharge and acquittal of the offenses with which the defendant was charged. Aspinwall v. State, 201 Ga. App. 203 , 410 S.E.2d 388 , 1991 Ga. App. LEXIS 1266 (1991).

If, due to an error in the enactment, an amendment changing the terms of court from four to two had not gone into effect at the time the defendant moved for acquittal, the defendant was entitled to acquittal for failure to try the defendant within the term when the defendant’s speedy trial demand was made. Houston v. State, 217 Ga. App. 783 , 459 S.E.2d 583 , 1995 Ga. App. LEXIS 605 (1995).

Reconvening did not require re-swearing. —

Although alternate jurors were substituted during the January term of court, the defendant pointed to no evidence that the January grand jury was ever formally discharged from the jury’s duties prior to the end of the grand jury’s term, thus, it continued to act within the jury’s term of court and remained empowered to act until the last day of the jury’s term and did not need to be re-sworn prior to returning to the defendant’s second indictment. Durden v. State, 299 Ga. 273 , 787 S.E.2d 697 , 2016 Ga. LEXIS 428 (2016).

Speedy trial demand untimely. —

Defendant was indicted for felony murder and other charges during the June 2014 term of the trial court; the defendant did not file a valid demand in that term or the subsequent September 2014 term; and the December 2014 term began on December 1, pursuant to O.C.G.A. § 15-6-3(20) , making the defendant’s December 5 speedy trial demand untimely under O.C.G.A. § 17-7-171(a) . Johnson v. State, 300 Ga. 252 , 794 S.E.2d 60 , 2016 Ga. LEXIS 765 (2016).

Motions and Judgments

Effect of motion filed before end of term. —

Trial court did not err when the court modified an order granting defendant’s motion for a new trial since the modification was made after the expiration of the term in which the order was entered and the state’s motion for reconsideration, which sought to revive the conviction, was filed before the end of the term in which the court entered the order granting a new trial. Platt v. State, 200 Ga. App. 784 , 409 S.E.2d 878 , 1991 Ga. App. LEXIS 1151 (1991), cert. denied, No. S91C1537, 1991 Ga. LEXIS 624 (Ga. Sept. 6, 1991).

Employee’s motion for reconsideration of the dismissal of the employee’s petition for judicial review of a denial of unemployment benefits, and the Fulton County Superior Court’s order concerning the employee’s motion, were untimely because the motion and decision were filed after the term of court in which the initial denial was made. Fed v. Butler, 327 Ga. App. 637 , 760 S.E.2d 642 , 2014 Ga. App. LEXIS 395 (2014).

After expiration of the term at which a judgment is entered, it is out of the power of the court to modify and revise the judgment in any matter of substance or in any matter affecting the merits; however, a default judgment may be set aside when the limited requirements of O.C.G.A. § 9-11-60(d)(2) are met. Lee v. Restaurant Mgt. Servs., 232 Ga. App. 902 , 503 S.E.2d 59 , 1998 Ga. App. LEXIS 828 (1998), cert. denied, No. S98C1621, 1998 Ga. LEXIS 1126 (Ga. Nov. 5, 1998).

Regardless of whether O.C.G.A. § 17-10-1(f) applied to defendant’s December 2003 motion to set aside a sentence, that motion, filed four-and-one-half years after the sentence was imposed, was far too late; the motion was not filed in the term in which the sentence was entered, within a year of the date upon which the sentence was imposed, nor within 120 days of the trial court’s receipt of a direct-appeal remittitur. Reynolds v. State, 272 Ga. App. 91 , 611 S.E.2d 750 , 2005 Ga. App. LEXIS 224 (2005), cert. denied, No. S05C1106, 2005 Ga. LEXIS 426 (Ga. June 6, 2005).

Trial court erred by entering a second final decree of divorce pursuant to O.C.G.A. § 9-11-60(g) after the term of court in which the first final decree had been entered had already expired because there were no clerical mistakes made with respect to the first final decree; the alleged mistake by the clerk, if any, related to the clerk’s failure to file the husband’s premature motion for new trial and had nothing to do with any alleged clerical errors in the first order and, accordingly, the trial court could not “correct” any mistake relating to the handling of the husband’s motion for new trial by issuing a “corrected” second order based on a first order that contained no clerical mistakes. Tremble v. Tremble, 288 Ga. 666 , 706 S.E.2d 453 , 2011 Ga. LEXIS 145 (2011).

Assuming that a clerk made a “clerical mistake” by failing to later stamp file a husband’s premature motion for new trial as a “response” to the trial court’s first final decree of divorce, such a clerical mistake could not be “corrected” by the trial court issuing a second final divorce decree after the May term of court had ended; in order for a clerical mistake to be corrected, the clerical mistake must appear and be corrected in the actual judgment, order, or other part of the record in which the mistake has arisen, O.C.G.A. § 9-11-60(g) . Tremble v. Tremble, 288 Ga. 666 , 706 S.E.2d 453 , 2011 Ga. LEXIS 145 (2011).

Buyer of property at a sheriff’s sale who was awarded attorney’s fees against the former owner and the owner’s attorney’s limited liability partnership (LLP) was not entitled to amend the judgment to include the attorney and the attorney’s later-formed limited liability company (LLC) because it did not seek to amend the order until a year later, outside the term of court of the original order. The addition of the attorney and the substitution of the LLP was substantive. Davis v. Crescent Holdings & Invs., LLC, 336 Ga. App. 378 , 785 S.E.2d 51 , 2016 Ga. App. LEXIS 186 (2016).

Court was without authority to vacate order outside of the term in which the order was entered. —

Superior court was without jurisdiction to entertain an untimely motion to withdraw a guilty plea, filed outside the term of court in which the plea was entered; hence, the trial court properly denied the relief sought. Davis v. State, 274 Ga. 865 , 561 S.E.2d 119 , 2002 Ga. LEXIS 169 (2002).

Defendant’s motion to vacate and set aside an order denying the defendant’s motion in arrest of judgment was properly denied after the motion to vacate was filed 11 months after the denial of the motion in arrest of judgment, which was well beyond the respective terms of court in which the judgment of conviction and the denial of the motion in arrest of judgment were entered. Smith v. State, 257 Ga. App. 468 , 571 S.E.2d 446 , 2002 Ga. App. LEXIS 1183 (2002).

Trial court improperly vacated the court’s own order outside of the term in which the order was entered, so the order vacating the initial order was a nullity, but, as the initial order, which denied an application to modify or vacate an arbitration award, did not address a counterclaim seeking to confirm the arbitration award, it was not a final order, and so the later order confirming the award was affirmed. Tanaka v. Pecqueur, 268 Ga. App. 380 , 601 S.E.2d 830 , 2004 Ga. App. LEXIS 921 (2004).

Because the trial court lacked subject matter jurisdiction to modify a sentence in a term other than the term in which the sentence was imposed, and there was no claim that the sentence entered was void, an order vacating one sentence and reinstating another sentence was vacated and the matter was remanded with instructions for the trial court to dismiss the action for lack of subject matter jurisdiction. Barthell v. State, 286 Ga. App. 160 , 648 S.E.2d 412 , 2007 Ga. App. LEXIS 600 (2007).

Trial court properly denied a motion to withdraw a guilty plea to two counts of armed robbery because the motion was made after expiration of the term of court under O.C.G.A. § 15-6-3(11) in which the defendant was sentenced; thus, the trial court did not have jurisdiction to rule on the motion. Williams v. State, 301 Ga. App. 849 , 689 S.E.2d 124 , 2010 Ga. App. LEXIS 3 (2010).

Order dismissing the defendant’s motion to withdraw a guilty plea was affirmed because the trial court properly vacated only a discrete portion of the sentence relating to an improper parole condition and the remainder of the sentence was still in force; thus, the defendant had no absolute right to withdraw the plea since the motion to withdraw had to be filed within the term of court in which sentencing under the plea occurred. Thompson v. State, 348 Ga. App. 807 , 824 S.E.2d 685 , 2019 Ga. App. LEXIS 89 (2019).

Incorrectly styled motion timely filed due to court term. —

When a trial court issued a child support order on February 14, 2012 and the father filed a motion for relief on February 28, 2012, the father’s motion (although incorrectly styled a motion for J.N.O.V.) was timely as a new trial motion under O.C.G.A. § 5-5-40 ; it was also timely because, in DeKalb County, the January term of court ran from the first Monday in January until the first Monday in March, pursuant to O.C.G.A. § 15-6-3(37) . Wheeler v. Akins, 327 Ga. App. 830 , 761 S.E.2d 383 , 2014 Ga. App. LEXIS 434 (2014).

Other

Withdrawal of guilty pleas. —

Trial court properly denied defendant’s motion to modify the defendant’s sentence for theft by taking because, even assuming that defendant’s motion could be treated as a motion to withdraw defendant’s guilty plea, the court lost jurisdiction to grant the motion on that basis when the term of court in which the defendant was sentenced expired. Martin v. State, 266 Ga. App. 190 , 596 S.E.2d 705 , 2004 Ga. App. LEXIS 335 (2004).

Trial court lacked jurisdiction to allow the defendant to withdraw the defendant’s guilty plea when the term of court in which that defendant was sentenced expired. Tabatabaee v. State, 266 Ga. App. 462 , 597 S.E.2d 518 , 2004 Ga. App. LEXIS 407 (2004).

Because the term of court when the defendant was sentenced expired, the trial court lacked jurisdiction to allow the defendant to withdraw a guilty plea. Thompson v. State, 279 Ga. App. 375 , 631 S.E.2d 422 , 2006 Ga. App. LEXIS 566 (2006).

Because Crisp County had multiple terms of court each year, and eight years passed before the defendant sought to withdraw the defendant’s guilty plea, the trial court had no authority to permit the defendant to withdraw the plea. Brown v. State, 280 Ga. 658 , 631 S.E.2d 687 , 2006 Ga. LEXIS 453 (2006).

Because Rockdale County had four terms of court each year, and two full years passed before the defendant sought to withdraw a guilty plea, the trial court had no jurisdiction to permit withdrawal of the plea. Turner v. State, 281 Ga. 435 , 637 S.E.2d 384 , 2006 Ga. LEXIS 889 (2006), overruled in part as stated in Terry-Hall v. State, 312 Ga. 250 , 862 S.E.2d 110 , 2021 Ga. LEXIS 572 (2021).

Defendant’s challenge of the trial court’s denial of the defendant’s motion to withdraw the defendant’s guilty plea failed because the defendant’s motion was filed after the expiration of the term of court in which the plea was entered. Belcher v. State, 304 Ga. App. 645 , 697 S.E.2d 300 , 2010 Ga. App. LEXIS 597 (2010).

Plea counsel did not perform deficiently for failing to investigate a robbery charge in another county because the defendant’s only available means to withdraw the defendant’s guilty plea to the robbery charge was through habeas-corpus proceedings; the defendant’s first mention of any challenge to the defendant’s plea of guilty to the robbery charge was well beyond the term of court in which the defendant was sentenced. Murray v. State, 307 Ga. App. 621 , 705 S.E.2d 726 , 2011 Ga. App. LEXIS 34 (2011).

Because the court of appeals was unable to determine from the record upon which of two Mondays the May term of Walton Superior Court began, the court assumes, without deciding, that the defendant’s motion to withdraw a guilty plea was timely filed; the language of O.C.G.A. § 15-6-3(2)(B) indicates that there are four terms in Walton County, Georgia and the superior court is authorized to begin the court’s terms on either of those two Mondays. Burnett v. State, 309 Ga. App. 422 , 710 S.E.2d 624 , 2011 Ga. App. LEXIS 354 (2011).

Trial court lacked jurisdiction to entertain a defendant’s motion to withdraw the defendant’s guilty plea because, pursuant to O.C.G.A. § 15-6-3(39)(A), the defendant’s motion was filed three weeks beyond the term of court in which the defendant was sentenced. Additionally, trial counsel was not required to advise the defendant of the effects of parole on the sentence. Hall v. State, 313 Ga. App. 670 , 722 S.E.2d 392 , 2012 Ga. App. LEXIS 51 (2012).

Judgment denying the defendant’s motion to withdraw the guilty plea was vacated and the case remanded with direction to dismiss the motion because the term of court had expired and, therefore, the trial court lacked jurisdiction to permit the withdrawal of a guilty plea since the term of court in which the defendant was sentenced had expired. Branner v. State, 355 Ga. App. 137 , 843 S.E.2d 26 , 2020 Ga. App. LEXIS 273 (2020).

Defendant’s attorney did not waive demand by agreeing to continuance. —

Although a defendant’s attorney agreed to a continuance in early December 2004, there was no evidence that the attorney agreed to continue the case past that term of court, which, pursuant to O.C.G.A. § 15-5-3 , did not end until February 2005, and in which the case could have been tried and was required to be tried following defendant’s speedy trial demand under O.C.G.A. § 17-7-170 in the prior court term. Thornton v. State, 301 Ga. App. 784 , 689 S.E.2d 361 , 2009 Ga. App. LEXIS 1445 (2009).

General Consideration

Power of superior court is limited by this section. General Teamsters Local 528 v. Allied Foods, Inc., 228 Ga. 479 , 186 S.E.2d 527 , 1971 Ga. LEXIS 601 (1971), cert. denied, 405 U.S. 1041, 92 S. Ct. 1313 , 31 L. Ed. 2 d 582, 1972 U.S. LEXIS 3081 (1972).

Power to issue injunctions. —

Superior courts are empowered to issue injunctions, Ga. Const. 1983, Art. VI, Sec. I, Para. IV; O.C.G.A. § 15-6-8 , and nothing in O.C.G.A. § 48-4-40(1) deprives the courts of that power in the arena of redemption of property following a tax sale. Am. Lien Fund, LLC v. Dixon, 286 Ga. 562 , 690 S.E.2d 415 , 2010 Ga. LEXIS 178 (2010).

Trial court had subject matter jurisdiction over a landowner’s action seeking an interlocutory injunction requiring neighbors to move the neighbor’s dock because the neighbors did not point to any federal law that would preempt the trial court as an appropriate forum for adjudicating the rights and remedies of the parties; there was no Congressional intent to preclude state action concurrently with the statutory and regulatory scheme establishing the authority of the Army Corps of Engineers over docks on the lake where the parties lived. Dillon v. Reid, 312 Ga. App. 34 , 717 S.E.2d 542 , 2011 Ga. App. LEXIS 882 (2011).

Jurisdiction of the superior courts is clearly defined by the Georgia Constitution and former Code 1873, § 246 (see now O.C.G.A. § 15-6-8 ). Trial of misdemeanor cases may be conferred upon inferior courts. Porter v. State, 53 Ga. 236 , 1874 Ga. LEXIS 452 (1874).

Judicial powers historically vested in superior courts. —

Superior courts have forever in history been the great reservoir of judicial power in which the judicial powers of the state were vested, and however other courts might be erected as a relief to it, to take cognizance of minor matters, the practice has been uniform to retain in this tribunal concurrent, and generally, even supervisory power over them. Smith v. State, 62 Ga. App. 733 , 9 S.E.2d 714 , 1940 Ga. App. LEXIS 423 (1940).

Limitation on supervisory control of superior courts. —

Supervisory control of the superior court over inferior judicatories exists only for specified purposes, viz., either to correct errors in their proceedings in a particular case, or to command them to fulfill their official duties in such a case when, from any cause, a defect of legal justice would ensue from a failure or improper discharge of such duties; or to prohibit or arrest illegal proceedings by any officer of such courts when no other legal remedy or relief is given, and when such interference is required by some principle of right, necessity, and justice. This jurisdiction is exercised by writs designated by the statutes, such as the writ of certiorari, mandamus, or prohibition. Darden v. Ravan, 232 Ga. 756 , 208 S.E.2d 846 , 1974 Ga. LEXIS 1079 (1974), overruled in part, Ricks v. State, 303 Ga. 567 , 814 S.E.2d 318 , 2018 Ga. LEXIS 288 (2018).

Jurisdiction over habeas corpus cases by all courts. —

All superior courts have jurisdiction over subject matter of habeas corpus cases or cases in nature of habeas corpus. Hopkins v. Hopkins, 237 Ga. 845 , 229 S.E.2d 751 , 1976 Ga. LEXIS 1418 (1976).

Jurisdiction over felony trials. —

O.C.G.A. § 15-6-8 vests superior courts with exclusive subject matter jurisdiction over all felony trials. Goodrum v. State, 259 Ga. App. 704 , 578 S.E.2d 484 , 2003 Ga. App. LEXIS 240 (2003).

State did not have the right to appeal sentences imposed by the trial court contrary to a plea agreement under O.C.G.A. § 5-7-1(a)(6) because the sentences were not void; the sentences were within the 20-year range of punishments for robbery and aggravated assault, O.C.G.A. §§ 16-5-21(b) and 16-8-40(b) , and the trial court had jurisdiction over the case, pursuant to Ga. Const. 1983, Art. VI, Sec. IV, Para. I, and O.C.G.A. § 15-6-8(1) . State v. Harper, 279 Ga. App. 620 , 631 S.E.2d 820 (2006) was overruled. State v. King, 325 Ga. App. 445 , 750 S.E.2d 756 , 2013 Ga. App. LEXIS 916 (2013), cert. denied, No. S14C0565, 2014 Ga. LEXIS 263 (Ga. Mar. 28, 2014).

Subject matter jurisdiction over employment cases. —

Superior courts have subject matter jurisdiction over timely Title VII claims under the Civil Rights Act of 1964 filed pursuant to Equal Employment Opportunity Commission notification to the claimant that, the federal prerequisites for suit having been fulfilled, suit may be filed. Collins v. DOT, 208 Ga. App. 53 , 429 S.E.2d 707 , 1993 Ga. App. LEXIS 419 (1993).

Subject matter jurisdiction of breach of contract and fraud action. —

Superior court had jurisdiction of an action for breach of contract and fraud involving an agreement between an employer and employee, even though the agreement provided that the parties “submit to the exclusive jurisdiction of the English Courts.” Bradley v. British Fitting Group, Plc, 221 Ga. App. 621 , 472 S.E.2d 146 , 1996 Ga. App. LEXIS 584 (1996).

Subject matter jurisdiction over probate matter. —

Trial court had subject matter jurisdiction to review the probate court’s decision under Ga. Const. 1983, Art. VI, Sec. IV, Para. I and O.C.G.A. § 15-6-8(4)(E) to deny probate of the decedent’s 1988 will and the parties’ waiver of the statutory right to a jury trial did not deprive the trial court of subject matter jurisdiction to deny probate of the will. Mosley v. Lancaster, 296 Ga. 862 , 770 S.E.2d 873 , 2015 Ga. LEXIS 195 (2015).

Superior courts have concurrent jurisdiction with all inferior courts over misdemeanors. Smith v. State, 62 Ga. App. 733 , 9 S.E.2d 714 , 1940 Ga. App. LEXIS 423 (1940); Allen v. State, 85 Ga. App. 887 , 70 S.E.2d 543 , 1952 Ga. App. LEXIS 849 (1952); Lee v. State, 222 Ga. App. 389 , 474 S.E.2d 281 , 1996 Ga. App. LEXIS 836 (1996).

Extent of concurrent jurisdiction with magistrate courts. —

Superior court is a court of general jurisdiction, and has concurrent jurisdiction with the justices’ (now magistrate) courts in all civil cases if the amount involved is less than $100.00 (now $2,500.00). Phillips v. Rawls, 46 Ga. App. 200 , 167 S.E. 189 , 1932 Ga. App. LEXIS 103 (1932) (See now O.C.G.A. § 15-10-2 for jurisdiction of magistrate courts.).

Court first acquiring jurisdiction of prosecution retains jurisdiction. —

While this section granted superior courts the power to exercise concurrent jurisdiction with inferior tribunals, the court first acquiring jurisdiction of the prosecution retained the jurisdiction to the exclusion of the others, so long as the court did not voluntarily and legally abandon the jurisdiction. McAuliffe v. Outz, 139 Ga. App. 62 , 227 S.E.2d 807 , 1976 Ga. App. LEXIS 1680 (1976).

Superior court to review decisions only when presented under proper writ. —

This section empowered the superior courts only to review the proceedings of inferior courts when the question was presented under the proper statutory writ, and if the court finds the proceedings to be irregular or invalid, to remand to the tribunal having jurisdiction of the case for reconsideration in accordance with the court’s instructions. McAuliffe v. Outz, 139 Ga. App. 62 , 227 S.E.2d 807 , 1976 Ga. App. LEXIS 1680 (1976).

Removing record from inferior court. —

Entire record cannot be removed from inferior court to superior court by notice to officers to produce the record, or by a subpoena duces tecum directed to and served upon the court. In re Lester, 77 Ga. 143 , 1886 Ga. LEXIS 318 (1886).

Authority to order expert evaluation of criminal defendant. —

Superior court of the county in which defendant was convicted of murder had authority, on defendant’s motion for new trial, to order an expert evaluation of defendant, who was incarcerated beyond the boundaries of the county in which the court sat. Zant v. Brantley, 261 Ga. 817 , 411 S.E.2d 869 , 1992 Ga. LEXIS 25 (1992).

Defendant in city court may apply to superior court. —

If a suit for damages arising ex contractu is pending in a city court, the defendant, in order to avail oneself of an equitable setoff, may apply to the superior court to enjoin the proceeding in the city court and take jurisdiction of the entire controversy. Bibb Basket Co. v. Eufaula Bank & Trust Co., 42 Ga. App. 394 , 156 S.E. 310 , 1930 Ga. App. LEXIS 421 (1930).

Review of recorder’s court decision lies in the superior court by writ of certiorari. McMillian v. City of Rockmart, 653 F.2d 907, 1981 U.S. App. LEXIS 18720 (5th Cir. 1981).

Power of judge to appoint foreperson of grand jury. —

In the absence of a statute to the contrary, the judge of the superior court has inherent power as the presiding officer of the court to appoint the foreperson of a grand jury from the number of those duly selected and required to serve. This authority vested in the judge by law is not affected by the custom of permitting the members of the grand jury to elect a foreperson. Peeples v. State, 178 Ga. 675 , 173 S.E. 850 , 1934 Ga. LEXIS 134 (1934).

Local Act providing for bill of exceptions (see now O.C.G.A. §§ 5-6-49 and 5-6-50 ) from city court to superior court is unconstitutional. Pope v. Jones, 79 Ga. 487 , 4 S.E. 860 , 1888 Ga. LEXIS 5 (1888), overruled in part, Ricks v. State, 303 Ga. 567 , 814 S.E.2d 318 , 2018 Ga. LEXIS 288 (2018).

Regulation of prices by court of products made and sold in this state not permitted. Southern Ice & Coal Co. v. Atlantic Ice & Coal Corp., 143 Ga. 810 , 85 S.E. 1021 , 1915 Ga. LEXIS 624 (1915).

Breach of payment bond contract. —

Subcontractor’s action against surety for breach of payment bond contract, bad faith, and attorney fees was within superior court’s subject matter jurisdiction. Harry S. Peterson Co. v. National Union Fire Ins. Co., 209 Ga. App. 585 , 434 S.E.2d 778 , 1993 Ga. App. LEXIS 945 (1993).

Subject matter jurisdiction over business dispute. —

In an action brought by a partner against another, the court did not err by vacating a consent order that incorporated a settlement agreement as the trial judge to whom the case had been reassigned had subject matter jurisdiction to vacate the previously entered order since the trial judge had subject matter jurisdiction over a cause of action pending before the court and control over orders and judgments during the term or following the term if the case is still pending. Further, since no final order had been entered in the matter and the case remained pending, the trial court had authority to reconsider the ruling made on the consent order, vacate the order, and order that the matter proceed to trial, irrespective of whether the case has been reassigned to a different trial judge. Internal Med. Alliance, LLC v. Budell, 290 Ga. App. 231 , 659 S.E.2d 668 , 2008 Ga. App. LEXIS 280 (2008).

Protection of judgments. —

Trial court was empowered to protect a judgment the court entered by enjoining an arbitration proceeding on the grounds of res judicata and collateral estoppel. Mitcham v. Blalock, 268 Ga. 644 , 491 S.E.2d 782 , 1997 Ga. LEXIS 578 (1997), overruled in part, Felix v. State, 271 Ga. 534 , 523 S.E.2d 1 , 1999 Ga. LEXIS 786 (1999).

Review by writ of certiorari precluded. —

Defendant’s petition for writ of certiorari was fatally and fundamentally flawed since the petition did not recite the provisions of the county statute under which the defendant was convicted, which prohibited loitering for drug-related purposes; thus, the appellate court had no context within which to review the evidence. Collier v. Merck, 261 Ga. App. 831 , 584 S.E.2d 1 , 2003 Ga. App. LEXIS 502 (2003).

Appellate jurisdiction lacking. —

Since the superior court did not have appellate jurisdiction over rulings of a state court, there was no error in the state court’s failure to process an appeal to the superior court within 10 days. Columbus Transmission Co. v. Murry, 277 Ga. App. 243 , 626 S.E.2d 202 , 2006 Ga. App. LEXIS 49 (2006).

Contempt

Applicability to separate contemptuous acts. —

O.C.G.A. § 15-6-8 is applicable to each separate act found by trial judge to be contemptuous. In re Pruitt, 249 Ga. 190 , 288 S.E.2d 208 , 1982 Ga. LEXIS 756 (1982).

Breach of restraining order. —

This section applies when breach of temporary restraining order treated as single act, and costs may be awarded. Warner v. Martin, 124 Ga. 387 , 52 S.E. 446 , 1905 Ga. LEXIS 721 (1905).

Inapplicability to continuing contempt. —

This section did not apply to a refusal to deliver funds or property to receiver appointed by court pending litigation. Cobb v. Black, 34 Ga. 162 , 1865 Ga. LEXIS 20 (1865).

This section does not apply if the doing of an act is necessary to the administration of justice, and breach is treated as continuing. Howard v. Durand, 36 Ga. 346 , 1867 Ga. LEXIS 46 (1867); Drakeford v. Adams, 98 Ga. 722 , 25 S.E. 833 , 1896 Ga. LEXIS 131 (1896).

This section does not apply to a continuing contempt resulting from failure to comply with order requiring payment of alimony. Tindall v. Westcott, 113 Ga. 1114 , 39 S.E. 450 , 1901 Ga. LEXIS 508 (1901); Gray v. Gray, 127 Ga. 345 , 56 S.E. 438 , 1907 Ga. LEXIS 256 (1907).

Failure or refusal to comply with an order of court requiring the payment of alimony and attorney’s fees was a continuing contempt, and the court may enter a judgment that the party so refusing be imprisoned until the party shall comply. In such case, the time of imprisonment was not within the limitation of this section that the duration of imprisonment must not exceed 20 days. Adkins v. Adkins, 242 Ga. 248 , 248 S.E.2d 646 , 1978 Ga. LEXIS 1160 (1978).

Mother held in criminal contempt. —

Order holding a mother in criminal contempt was upheld on appeal as a result of the mother’s interference with the father’s visitation time and since the trial court did not exceed the limit of 20 days of imprisonment as set forth in O.C.G.A. § 15-6-8(5) , the punishment imposed did not exceed that which was authorized. Stanford v. Pogue, 340 Ga. App. 86 , 796 S.E.2d 313 , 2017 Ga. App. LEXIS 13 (2017).

Failure to pay ordered child support. —

Parent who willfully refuses to pay child support which the parent is able to pay and which is required by an order of court may be found guilty of either civil or criminal contempt of court, or both. Ensley v. Ensley, 239 Ga. 860 , 238 S.E.2d 920 , 1977 Ga. LEXIS 1360 (1977).

Party who has failed to pay child support under a court order when the party has the ability to pay may be found guilty of civil or criminal contempt and incarcerated under either. Hughes v. Georgia Dep't of Human Resources, 269 Ga. 587 , 502 S.E.2d 233 , 1998 Ga. LEXIS 745 (1998).

Lack of money and property impacting contempt. —

Trial court erred in continuing the incarceration of a party for civil contempt since the party lacked the ability to purge oneself because the party lacked money and property. Hughes v. Georgia Dep't of Human Resources, 269 Ga. 587 , 502 S.E.2d 233 , 1998 Ga. LEXIS 745 (1998).

Continuous contempt. —

Confinement may be extended indefinitely if the contempt is continuous. In re Pruitt, 249 Ga. 190 , 288 S.E.2d 208 , 1982 Ga. LEXIS 756 (1982).

Incarceration for over 20 days. —

If the trial court ordered a party incarcerated for more than 20 days, the contempt order should have contained sufficient facts to support the court’s finding of more than one contemptuous act. Gay v. Gay, 268 Ga. 106 , 485 S.E.2d 187 , 1997 Ga. LEXIS 183 (1997).

Contempt proceedings require due process. —

Punishment of barring an attorney from a division of a superior court is not available for criminal contempt; the superior court’s power to punish is limited by O.C.G.A. § 15-6-8 . In re Siemon, 264 Ga. 641 , 449 S.E.2d 832 , 1994 Ga. LEXIS 887 (1994).

Defenses to contempt. —

Defenses to both civil and criminal contempt are that the order was not sufficiently definite and certain, was not violated, or that the violation was not willful (e.g., inability to pay or comply). Schiselman v. Trust Co. Bank, 246 Ga. 274 , 271 S.E.2d 183 , 1980 Ga. LEXIS 1078 (1980).

Counterclaim to contempt petition not permitted. —

In a proceeding wherein a neighbor filed a contempt petition against another neighbor and the responding neighbor filed a counterclaim to the petition, the trial court upheld the finding of contempt on the part of the responding neighbor with regard to that party failing to comply with prior orders of the trial court in the parties’ long-standing boundary dispute, but reversed the contempt finding with regard to the petitioning neighbor on the counterclaim. The trial court erred in allowing the responding neighbor to file a counterclaim to the contempt petition as a contempt proceeding was an ancillary matter related to the primary action and was more in the nature of a motion proceeding, not a situation where a pleading was allowed. Reece v. Smith, 292 Ga. App. 875 , 665 S.E.2d 918 , 2008 Ga. App. LEXIS 886 (2008).

Distinction between civil and criminal contempt. —

If the contemnor is imprisoned for a specified unconditional period, the purpose is punishment and thus the contempt is criminal. If the contemnor is imprisoned only until the contemnor performs a specified act, the purpose is remedial and hence the contempt is civil. Ensley v. Ensley, 239 Ga. 860 , 238 S.E.2d 920 , 1977 Ga. LEXIS 1360 (1977).

Most important factor in distinguishing civil and criminal contempt is the purpose of the contempt judgment. If the judgment’s purpose is to coerce the contemnor into compliance with the court’s order or to compensate the complainant for losses sustained, then the proceeding is civil; on the other hand, if the judgement’s purpose is to punish or to vindicate the authority of the court, then the proceeding is criminal. Hopkins v. Jarvis, 648 F.2d 981, 1981 U.S. App. LEXIS 12061 (5th Cir. 1981).

Despite the Georgia Supreme Court previously suggesting the ex-husband could be assessed for damages and repairs to the rental property, such a remedy could no longer serve the purpose of civil contempt to obtain future compliance with the divorce decree since the rental property was foreclosed upon and sold; thus, future compliance was no longer at issue and the trial court was authorized to impose unconditional criminal punishment for the ex-husband’s prior acts of contumacy. Sponsler v. Sponsler, 353 Ga. App. 627 , 838 S.E.2d 921 , 2020 Ga. App. LEXIS 56 (2020), cert. denied, No. S20C0952, 2020 Ga. LEXIS 722 (Ga. Sept. 8, 2020).

Treating civil contempt as criminal contempt. —

Court may find that contempt proceedings originated and pursued by party seeking civil contempt should be treated as one for criminal contempt. Schiselman v. Trust Co. Bank, 246 Ga. 274 , 271 S.E.2d 183 , 1980 Ga. LEXIS 1078 (1980).

Findings of fact and conclusions of law are not required in motion for contempt. Adkins v. Adkins, 242 Ga. 248 , 248 S.E.2d 646 , 1978 Ga. LEXIS 1160 (1978).

General phrasing of notice sufficient as to both civil and criminal charges. —

If a person is on notice that the person is being tried for contempt and the movant seeks “such other sanctions as is appropriate to ensure the enforcement and the observance” of the court’s order or seeks “such other relief as may be appropriate,” the contemnor is on notice that the proceeding is both civil and criminal in nature and that criminal sanctions may be imposed in an appropriate case. Schiselman v. Trust Co. Bank, 246 Ga. 274 , 271 S.E.2d 183 , 1980 Ga. LEXIS 1078 (1980).

When omission of word “criminal” in notice of contempt not fatal. —

Omission of the word “criminal” in a notice of contempt proceeding is not fatal if the notice fully describes the conduct charged, there is no showing that the contemnor was prejudiced by the failure to clearly denominate the nature of the contempt proceeding, and the contemnor was accorded all rights due a defendant in a criminal contempt proceeding. Schiselman v. Trust Co. Bank, 246 Ga. 274 , 271 S.E.2d 183 , 1980 Ga. LEXIS 1078 (1980).

Appeal must be filed with application pursuant to § 5-6-35 . —

Notice of appeal from a judgment of contempt regarding a domestic relations decree (finding violations by harassment, abuse, threats, assaults, annoyances, and willful refusal to make house payments as ordered), which judgment imposed a 20-day unconditional imprisonment, must be dismissed for failure to file an application for appeal pursuant to O.C.G.A. § 5-6-35(a)(2). Russo v. Manning, 252 Ga. 155 , 312 S.E.2d 319 , 1984 Ga. LEXIS 639 (1984).

Attorney fees. —

Trial court was authorized to award attorney fees in a contempt action arising out of a divorce and alimony case, but the court should not have made payment a condition for purging the contempt without first allowing a reasonable time to pay the fees. Gay v. Gay, 268 Ga. 106 , 485 S.E.2d 187 , 1997 Ga. LEXIS 183 (1997).

Attorney fees are not awardable in conjunction with a citation for criminal contempt. Rolleston v. Cherry, 237 Ga. App. 733 , 521 S.E.2d 1 , 1999 Ga. App. LEXIS 510 (1999), cert. denied, No. S99C1190, 1999 Ga. LEXIS 768 (Ga. Sept. 17, 1999), cert. denied, 528 U.S. 1046, 120 S. Ct. 580 , 145 L. Ed. 2 d 482, 1999 U.S. LEXIS 8032 (1999).

Contempt order requiring the plaintiff to pay $ 17,296.53 in attorney fees and litigation costs under O.C.G.A. § 9-15-14 was affirmed on appeal because the trial court expressly stated that the amount was intended to prevent future violations of, and to coerce compliance with, the injunction issued against the plaintiff and no case law prohibited such a civil contempt sanction. Shooter Alley, Inc. v. City of Doraville, 341 Ga. App. 626 , 800 S.E.2d 588 , 2017 Ga. App. LEXIS 192 (2017).

Attorney fees cannot be awarded. —

Trial court does not have authority to award attorney fees as punishment for contempt. Ragsdale v. Bryan, 235 Ga. 58 , 218 S.E.2d 809 , 1975 Ga. LEXIS 778 (1975).

Power of the superior court to punish contempt is limited by O.C.G.A. § 15-6-8 , and there is no power to award attorney fees in contempt proceedings. DeKalb County v. Bolick, 249 Ga. 843 , 295 S.E.2d 92 , 1982 Ga. LEXIS 953 (1982); Eckerd Corp. v. Fayette County Bd. of Tax Assessors, 220 Ga. App. 454 , 469 S.E.2d 285 , 1996 Ga. App. LEXIS 111 (1996), cert. denied, No. S96C1011, 1996 Ga. LEXIS 627 (Ga. May 10, 1996); Johnson v. Kaplan, 225 Ga. App. 53 , 483 S.E.2d 292 , 1997 Ga. App. LEXIS 159 (1997), cert. denied, No. S97C1084, 1997 Ga. LEXIS 674 (Ga. June 27, 1997).

Attorney fees are not included in the permissible sanctions for contempt and may not be awarded. Rapaport v. Buckhead, 234 Ga. App. 363 , 506 S.E.2d 690 , 1998 Ga. App. LEXIS 1239 (1998).

Attorney fees not permissible sanction for criminal contempt. —

Contempt sanction against the redeeming creditor in the amount of $5,000.00 was vacated as the sanction related to the award of attorney fees as attorney fees were not permissible sanctions for criminal contempt, nor were attorney fees awardable in conjunction with a citation for criminal contempt. J. Michael Vince, LLC v. SunTrust Bank, 352 Ga. App. 791 , 835 S.E.2d 809 , 2019 Ga. App. LEXIS 627 (2019).

Attorney held in contempt. —

“Sentence” of criminal defense attorney in trial court’s order to conduct oneself properly as an attorney was actually the method by which the attorney could purge oneself of the contempt. Nothing in O.C.G.A. § 15-6-8(5) prohibits such an order. In re Booker, 195 Ga. App. 561 , 394 S.E.2d 791 , 1990 Ga. App. LEXIS 608 (1990).

Because the attorney’s motion hearings in one county conflicted with what the attorney thought would be the simple entry of a plea in a second county, but the matter in the second county went to trial (partly because of the attorney’s lack of communication with the client), and the attorney failed to appear, or give the second county seven days notice or prompt notice of the conflict, a contempt conviction was proper, a $500 fine, and a requirement to complete 25 hours of community service was not excessive. In re Holt, 262 Ga. App. 730 , 586 S.E.2d 414 , 2003 Ga. App. LEXIS 1000 (2003).

Sanction included removal of attorney from appointed counsel list. —

After a trial court held defendant, an attorney, in contempt for allegedly intentionally misstating information about a client during a bond hearing, the trial court acted within the court’s authority under O.C.G.A. § 15-6-8(5) in directing that defendant’s name was to be removed from the county appointed counsel list as the sanction simply addressed the administration of the court’s business. In re Schoolcraft, 274 Ga. App. 271 , 617 S.E.2d 241 , 2005 Ga. App. LEXIS 729 (2005).

Suspension of sheriff not authorized. —

Superior court was authorized to inflict summary punishment for contempt predicated upon the willful failure of a sheriff, an officer of the court, to obey an oral direction by the court to transfer a defendant to a jail in another county, but was not authorized to temporarily suspend the sheriff, an elected officer, from the position as sheriff. In re Irvin, 171 Ga. App. 794 , 321 S.E.2d 119 , 1984 Ga. App. LEXIS 2340 (1984), aff'd in part and rev'd in part, 254 Ga. 251 , 328 S.E.2d 215 , 1985 Ga. LEXIS 672 (1985).

Willful violation of court order by sheriff. —

Trial court did not err in finding a sheriff in criminal contempt for willful violation of the court’s order directing the sheriff to transport to the county courthouse four named criminal defendants imprisoned at the county jail for the purpose of hearings in criminal cases because the trial court was empowered to determine that the orderly administration of justice required the presence of the four prisoners at the courthouse and to order the sheriff to transfer the prisoners from the jail to the courthouse; the order was clear and did not direct the sheriff to send one deputy with four prisoners, and the sheriff had ample deputies and resources under the sheriff’s control to comply with the court order. In re Bowens, 308 Ga. App. 241 , 706 S.E.2d 694 , 2011 Ga. App. LEXIS 93 (2011), cert. denied, No. S11C1123, 2011 Ga. LEXIS 581 (Ga. July 11, 2011).

Review of trial court decision. —

Judgment of trial court in punishing contempt will not be disturbed unless it appears that there is no evidence to support the finding. Shafer v. State, 139 Ga. App. 360 , 228 S.E.2d 382 , 1976 Ga. App. LEXIS 1803 (1976).

Trial court’s adjudication of contempt will not be interfered with unless there is a gross, enormous, or flagrant abuse of discretion. Renfroe v. State, 104 Ga. App. 362 , 121 S.E.2d 811 , 1961 Ga. App. LEXIS 683 (1961); Shafer v. State, 139 Ga. App. 360 , 228 S.E.2d 382 , 1976 Ga. App. LEXIS 1803 (1976).

All violations of order need not be proved. —

Fact that a petition for citation for contempt also charged a violation of a restraining order not based on the contempt order, which the evidence may have failed to show, did not render erroneous a judgment finding the party guilty and imposing penalties within the provisions of this section as for a single act. Carroll v. Celanese Corp. of Am., 205 Ga. 493 , 54 S.E.2d 221 , 1949 Ga. LEXIS 394 (1949), cert. denied, 338 U.S. 937, 70 S. Ct. 345 , 94 L. Ed. 578 (1950).

Punishments not applicable to civil contempt. —

Punishments which may be imposed for a criminal contempt set forth in O.C.G.A. § 15-6-8(5) do not apply to civil contempt sanctions. In re Harvey, 219 Ga. App. 76 , 464 S.E.2d 34 , 1995 Ga. App. LEXIS 946 (1995).

When the trial court ordered an appellant to pay a receiver’s fees in order to be purged of civil contempt, this did not violate O.C.G.A. § 15-6-8(5) as the limitations imposed by this provision were not applicable to sanctions imposed for civil contempt. Huffman v. Armenia, 284 Ga. App. 822 , 645 S.E.2d 23 , 2007 Ga. App. LEXIS 325 (2007), cert. denied, No. S07C1233, 2007 Ga. LEXIS 554 (Ga. July 12, 2007).

Monetary limit of O.C.G.A. § 15-6-8(5) addresses the circumstance of criminal contempt and is not applicable to sanctions imposed for civil contempt; accordingly, the statute did not apply to an order requiring a husband to pay his wife $1,500 per day until he paid her certain insurance proceeds as the sanction was clearly remedial and thus was civil. Chatfield v. Adkins-Chatfield, 282 Ga. 190 , 646 S.E.2d 247 , 2007 Ga. LEXIS 405 (2007).

Fine in excess of statutory maximum. —

Superior court’s order punishing contempt by fine of $25,000 was vacated as in excess of the statutory maximum. Mathis v. Corrugated Gear & Sprocket, Inc., 263 Ga. 419 , 435 S.E.2d 209 , 1993 Ga. LEXIS 701 (1993).

Trial court’s imposition of punishment for landlord’s contempt, that of ordering the landlord to relocate the tenant to another apartment, pay all the expenses associated with the relocation, and reimburse the tenant for the cost of a new mattress and box-spring comparable to that which the tenant owned, not to exceed $500, was vacated as the trial court’s contempt punishment could not exceed $500 and the court’s order did not make it clear whether the sanction exceeded that amount. H. J. Russell & Co. v. Manuel, 264 Ga. App. 273 , 590 S.E.2d 250 , 2003 Ga. App. LEXIS 1466 (2003), cert. denied, No. S04C0595, 2004 Ga. LEXIS 253 (Ga. Mar. 8, 2004).

Appellate court reversed that portion of the trial court’s order imposing a fine of more than $1,500, which was the statutorily permitted amount for the professor’s three acts adjudicated as criminal contempt at $500 per act. Murtagh v. Emory Univ., 321 Ga. App. 411 , 741 S.E.2d 212 , 2013 Ga. App. LEXIS 324 (2013), cert. denied, No. S13C1250, 2013 Ga. LEXIS 766 (Ga. Sept. 23, 2013), overruled in part, SRM Group, Inc. v. Travelers Prop. Cas. Co. of Am., 308 Ga. 404 , 841 S.E.2d 729 , 2020 Ga. LEXIS 235 (2020).

Excessive criminal contempt fines prohibited. —

Probate court’s award of damages was reversed because the court could not construe the imposition of more than $19,000 as a fine for criminal contempt as acts of criminal contempt could be punished by fines not exceeding $500, and the imposing of damages for civil contempt violated the law because the probate court imposed damages unconditionally and there was no complaint in the record. In re Estate of Butler, 356 Ga. App. 287 , 846 S.E.2d 615 , 2020 Ga. App. LEXIS 430 (2020).

Reduction of excessive fine. —

If the fine initially imposed by the trial court was in excess of the fine authorized by this section, the trial court had authority to amend the court’s order, reducing the fine to the statutory maximum. Shafer v. State, 139 Ga. App. 360 , 228 S.E.2d 382 , 1976 Ga. App. LEXIS 1803 (1976); Mathis v. Corrugated Gear & Sprocket, Inc., 263 Ga. 419 , 435 S.E.2d 209 , 1993 Ga. LEXIS 701 (1993).

Order for a fine exceeding $500 was not in accord with O.C.G.A. § 15-6-8 because the trial court did not find more than one specific violation of the court’s injunction. Lee v. Environmental Pest & Termite Control, Inc., 243 Ga. App. 263 , 533 S.E.2d 116 , 2000 Ga. App. LEXIS 439 (2000).