Opinion
33680.
DECIDED OCTOBER 11, 1951.
Contempt of court; from Walker Superior Court — Judge Nichols. May 16, 1951.
Jesse M. Sellers, for plaintiff in error.
Gleason Painter, contra.
The court erred in overruling the general demurrer to the petition for citation for contempt of court. The subsequent proceedings were nugatory.
DECIDED OCTOBER 11, 1951.
Shirley McGuffey Whaley petitioned the Superior Court of Walker County praying that Jesse M. Sellers Jr. be cited for contempt. The petition alleged: that a bill of exceptions was presented to the Honorable H. E. Nichols, Judge of the Superior Court, Rome Circuit, presiding in Walker Superior Court because of the disqualification of the Honorable Freeman C. McClure, Judge thereof, for certification; that Judge Nichols marked said bill of exceptions "Tendered", but did not certify the same; that the mark "Tendered" appeared under the certificate to the bill of exceptions, but was not a part thereof, and that said bill of exceptions had not been approved by the judge; that Judge Nichols by verbal order set said bill of exceptions for hearing at Rome, Georgia, for May 10, 1951, at 4:00 p. m., and by verbal order directed the attorneys for the defendant, Harold C. Whaley to appear at that time for the purpose of arriving at the facts and determining what evidence should be included in said bill of exceptions; that Jesse M. Sellers Jr. and W. L. Abney, members of the bar of said court, represented said Harold C. Whaley in said cause; that W. L. Abney was told by the court when said bill of exceptions was tendered that the same was not officially approved and was not certified; that Sellers and Abney refused to attend the hearing on May 10th before Judge Nichols, and contended that the judge's statement on the bill of exceptions that the same was tendered was in fact a certification thereof, and further contended that the judge lost jurisdiction of said bill of exceptions; that the refusal to appear at the time stated above in compliance with the order of the judge is contempt of the court's order, for which said attorneys should be dealt with as for contempt; that said attorneys threaten to file said bill of exceptions although the same is not true, and notwithstanding the verbal order of the judge that said bill of exceptions must not be filed until approved by him. The respondent filed general and special demurrers to the petition and an answer. The court overruled the demurrers, heard evidence, and adjudged the respondent in contempt. The respondent excepts to the final judgment and the order overruling the demurrers.
The act of 1946, pp. 726, 735, 739 (Code, Ann., §§ 6-908.1, 6-909), requiring notice to the opposite party of the presentation of a bill of exceptions and providing how objections may be removed had for its primary purpose notice to the defendant in error. It does not require that the plaintiff in error be present at the time the judge passes on the sufficiency of the bill of exceptions, nor does it authorize the judge to require that the attorney or attorneys for the plaintiff in error be present. If the plaintiff in error and attorneys wish to take their chances on being required to correct or amend the bill of exceptions and to pursue their legal remedy if the requirement is wrong, it is their right and privilege to do so. We do not think that an attorney is in contempt of court for failing to appear at such a "hearing" upon oral "direction" of the judge.
The court erred in overruling the general demurrer to the petition, and the subsequent proceedings were nugatory.
Judgment reversed. Sutton, C. J., and Worrill, J., concur.