Jacobs v. State

Townsend, J.,

concurring specially. I concur in the judgment of reversal. I also agree with all that is said in the majority opinion, except that I consider it irrelevant to the issues made by the assignment of error here. The question for decision is not whether a new indictment may be returned against this defendant (which counsel for both sides stipulate cannot be done) but whether the trial court may, 15 months after entering an order of nolle prosequi, vacate such order and thus reinstate the original indictment. It is well settled that the trial court, in either a civil or a criminal case, has no jurisdiction to set aside a dismissal and reinstate a cause after the expiration of the term at which it was dismissed, nor can a judgment of the court be changed, amended or modified after the expiration of the term at which such judgment was entered. Rutland v. State, 14 Ga. App. 746 (82 S. E. 293); Rogers v. Rigell, 183 Ga. 455 (188 S. E. 704); Carswell v. Shannon, 209 Ga. 596 (74 S. E. 2d 850); East Tenn. Va. & Ga. Ry. Co. v. Greene, 95 Ga. 35 (22 S. E. 36); Alley v. Halcombe, 96 Ga. 810 (22 S. E. 901). Accordingly, the court here had no jurisdiction to vacate an order of nolle prosequi, not procured by fraud, at a previous term of the court.