White v. State of Georgia

Jordan, Judge.

1. The record in this case is very voluminous and contains the entire record of the proceedings in the Slater case. There are many legal questions raised by the pleadings and various motions made by the defendant White to the order citing him for contempt. We will elaborate upon the ones which we consider essential to the disposition of this matter.

One of the contentions made by the defendant is that the *622order adjudging him in contempt of court is null and void since the court was without jurisdiction to conduct the custody hearing in the matter of Slater v. Slater out of which hearing arose the contempt order. This contention is without merit. The court was proceeding in a matter in which the Supreme Court of this State later ruled that it was without jurisdiction. See Slater v. Slater, 216 Ga. 242 (115 SE2d 353). In our opinion, however, this has nothing whatsoever to do with the question of contempt presented in this matter. A court cannot be denied the right to maintain order and decorum in a hearing simply because an appellate court might subsequently determine it was without jurisdiction in that particular matter. See Cobb v. State, 59 Ga. App. 695, 701 (2) (2 SE2d 116). The order adjudging the defendant in contempt of court was not an order affecting the Slater case itself but merely arose out of remarks between the judge and the defendant during the course of such proceedings.

“A court has jurisdiction and is empowered to deal with the matter of contempt at any time during the progress of the litigation before him.” West v. Field, 181 Ga. 152 (181 SE 661, 101 ALR 465). The defendant in this case, being an attorney, was an officer of the court. The courts of this State, in furtherance of justice, have power to control the conduct of their officers and all persons connected with a judicial proceeding before them. Code § 24-104 (4); Simpson v. Bradley, 189 Ga. 316 (1, 8) (5 SE2d 893).

The case of Holbrook v. Prichard Motor Co., 27 Ga. App. 480 (1) (109 SE 164) and other cases cited by the plaintiff in error are not authority for this contention.

2. It is also contended by the plaintiff in error that the order of May 5, 1960, was null and void due to the fact that it was entered under the styling of the Slater case. The court later entered a nunc pro tunc order changing the style of the case to State v. Houston White. This nunc pro tunc order was also attacked as being null and void. This ground is without merit since the court had authority to correct the styling of its order, which it did. Code § 24-104 (6). The case of Auto Highball Co. v. Sibbett, 11 Ga. App. 618 (75 SE 914), holds that in a prosecution for criminal contempt the State is a proper party *623and that if exception is taken to a judgment attaching a party for criminal contempt the State must be made a party defendant in the reviewing court. In the present case, the State was made a party in the court below and in the bill of exceptions in this court.

3. The plaintiff in error filed a demand for a jury trial on the question of contempt, although he abandoned this point in his brief. He does contend, however, that he was entitled to a fair and impartial hearing by another superior court judge who was in no manner personally embroiled with him. Not only is one held in direct contempt not entitled to a jury trial but, as pointed out in White v. George, 195 Ga. 465 (24 SE2d 787), such person is not entitled as a matter of right to even a hearing before the court holding him in contempt. Chief Justice Duck-worth, speaking for the court in that case, said, at page 470: “If the court were required to grant the contemnor a hearing before inflicting punishment for a direct contempt committed in the face of the court, it would interrupt the orderly functions of the court. If the contempt consists of a flagrant showing of disrespect for the person of the judicial officer of the court, what good purpose could a showing serve? The contemnor would not lessen his offense by stating the facts on which he based his lack of respect for the judge.” He went on to say, “Even though a hearing may not be demanded as a matter of right, we think it would be a wise exercise of discretion for the court to allow the contemnor an opportunity to mitigate his offense by showing that no contempt was intended, or any other mitigating circumstances, except in cases where there could be no excuse for the action of the contemnor.” Ibid., p. 470.

The record in the instant case shows that the trial court did grant the contemnor a hearing though not legally required to do so. As a result of such hearing, the trial court gained the impression that the contemnor was apologetic for his remarks and revoked the order holding him in contempt. Being dissatisfied with the order revoking the contempt charge, the contemnor filed a motion to set it aside on the ground that he had not apologized to the court. Though a hearing was given in this case, no good purpose was served since it tended to heap “Coals *624on the fire” rather than develop a conciliatory attitude on the part of those concerned in order that an honorable accord might be reached.

4. Prior to the hearing out of which the contempt order arose, the defendant had made a motion for continuance on the ground that he was ill and unable to continue with the case. The record clearly indicates that the defendant at this time was physically impaired, this fact being recognized by the judge himself and confirmed by the doctors who examined the defendant. It is strongly urged therefore that the judge was without authority to place a condition upon granting the motion for continuance, the condition being that the custody of the children involved be relinquished to the mother under a ne exeat bond until the defendant recuperated sufficiently to proceed with the case. Whether or not the judge should have attached such a condition to the granting of the motion for continuance must be viewed in light of the fact that Mr. White, the defendant, had instructed his clients not to turn the children over to the mother pending the outcome of the hearing then under way. Under the order existing at the time, the mother was entitled to have custody of the children on every other weekend. It must also be viewed in light of the fact that the hearing had previously been delayed on three or four occasions on motion of Mr. White that he was ill, and in further light of the fact that Mr. White on the preceding day had asked the court to adjourn the hearing at 3:25 p.m. (which was done) in order that Mr. White might appear on behalf of another client in a justice of the peace court in the southern part of the county. But even assuming that such a condition placed on the granting of the motion by the judge was entirely without justification or authority, or assuming that he had simply denied the motion for continuance made by the defendant, the serious question remains whether such action on the part of the court would have excused or justified the remarks made by the defendant to the court. Does the fact that the court has made a ruling which seems completely unjustified or beyond the authority of the court give the aggrieved party the license to use contumacious language in the presence of the court concerning such a ruling? We think not.

*625The question therefore presented is whether or not the language set forth in the contempt order was disrespectful or contumacious. We think that it was. In White v. State of Ga., 71 Ga. App. 512, 513 (31 SE2d 78), the following language was used by an attorney to the court: “I think your Honor has such antagonism toward me personally that I just can’t, your Honor, seem to try a case before you without you jumping on me unnecessarily. That is not necessary, but that is the way I feel about it.” Of this language the court said: “In our opinion it clearly implied that the judge was not an impartial and upright jurist, but, on the contrary, that he allowed his personal feelings of antagonism to White to influence his rulings in the case then on trial. We hold that the language was disrespectful and contemptuous, and authorized the sentence imposed by the trial judge.”

We think that the language used by Mr. White in the instant case likewise implied that the judge was not impartial and would allow his personal feelings toward White to influence his rulings in the case then being heard. In any event, the judge considered the remarks by White to be disrespectful and contemptuous, and appellate courts will not interfere in such a judgment unless it manifestly appears that there has been a flagrant, enormous, or gross abuse of discretion. “ . . . [T]he discretion of the judges of the superior courts in all matters pertaining to contempt of their authority and mandates will never be controlled unless grossly abused.” Hayden v. Phinizy, 67 Ga. 758, 760; Remley v. DeWall, 41 Ga. 466. “Questions of contempt are for the court treated with the contempt; and its decision ought to be final, except, perhaps' in the case in which the decision shows an enormous abuse of the discretion.” Cabot v. Yarborough, 27 Ga. 476.

This is as it should and must be. Courts must have authority to maintain order and decorum and to command the respect and dignity required for the orderly administration of justice. At the same time, attorneys before the courts must be free to vigorously represent their clients and to urge and insist upon the courts the legal positions taken on behalf of such clients. An attorney who fails in this, fails a most important and sacred *626duty to his client. In so doing, however, the attorney must maintain towards the court a respectful attitude, not for the sake of the incumbent of the office, but for the supreme importance of the office itself.

We are of the opinion in this case that Mr. White, though vigorously and ably representing his clients, and for whatever reasons motivating his remarks, was properly held in contempt by the court and that the court did not abuse its discretion in so holding.

5. The other contentions of the plaintiff in error as set forth in the remaining assignments of error are without merit.

Judgment affirm&d.

Carlisle, P. J., Bell, Frankum, and Hall, JJ.; concur. Russell, J., concurs specially. Felton, C. J., Nichols, P. J., and Eberhardt, J., dissent.