dissenting.
In Tift v. Jones, 52 Ga. 538 (1874), the Court, without citation of authority, indicated that when a party intends to be a witness, “it would be a proper rule that such party should be first examined, unless there be reasons to the contrary, in the absence of his other witnesses. This would preserve his right to be present in the court during the whole trial of his case.” Three years later, the 1877 Georgia Constitution included: “Par. IV. Right to the Courts, No person shall be deprived of the right to prosecute or defend his own cause in any of the Courts of this State, in person, by attorney, or both.”1 This constitutional provision which provided, for the first time, that each person has the right to “prosecute or defend his own cause” effectively overruled Tift and its “proper rule.” It is virtually impossible for one to prosecute or defend his own case without being present in the courtroom. Thus what the court in 1874 considered the “proper rule” was overruled.
The fact that Tift was overruled by the constitutional provision can be seen in a later case in which the Court, with the knowledge of the constitutional provision, reversed the lower court ruling in which the real party at issue with the plaintiff was sent, over objection, from the courtroom. The Court stated that “[a]s she was in fact a party to the issue on trial, it was her right to be present; and it was, therefore, *491manifestly erroneous to exclude her from the court-room.” (Emphasis supplied.) St. Paul Fire &c. Ins. Co. v. Brunswick Grocery Co., 113 Ga. 786, 789 (39 SE 483) (1901). Four years later in Ga. R. &c. Co. v. Tice, 124 Ga. 459, 465 (52 SE 916) (1905), this Court restated its position when it held that “[t]he rule in reference to the sequestration of witnesses does not apply where the witness is a party . . . .” It is apparent from reading both opinions that the Court did not recognize any discretion on the part of the trial judge to oust a party/witness from the courtroom. Later, this Court explained that trial judges do have discretion with regard to witnesses, but not party/witnesses when it stated, “[t]he exclusion of Dan R. Groover from the courtroom as a witness was a matter of discretion for the court. Had Dan R. Groover caused himself to be made a party he could have remained within the court-room as a matter of right. St. Paul Fire & Marine Ins. Co. v. Brunswick Grocery Co., 113 Ga. 786 (39 S. E. 483); Georgia R. &c. Co. v. Tice, 124 Ga. 459 (52 S. E. 916).” (Emphasis supplied.) Groover v. Simmons, 161 Ga. 93, 97-98 (129 SE 778) (1925). This Court’s position and the Court of Appeals’ holding in Knox v. Harrell, 26 Ga. App. 772 (108 SE 117) (1921), were muddled for the first time in Boutelle v. White, 40 Ga. App. 415 (149 SE 805) (1929). The Court of Appeals, in an apparent effort to overrule Knox v. Harrell, supra; Groover v. Simmons, supra, and the cases cited therein, acknowledged that the “trial judge has no right to exclude from the court-room, during the taking of testimony, a party to the case on trial .... [but, it then went on to state that i]t is a matter entirely within the discretion of the trial judge as to whether he will require that the testimony of a party to the case be taken before the taking of the testimony of the party’s witnesses. [Cit.]” This, of course, is a contradiction in terms, an attempt to revive a case that had been overruled by the constitution, and an attempt to overrule several Supreme Court and Court of Appeals decisions. If the trial judge has “no right to exclude” a party/witness he, therefore, has no discretion to force the party/witness to remain outside of the courtroom if he chooses not to be the first to testify. It is upon this erroneous Court of Appeals case that the majority relies.
Our constitution provides that the right to trial by jury is to remain inviolate, Georgia Constitution, Art. I, Sec. I, Par. XI, and no person shall be deprived of the right to prosecute or defend, either in person or by an attorney, the person’s cause of action. Georgia Constitution, Art. I, Sec. I, Par. XII. When Mrs. Barber was removed from the courtroom she was denied both of these valuable constitutional rights. “The presence of counsel [is] no substitute for that of the man on trial. Both should [be] present. [Cits.]” Wilson v. State, 87 Ga. 583, 584 (13 SE 566) (1891). A party to a civil case should not be forced to leave during the trial of her case any more than the accused *492in a criminal case should be forced to leave during the trial of his case.
In a jury’s quest for truth the jury is called upon to observe the courtroom demeanor of the parties and witnesses. There was no way for the jury to observe the demeanor of Mrs. Barber during her forced absence. The trial lasted from May 28, 1985 to June 6, 1985. What was the jury’s perception of her absence? It is difficult to imagine that a jury would be favorably impressed by a party who is absent. The jury might very well have thought that her absence was caused by a wrong she had committed. Furthermore, she could not assist her attorney during the case while she was outside of the courtroom. Her absence from the courtroom while other witnesses were testifying eliminated her attorney’s ability to rely on her insight and comments in framing questions that would elicit the information she needed to have before the jury for the whole truth to be before them. She was unable to know when to tell her attorney that a witness was relating less than the truth. In divorce cases, especially, the witnesses called by one party are usually friends of both parties. The witnesses in this case testified under the watchful eye of Mr. Barber, but Mrs. Barber was unable to see the witnesses, and they did not have to face her as they testified. There is no doubt that it is more difficult for friends of both parties to be as fair as they would like to be when face-to-face with one party but not the other. Unquestionably it would encourage anyone who wished to “play around” with the truth to be less than honest when one party is absent.
Mrs. Barber should have been able to face her accuser — yes, her accuser. If her husband was called to the stand for the purpose of cross-examination of the opposite party he could launch into a series of accusations and she would not be present to inform her attorney as to any perceived untruths, half truths, or mistakes.
The fact that a witness remains in the courtroom “goes to that witness’ credibility” and not to his competency. It is absurd to deny Mrs. Barber’s constitutional right “to prosecute or defend” her own cause of action by forcing her out of the courtroom when her presence would only go to her credibility as a witness and not to her competency. A party/witness should not be forced from the courtroom because another party invokes the rule.
The part of the majority opinion that states that she did not show that she had been harmed begs the question. It amazes me that anyone would contend that being absent from the courtroom when one is the plaintiff in a divorce suit is harmless. Why do parties come to court? To present their claim and protect their rights through their cause of action. One cannot accomplish those purposes during a forced absence. To allow trial judges to force party/witnesses to remain outside of the courtroom during the trial of their case is to place *493this Court’s stamp of approval on a denial of a party’s constitutional rights and a denial of fundamental fairness.
Decided September 24, 1987 Reconsideration denied October 14, 1987. Glenville Haldi, for appellant. Casper Rich, for appellee.A trial judge has discretion in administering the rule of sequestration in cases in which a witness is not a party to the case, but when the witness is a party, the party’s constitutional right to a jury trial and to prosecute her claim is paramount.
I am authorized to state that Chief Justice Marshall and Justice Bell join in this dissent.
“Small’s A Stenographic Report of the Proceedings of the Constitutional Convention Held in Atlanta, Georgia, 1877 (Constitution Publishing Company, Atlanta, 1877) reflects the adoption of the language in 1877 as the proposal of Mr. Tift, who explained it as follows (p. 94): ‘Mr. Tift. ... It is very important that every person shall be permitted to prosecute or defend his own case in any of the courts of this state .... I think, in every case, the person should have the right to appear himself, and by attorney also .... Upon the division the vote was -[ayes] 101; noes 29. So the amendment was received . . . .’ In light of the above and considering the prior constitutional history of this subject we view the present provision of the Constitution as primarily intended to guarantee the right of self-representation in the courts of this State . . . .” Bloomfield v. Liggett & Myers, Inc., 230 Ga. 484 (198 SE2d 144) (1973). See also Dobbins v. Dobbins, 234 Ga. 347 (216 SE2d 102) (1975).