Court of Appeals of Georgia

The Seal of the Court of Appeals of Georgia An interesting but little known historical fact is that the Seal of the Court of Appeals is taken from the obverse side of the Great Seal of the State of Georgia while its brother appellate court takes its Seal from the face side of the Great Seal.
1

,,.,
.:~

(fieor~w ~usbc
GOVERNOR

fficc of t~e @ouernor
ci\tllluta, corgia 303Jtl

It is my pleasure to commend the Court of Appeals of Georgia and its individual judges to the people of this State for the outstanding quality and quantity of work done since the Court's activation in 1907.
No court in the nation, insofar as I know, has a greater volume of cases to write and publish per judge than this Court, and the quality of the opinions and the dispatch with which they are rendered are unexcelled.
The membership of the Court is unsurpassed in judicial ability and character. The Court is totally committed in its effort to render to the people of this State and to the Judiciary outstanding service.

2

mrP of tl1P Attompl! QipnPral
Nhts4ington, Jll. OJ. 20530
As a practicing "attorney, as a judge of the United States Court of Appeals and later as Attorney General, studying the nation's judicial systems has been a compelling interest of mine. One conclusion of this long time study is that we in Georgia have one of the best and most efficient appellate court systems in the United States.
I know of no judge on any appellate court who writes and publishes more decisions than does each judge of the Court of Appeals of Georgia. Notwithstanding the volume, the judicial quality is excellent and the time of performance is exemplary. A recent study of the courts' last 3,000 cases shows that from the date of oral argument the time for writing and publishing these cases averaged only 41.06 days. That is outstanding.
The proven balance and efficiency of Georgia's appellate court system commends it to others.
Sincerely,
Griffin B. Bell Attorney General
3

ZELL MILLER LIEUTENANT GOVERNOR

@fftu of llltl'utl'mmt ~a\ll'rnar
JUS ~tatt $tVit!l1
.:Atlanta. ~eorgia .;30.;3.;3J.l.

In this complex modern American era when citizens

are increasingly looking to the courts to solve their

problems and when the problems continue to grow in

complexity, it is extremely gratifying to know that

we can count on the Georgia Court of Appeals to

dispense justice in a fair, impartial and professional

..~

manner .

The Georgia Court of Appeals has the heaviest

caseload per judge in the United States, and each

Judge writes more opinions than any other appellate

judge in the united States. We in Georgia are fortu-

nate to have men of dedication and wisdom to execute

that striking duty.

Having served in the corrections system of our State, I am well aware of the demands placed upon our Court of Appeals and the superb performance of its judges, and I am very pleased to add my congratulations for the continued success of the Court in meeting its public obligations.

Please calIon me whenever I can be of assistance to the Georgia Court of Appeals in any way, personally or officially.

In highest esteem and with warmest personal regards.

ZM:eb

At your service,

-47./1' --~-_..- -- ..7 l:'::' c .. / ' j / ....... :.-+....,.~. .....,

c-c.c. ... -

7 Zell Mi ler

4

'QlljomlUJ ~.ftlnrtrln!
SPEAKER

~OUg~ {If ~~vr~g~ntnti'lUg cAtlnntn

332 STATE CAPITOL ATLANTA,GEORGIA 30334
po. BOX 163 BREMEN. GEORGIA 30110

In some 18 years' service in the General Assembly of Georgia, including five years as Speaker, I have come more and more to appreciate the three-branch concept of government. I have also come to appreciate the independent status of each. The judiciary is no less an important branch in our system of government than the legislative and executive.
As a Georgia citizen and practicing attorney, I am proud of the high esteem in which the Court of Appeals is held. The exemplary efficiency of our State's judicial system is largely due to the fact that each level of our judiciary is completely independent and not subject to any administrative authority or control from any other court. It is essential that this continue, otherwise our judicial system will bog down in a bureaucratic morass.
Sincerely,
Thomas B. Murphy Speaker

5

.JOHN SAMMONS BELL C>iIE> ,JUOGE

COURT OF ApPEALS OF GEORGIA
STATE JUDICIAL BUILDING
ATLANTA 30334

Long before he retired as an active Judge of the Court of Appeals, I asked my friend and colleague, Sol Clark, to research the history of our Court and draft its commentary. With his customary courtesy, ability, and alacrity, he did so. The ensuing script is principally his although each active and retired Judge in his own way has contributed much to it.
Impelled by the great respect and the very deep and warm affection I have for each of them, I wish to commend my colleagues. Each is a dedicated, capable, and kind person. They work together and they enjoy each other. All are leaders but no one dominates and no one tries or wants to do so. Because of them, their efficiency, and their quality work product, I believe the Court of Appeals to be the best manned in its history. I know it to be so for the nineteen years I have served on this Bench. Morgan Thomas, with his forty four years of service in our Clerk's Office, concurs fully with these conclusions.
Despite its tremendous caseload, the Court of Appeals will enter the September Term completely current with all prior cases written and ready for publication. This is fortunate for the Court faces its largest monthly call in history in September, 1978, with each Judge personally assigned for that month alone up to 47 cases to write. This demonstrates that the General Assembly in its

6

"j.,

COU RT OF ApPEALS

wisdom must continue to assign to the Supreme Court that Court's fair share of original appellate jurisdiction in order to keep the Court of Appeals from absolute inundation. Adding judges, libraries, staffs and space is expensive, unnecessary and inadvisable and can only destroy the delicate but efficient balance of work the courts now have. In the administration of justice, it is a sheer necessity that our courts not be allowed to become administrative bureaucracies as some would have them do. Judges have only one duty---judging~ That simple fact must always be remembered if the courts are to fulfill their only mission and purpose,. that is to say, to protect the life, liberty, property, and rights of all citizens.
Sincerely,
~~~ Chief Judge

7

John Sammons Bell, Chief Judge Court of Appeals of Georgia
8

9

"

,".

Braswell D. Deen, Jr., Presiding Judge

Court of Appeals of Georgia

10

:~
11

J. Kelley Quillian, Presiding Judge Court of Appeals of Georgia
12

"
13

Julian Webb, Judge Court of Appeals of Georgia
14

15

.,,
~

.''.,

William LeRoy McMurray, Jr., Judge

Court of Appeals of Georgia

16

17

..-,,
George T. Smith, Judge Court of Appeals of Georgia
18

..
'.
19

Arnold Shulman, Judge Court of Appeals of Georgia
20

,..~
21

Harold R. Banke, Judge Court of Appeals of Georgia
22

23

P,
A. W. Birdsong, Jr., Judge Court of Appeals of Georgia
24

'.
25

.,.
Court of A
William LeRoy McMurray, Jr., Judge; George T. Smith, Judge; Arno Thomas, Clerk; Braswell D. Deen, Jr., Presiding Judge; John Sammons
26

of Georgia lan, Judge; Harold R. Banke, Judge; A. W. Birdsong, Jr., Judge; Morgan
ef Judge; J. Kelley Quillian, Presiding Judge; Julian Webb, Judge.
27

Morgan Thomas, Clerk
"
Court of Appeals of Georgia
28

.,.-
"
29

\,

..'

Charles A. Pannell, Sr., Presiding Judge, Retired

Court of Appeals of Georgia

30

'\.
..,,
31

"

Randall Evans, Jr_, Judge, Retired

Court of Appeals of Georgia

32

,'". 33

H. Sol Clark, Judge, Retired Court of Appeals of Georgia
34

35

The Courtroom Court of Appeals of Georgia
The inscription over the bench reads "Upon the integrity, wisdom and independence of the judiciary depend the sacred rights of free men."
36

COURT OF APPEALS OF GEORGIA 1907 -1978

The Court of Appeals of Georgia is unique among American

appellate tribunals. It is not an intermediate court as exists in

most states. In brief, this court may be described as a court of

final jurisdiction, subject to certiorari, with statewide original

appellate jurisdiction of all cases excepting those involving consti-

tutional questions, land title disputes, equity, the construction

of wills, murder, election contests, cases involving the revenues

of the State, habeas corpus and extraordinary remedies, divorce

and alimony. The Court of Appeals may certify such legal

questions as it may wish to the Supreme Court. However, certi-

fication is rarely used. Also, in practice the Supreme Court has

limited the exercise of its right of certiorari.

Statistics for the calendar years 1975, 1976 and 1977, typical

years, show that the Court of Appeals wrote and published 3,897

opinions. Of these only 1041 had applications for certiorari or

26.7%. Thusin 73.3% of the cases the Court of Appeals decisions

, ';"

were absolutely final. But this finality is even more factually

.... '"

accurate and impressive when it is known that of the total of

1041 applications for certiorari only 196 were granted which

made 95% of the Court of Appeals decisions final. Further, of the

196 certioraris granted, 93 were affirmed which leaves the end

result that the Court of Appeals decisions for the 3,897 cases

covering the three calendar years 1975, 1976 and 1977 were

final in 97.4% of the cases.

The opinions of the Court of Appeals are all published in

full in the Georgia Appeals Reports and in the Southeastern

Reporter, and all are annotated in the leading legal publications.

The Georgia Appeals Reports through June, 1978, numbered 145

volumes and is increasing by some four volumes annually. Inci-

dentally, major publishers of law books and periodicals report

that each judge of the Court of Appeals personally writes and

publishes more opinions than do the individual judges of any

other appellate court in the nation. An illustration of the im-

portance of these decisions of the Court of Appeals is found in

Gooding v. Wilson, 405 U.S. 518, rendered March 23, 1972.

In deciding an appeal involving construction of Code 26-6303,

Georgia Code 1933, dealing with abusive or obscene language,

the Supreme Court of the United States stated: "We were in-

formed in oral argument that the Court of Appeals of Georgia

is a court of statewide jurisdiction, the decisions of which are

binding upon all trial courts in the absence of a conflicting decision

37

of the Supreme Court of Georgia. Federal courts therefore follow

these holdings as to Georgia law." (Page 525.)

--,

The first sessions of the Court of Appeals were held in what

had been the single courtroom contained in the State Capitol

building. It was used in the afternoons by the Court of Appeals

and in the mornings by its brother tribunal. This same court-

room continued to be used by both courts sitting on separate

days until the State Judicial Building was completed in 1956.

A report of the dedication proceedings of the present court-

room appears in 93 Ga. App. 901. The speakers properly noted

the motto engraved upon the marble wall behind the bench.

That states the credo which has served so well for 71 years and

will continue to guide the Court of Appeals through future years:

"Upon the integrity, wisdom and independence of the judiciary

depend the sacred rights of free men."

The Chief Judge is elected by the Court and serves in that

capacity at the pleasure of the Court. By statutory authoriza-

tion the Chief Judge appoints the Presiding Judges. Today the

Chief Jud~e and the two presiding Judges are the only ones who

remain in place in their respective divisions. All other Judges

rotate annually between the three panels. The Court wisely

instituted this procedure to avoid the stereotyping of both Judges

and opinions, to diffuse the judicial power and to permit each of

the Judges the privilege of serving with all. Coincidentally, with

the adoption of its rotation system, the Court eliminated the

long-time practice of assigning all its criminal cases to one division.

This was a most progressive step as it eliminated the continued

control of this enormous judicial power by only three men.

While the Court is presently considering the possibility of assigning

all of its criminal cases to a single division, the thought is unani-

mous that no one Judge should serve on that division for more

than one uninterrupted year.

The Court of Appeals of Georgia completed seventy one years

of existence on January 1, 1978. What were its origins? Why

was it created? How has it performed during those seven decades?

"The Court of Appeals of Georgia was established because it

was an absolute necessity." Coincidentally - and without knowl-

edge that the identical words were used by the other chroniclers -

three legal historians used that specific sentence in their narratives,

even though each wrote during a different period of time. They

were Judge Warren Grice in 1931, Judge Robert H. Jordan in

1962, and Attorney General Arthur K. Bolton in 1975. Each of

them reached the same conclusion by independent research. The

basis for this identity of conclusions is demonstrated by the

38

plight of the Georgia Supreme Court by 1890. The number of

appeals reaching the state's single appellate tribunal had become

~'.

so overwhelming that "Relief of the Supreme Court" became a

discussion topic at every annual meeting of the Georgia Bar

Association and wherever lawyers congregated. How did this

critical situation come about?

Georgia had been a state for seventy years before it acquired a

Supreme Court. Until it was established in 1845 Georgia was the

only American Commonwealth having a judicial system without

an appellate court. At its creation, the first bench consisted of

three justices elected by the House of Representatives.

During its first fifty years the work load imposed upon the

three justices increased steadily. The first move by the organized

bar to alleviate the case load on the Supreme Court came at the

1895 annual meeting in Atlanta held at the Cotton States and

International Exposition. This was due to the electorate having

voted the previous October against a constitutional amendment

which had sought to increase the number of justices on the Supreme

Court from three to five.

"
'.,

It was at this 1895 meeting that we find for the first time a

proposal to create a court of appeals. Pages 20 through 42 of

Volume Twelve of the Georgia Bar Association Reports contains

a symposium on the subject of "Relief of the Supreme Court of

Georgia: Is the Remedy One or More Intermediate Courts?"

Z. D. Harrison, then Clerk of the Supreme Court, argued: "Let

the Legislature establish a competent intermediate court, a court

which will command the confidence and respect of the bar and of

the people, and establish it, too, upon such terms as will make its

entrance easy so that every litigant and suitor can enter this

court upon terms quite as easy as those upon which he can now

enter the Supreme Court by writ of error." (Page 23.)

Among other ideas proposed were establishment of two supreme

courts, one for criminal cases and another for civil; abolition of

the contingent fee; restriction on the right to appeal; and limitation

as to the class of cases which could be carried to the Supreme

Court. To lawyers of the present generation who have experienced

the transformation of criminal law into a complex subject

amounting almost to specialization, it is interesting to observe

Mr. Harrison's comment that "The criminal cases going to the

Supreme Court do not usually involve difficulty to the court.

The law is so well settled that the court disposes of the criminal cases with very little labor, so that that relief would amount to but very little practically." (Page 32.)

39

Prescient indeed was the statement during the discussion by

John M. Slaton that "[ The time will come when] the Court of

Appeals would be overburdened and have the same difficulty

now that the Supreme Court has." (Page 36.)

The group declined to consider the novel idea "to establish

the right of trial by another jury . . . and have a trial by a first

and second jury before a case can go to the Supreme Court."

(Page 37.)

With tort law having become a major portion of today's

practice, it is interesting to observe that one suggestion was to

divide the Supreme Court into two benches, "One for civil

business and one for criminal cases and cases arising from torts,

which would be about an equal division of the work." (Page 173.)

Most interesting is the detailed prepared paper presentations of

W. W. Gordon, Jr., of Savannah and Joseph Hansell Merrill of

Thomasville which appear as Appendix 10 and 11 respectively.

These papers dealt with a bill prepared by Superior Court Judge

Pope Barrow of Savannah which would have created five district

courts of appeal. The bench was to be composed of jurists serving

'.-,
~w

in the superior and city courts in the district who would be designated to handle the business of these courts of appeal.

Atlanta, Athens, Savannah, Columbus and Macon were suggested

to be the locations where the district courts would hold its

sessions. Judges were to be paid from the State Treasury at the

rate of 4 cents per mile for travel and $4 per day for services.

Nothing further was done towards the creation of another

court but in 1897 the Supreme Court was increased to six judges.

This increase in personnel failed to provide a solution, as five

years later, at the 1902 session held at Warm Springs, there was

another symposium. The basis of this discussion was a paper

delivered by Justice Andrew J. Cobb captioned: "The Judicial

System of Georgia: Its Defects; What Changes Are Necessary to

Bring About a More Harmonious and Orderly System and to

Relieve the Supreme Court." This paper appears as Appendix I

in 19 Georgia Bar Association Reports from pages 183 through

195. It recited statistics demonstrating that the Supreme Court

justices could not humanly perform their task. Justice Cobb

noted "The working hours of the Court for hearing argument

and consultation have been, since October 1897, from 9 a.m. to

1 p.m. and from 3 p.m. to 5 p.m. in the Fall and Winter and

6 p.m. in the Spring and Summer. These hours, however, do not

represent all of the working hours of the Justices." (Page 187.)

Among proposals mentioned in this paper were limitation of

oral arguments, disposition of many cases by a written synopsis

40

of the points decided, limitation of the number of written

opinions, increase in the number of justices and an increase in

..

the number of divisions, limitation as to monetary amounts, and restriction of jurisdiction. Justice Cobb observed that "Some

favor an intermediate appellate court, from which a writ of error

to the Supreme Court will lie only in certain cases." (Page 192.)

Judge Barrow again submitted his Bill to create District Courts

of Appeal from the trial courts of the respective districts but

limited to three districts. Each judge was to be paid 3 cents per

mile and $5 per day "for each day court is in session and he is

sitting. "

The 1902 symposium covers pages 35 through 46 and terminated

with passage of a motion for appointment of a committee to draft

a curative statute. Page 83 gives the names of a statewide committee

composed of an eminent attorney from each Congressional District

designated to prepare "Legislation for the Relief of the Supreme

Court." Among these committeemen were such legal luminaries

as Washington Dessau from Macon, Samuel B. Adams from the

First District, Arthur Gray Powell from the Second District,

Hoke Smith from the Fifth District and Marcus W. Beck from the

Sixth District. Adams of Savannah later served in 1903 as an

interim appointee on the Supreme Court Bench. Powell became

one of the first three judges of the Court of Appeals. Smith was

later Governor and United States Senator. Beck subsequently

served on the Supreme Court for 32 years.

This committee reported at the 1903 annual meeting held at

Tallulah Falls, a favorite meeting place for the Bar Association

in those halcyon days when membership in the voluntary Georgia

Bar Association meant prestige as well as an opportunity to work

for the betterment of the legal profession. This committee

suggested two constitutional amendments. One applied to the

Supreme Court whereby a civil case could not be appealed unless

the amount involved exceeded $500.

The second amendment proposed to create a Court of Appeals.

It was to consist of a Presiding Judge and four Associate Judges

with salaries at not less than $3,000 per annum. Jurisdiction

was co-equal to the Supreme Court "for the trial and correction

of errors from the Superior Courts and from the City Courts of

Atlanta and Savannah and such other like courts ... in all cases

in which jurisdiction is not conferred by the constitution upon

the Supreme Court." The report was adopted with a requirement

that a copy be mailed to every Georgia lawyer along with a

condensation of the 1902 address of Justice Cobb. The report

was also addressed "To the People of Georgia" and concluded as

41

follows: "To a people numbering now largely more than two millions, active in every commercial enterprise, advancing rapidly along all the best lines of civilization, spreading an influence all over the Union and determined to hold the State's place as the Empire State of the South, this measure is commended as a step forward and upward, for the honor and glory of the Commonwealth of Georgia." (Page)43.)
Despite this modern-day public relations ploy the bill which in October 1902 was introduced by John M. Slaton, who later became a Governor of Georgia, languished in the Legislature until 1906. In that year Peter W. Meldrim of Savanl).ah (later President of the American Bar Association) activated the move "to see that proper legislation is passed for the relief of the Supreme Court, looking to the establishment of a court of appeals." (23 Ga. Bar Association Reports 36.) Again Justice Cobb spoke at length concerning the plight of the appellate court's swollen docket and the strain upon the health of the justices seeking to perform an impossible task. He commented, "I think it is unfortunate that it has been termed a movement for the relief of the Supreme Court. It is a movement in behalf of the administration of the law, for the relief of those whose lives, whose liberty, whose property, is involved, those who have been given under the constitution of the state the right to have an adverse decision reviewed." (Page 37.)
The legislative activity of the organized bar finally succeeded. On July 31, 1906, a bill was approved almost unanimously, only four votes in opposition, whereby there was to be submitted to the electorate an Amendment to the State Constitution "to provide for the establishment of a Court of Appeals, and to define its powers and jurisdiction; to define the jurisdiction of the Supreme Court and for other purposes." (1906 Ga. Laws 24.)
Under this Constitutional Amendment the jurisdiction of the two appellate courts in civil cases depended upon the identity of the court in which th~ case originated. The Supreme Court was to have exclusive jurisdiction in capital felonies. Additionally, it was to determine questions certified to it by the Court of Appeals. The Court of Appeals was mandated to certify to the Supreme Court all State and Federal constitutional questions and was privileged to "certify any other question of law concerning which it desires the instruction of the Supreme Court for proper decision." Although the Amendment also provided that "The decisions of the Supreme Court shall bind the Court of Appeals as precedents" each was a court of final jurisdiction. The Amendment was to become effective upon ratification by the electorate which was the result at the general election of October 3, 1906.
42

The election for judges followed on November 6, 1906. There

were sixteen candidates with the three receiving the most votes

to form the first Bench. Arthur G. Powell of Blakely (who together

~;

with Logan E. Bleckley are regarded as two very great appellate

:~

court judges) wrote in his fascinating book, "I Can Go Home

Again", that the original Bar proposal was for the Governor to

appoint the judges. Governor Terrell had agreed that the three

to be named would be H. H. Perry of Gainesville, Henry C. Peeples

of Atlanta, and Powell. The House had altered this proposal to

require that the judges be elected by the people. The Bar Associa-

tion then asked these three lawyers to become candidates and only

Mr. Perry declined. The newspapers first announced the three

receiving the highest votes were Russell, Powell and Peeples.

When the final returns were tallied it developed that Benjamin H.

Hill, the son of Georgia's great United States Senator Benjamin

Harvey Hill, had defeated Peeples by a few votes.

The original minutes of the Court of Appeals show that the

three elected judges convened at the State Capitol on January 2,

1907, and determined by lot the length of their respective terms.

They appointed Logan Bleckley, the namesake son of the legendary

Supreme .Court Justice as Clerk of Court, and James H. Pitman

as the first Sheriff. These minutes show that by Supreme Court

Order dated December 17, 1906, 155 pending civil cases had

been transferred to the new tribunal. Later, by Order dated

January 12, 1907, an additional 24 criminal cases and one more

civil case were transferred.

Dissents developed on two matters at this first en banc meeting.

The statute provided for "short-hand writers" to serve each judge.

Two males and one female were proposed. Powell dissented as to

the woman, asserting that under the then Civil Code 1810

"females are declared ineligible to hold any civil office or to

perform any civil function, unless specially authorized by law,"

and that Civil Code 5507 declared the Supreme Court stenog-

raphers to be civil officers. His dissent concluded: "If I could

find any escape from what seems to me an irresistable [sic] legal

conclusion, I would take great pleasure in joining with my

brethren in the selection of this most excellent young lady."

Judge Hill concurred with Judge Russell's nomination of the

lady, stating that since he had "doubt on this [legal] question

I prefer to concur to the appointment, especially in view of the

practice of the Supreme Court in permitting the exercise of

personal preference in the selection of stenographers by the

individual judges." Thereby Marian Bloodworth became the

court's first female employee.

43

The other dissent occurred in deciding who was to be Chief

Judge. Hill and Powell wanted this to be based on seniority

- according to age. Judge Russell dissented vigorously. Not only

did he contend the legislative intent to be "that all of the judges

should be equal" but with customary "Russell candor" argued

that the proposal was one that was "arbitrary and personal."

He concluded, "I have never yet, and cannot now, give my consent

to any doctrine which gauges the peculiar fitness of any individual

for office holding by his age or youth, other than the present

statutory requirements. The achievements and services of our

young men are perhaps the preeminent glories of American

history. Long life sometimes brings knowledge but not always

wisdom."

In an article in the Summer of 1948 issue of "The Georgia

Review" entitled "The Birth of the Court of Appeals of Georgia",

Judge Powell revealed the inside story as to how Hill was persuaded

to vote for himself. "He (Hill) told me he was anxious to be the

first Chief Judge of the court, but did not wish to commit the

indelicacy of voting for himself. I told him that I could avoid

that embarrassment for him; that the constitutional amendment

had made no provision for the selection of a Chief Judge. I re-

"f

minded him that the same situation had confronted the Supreme

Court when it was organized in 1845, and that an act had then

been passed providing that the oldest justice in commission or

(if there were more than one whose commissions were of the

same date) the one who was oldest in point of time should be

Chief Justice. I told him that in the present plans of organization

I had been delegated to draw, I could with propriety embody such

a provision, and that with his vote and mine it would be adopted,

and that he would so automatically become the Chief Judge."

(Page 151.) As one reads Powell's beautiful opinions, one should

remember that when he became judge he was 34 years old and

remains to this day the youngest person to have served on

this bench.

The rule of age prevailed. Hill being 57 years old became the

first Chief Judge. Russell was then 45 but afterwards became

Chief Judge and in later years Chief Justice of the Supreme

Court. He was father of the famed United States Senator,

Richard B. Russell, Jr. His grandson, Robert L. Russell, Jr.,

was also to serve on the Court of Appeals. This Russell combination

is the only grandfather-grandson one in the Court's history. As

they came from Winder, it is of interest to note that the only

father-son combine (Joseph D. Quillian and J. Kelly Quillian)

were from Winder. Also of interest is the fact that Julie and

44

Clay Custer, children of Mr. and Mrs. Henry Custer of Albany, have _the distinction of having had both of their grandfathers serve as judges on the Court of Appeals, Le., Judge Vance Custer and Judge Julian Webb.
Examination of the original Rules of Court drafted by Judge Powell illustrates the importance in those days of the oral argument when "briefs" really meant brevity. Historically in Georgia the shortest written presentation was by Robert Toombs and consisted of four words: "Marriage - Seizin - Death - Dower." Rule 5 stated that "Argument is limited to four hours upon each case, two hours on each side, unless by special leave an extension of time is granted." Apparently this rule was then effective as the court's first opinion was rendered three days after oral presentation.
However, with the ever increasing number of appeals and resulting opinions to be written the oral argument of necessity has subsided in importance. Today judicial reliance on the written brief has become paramount. Compare the initial rule with that appearing on the current oral argument calendars of the Court of Appeals. "The following cases have been placed on the calendar for argument. Generally, the cases will be called in the order listed and on the days named, beginning at 10 o'clock a.m. The Court encourages brevity in arguments. Accordingly, the Court will call cases out of tum in which counsel respectively inform the Clerk that time of argument will be limited to 5 minutes or less per side. In this connection see Rule 4(c) of the Court. The Court assures counsel unable to appear for oral argument that no adverse inference results from their absence. No inference arises even though counsel for one party argues and one does not. The Court solicits su bmission of cases by briefs."
Our three progenitors, Hill, Russell, and Powell proved to be legal giants. Shepard's Citations provide confirmation: the 1972 Bound Volume contains 51 pages devoted to Georgia Appeals Reports 1 through 10 covering the first five years of this trio's service. The lasting precedential value of their decisions is further shown in the September, 1976 Shepard's Supplement which has four pages covering recent cases citing these early reports. The work of these jurists was favorably received by Georgia lawyers. This is shown by a resolution unanimously adopted at the 1907 Annual Bar Meeting which requested West Publishing Company to add this court's opinions to theirSoutheastern Reporter because "these decisions will be valuable not only in this State, but in every law library in America." How true this is today!
During the first ten years of its existence there was no review of this court's decisions by our Supreme Court. Its judgments
45

were final. Apparently, however, the existence of two courts of last resort created problems. Illustrative of the situation was an address by J. R. Pottle of Albany appearing in the 1914 Ga. Bar Association Reports from pages 216 through 226 which detailed the complications and provided statistics as to cases decided by the two co-equal courts. The speaker who had been Judge Powell's law partner in Blakely had succeeded his partner on this bench when Powell resigned to enter private practice in Atlanta in January, 1912. Pottle had served two years on this bench and then returned to practice in Albany. He thus was able to present the problems both as a former judge and as a practitioner. Most of the discussion centered upon apparent conflicts between decisions of the two courts despite the constitutional requirement that the Supreme Court rulings were to be binding precedents.
The work load of the two appellate courts became such that the 1915 annual meeting of the Georgia Bar Association deemed it necessary to take positive steps towards alleviation. Noting that for two successive years none of the appellate judges had been able to attend their meetings a resolution was passed supplemented with an appropriation of $1,000 towards "working out measures of relief." Two paragraphs of this resolution read: "Whereas, said courts have been forced to remain in continuous session with no opportunity for even the briefest vacation, and without cessation from their onerous and exacting labors; and whereas, said courts are now annually deciding more than 1600 cases, which is a greater number than can be disposed of with satisfaction to the bar or credit to the court, even with the incessant slavish toil to which the Justices and Judges are being subject."
Thereafter, in 1916, the General Assembly took action. Rejecting the suggestion of having one court deal exclusively with appeals of criminal cases and the other with civil, the 1916 Legislature approved for submission to the electorate a constitutional amendment which limited the class of cases over which the Supreme Court was to have jurisdiction and enlarged that of the Court of Appeals. This was ratified by the people the same year. The portion dealing with this court is now in the Judicial Article of the 1945 Constitution as Paragraph VIII, Section II, Article VI (Ann. Code 2-3708). Only a few jurisdictional changes have occurred since 1916. One is a 1956 Amendment providing for direct review by the two appellate courts of Juvenile Court judgments which was ruled in Powell v. Gregg, 224 Ga. 226, to come solely within the purview of the Court of Appeals. Another is a 1977 statute (Ga. Laws 1977, p. 710) transferring jurisdiction to the Court of Appeals of armed robbery, rape and kidnapping where the death penalty is not imposed and transferring from the Court
46

of Appeals to the Supreme Court jurisdiction in cases involving state revenue, contested elections, and the validity of legislative enactments of municipalities. Although the Supreme Court declared the 1977 statute to be unconstitutional in Collins v. State, 239 Ga. 400, nevertheless both courts elected to follow the spirit and the intent of the statute by mutually accepting its terms.

Anticipating passage of the proposed Constitutional Amendment the 1916 General Assembly also passed a statute (page 56) changing the structure of the court. This Act added three judges to the three already composing the Court of Appeals and provided for them to sit in two divisions with each to determine "independently of the other, the cases assigned to it." The statute directed that "all criminal cases shall be assigned to one division." In complying with the statutory directive to "Distribute the cases between the divisions in such manner as to equalize their work as far as practicable," the judges decided that two criminal cases would equal one civil case. In an address to the 1927 Georgia Bar Association annual meeting Judge R. C. Bell stated that "in making up the calendars for the arguments the cases are allotted to the two divisions on this basis until the criminal cases are exhausted, after which the remaining civil cases are distributed equally to the two divisions." (44 Ga. Bar Association Reports 232.)
Among the three judges elected at the 1916 general election was Walter F. George, then 39 years old. He served from January 1, 1917, until October of that year. Subsequently he returned to private practice and later had an illustrious national career which included 34 years as a leader in the United States Senate followed by service as Special Representative of the President of the United States to the North Atlantic Treaty Organization from January 5, 1957, until his death on August 4 of that year.
In 1960 (1960 Ga. Laws 158) the number of judges was increased to seven. Then, in the following year, the General Assembly by statute (1961 Ga. Laws 140) added two more judges and legislated that the court was to sit in three divisions of three judges each, one of which was to handle all criminal cases. This

assignment of criminal cases to a single division was finally elimi-

nated in 1967 (1967 Ga. Laws 538). With the deletion of this

criminal assignment requirements, the procedures for the court's

operations as mandated by the 1960 and 1961 statutes govern

..

today's court and are located in the Annotated Code 24-3501.

Laymen who do not understand the dedication and devotion

of bench and bar to serving the cause of Justice would have

predicted difficulties in the directive that "Each division shall

hear and determine, independently of the others, the cases assigned

47

to it." In actuality, there has been no practical problem in com-

pliance with this mandate. This is undoubtedly due to the quality

.,
J,

of those who have served on the Court of Appeals bench. They have shown an exemplary respect for the court as an institution.

.";

This was shown from the very origin of the court in the case of

Gainesville Midland Ry. v. Jackson, 1 Ga. App. 632. There, in

an appeal upon a bill of exceptions signed by the trial judge on

December 31, 1906, appellant argued absence of jurisdiction

because the judges elected in the November election did not

take oaths of office until January 2, 1907. In ruling against this

contention, the opinion says "Counsel for defendant in error

has confounded [sic] the Judges with the court. The court when

created became at once, upon the proclamation of the Governor,

an integral part of the judiciary department of the State, and it

existed as such whether there were Judges thereof or not."

Unique is the relationship which has existed between our two

appellate courts during these seventy one years with many Justices

having served previously on the Court of Appeals. Usually, but

obviously not always, the relationship has been most harmonious.

For the convenience of the Bar the two courts have consulted in

making their rules but with recognition that each is independent

of the other. They have further recognized that each is to deter-

mine its own internal operating procedures. With the exception of

the right of certiorari and the constitutional provision declaring

"The decisions of the Supreme Court shall bind the Court of

Appeals as precedents" the two courts are considered to be co-

equals in their respective jurisdictions.

Space limitations prevent paying proper homage to those

whose dedicated service as judges have made the Court of Appeals

of Georgia a nationally respected institution. Indicative of the

harmony which has always been a hallmark of this bench is the

fact that there have been only seven Chief Judges. Hill served for

six years (1907 - 1913). His colleague, Russell, followed him

for the period from October 13, 1913 until June, 1916, when he

resigned to return to the practice of law. The third was Peyton L.

Wade from Dublin who became Judge in February, 1914, and

Chief Judge in 1916, serving three years until his death on August

22, 1919. His successor was Nash R. Broyles who had come to the

'.'

bench in 1914 and was made Chief Judge in 1919. His tenure was

the longest in that he served 28 years as Chief Judge until his

death at the age of 78 in 1947. Following him was 1. Homer Sutton,

who served from April 10, 1947 until January 15, 1954. His

successor as Chief Judge, Jule Wimberley Felton, had the longest

tenure of service as a judge on the court, a total of 32 years. He

48

gA gOO. At...
tfll /C,7f le.-(p :, . ;)-/