Georgia’s Supreme Court Fails Again

It never ceases to amaze me. How do Supreme Courts decide which petitions for certiorari they will grant?

Georgia’s Supreme Court this year, passed to Court of Appeals, almost all of the last kind of cases that you could directly appeal to Georgia Supreme Court. I have no idea what they do now. Sure, they still take death penalty cases, some criminal cases, but other than that, who knows what they do.

There was a Petition for Certiorari filed due to the fact that Judge Hunter in DeKalb County Superior Court, had ruled that service of process at the Courthouse was proper service. That only goes totally against all rulings ever since that law was put into place. The man, was at the Courthouse to testify, the process server came up to him, right outside of the courtroom where he was to testify. The process server threw the papers down at the man’s feet, laughed and said “Now Your Served!” and ran off. DeKalb County Superior Court’s Judge Hunter, said that that had been proper service.

In Georgia, like in most other states, when you are at the Courthouse, to give testimony, of any kind, you are 100% privileged from service. No if’s and’s or but’s.

Ga. Process And Service § 4:2
Georgia Process and Service with Forms
Database updated November 2015
Philip Weltner II
Part II. SERVICE
Chapter 4. Service In General
§ 4:2. Privilege from service
Even if a defendant is served with process in accordance with the mandated procedures, that service may nonetheless be invalid if the defendant is privileged from service. The Judiciary Act of 1799 stated that “all witnesses going to, attending on, and returning from any of the said courts, shall be free from arrest or any civil process.” While this provision is declaratory of the common law privilege, it is not exhaustive of all the exemptions from service recognized in this state.1
Any witness going to, attending, or returning from an appearance in court is privileged from service of process, even if he appeared voluntarily and not pursuant to a subpoena.2  The privilege applies to all aspects of the judicial proceeding.   Thus, a nonresident who is a party to a suit pending in another state and who comes into Georgia under stipulation of counsel solely for a deposition is immune from service.3
This privilege does not apply to a resident defendant in a criminal case.4  A nonresident criminal defendant, however, is immune from civil process in two situations. First, a nonresident who is in Georgia under extradition proceedings is not subject to service in a civil action until he is convicted or, if acquitted, given a reasonable opportunity to return to the state from which he was extradited.5 Second, a nonresident who voluntarily appears in a criminal proceeding in this state, and thus saves the state the expense, delay and uncertainty of an extradition hearing and thereby promotes the orderly, expeditious and unobstructed administration of justice, is given immunity.6
A nonresident witness does not waive his immunity by availing himself of the Georgia courts. The use of the courts does not constitute a waiver.7

1    Ewing v. Elliott, 51 Ga. App. 565, 181 S. E. 123 (1935).

2    O.C.G.A. § 24-13-1; Fidelity & Cas. Co. v. Everett, 97 Ga. 787, 25 S.E. 734 (1896).

3    Ewing v. Elliott, 51 Ga. App. 565, 181 S. E. 123 (1935).
Husband did not waive service of an ex parte family violence protective order when he appeared in court to answer petition, as he had not been served with a copy of the petition itself. Attempts to serve him in court and afterwards in the court parking lot were inadequate. Husband argued the long-standing rule that a suitor or witness in attendance upon the trial of any case in court is privileged from arrest under any civil process, and is exempted from the service of any writ or summons upon him or them while in attendance upon such court, or in going to or returning therefrom. See Steelman v. Fowler, 234 Ga. 706, 217 S.E.2d 285 (1975). The later judicially-created exception from this rule for nonresidents who are in the state temporarily for some purpose other than to appear in court as a party or witness does not apply here, even though Husband was a nonresident in the state to appear in court as a party, because the rule is intended to insulate a party in attendance from service in a new action, and although the action had previously proceeded ex parte, the action was new to Husband, who appeared solely to contest the initial service. Loiten v. Loiten, 288 Ga. App. 638, 655 S.E.2d 265 (2007).

4    Warren v. Hiers, 105 Ga. App. 202, 124 S. E. 2d 445 (1962). This rule had been based on the law that a defendant could not be a witness in his own case. Now, however, pursuant to O.C.G.A. § 17-7-28 (GCA § 27-405), a defendant can be sworn and testify in his own case just like any other witness. Accordingly, resident criminal defendants, even though they now may be sworn as witnesses in their own cases, are not immune from service of process while in court. Payton v. Green, 179 Ga. App. 438, 346 S. E. 2d 884 (1986).

5 Uniform Criminal Extradition Act, O.C.G.A. § 17-13-45 (GCA § 44-425).

6    White v. Henry, 232 Ga. 64, 205 S. E. 2d 206 (1974).
The term “nonresident” refers only to nonresidents of Georgia, not nonresidents of the county in which the trial of the criminal defendant is proceeding. Payton v. Green, 179 Ga. App. 438, 346 S. E. 2d 884 (1986).

7     Word v. Word, 236 Ga. 100, 222 S. E. 2d 382 (1976); Steelman v. Fowler, 234 Ga. 706, 217 S. E. 2d 285 (1975); Couture v. Couture, 242 Ga. 11, 247 S. E. 2d 751 (1978).

End of Document
© 2016 Thomson Reuters. No claim to original U.S. Government Works.

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