Garland v. State of Georgia

Townsend, and Nichols, Judges,

dissenting. While we agree with the majority that the rulings of the trial court contained in divisions 3, 4, 5 and 6 are not erroneous as abstract principles of law and would be proper had the court had jurisdiction, we particularly dissent from divisions 1, 2 and 7 and from the judgment of affirmance.

In division 1 the majority now holds that the assignment of error in the bill of exceptions that the judgment of the trial court holding the defendant in contempt is “contrary to law” is sufficient to permit consideration of the question of whether or not the trial court abused his discretion. In the same division it is held that this assignment of error is not sufficient to test the question of whether or not the due process of law clauses of the State and Federal Constitutions had been violated by the order as to this defendant. The theory upon which it is held to be sufficient to test the question of whether or not the trial court abused his discretion, as we understand it, is that the judgment complained of is sufficient to show whether the court in entering it abused his discretion and that if he did the judgment would be *419 contrary to law. The same order also shows that the original contempt was committed during the trial of The State v. Bright from January 12 through January 23, 1959; that the defendant was immediately upon the completion of the trial adjudged in contempt; that that judgment was appealed to this court, reversed, and held to be void; that the remittitur was returned to the trial court; and that on August 11 the judgment of this court was made the judgment of the trial court. The order then proceeds to hold the defendant in contempt in a summary manner, the whole record disclosing that the defendant was then being summarily sentenced for a contempt committed seven months previously. Accordingly, it appears that the majority considered the merits of the controversy as to whether the trial court abused his discretion on an assignment of error that the judgment of conviction was “contrary to law” because the question was properly reflected by the record, and declined to consider the question of whether or not the defendant was denied due process of law because summarily dealt with seven months after the act complained of was committed, which condition was equally reflected by the record. The majority also considered the two pleas as raised by the bill of exceptions and thus passed on everything in the record which would avail the defendant nothing, and declined to pass on the sole question which might have sufficient merit to authorize reversal. In division 2 of the opinion of the majority it is held that even if the defendant was denied due process of law he waived his right to- complain about it because he did not complain and raise the question before the trial court. The defendant was ordered to summarily appear before the judge for further proceedings in his contempt matter. He was suspicious of course that the trial court intended upon his appearance to put down some kind of an order, the exact contents of which he would have no way of knowing. That he had the opportunity to file some sort of a defense to an unknown charge is reflected by the fact that he did file two pleas, neither of which had any merit. The rules of law with reference to the waiver of rights are well recognized by us. We concede that any time a person has a proper service of a pending charge and a time and place set for hearing and disposing of the question, and such per *420 son is accordingly apprised of the contents of the charge, that he must make whatever defense he wants to make before the trial court or he waives such defense. It seems to us, however, to be foreign to every rule of our form of government to hold that a person who is not entitled to any sort of hearing, or even any written charge against him, and who is not by law given any sort of opportunity to file a defense to a proceeding, by failing to file a proper defense to a judgment before it is entered waives his right to1 interpose such a defense to that judgment after it is entered.. Assuming that this defendant might have had some sort of defense that he could have interposed to the- first judgment that was entered against him, and he was called before the court and a judgment of conviction was read to him and then he was led off to jail and confined therein, certainly he could not interpose a defense in advance of the entering of an order, and he had no oportunity before the trial court after it was entered because of an involuntary absence from the presence of the trial court.

Ordinarily no person is required to specify the defects of any pleading until after it has been prepared and of which such person has some sort of notice. The opinion of the majority here holds that this defendant waived his right to complain about a judgment of the trial court before it had been entered. In the seventh division of the opinion of the majority it is pointed out that the defendant offered to amend his bill of exceptions in two respects: (1) to except to the final judgment on the ground that the court abused his discretion in holding him in contempt in that the conduct specified did not constitute contempt; and (2) to except to the final judgment on the ground that he was deprived of his constitutional rights of a rule nisi and hearing. It is held that the bill of exceptions does not need to be amended as to the first ground of the request and that it is not entitled to be amended as to1 the second.

It is our opinion that it does not need to be amended in either respect but that if it is regarded as necessary as to these two requests or either of them in order to consider that aspect of his case, this court should have allowed the amendment because the request does not include the addition of a new assignment of *421 error where none existed before. It does not add material not in the record. It seeks only to show in connection with the existing assignment of error reasons shown by the record why such judgment was contrary to law.

To reach this conclusion we have only to compare Rabhan v. Rabhan, 185 Ga. 355 ( 195 S. E. 193 ) with Lynch Enterprise Finance Corp. v. Realty Const. Co., 176 Ga. 700 ( 168 S. E. 782 ). In the Rabhan case an attempt was made to amend the bill of exceptions by assigning error on a verdict and decree which had not previously been brought to the appellate court, and it was held this could not be done because the plaintiff in error was not seeking to amend his bill of exceptions from the record in the case on appeal.

In the Lynch Enterprise Finance Corp. case the plaintiff in error brought up all the demurrer rulings in the record and he assigned error on the demurrer rulings adverse to him but omitted to include one of the demurrers by number in the assignment of error, although this fact did appear from the record in the case on appeal. The Supreme Court under those circumstances allowed him to amend his bill of exceptions by assigning error on the ground of demurrer omitted in the assignment of error in the first instance. It did so because it could determine this fact from the record before it on appeal.

In the record before us on appeal we have the judgment which is assigned as error. No question of fact is involved therein. If it is erroneous it is so only because contrary to law in some specified manner which must appear in the record on appeal. The plaintiff in error does not seek to make a new assignment of error, or to change an assignment of error, or to make an assignment of error specific in nature as to matters of law rather than as to matters of fact, etc., which were also embraced in it. He contends that the record shows the judgment to have been erroneous as a matter of law, and in his amendment he merely spells out his reasons for so contending. The amendment thus is' not dehors the record, nor does it in any manner change the character of the assignment of error or bring any new matter into it.

The two questions that are here standing in opposition to each *422 other are: (1) Shall the defendant be denied his Constitutional rights? or (2) Shall the technical niceties of pleading be adhered to strictly? Which of these two questions is the more important? Our courts may minimize the importance of the gems of liberty contained in the Bill of Rights. On the other hand our courts may exaggerate the importance of perfect pleading. But for what purpose do our courts exist? To uphold examples of technical procedure or to cany out their function as a branch of the government of the State of Georgia?

The answer is found in the Constitution of this State, Art. 1, Sec. I, P'ar. II (Code § 2-102) providing as follows: “Protection to person and property is the paramount duty of government, and shall be impartial and complete.” That there can be no complete departure from orderly procedure is recognized, but here we had in the first instance a close question with authority that would allow this court to pass on the merits of the case under the assignment of error as it originally existed. And now we have a question with supporting authority that would certainly authorize this court to allow an amendment to- the assignment of error in the bill of exceptions. When such questions are before any court, it is our position that it is the duty o-f that court to so resolve those questions as to sustain rather than to defeat justice. Accordingly, we think the motion to rehear should have been granted and the amendment to the bill of exceptions should have been allowed, if the court considered it insufficient in the first instance.

As to the sufficiency of the assignment of error and as to whether or not the defendant has been deprived of due process of law under the State and Federal Constitutions, it is our position that this assignment of error is addressed to said final judgment of August 19, 1959, is no- different in substance from the assignments of error in the bill of exceptions assigning error on the contempt order of January 23, 1959, which five judges in this court considered at the time sufficient to raise the questions: 1. Whether the order of January 23, 1959-, was valid because it contained no adequate finding of facts by the trial judge, and 2. Which one judge of this court held was sufficient to raise the question of whether or not there was an abuse of discretion in passing said order.

*423 Tbe point concerning the sufficiency of the assignment of error made in the majority opinion in this case was not made in the brief of any of the parties, but was made on this court’s own motion. But it was just as much the duty of this court to1 consider this question of its own motion in the previous case as it is now for the first time to consider such question of its own motion. Even more so was it the duty of this court in the prior case, because the prior case is now a precedent, that such an assignment of error, between the same parties and raising the same question, is sufficient to compel this court to take jurisdiction to determine whether or not from the facts appearing on the face of the record the contempt order passed by the trial court was void. Since it was our duty at that time to have dismissed the bill of exceptions if such assignment of error was insufficient, the case contains a ruling that such assignment of error is sufficient.

Just as we inspected the record in Garland v. State of Georgia, 99 Ga. App. 826 , supra, to determine if the judgment of contempt in that case showed on its face that it was void for the reasons stated in the opinion in that case, we must now inspect the judgment here to determine whether it reflects on its face that it is void for any other reasons. Code § 110-709 provides as follows: “The judgment of a court having no jurisdiction of the person or subject-matter or void for any other cause is a mere nullity, and may be so held in any court when it becomes material to the interest of the parties to consider it.” There is no question in this case that the trial court had jurisdiction of the person and the subject matter, and that the judgment of the trial court in this case is not void for either of these two reasons, but in our opinion, as we shall demonstrate later, the judgment of the trial court of August 19,1959, is void for another cause. Where the judgment of a trial court is “void for any other cause” it is as much a mere nullity as it is where the court has no jurisdiction of the person or the subject matter, and it is the duty of this court on its own motion to inspect the record presented to it by the bill of exceptions to determine whether the judgment is void within the purview of that statute. In Georgia R. & Bkg. Co. v. Redwine, 208 Ga. 261 (1) ( 66 S. E. 2d 234 ) the judgment of the trial court was held void because of lack of jurisdiction of the subject matter. *424 There the court said: “When a trial court, in a case over which it has, as to subject matter no. jurisdiction, renders therein any judgment except one- of dismissal, this court will of its own motion reverse the same whether exception to it for want of jurisdiction in the court below be taken in the bill of exceptions or not.” It is obvious that the judgment of the trial court was not a judgment of dismissal; therefore, it becomes our duty to test the order of the trial court to determine whether it is “void for any other cause.”

Judgments of trial courts are sometimes void for reasons other than lack of jurisdiction of the person or subject matter, such as judgments rendered at a place or in a manner not provided by law. Such judgments come under the “void for any other cause” provision of Code § 110-709, supra.

“The rendition of a judgment by the trial judge in the clerk’s office, privately, without the case being sounded, and without notice to or knowledge by a party that the judge would take up the case for the purpose of rendering judgment therein, and without the court being formally opened, is void for lack of jurisdiction of the judge to render the judgment.” Walton v. Wilkinson Bolton Co., 158 Ga. 13, 17 ( 123 S. E. 103 ). (Emphasis added.)

Here, likewise, the judge was without jurisdiction to render the judgment at the time and in the manner in which it was rendered, although, as in all of the above cited cases, the same judgment might have been valid if it had been rendered at a proper time and in a proper manner. See also Lott v. Wood, 135 Ga. 821 ( 70 S. E. 661 ) and Kelley v. Pafford, 31 Ga. App. 697 ( 121 S. E. 866 ) holding that judgments entered at an adjourned term, that is, not in conformity with law as to the time and manner of this entry, are void.

The same rule applies to applications for attachments for contempt. Where it appears that under the law the power to compel a witness to attend and testify by deposition is vested in a commissioner, the judge of the superior court has no authority of law to himself compel the witness, or to hold him in contempt for failure to abide the order. “Consent of parties, however, can not give a court jurisdiction of a subject matter when it has none by law; and when this court discovers from the record that a judg *425 ment has been rendered by a court having no jurisdiction of the subject matter and the case is brought here for review upon writ of error, this court will of its own motion reverse the judgment.” Smith v. Ferraria, 105 Ga. 51, 53 ( 31 S. E. 38 ).

Judgments rendered at the first term, although the court had jurisdiction of the subject matter and the person, are nevertheless void. Harrell v. Davis Wagon Co., 140 Ga. 127 ( 78 S. E. 713 ); Bell v. Verdel, 140 Ga. 768 (1) ( 79 S. E. 849 ).

An investigation of the order of August 19, 1959, demonstrates that it was not an order passed during the trial of The State v. Bright, or at any time immediately thereafter during which it could reasonably be said that the trial court was still in session concerning the case. Nor is the order an order passed at a later ' date reducing to writing an oral order adjudging Garland in contempt for acts and omissions occurring during the course of the criminal trial or the period immediately thereafter. Rather, the order recites on its face that “this court does now consider and adjudge Reuben A. Garland to be in contempt of court for his conduct in each and all of said nine specifications appearing in this Part 2 of this order and certificate of contempt.”

And with regard to these specifications of contempt contained in part 3 of the order, the trial judge states that “this court does now consider and adjudge Attorney Reuben A. Garland to be in contempt of court for each and all of these specifications appearing in this Part 3 of this order and certificate of contempt.” Thus, the order on its face reflects that it is an order passed nearly seven months after the termination of the criminal case. The order further recites that “Garland’s conduct as set out in each of the 12 specifications appearing hereinafter constituted flagrant acts of contempt of court such as to interfere with the fair and impartial administration of justice, and such as would seriously impede and obstruct the judicial processes of this State if allowed to go unpunished. . .” Thus, it further appears that the trial judge did not pass this order at the time of the trial in order to prevent the obstruction of the administration of justice within the meaning of Code § 24-105, but rather to punish a defendant with respect to a case already terminated, in order to deter him with respect to future cases. We affirm and uphold the *426 right of the trial judge to uphold the dignity of the court, and to punish any person for acts reflecting upon or tending to destroy the respect due the trial court, but we insist that the procedure of summary punishment cannot be used for this purpose unless it is used during the course of the case which is being obstructed, or during the period after final judgment or verdict in the case when the trial court may fairly be said to be in session for the purpose of bringing the case to a complete determination. Nor would we hold that if the trial judge had adjudicated Garland then and there during the course of the trial in contempt for at least some of the acts shown in this record, he did not have jurisdiction to adjudicate him summarily in contempt. In fact and in law, that was his jurisdiction, and was the time when he should have passed such orders. The record shows on its face that no such order was ever passed during the trial or within a period immediately thereafter, although the order recites that the trial judge told Garland during the course of the trial, “The court will take up these matters with you 'at the conclusion of this trial and you are going to be held responsible for your conduct during the trial of this case." In addition, the court said, "Mr. Garland, the court will consider that matter at the conclusion of this trial.” We know that the trial court did consider the matter at the conclusion of the trial and passed the order of January 23, 1959, which, had it contained sufficiently specific findings of fact, might have been a proper judgment by way of summary punishment for contempt. We recognize the rule that during the course of the proceedings, and for a reasonable period of time thereafter, the summary method may be used to punish a contemnee. Sacher v. U. S., 343 U. S. 1 ( 72 S. Ct. 451 , 96 L. Ed. 717 ). This rule is based on the necessity that the court must proceed with the trial before it and should not be required to interrupt the trial or postpone any part of it, in order to try an issue arising concerning a contempt committed in his presence. But such necessity does not require the use of a summary method of adjudging and punishing a defendant for contempt of court committed in the presence of the, court seven months prior thereto, or at any period thereafter when it can reasonably be said that the proceeding in which the contempt occurred has terminated.

*427 The trial judge should have used the procedure based upon the filing of a petition by the State and a rule nisi thereon directing Garland to show cause why he should not be punished for contempt as set forth in said petition, and a hearing had thereon. Since the order and judgment of the trial judge in this matter shows on its face that such procedure was not used, in the expressive language of Judge Warner, such judgments “carry their death wound on thfeir face.” Franklin County v. Crow, 128 Ga. 458, 463 ( 57 S. E. 784 ); Tison v. McAfee, 50 Ga. 279, 287 . The order thus was void'because it shows on its face a lack of jurisdiction in the trial judge to render the judgment, and this court should so hold on its own motion. Walton v. Wilkinson Bolton Co., 158 Ga. 13 , supra; Georgia R. & Bkg. Co. v. Redwine, 208 Ga. 261 , supra.

A lawyer is required by the rules of court to yield, without further argument, to any order or ruling of the judge in whose presence he is. Failure to do so .is a contempt. The judge, at his election may punish summarily for that contempt, or may issue a rule nisi and allow the defendant to appear, introduce evidence, and argue in his own behalf. White v. George, 195 Ga. 465 (2) ( 24 S. E. 2d 787 ). “Adjudging guilt and imposing punishment on anyone, by any person or by any court, without giving the accused an opportunity to defend himself, is intolerable and prohibited by our constitutional guarantees. The only exception known to or tolerated by the law is the inherent right of courts to punish for acts of direct contempt as an essential incident to the maintenance of the court's authority to> administer and execute its judicial powers.” People ex rel. Dale Andrews, Judge, etc. v. Hassakis, 6 Ill. 2d 463 ( 129 N. E. 2d 9 ). In re Oliver, 333 U. S. 257, 274-276 ( 68 S. Ct. 499 , 92 L. Ed. 682 ), quoted in Kelly v. U. S., 65 A. 2d 593 , holds: “Except for a narrowly limited category of contempts, due process of law as explained in the Cooke case requires that one charged with contempt of court be advised of the charges against him, have a reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel, and have a chance to testify and call other witnesses in his behalf, either by way of defense or explanation. The narrow exception to these due process requirements *428 includes only charges of misconduct, in open court, in the presence of the judge, which disturbs the court’s business, where all of the essential elements of the misconduct are under the eye of the court, are actually observed by the court, and where immediate punishment is essential to ‘prevent demoralization of the court’s authority . . . before the public.’ ” (Emphasis added). Here the court uses the words “immediate punishment” as synonymous with summary punishment, which by definition it is. Rule 42, Fed. Rules Crim. Proc., uses the words “summarily punished” in the same context 'in which our statute provides for “summary punishment.” Both have their source in the common law and the inherent power of courts to keep their processes intact, and there can be no argument but that both have the same meaning. In Sacher v. U. S., 343 U. S. 1 , supra, certain attorneys in the “turbulent nine-months’ trial of eleven Communist Party leaders on charges of violating the Smith Act” received an adverse five-three decision on appeal from orders adjudging them guilty of a direct criminal contempt. One of the grounds of appeal was that they were not summarily punished, in that the judge waited until the conclusion of the trial—although before the verdict of the jury was announced—to sentence them. The majority opinion rules that the word “summary” as used in the rule “does not refer to the timing of the action with reference to the offense but refers to a procedure which dispenses with the formality, delay and digression that would result from the issuance of process, service of complaint and answer, holding hearings, taking evidence, listening to arguments, awaiting briefs, submission of findings, and all that goes with a conventional court trial” and then goes on: “We hold that Rule 42 allows the trial judge, upon the occurrence in his presence of a contempt, immediately and summarily to punish it, if, in his opinion, delay wil-1 prejudice the trial. We hold, on the other hand, that if he believes the exigencies of the trial require that he defer judgment until its completion he may do so without extinguishing his power.” (Emphasis added). The court also said: “In this case counsel repeatedly were warned that their conduct was regarded as contemptuous. No claim can be made that the judge awaited the close of the trial to pounce upon them for some offense un *429 noted at the time it occurred. If we were to hold that summary punishment can be imposed only instantly upon the event, it would be an incentive to pronounce, while smarting under the irritation of the contemptuous act, what should be a well-considered judgment. We think it less likely that unfair condemnation of counsel will occur if the more deliberate course be permitted.” The court thus grounds its holding that “summary” may include the duration of the trial of the main case in situations where the attorneys are at the time warned that their conduct is considered contemptuous and where deferring punishment until the end of the case is the lesser of two evils, on the proposition it lessens the risk of prejudicing the main case because of the removal or .imprisonment of counsel and the risk of dealing with the contemner unfairly in the heat of present anger. Thus, the court has enlarged the. meaning of the word “summary” only to include that length of time involved in the conclusion of the case then on trial, and even this interpretation was the subject of three dissents. Black, J., stated that “there was no necessity here for Judge Medina’s summary action, because the trial was over and the danger of obstructing it was past. For the same reason there was no longer need, so far as that trial was concerned, to. try petitioners for their courtroom conduct without benefit of the Bill of Rights procedural safeguards.” Frankfurter, J., had this to say: “Summary punishment of contempt is concededly an exception to the requirements of Due Process. Necessity dictates the departure. Necessity must bound its limits. In this case the course of events to the very end of the trial shows that summary measures were not necessary to enable the trial to go on.” We are of the personal opinion that the rule stated in the majority opinion is correct—-that is, that where an attorney is warned at the time of the contumacious conduct that he will be held accountable therefor, it is in the interest of judicial expediency in many, if not most, cases, to defer sentence until the close of the trial, but no longer. It is clear under both the majority and minority opinions that the conclusion of the matter in hand is the farthest limit of elasticity which may be given to the word “summary,” and, where an attorney is warned, the infliction of the punishment is still summary when meted out at the conclusion of the case.

*430 Measured by this yardstick, it cannot possibly be held here that the punishment thus inflicted was summary in character. The George Bright trial closed on January 23, 1959. The order which was the subject of this appeal was entered on August 19, 1959, seven months later, at a different term of court. There is no contention that this sentence was an attempt to amend the previous sentence; indeed, the State in its brief says positively and correctly that such was not the case, that the first sentence, being void, was not amendable, and that the sentence of August 19, must be considered as the only and sole adjudication of contempt in this ease. There can accordingly be no controversy over the statement that the punishment inflicted by the order of August 19, was not summary in character, and it follows as the night the day that, not being summary, it is not within the class of cases contemplated by Code § 24-105.

Nor can it be contended that the word “summary” may embrace not only the length of time it takes to- complete the main case but such additional length of time as may have been taken up in appeals, since, under the decision of this court when the case was here before, the first sentence of the court entered on January 23, was absolutely void, and no rights or liabilities could accrue from it either to the State or the defendant. The sentence was void because of its own deficiencies, not because of any act of the defendant, for which reason the defendant can not be charged with the length of time consumed by appeal. It must therefore be ignored. Being ignored, a lapse of seven months appears in which no action was taken against the defendant after the termination of the trial of the main case. There is no statute of limitations applicable to a direct criminal contempt proceeding other than that which may be inferred from the facts of a stale prosecution. If summary punishment includes a punishment inflicted seven months after the case during which the contemptuous act was committed has terminated, why not seven years, or any length of time during which the judge remains in office and the defendant remains in life? Even, if a rule nisi could be issued seven months later, here we are dealing with a judgment summarily holding the defendant in contempt seven months after the alleged contemptuous conduct took place. *431 As Justice Frankfurter said, necessity alone dictates such radical departure from every instinct and safeguard of the fair-trial concept, and necessity alone must mark the boundaries of such departure. If it be argued that in this case there is no call to urge such reasoning because the record fails to show wherein the delay has prejudiced the defendant, we reply that in such a case more than the defendant’s personal liberty is at stake, and we are supported in this view by Kelly v. U. S., 65 A. 2d 593 , supra, wherein the sole punishment inflicted was a fine of $10, but the court stated that it granted the appeal because of the importance of the question involved. This decision is one that affects every attorney practicing before the court, and eveiy layman who finds it necessary or expedient to attend court or utilize the processes of the courts. If summary punishment can be inflicted without trial, without notice, without opportunity to explain and defend, seven months after the event, then it rests only with the enlightened conscience of trial judges whether any person who ever enters a court room may not, months or years later, find an order of imprisonment entered against him for something that occurred in the shadow of times past. Such power would be absolute and dangerous, as well as against every tenet of our system of jurisprudence. It might be said that, except for the fine caliber of the public servants of the people of this State in the judicial field, such a rule would make it perilous for any man ever to enter a court room in no matter what capacity.

This dissent is not predicated solely on Sacher v. U. S., 343 U. S. 1 , supra. It is also predicated on the Due Process Clause of the Constitution of Georgia (Art. I, Sec. I, Par. Ill; Code § 2-103) and the 14th Amendment to the Constitution of the United States; it is also predicated on our own Code § 24-105, supra, permitting summary punishment only, and it is also predicated on the authority cited herein from the decisions of other courts universally and without exception throughout the United States. The, Supreme Court of the United States does not enjoy the full confidence of the people of the State of Georgia, a misgiving which we share along with the other people here. However, in so far as this dissent is predicated on the Sacher case, it should be borne in mind that the Supreme Court of the United States is made up of justices who *432 are capable of analyzing intricate legal questions when they set out to do so- on the basis of established law instead of on the basis of sociological experiment. The Sacher case has no sociological background. The court had before it the same question that we have, a purely legal one. Their decision was five to three in favor of upholding the trial court. The view of the five upholds this dissent. The view of the three upholds this dissent. That court stands eight to nothing as authority that the judge in this case cannot, seven months after the completion of a trial wherein a contempt was committed in his presence, so adjudge the defendant under the summary punishment contempt of court Federal court rule which is substantially identical with our State statute under which the superior court judge proceeded in this case.

The only exception in our judicial system to- the guarantee of the Bill of Rights that every defendant shall have, a fair trial, with notice and opportunity to be heard, is the right to enter up summary punishment for a direct criminal- contempt, and in such case the sentence is the trial, the verdict, and the judgment all in one. It is inherent in the court as a safeguard to the existence of the court. When not used for the only purpose- that gave it birth it becomes an instrument, not of justice but of oppression. Either the right to enter up such punishment is summary and immediate in character or it does not exist, since the origin of its existence lies in the immediacy of its character. It cannot otherwise, exist except as a violation of due process.

Georgia is not a State with little regard for the rights of her citizens under the provisions of the Federal and State Bills of Rights. The due process of law clauses thereof are as sacred to the rights of the people of Georgia and of the Nation as any other provision of these great safeguards of liberty. Even the Federal Government through its Supreme Court recognizes the solemn import of due process. As previously pointed out their Rule 42 is substantially the same as our summary contempt statute. In Offutt v. United States, 348 U. S. 11 ( 75 S. Ct. 11 , 99 L. Ed. 11 ), the United States Supreme Court, following its opinion in Cooke v. United States, 267 U. S. 517 ( 45 S. Ct. 390 , 69 L. Ed. 767 ), reversed with direction that a rule nisi be tried before another judge although the court stated the evidence was ample to sus *433 tain a judgment of contempt. Thus on the theory that the judge complaining of the contempt stood in a position similar to that of a prosecutor, a fair and impartial trial under due process of law would have more assurance if the case was tried before a judge who was in no way a party to the transaction. The same procedure was also followed in New Jersey in Van Sweringen v. Van Sweringen, 64 A. L. R. '2d 593, wherein the court stated: “justice itself, although maligned, demands that one not so intimately concerned sit in judgment.”

While we have shown that it is the duty of this court to consider the defect in the judgment of the trial court which is apparent on its face, and shows that such judgment is void under the “any other cause” provision of Code § 110-709, and that the judgment is in fact void because rendered at a time, when it was unnecessary to dispense with the defendant’s right to1 a hearing, in our opinion the majority of this court is in error in ruling that there is no sufficient assignment of error to- authorize consideration of the final judgment on the merits. An assignment that said judgment was contrary to law is sufficient to test the judgment on the merits just as Presiding Judge Gardner held in his dissent in Garland v. State of Georgia, 99 Ga. App. 826 , supra. It is true that there is a great deal of confusion in the cases concerning what is a proper assignment of error. See note, Georgia Bar Journal, Vol. 16, p. 218; Patterson v. Beck, 133 Ga. 701, 703 ( 66 S. E. 911 ). While the majority opinion cites Code (Ann.) § 6-901 which requires that the bill of exceptions shall specify plainly the decision complained of and the alleged error, and cites Code § 6-1607 which provides that the appellate courts of this State will not decide questions unless made by a specific assignment of error in the bill of exceptions, it overlooks the latter part of Code, § 6-1607, which requires the appellate courts to decide any question made by such assignment of error, and also overlooks Code § 6-1307, which provides that this court shall not dismiss any case for any want of technical conformity to the statutes or rules regulating the practice in carrying cases to said court where there is enough in the bill of exceptions or transcript of the record or both together to' enable the court to ascertain substantially the real questions in the case which the parties seek to have decided therein. It also overlooks that part of Patterson v. Beck, 133 *434 Ga. 701, supra, cited in the majority opinion, at page 704, where it is pointed out that where the only question before this court is whether the trial court abused his discretion in the writ or order entered, an assignment of error that the judgment was “contrary to law” without more, is sufficient to give this court jurisdiction to decide from the record whether or not there was such abuse of discretion, citing Anderson v. Newton, 123 Ga. 512 ( 51 S. E. 508 ), and Kirkland v. Atlantic & Birmingham Ry. Co., 126 Ga. 246 ( 55 S. E. 23 ). We thoroughly agree with our colleagues in their citation of another portion of the Patterson case, supra, to the effect that general assignments of error which in effect permit the appellate court to be ambushed into deciding questions not really involved in the case are improper, but can we or any one of the judges on this court contend that we are ambushed by the same assignment of error here that we had before us in Garland v. State of Georgia, 99 Ga. App. 826 , supra, at page 832? All six of us recognized the assignment of error in that case to be sufficient to raise questions similar to that set forth in this dissent. The rule as laid down in the Patterson ease, upon which the majority opinion relies, is that all cases must be considered on the record as presented and there is no single guide possible to encompass all cases. There the Supreme Court considered a very general assignment of error which did not even contain the phrase “contrary to law,” and the assignment of error was held sufficient to permit the court to adjudicate the question of law involved because it was apparent from the record that such was the only question of law involved. Likewise the record here shows on its face what is wrong.

“Where in a bill of exceptions, assigning error upon the judgment of a trial court in awarding a fund in court to one of two contestants therefor, the, issues presented by the pleadings and the facts as agreed upon by counsel for the respective parties are set forth, and there is an averment in the bill of exceptions that upon such issues and facts the judge, as a matter of law, decided that the party other than the one complaining was entitled to the fund, an assignment of error that such decision was error because it was contrary to law is sufficient; and the motion to dismiss the writ of error upon the ground that there was no sufficient assignment of error is overruled.” Cambridge Tile Co. v. Scaife & Sons Co., 137 Ga. 281 (1) ( 73 S. E. 492 ).

*435 “An assignment of error upon a judgment awarding alimony and counsel fees in a proceeding under the Civil Code § 2986, that such judgment is contrary to law, raises the question that the same is without evidence to support it; and a bill of exceptions to review such judgment, in which this is the sole assignment of error, will not be dismissed because the same does not specifically assign any error.” Pace v. Pace, 154 Ga. 712 (1) ( 115 S. E. 65 ).

“It was agreed that any issue arising out of the garnishment suit should be heard by the presiding judge, there being no controversy about the facts, 'the question being left for determination as to whether the garnishing creditor obtained any right to the funds so caught under the garnishment proceeding; this question is now before the court.’ The presiding judge held that such creditor obtained no priority over other creditors, to which judgment the creditor excepted. The bill of exceptions recited these facts, and stated that ‘the plaintiff in error excepts to said order of December 5, 1908, and assigns the same as error, and presents this .its bill of exceptions, and prays, that the same may be certified and transmitted to the Supreme Court, in order that the errors therein complained of may be examined and corrected.’ Held, that the bill of exceptions was not subject to dismissal for lack of sufficient assignment of error.” Patterson v. Beck, 133 Ga. 701 (1), supra.

Assignments of error on (1) a ruling that the response to a notice to produce was sufficient; (2) that a certain fi. fa. was not admissible in evidence, and (3) that the levy of execution to which a claim was interposed be dismissed, each “upon the ground that said ruling was contrary to law” is. a sufficient assignment of error, and a motion to .dismiss the bill of exceptions was without merit. Virginia-Carolina Chemical Co. v. Hollis, 23 Ga. App. 634 (1) ( 99 S. E. 154 ).

“Specifying the error, or errors, are the words, [of Code § 6-901] not specifying the objection or objections to the judgment complained of. The specification is to be of errors committed by the court; that is, of wrong judgments rendered by the court—not of objections to judgments urged by a party.” Barksdale v. Brown, 16 Ga. 95, 99 .

“Where a case went to trial on petition and answer, with no *436 objection from either side as to the other’s pleadings, and at the close of the evidence, the court, on motion of the defendant, directed a verdict in favor of the latter, the following assignment of error in a bill of exceptions, ‘plaintiff excepted to said ruling of the court, and now excepts and assigns the same as error,’ necessarily means that the court erred in adjudging that the evidence demanded the verdict directed; and, thus interpreted, such assignment of error is sufficiently explicit and distinct.” Phillips v. Southern Ry. Co., 112 Ga. 197 ( 37 S. E. 418 ).

“A bill of exceptions reciting that a demurrer was heard and an order’ passed sustaining the same, and assigning 'error upon the judgment of the court sustaining said demurrer and passing said order’ specified ‘plainly the decision complained of and the alleged error’ and ‘specifically sets forth the error alleged to have been committed’ within the meaning of the Civil Code §§ 5527, 5528.” Melson v. Thornton, 113 Ga. 99 ( 38 S. E. 342 ).

It is our opinion that the judgment of the trial court should be set aside because it is void for want of authority in a court to enter up summary judgment for contempt without notice or opportunity to be heard, seven months after the event. Where the reason for the allowance of summary proceedings in the first instance has ceased, to permit such a judgment entered long after the event to stand is to permit punishment of the defendant without due process of law under those clauses of the State and Federal Constitutions above cited. It is our further opinion that this court cannot lawfully avoid a decision of that question on its merits. We consider the assignment of error to be sufficient under controlling Supreme Court decisions, but even conceding, under the majority opinion, that it is insufficient, this court must in the first instance consider the question of its own jurisdiction and of the jurisdiction of the trial court. Georgia R. & Bkg. Co. v. Bedwine, 208 Ga. 261 , supra. If, as herein pointed out, the trial court had no jurisdiction to enter any summary order whatever months after the main trial had terminated, then the judgment of the trial court is void, and it is the duty of this court to set it aside with or without a proper assignment of error, these facts all appearing on the face of the record.