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112 Ga. App. 806

146 S.E.2d 318

Schaefer v. Clark

Court of Appeals of Georgia

Decided November 10, 1965

Court of Appeals of Georgia · decided 1965-11-10

Relies on 108 Ga. App. 460 - Scott v. Undercofler · Griggs v. City of Macon · Bass v. City of Milledgeville

Good law ✅— No negative treatment on recordhow we know

Decided 1965-11-10

How this case has been cited

Cited by 9 later decisions — most recently November 1988

9 state decisions

70196519701980decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Pannell, Judge,

¶1dissenting. I agree heartily with the beneficent purpose of the decision of the majority but cannot agree with the methods used in reaching this desired result. The decision of the majority completely ignores the doctrine of stare decisis and the binding authority of adjudicated cases. In Scott v. Undercofler, 108 Ga. App. 460 (133 SE2d 444), where a notice of dismissal was attacked as being insufficient under Rule 12.400 of the Rules and Regulations of the State Personnel Board, this court said: “We believe that the Georgia Merit Sys*811tem Law (Code Ann. § 40-2201 et seq., Code Ann. § 40-2239) was enacted with the same purpose as other civil service legislation in this country, and that to accomplish that purpose the letter of the law respecting notice of discharge must be followed. Under the Georgia statute (Code Ann. § 40-2207) the rules and regulations of the State Personnel Board (Merit System Council) have the force and effect of law. Under these regulations, ‘notice in writing to an employee stating specific reasons’ for discharge is a sine qua non of a valid discharge. The letter to Mr. Scott stated that he was being dismissed because of inexcusable ‘attitude and demeanors with the public’ and disregard of the advice of superiors that his ‘attitude toward the public be modified,’ and because his ‘unpleasant relations with the taxpayer continue to be reported to the Commissioner.’ These reasons were not specific.

¶2“Provisions of law requiring that a discharged employee be furnished with reasons for removal are mandatory, and a notice that does not comply with such provisions is void and all proceedings thereafter are a nullity. Owens v. Ackerman (Ohio), 136 NE2d 93, 97; State ex rel DeWald v. Matia, 125 Ohio 487, supra.” (Emphasis supplied).

¶3That ruling has neither been criticized nor overruled by the majority decision. Ordinarily, a void pleading or a pleading too vague and indefinite to raise any issue is insufficient to support an amendment. See Farmers & Traders Bank v. University Publishing Co., 9 Ga. App. 128 (2) (70 SE 602); Caudell v. Nabstedt, 22 Ga. App. 694 (1) (97 SE 99). Certiorari does not lie from a void judgment. Brown v. Brown, 99 Ga. 168 (25 SE 95); Levadas v. Beach, 117 Ga. 178 (43 SE 418); McDonald v. Farmers Supply Co., 143 Ga. 552 (85 SE 861); Bass v. City of Milledgeville, 122 Ga. 177 (50 SE 59); Griggs v. City of Macon, 154 Ga. 519, 526 (114 SE 899). Granting, for the purpose of argument, that rules as to pleadings should not be applied to administrative procedures; yet, rules of law already established by court decision as to a particular administrative proceeding in one case should be applied to the same kind of proceeding in another case. I know of no' rule of law which permits anything that is void to be resurrected by amendment, *812and the controlling authority, which the majority has refused to follow, holds that the notice in this case is void “and all proceedings thereafter are a nullity.” Until this decision is overruled I have no alternative but to follow it; neither has this court. In Scott v. Undercofler, this court applied the letter of the law. It now seeks to apply the spirit of the law, yet leaves the decision in Scott v. Undercofler standing without criticism or modification and uses a pseudo distinction to justify its holding in the present case without at the same time overruling Scott v. Undercofler. This court, in holding that the original notice of discharge here was insufficient, applies the ruling in Scott v. Undercofler on the one hand, yet refuses to apply it on the other, when permitting an amendment to a void notice. An amendment is a “proceeding” thereafter and is itself a nullity under the Scottcase.

¶4In Scott v. Undercofler, the court relied on and cited as authority for its ruling two Ohio cases, Owens v. Ackerman (Ohio) 136 NE2d 93, and State ex rel. DeWald v. Ratia, 125 Ohio 487 (181 NE 907). Tire first case was an appeal procedure; the other was a mandamus action for restoration of employment. Both of these cases relied upon a decision of the same court in State ex rel. Brittain v. The Board of Agriculture, 95 Ohio 276 (116 NE 459) which was a mandamus action, in which latter case it was held that the original notice being void no appeal could be had therefrom and mandamus was a proper remedy. In that case, the original notice of dismissal was amplified and detailed in a writing, copy of which was given to the discharged employee pending the appeal before the State Commission. As to this, the Ohio court said: “This seeming attempt to comply with the statute, two months after the order of removal was made, could not validate the action of the board [the appointing authority in this case] taken on October 9th.” It would seem, therefore, that this court in the Scottcase accepted the parentage of the Ohio courts in declaring the notice void, yet denies its parentage where the void notice is sought to be resurrected by amendment. The arguments and reasons used to support the ruling by the majority here, that is, that liberal rules of pleadings should be permitted *813in administrative procedure because those administering the Act are laymen, not lawyers, were urged in the Scottcase but were there rejected by this court apparently because the appointing authority which gave the notice of discharge to the employee was represented by a “Leviathan operation,” the Law Department of the State of Georgia. Is that department less “Leviathan” now than it was only two years ago? It is important that courts be consistent in their rulings so that there may be stability and certainty in the law; for without stability and certainty there is no law,—but only the vacillating opinions of men. If change in judicial law be necessary in the present instance, then let us be frank, admit our error, and overrule the Scottcase.

¶5Even if I could agree with the majority in its distinction of Scott v. Undercofler, insofar as an amendment is concerned, I would have to hold that the so-called amendment offered still would not cure the defects in the notice for the reason that the notice as amended would be insufficient to meet the requirements for such a notice set forth in Scott v. Undercofler. Under these circumstances, we should affirm the judge of the superior court in affirming the ruling of the State Personnel Board upholding the appeal of the employee on the grounds of legal insufficiency of the notice. While, according to the majority opinion, the board may have been in error in refusing to allow the amendment, they were not in error in upholding the appeal of the employee since neither the original notice nor the notice as amended would be a sufficient notice. Scott v. Undercofler, supra.

¶6I am authorized to state that Judge Frankum concurs in this dissent.

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