21 Ga. App. 389 | Ga. Ct. App. | 1917
A judgment was rendered on July 13, 1916, in a hearing commenced on the day'before, by the commissioners of roads and revenues of Douglas county, in a proceeding to establish a public road in that county; and on July 31, 1916, a petition for certiorari brought by H. W. Gurley, the party objecting to the establishment of said road and against whom judgment was rendered, was sanctioned by the judge of the superior court, and was thereafter filed in the superior court of said county on September 13, 1916, less than three months from the date of the rendition of the judgment complained of; bond and security having been given and a certificate as to the payment of costs having been obtained prior to the filing of the petition. When the case came on to be heard in the superior court at the September term, a motion to dismiss the certiorari was filed, and on the hearing thereof it was overruled. The defendant in- certiorari excepted to this ruling, and its propriety is the question presented to this court for decision. The motion to dismiss is given in full as follows:
“1. Because the case was tried on the 11th day of July, 1916, and petition for certiorari presented to Honorable A. L. Bartlett, judge of the superior court of Tallapoosa circuit, on the 31st day - of July, 1916, and on that day sanctioned by the court and returned to counsel for the plaintiff, and was kept by them in their possession and not filed in the clerk’s office of Douglas county until ■ the 13th day of September, 1916, and on that day the writ, of certiorari was issued by the clerk of the superior court of Douglas county under the direction of plaintiff’s counsel. Said clerk made the writ of certiorari returnable to the March term, 19171, by the ■ special request of the plaintiff. The petition for certiorari with the sanction of the court should have been filed in the clerk’s office áfleast twenty days before the September term, 1916, of the superior court of Douglas county, which was not done; and the certiorari should be dismissed for want of compliance with the strict provisions of the term of the law.
“3. Because said petition for certiorari with the sanction of the court should have been filed in the clerk’s office of the superior court of Douglas county at least twenty days before the September ■term, 1916, which court convened on the 18th day of September, 1916, and the petition for certiorari was only filed, as before stated, on the 13th day of September, 1916, five days 'before said
■ “3. Because said petition and the sanction of the same should not have been filed in the clerk’s office of the superior court of ■Douglas county, and the certiorari issued twenty days before the September term, 1916, of said court, but the pláintiff in certiorari or his attorneys should have delivered the petition for certiorari and,the sanction of the same, and all the papers connected therewith, to the board of county commissioners of roads and revenues of Douglas county fifteen days before the 1st day of the September term of said court, 1916, which was not done. .Said petition has never been delivered to said commissioners so that it might be answered, which 'is through the neglect and by the express direction of the plaintiffs’ attorneys; and it should be dismissed for the reason that it has not been delivered to said board of commissioners, and made returnable to the September term of the superior court of Douglas county, fifteen days before the September term of said court, 1916, and should therefore be dismissed for failure to comply with the statute in such cases.
- “4. Because the petitioner for certiorari did not pay the cost and give the bond required by law until long after the sanction of the writ of certiorari; the certiorari being presented and signed by the judge of the superior court of the Tallapoosa circuit on July 21st, 1916, and the giving of the bond by the plaintiff in certiorari was on the 8th day of August, 1916, and the payment of the cost was on the 11th day of August, 1916, Wherefore, the same should be dismissed on this ground.
“5. The pretended bond given by H. W. Gurley, and his son, the security, is not the kind of bond contemplated by law in this kind of a case. It is not payable as it should be, and the condition in the bond not such as required by law, and the bond is therefore void, and no legal bond given as required by law; hence the petition for certiorari and all proceedings should be dismissed. ”
Section 5188 of the Civil Code is as follows: “All writs of certiorari shall be applied for within thirty days after the final determination of the case in which the error is alleged to have been-
It is said in Carson v. Forsyth, 97 Ga. 258 (22 S. E. .955): “Under section 4057 of the code [Civil Code, 1910, § 5188], as amended by the act of 1889 (Acts of 1889, p. 84), in order to
At the close of the second ground of the motion to dismiss, it is further suggested that “cost was not paid within thirty days-from the judgment rendered.” There is no provision of law requiring that the antecedent costs shall be paid before a petition for certiorari in a civil case is presented for sanction, or “within thirty days” from the date the judgment complained of was rendered. Section 5185 of the Civil Code provides that before the writ of. certiorari shall issue, except where a pauper’s affidavit is made, the party applying for the same, his agent or attorney, shall produce a certificate that all costs accruing on the trial before have been paid. If the petition for certiorari is sanctioned within time and the same is presented to the clerk for filing within three months from the date of the judgment complained of, it is enough if at' the time the petition is so presented for filing a certificate be produced showing the payment of the costs, even though such certificate be dated on the very day when the petition is so presented for filing.
What is said above practically disposes of the first three grounds of the motion to dismiss. The 4th ground merely reiterates the objection last discussed, as to the time of the payment of the costs, and raises the further objection that the bond was not executed until the 8th day of August, 1916, “long after the sanction of the writ of certiorari.”. The bond, however, was executed before the
The court did not err in overruling the motion to dismiss the petition for certiorari upon any of the grounds presented therein.
Judgment affirmed.