121 Ga. 151 | Ga. | 1904
It is settled that a petition for certiorari is such a suit as can be renewed under the provisions of the Civil Code, § 3786. Hendrix v. Kellogg, 32 Ga. 435 ; Mercer v. Davidson, 80 Ga. 495. If, however, such a petition be void for any reason, the suit can not be renewed. Citizens Banking Co. v. Paris, 119 Ga. 517, and cit. The Civil Code, § 4643, requires that the petition and the writ shall be delivered to the party to whom the writ is directed, at least fifteen days previous to the term of the superior court to which the return is to be 'made. The question to be decided, therefore, is whether the failure to comply with this provision of the statute renders the petition void and prevents a renewal. It has been held that where the certiorari bond was invalid, the petition was void and could not be renewed. Southern Ry. Co. v. Goodrum, 115 Ga. 689. The same ruling was made where a petition was sued out in forma pauperis and the pauper affidavit was insufficient. Hill v. State, 115 Ga. 833. Where the petition contains no sufficient assignment of error on any ruling or decision of the inferior judicatory, it is void. Citizens Banking Co. v. Paris, 119 Ga. 517. And it has been held that the failure to give to the adverse party notice of the sanction of the petition and of the time and place of hearing renders the proceeding void. O’Keefe v. Cotton, 102 Ga. 516, and cit. In all these cases there was something inherently defective in the proceeding itself. A good bond, or a good pauper affidavit, as the case may be, is an indispensable condition precedent to the issuance of the writ. A petition without an assignment of error of course presents no question for decision and amounts to nothing. And failure to serve the opposite party with notice of the sanction and of the time and place of hearing renders nugatory and void that which had been commenced
It was argued that the judgment ought to be affirmed, because there was in the petition no question which could be properly decided. We will not, however, in advance of a decision by the trial judge on the merits, undertake to determine whether any assignment of error has been properly made, or whether, if so, it is meritorious.
Judgment reversed.