Carter v. Cross, 16375

16375 | Ga. Ct. App. | Jun 9, 1925

Broyles, C. J.

1. No ground .of the motion to. dismiss the certiorari was meritorious, and the court properly overruled the motion.

(o) While a failure to serve a writ of certiorari upon the judge whose decision is sought to be reviewed, fifteen days previous to the court to which-the return is to be made, is cause for dismissing the certiorari, unless it clearly appears that the failure to serve was not the fault of the plaintiff in certiorari (Zachery v. State, 106 Ga. 123" court="Ga." date_filed="1898-12-13" href="https://app.midpage.ai/document/zachery-v-state-5568816?utm_source=webapp" opinion_id="5568816">106 Ga. 123, 32 S.E. 22" court="Ga." date_filed="1898-12-13" href="https://app.midpage.ai/document/silver-v-state-5568761?utm_source=webapp" opinion_id="5568761">32 S. E. 22), yet the certiorari will not be dismissed unless it is first made clearly to appear that there actually was such a failure to serve, and it was not so made to appear in the instant case.

Decided June 9, 1925. Noah J. Stone, for plaintiff. Homer G. Denton, for defendant.

(6) The failure of a judge, whose decision is sought to be reviewed by a writ of certiorari, to file his answer five days before the first day of the term to which it is returnable may subject him to punishment for contempt,’ but will not authorize a dismissal of the certiorari, where the answer is filed during the first term and before a motion to dismiss the certiorari is filed. Sutton v. State, 120 Ga. 865 (48 S.E. 342" court="Ga." date_filed="1904-08-10" href="https://app.midpage.ai/document/sutton-v-state-5573591?utm_source=webapp" opinion_id="5573591">48 S. E. 342).

(c) The petition for certiorari plainly set' forth the errors complained of and the assignments of error therein were sufficiently specific.

(d) The fourth ground of the motion to dismiss is not argued or insisted upon in the brief of counsel for the plaintiff in error, and is treated as abandoned.

(e) The oral motion to dismiss the certiorari, upon the ground that the alleged assignments of error were not “denied” by the answer of the trial judge, was palpably without merit.

2. Under the facts of the case the judge of the superior court did not err in sustaining the certiorari and in remanding the ease for another trial.

Judgment affirmed.

Luke and Bloodworih, JJ., concur.