City of Cedartown v. Pickett
193 Ga. 840
Ga.
1942
Check Treatment
Jenkins, Justice.

1. Although certiorari is not an appropriate remedy to review or obtain relief from the judgment, decision, or action of an inferior judicatory or body rendered in the exercise of legislative, executive, or ministerial functions, such a writ does lie for the correction of errors in decisions by municipal corporations, courts or councils, like other inferior judicatories, when rendered in the exercise of their judicial powers. Bryant v. Board of Education, 156 Ga. 688 (1, a) (119 S. E. 601); Carr v. Augusta, 124 Ga. 116 (2), 121 (52 S. E. 300), and cit.; Code, §§ 19-101, 19-203.

(a) The decision by the governing body of a municipality, as to whether alleged acts constitute a nuisance in violation of a city ordinance, and whether they should be abated as provided by other *843 city ordinances, made after a trial in which the parties at interest participated, was a judicial determination from which certiorari would lie, and not, as contended, an exercise of mere legislative, executive, or ministerial functions.

2. Whatever might he the proper limitation and scope of the recognized rule that the writ of certiorari will not lie to set aside a verdict or judgment which is not merely erroneous but absolutely void (see, in this connection, McDonald v. Farmers Supply Co., 143 Ga. 552, 555, 85 S. E. 861, and cit.; Allied Mortgage Cos. v. Gilbert, 189 Ga. 756 (2), 758, 8 S. E. 2d, 45) a judgment rendered hy a municipal judicatory, wherein the ordinance involved in the proceeding has been attacked as unconstitutional and void, and the defendant has had his day in court in that proceeding, is not itself void, even though it might be erroneous with respect to the decision made as to the validity of the ordinance. Forbes v. Savannah, 160 Ga. 701 (4) (128 S. E. 806); Brown v. Valdosta, 48 Ga. App. 125 (172 S. E. 72). The unanimous ruling in paragraph 4 of the Forbes decision was not overruled in Maner v. Dykes, 183 Ga. 118 (2) (187 S. E. 699), which dealt only with paragraph 2 of the Forbes ease.

3. Even where a case involves directly and primarily a property right, and even though equity may afford to the person so injured a more adequate and complete remedy than he would have under the procedure at law (Great Atlantic & Pacific Tea Co. v. Columbus, 189 Ga. 458, 464 (6 S. E. 2d, 320); City of Albany v. Lippitt, 191 Ga. 756, 760 (13 S. E. 2d, 807)), yet where he, as the defendant in a proceeding before a municipal judicatory, has elected to maintain his rights under that proceeding and has thus had his day in court (contrary to the facts in City of Acworth v. Western & Atlantic R. Co., 159 Ga. 610 (5), 126 S. E. 454, and Southeastern Greyhound Lines Inc. v. Atlanta, 177 Ga. 181, 170 S. E. 43), he can not ordinarily thereafter be heard, on a petition in equity, to question the constitutionality of the ordinance involved in the decision; but his remedy was to have made his defense before the municipal judicatory, and to have corrected by certiorari any error in its decision. Washington Seminary Inc. v. Bass, 192 Ga. 808 (16 S. E. 2d, 565); Calhoun v. Gulf Oil Corporation, 189 Ga. 414, 418 (3) (5 S. E. 2d, 902); Stephens v. Ellijay, 171 Ga. 612, 615, 616 (156 S. E. 253); Jones v. Johnson & Ledbetter *844 Co., 185 Ga. 323 (6), 325 (194 S. E. 902); Mayor &c. of Montezuma v. Minor, 70 Ga. 191 (2), 193.

4. Under the preceding rulings, the court erred in overruling the general demurrer of the city to the petition for an injunction against its enforcement of an order by the city commission that petitioner abate his junk business as a nuisance, and in granting an interlocutory injunction. This is true for the reason that it appears from the petition that he had had his day in court, and his remedy was to raise the constitutional questions in the trial in which he participated before the city commission, and to review by certiorari any alleged error of that tribunal.

Judgment reversed,.

All the Justices concur.