119 Ga. 55 | Ga. | 1903
Suit on a forthcoming bond was brought against Cole et al., in a justice’s court. Judgment was rendered against the defendants. They presented a petition for certiorari to the judge of the superior court, who, on March 28, 1903, sanctioned it and ordered the writ to issue. The petition was filed with the clerk, who, on April 6, issued the writ. The bond and the certificate as to costs were not filed with the clerk until April 10, 1903.
■ The Civil Code, § 4639, provides, in substance, that an applicant for the writ of certiorari shall file with the petition a bond and a certificate as to the payment of the costs, and that no writ of certiorari shall issue before this is done. The record shows that the clerk did issue the writ several days before the bond and certificate were filed in his office. The petition must have been filed before the writ was issued, and must therefore have been filed several days before the bond and certificate were filed. It is clear, therefore, that th'e clerk had no power or authority to issue the writ at the time that he did issue it. The writ he issued was void under the code. Counsel for the plaintiffs in error recognized this as true, but insisted that the court erred in refusing to pass the order directing the clerk to issue another writ returnable to the next term of the court. Had the plaintiffs in certiorari been entirely free from fault, the judge might properly have granted such an order, under the rulings in Hopkins v. Suddeth, 18 Ga. 518, and Mitchell v. Simmons, 58 Ga. 166. In each of those cases the plaintiff in certiorari was free from fault. In Hopkins v. Suddeth, after the petition had been properly filed and before the writ is
Judgment affirmed.