322 S.E.2d 523 | Ga. Ct. App. | 1984
Contending that he was convicted of two offenses (driving under
The superior court noting that no answer had been filed within 30 days after service and no further time for answer had been granted by the court and upon the filing of a motion to dismiss the petition and application for the writ, the motion was granted and the petition and application for writ of certiorari was dismissed. Defendant appeals. Held:
The burden is on the applicant for certiorari to cause the respondent’s answer to be filed within 30 days of service upon him. See Schaffer v. City of Atlanta, 151 Ga. App. 1 (258 SE2d 674); City of Atlanta v. Schaffer, 245 Ga. 164 (264 SE2d 6). If an answer is not filed within 30 days after service a dismissal is correct with reference to the application for the writ. See Allison v. City of Atlanta, 109 Ga. App. 114, 115 (1) (135 SE2d 524); Yield, Inc. v. City of Atlanta, 144 Ga. App. 637, 639 (242 SE2d 478); Schaffer v. City of Atlanta, 144 Ga. App. 702 (242 SE2d 288). The burden is upon the appellant in asserting error to show it by the record. Smith v. Forrester, 132 Ga. App. 426 (208 SE2d 199). Under the circumstances here this court has no way to determine whether or not there was insufficient evidence upon which the defendant could reasonably have been found guilty beyond a reasonable doubt before the probate court. Accordingly, we must affirm the dismissal where no answer to the writ was filed within the 30-day period required by law.
Judgment affirmed.