23 Ga. App. 684 | Ga. Ct. App. | 1919
1. The general law of this State requires that the bond given by the plaintiff in certiorari as a condition precedent to the sanction and issuance of the writ should be approved by the magistrate or judge whose decision is complained of. Stover v. Doyle, 114 Ga. 85 (39 S. E. 939). There being no special provision of law for any different procedure governing the manner in which an application for the issuance of the writ of certiorari may be made when directed to the judge of the city court of Dublin, the bond required of the petitioner in such a case is properly approved when so done by the judge whose decision is complained of. Miller v. State, 126 Ga. 558 (55 S. E. 405).
2. While ordinarily a motion to set aside a judgment at, a term at which it is rendered is addressed to the sound discretion of the court, it should not be granted unless some meritorious reason appears. The failure of the defendant to appear and plead, in consequence of a misunderstanding between him and bis counsel, affords no such reason. Moore v. Kelly & Jones Go., 109 Ga. 798 (2), (35 S. E. 168). Accordingly, where a defendant in the city court of Dublin, by reason of sucli a misunderstanding, allowed himself to become in default, and thus suffered a judgment to go against him, it was error on the part of the judge of that court to set aside the judgment upon such ground and open the default. The judge of the superior court properly sustained a certiorari where such action on the part of the judge of said city court was complained of, and properly entered final judgment sustaining the original judgment in favor of the plaintiff, the same having been rendered upon a properly verified open account after due and legal service had been perfected. Civil Code, § 5662.
Judgment affirmed.