90 Ga. App. 232 | Ga. Ct. App. | 1954
Code § 19-212 provides as follows: “The plaintiff in certiorari shall cause written notice to be given to the opposite party in interest, his agent, or attorney, of the sanction of the writ of certiorari, and also the time and place of hearing, at least 10 days before the sitting of the court to which the same shall be returnable, and in default of such notice (unless prevented by unavoidable cause) the certiorari shall be dismissed.” No notice pursuant to this statute appears in the record in this case, and the only statement in regard thereto is that of counsel for the defendant in error, made in connection with his motion to dismiss the proceedings, as follows: “I have that notice that he left in my office. It is undated and unsigned. It is giving notice that the case was returnable to the October term, and to be heard on the second Monday in October, and that was not signed, and that is the only notice or attempt of notice of anything.”
The statutory notice must include notice of the sanction of the writ, the time and place of hearing, and must show that it was given ten days before the hearing date. Whether or not the notice contained any of these essential averments, except that concerning the time of hearing, does not appear from the statement of counsel (construing the statement as being an admission that a notice of some sort was received). Nor was the notice as to time of hearing correct, since, under the provisions of Code § 19-209, the writ could not legally be made returnable to the October term, it having been issued within less than 20 days before the commencement of such term. Accordingly, no sufficient notice appears from the record before this court. See Chaffin v. Chaffin, 79 Ga. App. 257 (53 S. E. 2d 576).
It is insisted, however, that, under the authority of Atlanta Woodenware Co. v. Franklin & Ridley, 11 Ga. App. 245 (75 S. E. 9) and Peoples Bank of Oliver v. Ash, 18 Ga. App. 315 (89 S. E. 441), the defendant in certiorari waived his right to insist upon the dismissal of the proceedings on the ground of lack of notice by appearing in the case and moving to not allow plaintiffs in certiorari to traverse the answer of the County Board of Roads and Revenues, thereby invoking a ruling of the court in
The judge of the superior court did not err in dismissing the petition in certiorari.
Judgment affirmed.