Hubert v. City of Thomasville
90 S.E. 720
Ga. Ct. App.
1916
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ON MOTION FOR REHEARING.

Per Curiam.

The ruling in this case is not contrary to anything that was said by this court in the cases of Porter v. Thomasville, 16 Ga. App. 313 (85 S. E. 283); Moore v. Thomasville, 17 Ga. App. 285 (86 S. E. 641), or Sampson v. Thomasville, 17 Ga. App. 541 (87 S. E. 835), cited in the motion for rehearing. Neither is it in conflict with the ruling in Linder v. Benfroe, 1 Ga. App. 58 (57 S. E. 975), that “in application for certiorari, all the allegations of fact therein contained, including statements of what was testified, are to be taken and considered as true'by the court, when clearly set forth and when the petition is verified as prescribed in the Civil Code, § 4638” (Code of 1910, § 5184); for the allegations in the petition in the ease at bar, that the accused, after his conviction, “duly filed with the clerk of said police court a bond approved by said clerk, payable to said municipality, as provided by law in such cases of certiorari, and said bond was duly accepted by said clerk of said police court, the same being in an amount and with security acceptable to and. approved by the said clerk,” are not purely allegations of fact, but are a mixture of fact and of conclusions of law. The allegation that the bond was such a bond “as provided by law in such eases of certiorari” was not an allegation of fact, hut was a mere legal conclusion of the petitioner.

The decision in the ease of Stallworth v. Macon, 125 Ga. 250 (54 S. E. 142), cited by the plaintiff in error, when properly considered, is not controlling in the instant case, for it is well settled .that any ruling by a court of review must be considered in the light of the facts of the ease then under review. In that case the judge of the superior court had sanctioned the certiorari, and the recorder, in obedience to the order of the court, had filed his an*759swer to the petition, in which he admitted that the defendant had given the bond required by the- statute, and the decision of the Supreme Court was in effect that since the judge of the superior, court had considered the affirmative allegation in the verified petition, as to compliance with the statute in giving the bond, sufficient to cause him to sanction'the issuance of-the writ as prayed for, and since the recorder had filed his answer, in-which he verified the affirmative allegation in the petition, the court erred in dismissing the certiorari, without proof that the bond required by law had not been given. The only point in the case was as to the correctness of the judgment dismissing the writ of certiorari, after it had been issued. The action of the judge in sanctioning the writ was not excepted to, and was not involved in the decision of the case, and the statement in the decision, that the affirmative allegations in the petition were in themselves sufficient to authorize the sanction of the writ, was merely obiter; as was likewise the expression by the reviewing court that its ruling would have been the same even if the answer of the recorder, verifying the allegations in the petition, had not been considered. It has been uniformly held by the Supreme Court and by this court that one of the essential prerequisites for the obtaining of sanction to a certiorari to review the judgment of a municipal court is the giving of such a "bond as is required by the statute, and that this must be affirmatively shown by the petition; and we now hold unequivocally that the mere allegation in the petition that such a bond has been given is not such an affirmative showing as the law requires. We do not think that this ruling is contrary to any decision of the Supreme Court or of this court (obiter expressions excepted)." It may be an' extension of the rulings in such cases, but in our opinion it is a reasonable, just, and legal one.

Motion for rehearing denied.