15 Ga. App. 361 | Ga. Ct. App. | 1914
The plaintiff in error was convicted in the criminal court of Atlanta upon the charge of cruelty to an animal, and presented to the judge of the superior court a petition for certiorari. The judge of the superior court refused to sanction the issuance of the writ, and exception is taken thereto. The rule is well settled that if the statements of the petition make a prima facie case of error, the judge of the superior court should sanction the petition and order the issuance of the writ, leaving the verity of the allegations of the petition and the merits of the petitioner’s complaint to be determined upon the coming in of the answer. Linder v. Renfroe, supra. But it is properly argued by counsel for the defendant in error that if the judge’s order, which consisted only of the words “read and denied,” is for any reason correct, the judgment should be affirmed; and it is insisted that the judge’s refusal to sanction the certiorari was proper for the reason that the peti tion was not accompanied by a proper bond, even if for other reasons the petition should have been sanctioned.
1. A' petitioner who seeks by certiorari to review a judgment of the criminal court of Atlanta can not be deprived of that right because of the fact that he does not present with the petition a bond for his compliance with the final order or judgment of the court. He need not procure a bond in advance of the sanction of the certiorari ; and he need not give bond, unless he seeks a supersedeas of the judgment and release from confinement. As has previously been held by this court, “The act creating the criminal court of Atlanta (Acts of 1890-1891, p. 935) creates a court sui generis. It is neither a county nor a city court; and the subject of certiorari is not mentioned in the act.” Hood v. State, 4 Ga. App. 847 (62 S. E. 570). To the same effect is the holding of the Supreme Court in Welborne v. State, 114 Ga. 815 (40 S. E. 857). The ruling in the case at bar, upon this point, must be controlled by the decision in Hood’s case, supra, although in that case we were dealing only with the fact that the petitioner for certiorari did not present the affidavit required by section 765 of the Penal Code of 1895; and for the same reason; for the right of certiorari is a eon
Counsel for the defendant in error insists that a bond such as is required for persons applying for certiorari from the judgment of a municipal court should have been given, but, as pointed out by Simmons, C. J., in Colvard v. State, 118 Ga. 13 (43 S. E. 855), citing Mohrman v. Augusta, 103 Ga. 841 (31 S. E. 95), “Since the decision in that case was announced, the General Assembly has taken hold of the subject and straightened the matter out, so far as cases originating in a municipal court are concerned, by declaring that an applicant for a writ of certiorari shall (unless unable from poverty to do so) furnish a bond, with an acceptable
It is unnecessary to decide whether the bond which appears in the record is sufficient to have effected the defendant’s release from confinement, or to have operated as a suspension of the judgment, for the petition was not sanctioned. If the bond be defective, it would have afforded good ground to dismiss the certiorari, but the defect could not avail to defeat the sanction of the petition, for the petitioner might have been advised of the defect before filing his petition, and he could then, in advance of the filing, have substituted a different and a sufficient bond.
2. Since the merit of the order refusing to sanction the petition should therefore be determined.by the averments of the petition, we come to consider whether any of the assignments of error in the petition were meritorious. Of course there is no merit in the assignment that the witnesses were not sworn; for it appeared
Judgment reversed.