McAlister v. State

77 Ga. 599 | Ga. | 1887

Bleckley, Chief Justice.

McAlister was convicted in the county court of a misdemeanor, and obtained a certiorari, which the superior court, on the hearing, dismissed, because there was no evidence in the record that notice in writing of the sanction, and of the time and place of hearing, had been served, as required by the 4059th section of the code. We learn from the bill of exceptions that this was done in the face of an admission made by the solicitor-general in open court, that he had been served with written notice of these matters about a month before the sitting of the. court to which the writ of certiorari was returnable. It seems that the solicitor-general did not make any motion to dismiss, but that the motion was made by his associate counsel.

It has been several times decided that, for this court to be able to become judicially aware of the service of' such a notice, the fact of service must appear in the record, meaning thereby that it must appear either in the-bill of exceptions, or in the transcript of the record sent up and authenticated by the clerk. Such was the meaning of the first case on the subject, that of Granade vs. Wood, 34 Ga. 120. From some of the reasoning in. Glenn vs. Shearer, 44 Ga. 16, it might seem that the superior court ought to have such evidence of the service-of notice as-this court must have of. the service of a bill-of exceptions, but this was suggested merely as argument,.and-was not at all necessary to an adjudication of the'question before the court, there being in that case no service of the notice. The question there was as to the eifect of the want of service, not as to the kind of evidence required to establish service. There is neither statute nor rule of court which prescribes that there shall be any particular sort of evidence of the service of the written notice required to be served in cases of certiorari. No doubt a return of the service by a proper officer, or affidavit of service by a private person, would be a very proper sort of evidence, but the admission of the party, or his attorney, made in open court, would be j úst as good. We think the solicitor-general was competent to admit the fact on the part and behalf of the State. Suelvan admission would suffice as a basis for making an entry on the minutes of the court, if that were thought necessary, that service had been duly .effected. It will not do to model proceedings in the superior court too closely upon proceedings in the Supreme Court. The latter court is confined to the record as already made elsewhere, but the superior court makes record; when, record is-needed, it manufactures the article if the proper materials are at hand. When counsel stands up before it and admits for his client a fact in favor of the adverse party, the court may very well treat it as true, and register any memorial of the admission that may be deemed necessary to perpetuate it as evidence.

Judgment reversed.