3 Ga. App. 654 | Ga. Ct. App. | 1908
McDonald was sentenced by the Town of Ludowici to pay a fine of $25. The mayor, in his answer to McDonald’s petition for certiorari, says that he was charged with disorderly conduct, or keeping a disorderly house, in the Town of Ludowici, and found guilty by him, under the authority of §91 of the ordinances of the Town of Ludowici. It further appears that the defendant was a witness in his own case or else was convicted upon
The ordinances do not appear in the record; so we have no means of knowing the contents of section 91, but we presume that McDonald was either marshal of the town, or that there is some provision in the ordinances by which citizens are required to produce defendants before the mayor’s court; for in the absence of one or the other of these facts, we do not see how a conviction could have been reached. If, as appears from one view of the evidence, McDonald was in no event guilty of any offense, or if he was guilty of keeping a disorderly house, the judgment and sentence of the mayor’s court would be absolutely void, and habeas corpus, and not certiorari, would be his proper remedy.
Two motions to dismiss the writ of error have been filed in the present case, and we will first pass upon them. The solicitor-general of the Atlantic circuit moves to dismiss the bill of exceptions, for the reason that no service of notice of sanction of the writ of certiorari was ever served upon him as solicitor-general, and the State had no opportunity to defend in said certiorari proceedings previous to the serving of the bill of exceptions, and that, therefore, the case is not properly before this court. There is no merit in this motion; for three reasons. In the first place, it appears from the record that proper service of notice of sanction
3. Error is assigned on the judgment dismissing the certiorari. This judgment was based upon two grounds: (a) that the bond was not approved by the officer of the town who tried the ease; and (&) that it did not comply with the requirements of the act of 1902 (Acts 1902, p. 105), providing that the bond should be made conditioned to abide by the judgment of the superior court or mayor’s court. It appears, from investigation of the bond itself, that it was not approved. It is the manifest purpose of the act that the officer trying the case in a police court, or his clerk, if he has one, shall fix the amount and pass upon the acceptability of the security. Certain it is that some one should fix the amount of the obligation beside the defendant; and it would seem to be equally clear that before the judgment of the court is suspended, some one should see that an insolvent security did not sign the bond, and thus, perhaps, nullify its provisions. The act of 1902, supra, makes it the duty of the clerk or the judge to pass upon the sufficiency of the certiorari bond, both as to amount and as to the acceptability of the security. The bond in this case was not approved; and for that reason was a nullity, so far as compliance with the act of 1902 is concerned. There being no certiorari bond, it follows inevitably that the writ should not have been issued, — that there was nothing before the court, and that the petition should have been dismissed.
In the case of Mayor of Macon v. Stallworth, 125 Ga. 250 (54 S. E. 142), which is cited by counsel for plaintiff in error, it .was . held that the judge of the superior court “erred in dismissing the certiorari, without proof that the bond had not been given as required by law.” In that ease the recorder, in his answer, certified “that the defendant . . made and filed the bond required with the clerk of the recorder’s court;” and the Supreme Court says that it affirmatively appears that the bond was given and filed as required by the statute, .because the allegation of the petition to that effect was verified by the answer, as well as by the oath of the
The decision of the judge was also correct for the second reason stated in Ms judgment. It was evidently the purpose of the General Assembly in the passage of the act of 1903, supra, to have these bonds conditioned for the appearance of the defendant to abide the final order or judgment of the superior court, as well as of the police or mayor’s court, and the present bond did not comply with the statute in this respect. The reason for the legislative requirement is apparent. If such a certiorari is sustained and the case sent back to .the police court for another trial, and there finally disposed of, the bond would bind the defendant to answer the judgment there. If, on the other hand, the superior court dismissed or overruled the certiorari, the defendant should be bound to answer the judgment there, which would be the final judgment. Furthermore, the judge of the superior court is clothed with a discretion, upon a review of the evidence on certiorari, to change the sentence; and if nothing else was done, the defendant, in that event, should be bound to appear and abide this, the final sentence; and in such case he would necessarily be answerable to the superior court.
4. The act of 1903 not having been complied with, either as to the terms and conditions of the bond or as to its approval, it was not error to dismiss the certiorari.
Judgment affirmed.