21 Ga. App. 539 | Ga. Ct. App. | 1918
The difficulty in the point raised in the present case lies in thevproper interpretation of section 5205 of the Civil Code which provides as follows: “If the certiorari shall be dismissed, and a final decision made in the cause by the superior court, the defendant in certiorari may sign up judgment in said superior court against the plaintiff and his security for the sum recovered by him, together with the costs in said superior court; and if said case be sent back to the court below, and there be a judgment in said case in favor of said defendant in the court below, the security on the certiorari bond shall then be included as in case of security on appeal.” If the meaning of this section is as broad as the literal import of the words might seem to imply, to wit, that notwithstanding the summary dismissal of a hertiorari for any cause by the judge of the superior court, he has jurisdiction to entertain
It is a well-recognized principle of law that when a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position through a judgment of the court, or through the acquiescence of the opposite party to his prejudice, he will not thereafter be permitted to assume, as to the same subject-matter and against the same adversary, a contrary position. Haber-Blum-Block Eat Co. v. Friesleben, 5 Ga. App. 123 (62 S. E. 712); Vaughn v. Strickland, 108 Ga. 659, 660 (34 S. E. 192); Luther v. Clay, 100 Ga. 236, 241 (28 S. E. 46); Central Ry. Co. v. Waldo, 9 Ga. App. 182. (70 S. E. 1021); Parson v. Planters Warehouse Co., 20 Ga. App. 267 (92 S. E. 1023). Thus, if the defendant in certiorari takes the position that the proceeding is altogether void, and that the superior court is therefore without jurisdiction to entertain it, and on its motion the proceeding is summarily dismissed without the merits of the case being passed upon, it would seem to be a contravention of the rule of law just stated to permit such a defendant thereupon to take the contrary position that a case did exist before the court, and to insist, not that it simply allow the judgment of the court below to proceed, but that it render its own final decision in the cause and therein include judgment against the surety on the bond given in a proceeding thus summarily dismissed as being wholly void. Under our view of the law, while the entering of final judgment in the case as of the superior court against the plaintiff in certiorari was harmless error, yet such a judgment so entered against his surety was reversible error. We think, however, that the surety, together with his principal, should be held liable for the cost of the proceeding, since an adjudication was had against his principal upon the validity of -the appeal as such, even though the merits of the case itself were in no. wise passed upon.
Judgment reversed in part, and affirmed in part.