Roche v. City of Dublin, 49 Ga. App. 315

Roche v. City of Dublin

49 Ga. App. 315 | Ga. Ct. App. | 1934

Broyles, C. J.

1. It is well settled by repeated decisions of the Supreme Court and of this court that where an allegation of the fact in a petition for certiorari is not referred to in the answer of the trial magistrate, and no exception to the answer is filed, neither the superior court nor the reviewing court can consider the allegation; and where the cause of the plaintiff in certiorari depends wholly upon such fact as alleged, the judgment of the superior court overruling the certiorari will be affirmed by the reviewing court.

2. The defendant was convicted ip the recorder’s court of the city of Dub*316lin of violating a certain ordinance of the city, and in his petition for certiorari he allegedly set forth, in substance, the provisions of that ordinance. The recorder, however, in his answer failed to certify that the allegations in the petition as to the provisions of the ordinance were true. In fact, neither the allegation as to the provisions of the ordinance nor the ordinance itself is referred to in the answer; and no exception to the answer was filed. Under these facts and the ruling stated above, this court can not undertake to decide whether the defendant’s conviction of violating the alleged ordinance is unsupported by the evidence. It follows that the judgment overruling the certiorari must be and is Affirmed.

Decided July 3, 1934. O. C. Crockett, for plaintiff in error. 8. P. New, W. W. Larsen Jr., contra. MacIntyre and Guerry, JJ., concur.