111 Ga. 858 | Ga. | 1900
1. When the question whether or not written notice of the sanction of a petition for certiorari had been given in due time depended upon a direct conflict in the testimony of two witnesses respecting the correctness of a date appearing in an acknowledgment of service, this court will not undertake to say the trial judge erred in accepting as true the testimony of one of the witnesses rather than that of the other.
2. Where in such a case the witnesses were the attorneys at law of the parties, and each attorney, after making in his place an oral statement as to the issue in controversy, was permitted to file an affidavit setting forth the facts embraced in his oral statement, a judgment dismissing the certiorari on the ground that notice of the sanction was not given in due time will not be reversed merely because the -judge acted on the motion to dismiss without giving the attorney for the plaintiff in certiorari an opportunity to inspect and “ reply to or rebut” the affidavit filed by the attorney of the other party, it not appearing that the plaintiff in certiorari was thus deprived of any substantial right, or that, if such opportunity had. been extended, any additional reason for not sustaining the motion to dismiss would have been submitted.
3. Merely acknowledging service o.f a written notice does not estop the per- , son making the acknowledgment from setting'up that the notice was, under the law thereto relating, served too late.
A. Theje was not, in view of the facts appearing in the present record, anything in the conduct of either the defendant in certiorari or her counsel which amounted to a waiver of the point that the notice in question was . not served within the time prescribed by statute.
5. There was no error in. dismissing the certiorari for want of proper notice, nor in refusing to allow the proposed-correction of the date of service.-
Judgment affirmed.