3 Ga. App. 437 | Ga. Ct. App. | 1908
R. W. Johnson sued Mrs. Simpkins on an account, and obtained judgment against her. The case was carried by certiorari to the superior court upon an affidavit in forma pauperis, and the certiorari was there dismissed upon 'the ground that the plaintiff’s affidavit was not in accordance. with the act of 1897 (Acts of 1897, p. 33). The bill of exceptions assigned error on this judgment of the lower court. The plaintiff in error relies' upon two propositions: first, that the affidavit was a substantial compliance with the law; second, that the court should have allowed the affidavit to be amended, especially in view of the fact that the magistrate had answered the certiorari and thereby had verified the allegations of the petition.
In support of the first position, her counsel cited §4 of the Political Code, and §§5123, 5124, and 5125 of the Civil Code. Section 4 of the Political Code is not applicable to the point, for the reason that this provision refers only to the construction of statutory enactments. But even if we were inclined to hold it' applicable to the present case in construing the act of 1897, the purpose of the legislature in the passage of the act of 1897 is su manifest that we would be precluded by other well-recognized rules of construction. Nor were the sections cited from the Civil Code in point. Section '5123 refers to amendments of appeal bonds, and §5124 to affidavits to appeal in forma pauperis. Neither of these sections can, by any construction, be held to apply to certiorari, which is an entirely different proceeding from an appeal. It is not necessary to decide whether §5125 has any reference to an affidavit made in applying for writ of certiorari, even if we were not prepared to hold that it does not; because it does not appear from the record that the motion to amend was accompanied or supplemented by any showing that the non-compliance of the affidavit with the law was due to mistake or to misprision of a clerk or other officer. Indeed we do not see how it would be possible to show that such was the fact in a case like the present.
It has been held in Taylor v. Gay, 20 Ga. 77, Taylor v. State, 118 Ga. 50 (44 S. E. 834), and Williams v. Mangum, 119 Ga. 628 (46 S. E. 835), cited by counsel for plaintiff in error, that.
The affidavit in the present case attempted to combine the affidavit required in §4638, and the affidavit which may be made instead of giving bond, in one paper. It was as follows: “Georgia, Carroll County. Personally appeared before me Mrs. A. W. Simpkins, who on oath says, that the foregoing petition for certiorari is not filed in this case for the purpose of delay only, that she is advised and believes that she has good cause for certioraring the proceedings to the superior court, and that owing to her poverty she is unable to pay the costs and give the security required by law, and that the facts stated in said petition, so far as they come within her own knowledge, are true, and so far as derived from the knowledge of others, she believes them to be true.” (Executed and attested). The disjunctive “or” is required by the act of 1897, and the conjunctive “and” is used in the affidavit. The requirement of the act of 1897 (Acts, p. 33) is as follows: “Ifthe party applying for the writ of certiorari shall make and file with his petition an affidavit in writing that he is advised and believes that he has good cause for certioraring the proceeding to the superior court, and that owing to his poverty he is unable to pay the cost or give security, as the case may be, as required in the preceding section, such affidavit shall, in every respect, answer instead of the certificate or bond above mentioned, as the case may be.” The single purpose of the act was to require the use of the word “or” instead of “and” as it originally appeared in §4641, and thereby-
3. The plaintiff in error insists that she should have been permitted to amend the affidavit, and avers that the court erred in not allowing her to amend by substituting the word “or” in place • of the word “and.” As we have already said, the amendment of .appeal affidavits is authorized by law; but there is no such provision with reference to affidavits to obtain a writ of certiorari. An appeal is merely a proceeding in a suit; a certiorari (while we doubt the correctness of the decision) has been held to be itself a suit. But we do not think that section 5133 of the Civil Code,