4 Ga. App. 514 | Ga. Ct. App. | 1908
Nick Smith filed a petition for certiorari, in which he alleged that he was broright to trial in the mayor’s court of Washington upon an oral charge, accusing him of violation of a city ordinance, and was illegally convicted. The petition for certiorari was duly sanctioned by the judge of the superior court, and the petition, with sanction of the judge endorsed thereon, was delivered by Smith’s attorney to the clerk of the superior court of Wilkes county. It appears from the record that the clerk of the superior court promptly and properly issued. the writ, directed
In the interest of economy, no.doubt, certioraries afford a special exception to the general rule which requires the service of other processes in the superior court to be effected by the sheriff. Consequently the petitioner had no right to expect that the clerk would do more than he did, or would see that the petition and the writ of certiorari were served upon the mayor of the City of Washington. The clerk of the superior court performed his full duty in the premises as clerk when he issued the writ, attached it to the petition, made a copy of the petition and the writ, and docketed the case. Furthermore, it was the duty of the petitioner or of his counsel to see that the mayor was served with the copy of the petition and with the writ of certiorari. If the clerk did anything to mislead the petitioner’s counsel, or impliedly personally assumed any obligation to serve the mayor with the writ and copy of petition, and his failure to perform this obligation damaged the petitioner, he might or might not be individually liable to the petitioner, dependent upon whether, as an individual, he owed a duty to the petitioner, raised by his sayings or conduct, upon a proper consideration, to see that the petition was served. This, however, would be entirely independent of the duty of the clerk of the superior court.