Southern Railway Co. v. Oliver

13 Ga. App. 5 | Ga. Ct. App. | 1913

Russell, 'J.

On the call of the case in the court below, the defendant in certiorari moved to dismiss the petition because the certiorari bond did not show on its face that it had been approved by the justice of the peace who tried the ease. The judge of the superior court sustained this motion and dismissed the certiorari.

We are of the opinion that the dismissal of the certiorari was proper. The plaintiff in error relies upon decisions of the Supreme Court in which it is held that if it appears from the record that the certiorari bond has in fact been approved, the certiorari should not be dismissed, and contends that the statement of the magistrate who tried this case, in his certificate as to the payment of costs, that the petitioner “has given the bond required by law,” is an implied approval of the bond which appears in the record. After a careful review of all the decisions of the Supreme Court on this point, we are convinced that there can not be such a thing as an implied approval of a certiorari bond. The statement of the magistrate, in his certificate as to the payment of costs, that the petitioner for certiorari “has given the bond required by law,” is not the equivalent or a sufficient substitute for that express and unequivocal approval of the bond which must be evidenced by the signature of the magistrate prior to the filing of the petition and the issuance of the writ. There can not be such a thing as ratification of a bond by its acceptance.

In Dykes v. Twiggs County, 115 Ga. 698 (42 S. E. 36), the Supreme Court held that “A clerk of a superior court has no authority of law to issue a writ of certiorari, not applied for in forma pauperis, unless the plaintiff files with his petition for certiorari such a bond as that required by the Civil Code, § 4639 [Civil Code of 1910, § 5185], which must, either on its face, or by other written evidence bearing the official signature of the judicial officer before whom the case was tried in the first instance, show that it has been duly 'approved by him.” In that case the Supreme Court followed the rulings made in Wingard v. Southern Railway Co., 109 Ga. 177 (34 S. E. 275), and Stover v. Doyle, 114 Ga. 85 (39 S. E. 939), and Justice Eish pointed out that the statement in Hester v. Keller, 74 Ga. 369, that “the record must show somewhere that such justice did accept and approve the bond,” the statement in Hamilton v. Insurance Co., 107 Ga. 728 (33 S. E. 705), that “the fact of approval may be evidenced not only by a formal entry, but also by any conduct on the part of the trial judge showing his acceptance of the bond as a sufficient one under the law,” and a similar statement in Wingard v. Southern Railway Co., 109 Ga. 177 (34 S. E. 275), were “purely obiter.” In the Wingard case, supra, the judgment of the judge of the superior court was reversed, and it was held that he erred in refusing to sustain a motion to dismiss the petition for certiorari, because it did not appear that the bond filed by the plaintiff in certiorari was approved by the justice of the peace in whose court the case had been tried. The precise ruling of the court was that “The certiorari having been issued in the absence of a duly approved bond, the writ was void, and the motion to dismiss the same ought to have been sustained;” and for this reason, as pointed out by Justice Eish in the Dykes case, the statemept of Justice Lewis, that “while the law does not require 'any formal certificate of such approval, or any special method of showing the acceptance by the magistrate of the bond, yet it must appear from the record that such acceptance and approval were had,” was a dictum upon a question not then before the court for decision. In Stover v. Doyle, supra, it was said in the headnote of the decision, that the bond given by the applicant for certiorari, in order to be effectual, must “in some manner” be approved by the judge or justice of the court in which the case was originally tried. In that case the petition for certiorari was dismissed upon the ground that the certiorari bond had not been approved by the judge of the court in which the case was tried; and the judgment of dismissal was affirmed. It was unnecessary to rule upon the mode of approval that might be adopted; and evidently, from the opinion of the learned Presiding Justice, it was not intended to treat as sufficient any other mode of approval than that which would be implied in the plain meaning of that word; for in the opinion Judge Lumpkin said: “The statute necessarily means an approved bond, and accordingly this court, in Hamilton v. Insurance Co., 107 Ga. 728, held that when a writ of certiorari issues upon the filing of a certiorari bond which has not been approved by the judge or justice of the court in which the case was tried, the writ is to be treated as a nullity.” The court then declined to overrule the decisions in Wingard v. Southern Railway Co., supra, and Carpenter v. Southern Railway Co., 112 Ga. 152 (37 S. E. 186), and held that the cases of Memmler v. State, 75 Ga. 576, and Watson v. State, 85 Ga. 237 (11 S. E. 610), are applicable only to writs of certiorari in criminal cases. The rulings in Brown v. State, 124 Ga. 411 (52 S. E. 745), and Johnston v. State, 7 Ga. App. 249, 560 (67 S. E. 684), are based upon this distinction pointed out by Presiding Justice Lumpkin in the Stover case, supra, in referring to the Memmler and Watson cases.

The present case, however, is one of certiorari to review the judgment in a civil case; and it is clear that, as to civil cases, the ruling in the Dykes case, supra, is controlling; for it has been followed in Miller Co. v. Anderson, 118 Ga. 432 (45 S. E. 365), and in Alabama Midland Ry. Co. v. Stevens, 116 Ga. 790 (43 S. E. 46). And even in criminal cases, the distinction to which we have, referred as dependent upon the ruling in the Memmler and Watson eases seems to be considered no longer existent or controlling; for the rule laid down in Dykes v. Twiggs County, supra, was followed in Hill v. State, 115 Ga. 833 (52 S. E. 745), and in Brown v. State, 124 Ga. 414, 415 (52 S. E. 745). Whatever may be the conflict as to the rule in certiorari in criminal cases, there can be no doubt that the correct rule in certiorari brought to review judgments in civil cases is that stated in the headnote of this decision.

Judgment affirmed.