| Ga. | Jul 18, 1898
The plaintiff in error, Stroup, was convicted and sentenced for violating an ordinance of the City of Dalton, requiring all persons within the corporate limits to be vaccinated. The trial was had before W. H. Pruden, who claimed to be mayor, and was exercising the functions of the mayor’s office. Stroup sued out a certiorari to reverse the judgment of conviction rendered by Pruden. One of the main points made in the petition for certiorari was, that, for various reasons, Pruden was not the mayor of the city, but a mere usurper of the office. The certiorari was overruled, and Stroup undertook to bring the case to this court for review. In his bill of exceptions he named Pruden as the defendant in error, instead of the Mayor and Council of Dalton. Upon this bill of exceptions there is an acknowledgment of service, signed by counsel for “ deft, in error,” viz., W. H. Pruden. It is obvious that Pruden, as an individual, is not a proper party defendant to the bill of exceptions, but that the municipal corporation itself should have been designated as the defendant in error, and service should have been made accordingly. It follows as a necessary consequence that the writ of error must be dismissed.
But even if the case had been properly brought to this court, and it unequivocally appeared that, as alleged by Stroup in his petition for certiorari, he was sentenced by a person'who was a mere usurper of the mayor’s office and therefore had no right whatever to try petitioner, it would seem that his remedy, if imprisoned under the pretended sentence imposed by Pruden, would have been to sue out a writ of habeas corpus, and not endeavor by certiorari to correct the errors of a mere individual who was in no sense a judicial officer.
Writ of error dismissed.