15 Ga. App. 301 | Ga. Ct. App. | 1914
According to the recitals of the bill of exceptions, Sullivan, as trustee, for the Union Sea Island Cotton Co., presented a petition for certiorari to the judge of the superior court of Wayne county, and sanction of the petition was refused. The exception is to the refusal to sanction the petition for certiorari and to order the issuance of the writ.
The bill of exceptions recites the assignments of error alleged to have been contained in the petition for certiorari, and also that “the plaintiff in error specifies and identifies the original petition for certiorari in said case, which original petition and exhibits thereto plaintiff in error attaches hereto as exhibits and makes the same part of this bill of exceptions.” The defendant in error insists that the bill of exceptions be dismissed for two reasons: (1) Because the bond is not properly approved, and (2) because the certificate of the judge of the superior court attached to the bill of exceptions fails to certify with sufficient certainty, and fails to identify .with sufficient definiteness and certainty the petition for certiorari, which is annexed thereto. There is no merit in the first ground of the motion, for the approval of the bond need not have anteceded the sanction of the petition. “It is not necessary to attach to a petition for certiorari a certificate of the magistrate that costs have been paid and security given, before the sanction of the judge can be obtained.” Fuller v. Arnold, 64 Ga. 599. For this reasqn it can not be inferred that the refusal to sanction the certiorari was based upon any assumed defect in the approval of the bond.
By the second exception of the plaintiff in error we have been greatly troubled, in our endeavor to reach a conclusion. The difficulty is in determining when a petition for certiorari, which a judge has refused to sanction and which is not incorporated in the bill .of exceptions, can be truly said to be so identified by the judge as that the reviewing court may know with certainty that it is passing upon the same papers that were before the judge of the lower court and as to which the correctness of his ruling is challenged. The rule is of course well settled that the refusal o'f a judge to
It seems to us that in all the decisions touching the point there is a mandatory requirement that the judge shall, upon the petition for certiorari itself, verify and certify to this court that it is the original petition or a copy of the paper presented to him, and that a mere reference to the paper attached to the bill of exceptions is insufficient, although the reference be coupled with the statement that it is the original petition. And it seems to us that the circumstances of the present case illustrate the necessity for a strict construction of the rule requiring that an unsanctioned petition for certiorari shall be verified or identified by the judge. The reviewing court can not tell whether the lower court committed error unless it knows that the paper submitted to its consideration is the same document, identical in every respect with that which was presented to the judge below. And in a case where the petition for certiorari refers to a number of exhibits, and the merit of the court’s decision depends largely upon the contents of these exhibits, it is absolutely necessary that they shall be identical. In the present instance there are, in what purports to be the petition for certiorari, exhibits alleged to be copies of minutes of a corporation; an alleged copy of a contract transferring the choses in action of this corporation, containing pages of names and amounts; purported notices to stockholders to attend meetings, and other documents, which are typewritten; and in addition to these there is a printed copy of what purports to be the by-laws of a corporation. None of these exhibits are identified by the signature of the judge, or even bear his initials, to say nothing of the absence of identification by means of a statement that these are the exhibits referred to in the bill of exceptions. From the recital in the bill of exceptions we know that there were exhibits attached to the petition for certiorari, which were presented'to the judge, but we do not'know, nor is there
Upon an examination of the original record in Bekakas v. Macon, supra, we find but one difference between the record in that case and in the ease at bar: In that case the acknowledgment of service followed the certificate of the clerk of the lower court, and in the present case the acknowledgment of service preceded the clerk’s certificate. Under the well-settled rule that whatever precedes the certificate of the judge is verified thereby, the embodiment of a petition, the sanction of which was refused in the bill of exceptions (even though it be a copy and not the original), verifies the statements and assignments of error therein. But since the rule is equally well settled that what succeeds the certificate of the judge can be verified only so far as it is identified and certified by the recitals preceding the certificate, it follows that the identification and certification dependent upon the recital shall be complete, unequivocal, and absolute. And in that view of the matter we hold that when a plaintiff in error attaches a copy of the petition to the bill of exceptions instead of incorporating it therein, it is necessary for the judge to refer to the annexed petition by citing some visible marks of identification which will unequivocally show to this court that the paper referred to is beyond question identical, as to its contents, with that which was presented to the court below.
Writ of error dismissed.