7 Ga. App. 347 | Ga. Ct. App. | 1910
At the November term, 1901, the plaintiff in error, brought suit upon a promissory note in a justice’s court of Rabun county against W. P. Rembert and the present defendants in error. Rembert did not appear then or file any defense, and has never attempted to do so since. The justice rendered judgment in favor of the plaintiff against all of the defendants; and Shirley appealed to a jury, which carried the case, with all the parties, to a jury for a de novo investigation. The jury found for the plaintiff the full amount sued for, as against Rembert as principal, and found Shirley and Dickson to be securities only, and to be discharged from liability. The case was then carried by certiorari to the superior court, and thence, by a writ of error, to the Supreme Court. Shirley v. Swafford, 119 Ga. 43 (45 S. E. 722). The Supreme Court having affirmed the judgment of the superior court sustaining the certiorari, the case was again tried before a jury in the justice’s court, where a verdict was returned, releasing as sureties Shirley and Bleckley as administrator of Dickson. The plaintiff in error again carried the case, by certiorari, to the superior court, where the certiorari was dismissed upon the ground that the defendant Rembert had not been served with a notice of the sanction of the writ of certiorari, as provided by law; and the present writ of error, which excepts to the judgment dismissing the certiorari, is
It is clear that the writ of error must be dismissed upon the ground that Eembert has not been served, although it is not certain that the certiorari was properly dismissed upon the same ground. It is to be borne in mind that the provisions with reference to the service of the notice of sanction of a certiorari are not as ample as those with reference to the service of bills of exceptions upon nonresidents. The law does not provide any designated means by which service of the notice of the sanction of the certiorari may be effected upon a non-resident. It is possible, however, that a nonresident defendant in certiorari might be notified of the sanction of the certiorari and of the time and place of hearing by telegram, as pointed out by Chief Justice Simmons in Western Union Telergraph Co. v. Bailey, 115 Ga. 727 (42 S. E. 89, 61 L. R. A. 933). In the same case it was held that if the written notice was sent by another it would be sufficient if it was shown that the writing was actually received by the defendant in certiorari. Whether service by mail' is sufficient is doubtful, inasmuch as it has been held that the unsworn certificate that a notice has been served is insufficient to show service; and, of course, the most that could be shown by producing the registry receipt would be' the fact that the letter had been received, and not also that the letter contained the notice; nor would the contents of the notice be proved thus.
The provision in regard to the service of the ten-days notice to the adverse party, embodied in §4644 of the Civil Code, is as follows: “The plaintiff in certiorari shall cause written notice to be given to the opposite party in interest, his agent or attorney, of the sanction of the writ of certiorari, and also the time and place of hearing, at least ten days before the sitting of the court to which the same shall be returnable, and in default of such notice (unless prevented by unavoidable cause) the certiorari shall be dismissed.” It appears that in default of the required notice the judge of the superior court may determine whether the notice was prevented by unavoidable cause, — that it would be for him to determine whether the reason which prevented timely service was such unavoidable cause as that the certiorari should not be dismissed.
Writ of error dismissed.