173 Ga. 828 | Ga. | 1931
The Court of Appeals requested instructions from ■ the Supreme Court on the following questions:
*829 “1. (a) Where a petition for certiorari, which purports to be a renewal within six months, as provided 'in section 4381 of the Civil Code of 1910, of a dismissed petition for certiorari, is presented to the judge of the superior court for sanction, is it essential to the validity of the renewal petition that it contain allegations showing that the former petition, which had been dismissed, was not a void suit, or that it was such a valid suit as could be renewed as provided in the said code section? (b) Where the renewal petition recites that it ‘is brought as a renewal of a petition heretofore brought’ by the petitioner for certiorari ‘in the same case and pertaining to the same matters, and which was dismissed by the [judge of the superior court] because of failure of petitioner to make affidavit that the petition for certiorari was not filed in the case for the purpose of delay only,’ is this a sufficient allegation as to such validity of the former suit in all respects except in so far as it may have been 'invalid by reason of a failure of the affidavit which was filed with the petition in that suit to allege that the petition was not filed in the case for the purpose of delay only?
“2. If both questions No. 1(a) and No. 1(b) are answered in the affirmative, the Court of Appeals desires instruction from the Supreme Court upon the following question, a determination of which is necessary to a decision of this case: Where, upon the hearing of a petition for certiorari which is valid in every respect except that an affidavit that the petition is not filed in the case for the purpose of delay only was not made as required by section 5184 of the Civil Code of 1910, the petition is, on motion of the defendant 'in certiorari, dismissed by the judge of the superior court upon the ground that the certiorari was defective in that the required affidavit had not been made, the particular defect being that the affidavit which was filed recited that the petition for certiorari was filed for the purpose of delay only, when, as required by the statute, the affidavit should have recited that the petition for certiorari is not filed for the purpose of delay only, is the
In Southern Ry. Co. v. Goodrum, 115 Ga. 689 (supra), it was held: “Where the defendant in a suit in a justice’s court appealed to a jury in that court and gave a security on the appeal bond, and then, being dissatisfied with the finding of the jury, sued out a writ of certiorari and gave the same security on the certiorari bond, and the certiorari was dismissed on the ground that there was no valid certiorari bond, the certiorari could not be renewed under the Civil Code [1895], § 3786 [1910, § 4381]. The original certiorari was void and could not be renewed. Grimes v. Jones, 48 Ga. 362, distinguished.” In the opinion Simmons, C. J., said: “There can be no doubt that section 3786 of the Civil Code applies to valid suits only. This has been held uniformly by this court from Williamson v. Wardlaw, 46 Ga. 126, to Hamilton v. Phenix Insurance Co., 111 Ga. 875 (36 S. E. 960). This principle is now too well settled by this court for us to depart from it. The plaintiff in error relies upon Grimes v. Jones, 48 Ga. 362, which it contends establishes a contrary rule, and which has never been overruled. An examination of this case will show that the point now decided and the point decided in Hamilton v. Wardlaw, supra, was not decided or even alluded to in Grimes v. Jones. Grimes had sued out a certiorari, which had been dismissed on the ground' that no affidavit in forma pauperis had been filed. Subsequently he undertook to renew the certiorari, and the judge refused to sanction it. Grimes excepted and brought the case to this court. Why the judge refused to sanction the writ, or what points were made before him, did not appear, but the only point decided by this
The conclusion reached in Lamb v. Howard, supra (a unanimous decision), is that the proceeding in the superior court in that case was not such a complete nullity that it did not have the effect of tolling the statute so as to allow the bringing of another suit within six months after its dismissal. The plaintiff had brought a suit in Fulton County against Lamb, the receiver of the railroad, for a tort alleged to have been committed in Coweta County, and therefore it was decided that the superior court of Fulton County had no jurisdiction, and the petition was dismissed; and it was held that within the next six months the plaintiff could bring the suit again in the proper county, although the time ordinarily for certiorari had expired. That was not a certiorari case, and the
In view of the authorities cited, we reach the conclusion that a petition for certiorari void for any reason can not be renewed. It is essential to the validity of the renewal petition that it contain allegations showing that the former petition, which had been dismissed, was not a void suit, or that it was such a valid suit as could be renewed as provided in the Civil Code (1910), § 4381. We further hold that where the renewal petition recites that it “is brought as a renewal of a petition heretofore brought” by the petitioner for certiorari “in the same case and pertaining to the same matters, and which was dismissed by the judge of the superior court because of failure of petitioner to make affidavit that the petition for certiorari was not filed in the case for. the purpose of delay only,” as provided in the Civil Code (1910), § 5184, such an allegation is sufficient to show that the former petition was void.
From what has been said we also reach the conclusion that