Thoms v. John R. Thompson Co.

38 Ga. App. 779 | Ga. Ct. App. | 1928

Jenkins, P. J.

Before any writ of certiorari sliall issue, unless sued out in forma pauperis, the applicant must “produce a certificate from the officer whose decision or judgment is the subject-matter of complaint, that all costs which may have accrued on the trial below have been paid.” Civil Code (1910), § 5185. “Where such certificate was not made by the ‘ officer whose decision or judgment is the subject matter of complaint,’ but by the clerk of the court, this was not a compliance with the positive requirements of this section of the code, and a motion to dismiss the certiorari on this ground, made in the superior court, was properly sustained.” Davis v. Joiner, 1 Ga. App. 106 (2) (58 S. E. 62). See also Tippins v. DeLoach, 9 Ga. App. 362 (71 S. E. 497); Ray v. Cruce, 18 Ga. App. 265 (89 S. E. 302); Harte v. Sturtevant, 20 Ga. App. 822 (93 S. E. 530). Tliere is nothing in the act creating the municipal court of Atlanta, or in any of the acts amendatory thereof, which could be taken to change the rule with respect to the necessity of signing such certificate by the officer whose decision is the subject-matter of complaint, since by the act of July 31, 1925 (Ga. L. 1925, p. 386, sec. 2), amending the act creating the municipal court, of Atlanta, it is provided that the writ of certiorari shall lie only to the final judgment of the appellate division of the municipal court of Atlanta, and that it shall be the duty of the presiding judge in that division to “certify as to payment of costs and to approve all bonds in matters of certiorari.” Accordingly, the judge of the superior court did not err in dismissing the petition for certiorari in the instant case, which was accompanied by a certificate as to the payment of costs, signed only by the deputy clerk of the municipal court.

Decided November 17, 1928. W. F. Wimberley Jr., M. V. Higdon, for plaintiff in error. Welborn B. Cody, contra.

Judgment affirmed.

Stephens and Bell, JJ., eoneur.