120 Ga. 148 | Ga. | 1904
Certiorates and bills of exceptions intended to review judgments are not treated by our statute as writs or processes which must be served by an officer. Compare Civil Code, §§ 5547, 4643. The law makes it incumbent upon the complaining party to give notice to bis adversary of the sanction of the writ of certiorari, and of the time and place of the hearing. Civil Code, § 4644. The statute requires the clerk of the, superior court to issue the writ and place the same on the docket, but requires nothing further from him. If thereafter he acts at the instance of the plaintiff in certiorari, he does so as agent of the latter, and not as agent of the law. If he gives to the sheriff the wrong paper, it is not a case of misprision of a ministerial officer (Civil Code, § 5125), but the mistake of the plaintiff’s agent, and what he does through his agent is to be treated as though it had been done by himself, and with the same legal consequences as if Tucker by mistake had handed the wrong paper to the sheriff. Civil Code, § 4643, contemplates that the writ of certiorari shall be delivered to the judge of the lower court by the party applying for the same, his agent or attorney, and this is the usual practice. There may be cases, however, in which the plaintiff might not desire to make this service, and therefore the statute permits it to be done through , a sheriff, deputy sheriff, or constable. But this is not a duty incumbent upon the officer until after he has been furnished with the writ by some one acting for the plaintiff. It is not made the duty of the clerk as clerk to hand the papers to the sheriff for service. The case here is controlled by Zachery v. State, 106 Ga. 124, where it was said: “ After the writ has been issued, the duty is placed upon the party applying for the certiorari to see that the same is served upon the judge whose decision is sought to be reviewed.” The failure to have this done fifteen days before the session of the court to which it was made returnable wasi not
