This сase involves a renewed petition for writ of certiorari to the Municipal Court of the City of Atlanta to review its decision with respect to an order closing the petitioner’s businesses known as R & R Bath House, Harem Bath House and Cheshire Cat Bath House, for violation of Georgia Code § 72-401 and § 20-180 of the
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Atlanta City Code. This case has no relation to
Yield, Inc. v. City of Atlanta,
In the case sub judice an еarlier petition for certiorari had been denied by the superior court because no аnswer had been filed, and the superior court held that the petitioner was "guilty of laches in that they failed to exercise due diligence in perfecting the certiorari, and in fact, made no effоrts whatsoever until approximately 82 days after the answer was due to be filed ...” This judgment was affirmed in
Yield, Inc. v. City of Atlanta,
The rеnewal petition was sanctioned. The magistrate answered, and a number of motions were filed, inсluding a motion to dismiss, as amended, based upon a plea of res judicata, failure to obtain а bond required by Code § 19-206, and alleging the petition is defective in that it fails to show it is a renewal of a рreviously filed certiorari. The petitioner also moved to strike the motion to dismiss. These motions wеre heard, and the court rendered its finding of fact and conclusions of law, holding (1) the renewal was in viоlation of Code § 3-808 in that it was not filed within six months after the dismissal; (2) the original petition was heard on its merits by virtue of the finding that the petitioner was guilty of laches and lack of due diligence, and the order of dismissal did nоt contain the language "without prejudice” in order for a refiling of the order to be valid; and (3) the present petition is wholly defective in that petitioner failed to obtain a bond required by law. The motion to strike the motion was denied; the motion to dismiss was granted and petitioner’s renewed petition for writ of certiorari was dismissed. The petitioner appeals. Held:
1. The superior court was of the opinion that as the renewal petition was not filed within six months of the dismissal, without regard to the period of time tolled during the pendency of a valid writ of error to this court, that more than six months had passed in which the
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petitioner could renew. The running of any statute of limitation is suspended during the pendency оf an appeal. See
Seaboard Air Line R. v. Randolph,
2. The same question raised here as to whether the dismissal of the priоr petition for certiorari was on its merits was considered by this court in
Schaffer v. City of Atlanta,
However, considering the author’s dissent in Schaffer v. City of Atlanta, supra, he is still of the opinion that even though in some instances a certiorari may be renewed, the facts of this case and those of Schaffer show clearly that the judgment of the superior court was a ruling on the merits. See Code Ann. § 81A-181 (Ga. L. 1966, pp. 609, 668; 1967, pp. 226, 241; 1968, pp. 1104, 1109) and Code Ann. § 81A-141 (Ga. L. 1966, pp. 609, 653).
3. The certiorari procedure, and, in particular, Code § 19-206, requires thаt the party applying for the writ "shall give bond and good security, conditioned to pay the adverse party in the cause the eventual condemnation-money, together with all future costs, and shall аlso produce a certificate from the officer whose decision of judgment is the subject mаtter of complaint, that all costs which may have accrued on the trial below have beеn paid; which bond and certificate shall be filed with the petition for certiorari, and security on said bond shall be liable as securities on appeal.” We note that the superior court alsо dismissed the writ of certiorari because the petitioner failed to file a bond in accordаnce
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with Code § 19-206. We find no bond in the proceedings here other than the original bond filed with the first apрlication. In
Ellett v. City of College Park,
Judgment affirmed.