Where a petition for certiorari was sanctioned, but was never filed in the office of the clerk of the superior court, the petition was a mere nullity; and a second petition in the same case, when presented to the judge of the superior court within 30 days from the date of the judgment complained of, is not subject to dismissal on the ground that the petitioner had no legal right to present a second petition for certiorari in the same case.

DECIDED JUNE 27, 1944. *Page 330 On January 5, 1944, J. W. Weaver Sr. presented to the judge of the superior court of Clayton County his petition for the writ of certiorari to review a judgment rendered against him in favor of Avis Moss, by a justice of the peace, on December 6, 1943. In the order refusing to sanction the petition, the judge said: "The within petition for certiorari was presented to me on January 5, 1944, within 30 days from the date of the trial and judgment complained of. I am of the opinion that the allegations contained in the petition entitle the petitioner to the writ of certiorari as prayed for, but I decline to sanction the petition and to order the writ to be issued, for the sole reason that in the same case a similar petition was presented to me by the petitioner herein on December 16, 1943, and on that date I sanctioned the petition and ordered that the writ of certiorari issue. That petition, together with the order sanctioning the same, was not filed in the office of, or presented to, the clerk of the superior court of Clayton County within 10 days from the date of its sanction, as required by law; and I hereby hold that petitioner herein has no legal right to present a second petition for certiorari, although it is presented to me within 30 days from the date of the judgment in the justice court complained of." The only question in the case is whether, under the above-stated facts, the petitioner had the legal right to present to the judge the second petition for certiorari.

The first petition, although sanctioned, was never filed in the office of the clerk of the superior court of Clayton County, as required by law, and the writ of certiorari was never issued. Therefore, the first petition never ripened into a "case," but became a mere scrap of paper; and there was no case to be renewed. The first petition was never dismissed, and therefore the decisions in cases where the first petition was dismissed on the hearing thereof, are not applicable here. Nor are the decisions applicable that hold that a void petition can not be renewed. "To render a petition for certiorari void there must be something inherently defective in the petition itself — something precedent to the issuance of the writ; as *Page 331 where the certiorari bond, or the pauper affidavit, was defective, or where the petition itself contained no sufficient assignment of error. Bass v. Milledgeville [121 Ga. 151,48 S.E. 919]." Singer Sewing Machine Co. v. Dacus, 22 Ga. App. 297 (96 S.E. 8). In the instant case the first petition for certiorari was not inherently defective, and contained a sufficient assignment of error. The second petition, having been presented to the judge within 30 days from the judgment complained of, and its allegations (as stated by the judge in his order refusing to sanction it) "entitling the petitioner to the writ of certiorari as prayed for," the refusal to sanction the petition was error.

Judgment reversed. MacIntyre and Gardner, JJ., concur.