Atlanta, Knoxville & Northern Railway Co. v. Whitaker

42 S.E. 56, 115 Ga. 644, 1902 Ga. LEXIS 508

• Court: Supreme Court of Georgia
• Decided: June 7, 1902
• Status: Published

Opinion

Little, J.

1. Failure to serve a writ of certiorari upon the officer whose decision is sought to be reviewed, “ fifteen days previous to the court to which the return is to be made, ” is cause for dismissing the certiorari, unless the plaintiff therein makes it clearly to appear that the failure to serve was not-due to his fault or negligence. Zachery v. State, 106 Ga. 123.

2. Where, because of such failure, the answer of the magistrate, though filed,, was not made at the term to which the same was returnable, the certiorari will be dismissed. Aliter, if, notwithstanding the failure to serve the writ,, the magistrate does answer in due time.

3. fn the case of Crapp v. Morris, 108 Ga. 793, the sole ground of the motion to dismiss was the failure to serve the magistrate, who nevertheless had filed an answer, and the point was not made that the same was not filed in due-time.

Judgment affirmed.

All the Justices concurring, except Lewis, J., absent.