Brooks v. Ivy H. Smith Construction Co.

Court of Appeals of Georgia

Brooks v. Ivy H. Smith Construction Co.

3 S.E.2d 111, 60 Ga. App. 157, 1939 Ga. App. LEXIS 529

CourtCourt of Appeals of Georgia

DecidedMay 3, 1939

Docket27412, 27483

StatusPublished

This text of 3 S.E.2d 111 (Brooks v. Ivy H. Smith Construction Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Brooks v. Ivy H. Smith Construction Co., 3 S.E.2d 111, 60 Ga. App. 157, 1939 Ga. App. LEXIS 529 (Ga. Ct. App. 1939).

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Opinion

Eelton, J.

1. The fact that an attorney or a party interested in the case wrote the answer of the magistrate to a writ of certiorari affords ground for an exception to the answer, but not for a motion to dismiss the certiorari. Kelly v. Young, 8 Ga. App. 551 (70 S. E. 27); Burruss-Manley Co. v. Lewis, 8 Ga. App. 552 (70 S. E. 27). It was error for the court to dismiss the certiorari on this ground.

2. Upon the hearing of a writ of certiorari, where it appeared from the evidence introduced in support of a motion to dismiss the writ that, between the time of the sanction of the certiorari and the time of the service of notice, counsel for plaintiff in certiorari “was sick part of the time, and counsel for defendant in certiorari was in Atlanta part of the time,” and that for this reason the notice of sanction was not served within the time provided in the Code, § 19-212, the reason given for the delay of the service not amounting to unavoidable cause, and not showing that counsel for the plaintiff in certiorari used due diligence, it was error for the court to refuse to dismiss the certiorari on motion. DeVane v. Williams, 49 Ga. App. 82 (174 S. E. 184).

Judgment reversed on both bills of exceptions.

Stephens, P. J., md Sutton, J., concur.

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Eelton, J.

1. The fact that an attorney or a party interested in the case wrote the answer of the magistrate to a writ of certiorari affords ground for an exception to the answer, but not for a motion to dismiss the certiorari. Kelly v. Young, 8 Ga. App. 551 (70 S. E. 27); Burruss-Manley Co. v. Lewis, 8 Ga. App. 552 (70 S. E. 27). It was error for the court to dismiss the certiorari on this ground.

2. Upon the hearing of a writ of certiorari, where it appeared from the evidence introduced in support of a motion to dismiss the writ that, between the time of the sanction of the certiorari and the time of the service of notice, counsel for plaintiff in certiorari “was sick part of the time, and counsel for defendant in certiorari was in Atlanta part of the time,” and that for this reason the notice of sanction was not served within the time provided in the Code, § 19-212, the reason given for the delay of the service not amounting to unavoidable cause, and not showing that counsel for the plaintiff in certiorari used due diligence, it was error for the court to refuse to dismiss the certiorari on motion. DeVane v. Williams, 49 Ga. App. 82 (174 S. E. 184).

Judgment reversed on both bills of exceptions.

Stephens, P. J., md Sutton, J., concur.

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3 S.E.2d 111, 60 Ga. App. 157, 1939 Ga. App. LEXIS 529, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brooks-v-ivy-h-smith-construction-co-gactapp-1939.

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