Chisholm v. Cofer

448 S.E.2d 369, 264 Ga. 512, 1994 Ga. LEXIS 813

Opinion

Per curiam.

Chisholm presented a pro se petition for writ of mandamus and affidavit of indigency, asking the superior court to compel a magistrate to issue an arrest warrant against an individual for false swearing in a notary public application. He appeals from an order denying the filing of the writ of mandamus for failure to state a claim for relief. See OCGA § 9-15-2 (d).

A magistrate has discretion to determine whether or not probable cause exists for the issuance of an arrest warrant based on his own knowledge or on the information of others given to him under oath. OCGA § 17-4-40. Mandamus is an extraordinary remedy which will not issue to compel a public officer to perform a discretionary act, unless a gross abuse of such discretion has been shown. OCGA § 9-6-21 (a); Jersawitz v. Bodiford, 258 Ga. 829 (377 SE2d 502) (1989); Clear Vision CATV v. Mayor of Jesup, 225 Ga. 757 (171 SE2d 505) (1969). The magistrate court exercised its discretion in refusing to issue the arrest warrant. No abuse of that discretion has been shown. Since the writ of mandamus does not lie, it was not error to deny its filing.

Decided October 3, 1994. Hugh S. Chisholm, Sr., pro se. Dunaway & Wallace, Roger W. Dunaway, Jr., for appellee. '

Cofer’s motion for frivolous appeal penalty is denied.

Judgment affirmed.

All the Justices concur.