Clegg v. City of Vidalia

87 S.E.2d 362, 91 Ga. App. 852, 1955 Ga. App. LEXIS 886

Opinion

Gardner, P. J.

1. Where it affirmatively appears, from the allegations of a petition for the writ of certiorari from the Recorder’s Court of the City of Vidalia to the Superior Court of Toombs County, and from the certificate of the recorder thereto attached, that the defendant has made “a bond as required by law, conditioned that, should said defendant personally be and appear to abide the final judgment, order and sentence upon him in said case, then the bond to be void, otherwise, of full force and effect”—this is sufficient to cause it to affirmatively appear that the bond required by Code § 19-214 has in fact been made. Stallworth v. Mayor &c. of Macon, 125 Ga. 250 (54 S. E. 142); Rice v. City of Moultrie, 10 Ga. App. 454 (73 S. E. 585); Cannon v. Mayor &c. of Americus, 11 Ga. App. 95 (74 S. E. 701). These cases being the oldest, and therefore controlling, authority, anything to the contrary in Skipper v. Mayor &c. of Brunswick, 29 Ga. App. 185 (114 S. E. 725), Gillespie v. Mayor &c. of Macon, 19 Ga. App. 1 (90 S. E. 970), or Moon v. City of Atlanta, 37 Ga. App. 607 (141 S. E. 318), to the effect that a petition for certiorari should be dismissed for failure to attach thereto a certified copy of the bond, where the requisite information concerning the same otherwise affirmatively appears from the petition and exhibits thereto, is not a binding precedent on this court and must be disapproved.

2. If, however, the action of the judge of the superior court in dismissing the writ is proper for any reason, the judgment of dismissal must be affirmed. In the present case it affirmatively appears from the certificate of the Recorder that the bond in question was approved and accepted by him as Recorder and not by the Clerk of the Recorder’s Court. Under the charter of the City of Vidalia, the Clerk of the City of Vidalia is ex-officio Clerk of the Recorder’s Court. (Ga. L. 1922, pp. 1004, 1028, § 16). As stated in East Point Ford Co. v. City of East Point, 90 Ga. App. 409 (83 S. E. 2d 248): “Where ... it appears that, instead of being approved by the clerk of the recorder’s court . . . the supersedeas-appearance bond attached to the petition was approved by the recorder, the bond is defective, and a valid bond being a condition precedent to the superior court’s jurisdiction of a petition for certiorari, the superior court did not err in dismissing the petition even though the ground for doing so was not the one here stated. Griffin v. City of Albany, 88 Ga. App. 229 (76 S. E. 2d 436), and citations.”

Townsend and Carlisle, JJ., concur. Decided April 18, 1955. James E. Findley, for plaintiff in error. William T. Darby, contra.

The judge of the superior court did not err in dismissing the petition for certiorari.

Judgment affirmed.