Delinski v. Dunn

80 S.E.2d 163, 210 Ga. 361, 1954 Ga. LEXIS 298

Opinion

■Duckworth, Chief Justice.

This is the fourth appearance of this case in this court, the others being Delinski v. Dunn, 206 Ga. 825 (59 S. E. 2d 248); s. c., 207 Ga. 723 (64 S. E. 2d 44); s. c., 209 Ga. 402 (73 S. E. 2d 171). The judgment here excepted to is one where the judge of the Superior Court of McDuffie County, on certiorari, reversed a judgment of the ordinary in a habeas corpus proceeding brought by Delinski, a State prisoner, which was rendered by .default under Code § 38-803 because of the alleged failure to properly respond to a motion to produce the prison records of the petitioner. The foregoing Code section has no application whatever in a habeas corpus proceeding; and, as held by this court in Solesbee v. Balkcom, 207 Ga. 352 (61 S. E. 2d 471), in such proceedings the burden is on the petitioner to prove the alleged grounds of illegal detention. In the absence of such proof here, the judgment ordering his release from custody was erroneous, and the court did not err in sustaining the certiorari and remanding the case to the ordinary for another hearing.

Judgment affirmed.

All the Justices concur.