DeVane v. Williams

174 S.E. 184, 49 Ga. App. 82, 1934 Ga. App. LEXIS 269

Opinion

GKjerry, J.

By section 5190 of the Civil Code (1910) ten days’ notice is required to be given to the opposite party in interest, his agent or attorney, of the sanction of the writ of certiorari, and failure to comply with this requirement will cause a dismissal of the petition. This section is applicable to a certiorari in a ease from a justice’s court. Sparks v. Burgheim, 44 Ga. 168. When it is made to appear to the court that this section has not been complied with, it is mandatory for the court to dismiss the certiorari. Walker v. District Grand Lodge, 15 Ga. App. 644 (83 S. E. 1101). It having been shown to the court that the notice of sanction was not served on the opposite party ten days before the sitting of the court, and said notice not having been waived, it was mandatory upon the court to dismiss the writ, and any determination of any other question, such as a traverse to the justice’s answer would have been nugatory. McConnell v. Folsom, 4 Ga. App. 535 (61 S. E. 1051). Judgment affirmed.

Broyles, G. J., and MacIntyre, J., concur.