Evans v. Mayor of Forsyth

55 S.E. 490, 126 Ga. 589, 1906 Ga. LEXIS 478

• Court: Supreme Court of Georgia
• Decided: November 8, 1906
• Status: Published

Opinion

Lumpkin, J.

A petition for the writ of certiorari is to some extent analogous to a bill of exceptions. Bonds v. Berdett, 113 Ga. 114. The petition must be verified in the first instance by an affidavit; a bill of exceptions, by the certificate of the presiding judge. If a bill of exceptions states that it was presented and certified within thirty daj^s after the judgment, and is certified, this statement is taken as prima facie correct. If tile date of the judgment sent up in the record conflicts with this statement, the record controls. Merritt v. Gill, 59 Ga. 459; Southern Ry. Co. v. Flemister, 120 Ga. 524. Here the j>etition .for certiorari, duly verified and sanctioned, failed to state the exact date of the judgment excepted to, but did allege that the application was made within thirty days from the date of the judgment. The presiding judge dismissed the certiorari on the express ground that the petition did not show the date of the judgment. This was error. After the answer is filed, it controls and must be looked to for the facts of the case. Allegations in the petition must be verified by the answer, to be considered. Manning v. Mayor & Council of Gainesville, 125 Ga. 239. If no traverse should be filed to the answer, or if one should be filed and not be sustained, and such answer should show that the statement of the petition is erroneous, the answer would control. No answer was specified or sent up in the record. We are asked to have a transcript of it sent up now. But we deem it unnecessary to do so, as the judgment of the court shows that it was not based on the answer, but on the petition alone. We are also asked to require the presiding judge to certify as to certain statements or admissions claimed to have been orally made by counsel to him. But there is no provision of law for doing so.

Judgment reversed.

All the Justices concur.