Flynn v. City of East Point

90 S.E. 372, 18 Ga. App. 729, 1916 Ga. App. LEXIS 1224

Opinion

Bkoyi.es, J.

When one who has been convicted in a recorder’s or mayor’s court of the violation of a municipal ordinance seeks to review the judgment against him, he must either make an affidavit in forma pauperis, or give a bond conditioned for his personal appearance to abide the final order, judgment, or sentence in the case. When the affidavit is not made, and such a bond is not given, the certiorari should not be sanctioned, or, if sanctioned, should be dismissed. Scott v. Camilla, 7 Ga. App. 689 (67 S. E. 846); Moon v. Jefferson, 10 Ga. App. 572 (73 S. E. 854). In this case the bond, instead of being conditioned for the personal appearance of the defendant to abide the final order, judgment, or sentence in the case, merely recited that the principal and surety acknowledged themselves bound to the municipality “for the eventual condemnation money and all future costs in said case, for the payment of which they bind themselves, their heirs, executors, and administrators firmly by these presents.” This was not' such a bond as is required by the statute (Acts 1902, p. 105; Park’s Ann. Code, § 5191 a); and therefore the petition for certiorari was properly overruled by the judge of the superior court. It is immaterial that the judgment does not show why the petition was overruled. Even if it had appeared that the certiorari was dismissed for some other reason, which was erroneous, the judgment of dismissal should nevertheless be affirmed. Memmler v. State, 75 Ga. 576 (l-a); Kendricks v. Millen, 16 Ga. App. 273 (3), 277, 278 (85 S. E. 264). Judgment affirmed.

Decided October 24, 1916.

Certiorari; from Fulton, superior court — Judge Pendleton. May-25, 1916.

Clarkson & Sullivan, Thomas J. Lewis, for plaintiff in error. Guy Parker, contra.