Gillespie v. Mayor of Macon

Court of Appeals of Georgia

Gillespie v. Mayor of Macon

90 S.E. 970, 19 Ga. App. 1, 1916 Ga. App. LEXIS 2

CourtCourt of Appeals of Georgia

DecidedNovember 16, 1916

Docket7827

StatusPublished

Cited by40 cases

This text of 90 S.E. 970 (Gillespie v. Mayor of Macon) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gillespie v. Mayor of Macon, 90 S.E. 970, 19 Ga. App. 1, 1916 Ga. App. LEXIS 2 (Ga. Ct. App. 1916).

Pincite

Opinion

Broyles, J.

One of tbe mandatory requirements of the statute providing how a writ of certiorari to review the judgment of a police or recorder’s court can be obtained (Acts of 1902, p. 105; Park’s Ann. Code, § 5191 (a)) is that the accused, after his conviction, shall file with the clerk of the court (if it has a clerk) a bond, payable, etc., and conditioned, etc., with surety acceptable to and approved by the said clerk. In this ease, in which it was [2]*2sought to review by certiorari a judgment of the recorder's court of Macon, there is no allegation, either in the bill of exceptions or in the petition for certiorari, that the defendant had filed any bond with the clerk of the recorder’s court of Macon, or that any bond had been approved and accepted by the clerk. The mere fact that “a bond” was specified in the bill of exceptions as a material part of the record to be sent up to this court, and that there is attached to the bill of exceptions what purports to be a copy of a certiorari bond in the case referred to, and that it appears from this copy that this bond was approved by the clerk of the recorder’s court of Macon, is not sufficient. Johns v. Tifton, 122 Ga. 734 (50 S. E. 941), and Veazey v. Crawfordville, 126 Ga. 89 (54 S. E. 817). All the essential facts as to the giving of the bond, its approval by the proper officer, etc., its condition, etc., should be affirmatively alleged in the petition for certiorari, and, in addition, a certified copy of the bond should be attached to the petition, together with a certificate from the clerk of the court (if there be a clerk), verifying the allegations in the petition that the bond has been approved and accepted by said clerk. Hubert v. Thomasville, 18 Ga. App. 756 (90 S. E. 720). Unless all of these things are done, the certiorari should not be sanctioned, and, if sanctioned, should be dismissed on the hearing, as a petition for certiorari can in no case be amended. This ruling is not in conflict with Stallworth v. Macon, 125 Ga. 250 (54 S. E. 142), for in that case the petition for certiorari distinctly alleged that “petitioner has filed with the clerk of said recorder’s court a bond, approved by the said clerk, . . and said bond accepted by said clerk of said recorder’s court.” As the mandatory provisions of the statute were not complied with in this case, the certiorari should not have been sanctioned. The judge of the superior court, however, having sanctioned it, committed no error in overruling and dismissing it after a hearing upon its merits. It does not appear in the judgment of dismissal for what reason the certiorari was overruled, but, as the judgment of dismissal was correct, it should nevertheless be affirmed. Memmler v. State, 75 Ga. 576 (1a); Kendricks v. Millen, 16 Ga. App. 273 (3), 277, 278 (85 S. E. 264); Flynn v. East Point, 18 Ga. App. 729 (90 S. E. 372). Judgment affirmed.

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Broyles, J.

One of tbe mandatory requirements of the statute providing how a writ of certiorari to review the judgment of a police or recorder’s court can be obtained (Acts of 1902, p. 105; Park’s Ann. Code, § 5191 (a)) is that the accused, after his conviction, shall file with the clerk of the court (if it has a clerk) a bond, payable, etc., and conditioned, etc., with surety acceptable to and approved by the said clerk. In this ease, in which it was [2]*2sought to review by certiorari a judgment of the recorder's court of Macon, there is no allegation, either in the bill of exceptions or in the petition for certiorari, that the defendant had filed any bond with the clerk of the recorder’s court of Macon, or that any bond had been approved and accepted by the clerk. The mere fact that “a bond” was specified in the bill of exceptions as a material part of the record to be sent up to this court, and that there is attached to the bill of exceptions what purports to be a copy of a certiorari bond in the case referred to, and that it appears from this copy that this bond was approved by the clerk of the recorder’s court of Macon, is not sufficient. Johns v. Tifton, 122 Ga. 734 (50 S. E. 941), and Veazey v. Crawfordville, 126 Ga. 89 (54 S. E. 817). All the essential facts as to the giving of the bond, its approval by the proper officer, etc., its condition, etc., should be affirmatively alleged in the petition for certiorari, and, in addition, a certified copy of the bond should be attached to the petition, together with a certificate from the clerk of the court (if there be a clerk), verifying the allegations in the petition that the bond has been approved and accepted by said clerk. Hubert v. Thomasville, 18 Ga. App. 756 (90 S. E. 720). Unless all of these things are done, the certiorari should not be sanctioned, and, if sanctioned, should be dismissed on the hearing, as a petition for certiorari can in no case be amended. This ruling is not in conflict with Stallworth v. Macon, 125 Ga. 250 (54 S. E. 142), for in that case the petition for certiorari distinctly alleged that “petitioner has filed with the clerk of said recorder’s court a bond, approved by the said clerk, . . and said bond accepted by said clerk of said recorder’s court.” As the mandatory provisions of the statute were not complied with in this case, the certiorari should not have been sanctioned. The judge of the superior court, however, having sanctioned it, committed no error in overruling and dismissing it after a hearing upon its merits. It does not appear in the judgment of dismissal for what reason the certiorari was overruled, but, as the judgment of dismissal was correct, it should nevertheless be affirmed. Memmler v. State, 75 Ga. 576 (1a); Kendricks v. Millen, 16 Ga. App. 273 (3), 277, 278 (85 S. E. 264); Flynn v. East Point, 18 Ga. App. 729 (90 S. E. 372). Judgment affirmed.

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Bluebook (online)

90 S.E. 970, 19 Ga. App. 1, 1916 Ga. App. LEXIS 2, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gillespie-v-mayor-of-macon-gactapp-1916.

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