Hartsfield Co. v. Luddy

Court of Appeals of Georgia

Hartsfield Co. v. Luddy

165 S.E. 452, 45 Ga. App. 507, 1932 Ga. App. LEXIS 581

CourtCourt of Appeals of Georgia

DecidedAugust 31, 1932

Docket22318

StatusPublished

Cited by1 cases

This text of 165 S.E. 452 (Hartsfield Co. v. Luddy) 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

Hartsfield Co. v. Luddy, 165 S.E. 452, 45 Ga. App. 507, 1932 Ga. App. LEXIS 581 (Ga. Ct. App. 1932).

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Opinion

Bboxles, O. J.

1. While, “under the provisions of section 5185 of the Civil Code (1910), it is the general rule that before any writ of certiorari shall issue, the party applying for the same shall give bond and security for all future costs and the eventual condemnation money, payable to the adverse party, and if he fails so to do the superior court does not acquire jurisdiction of the case” (Metropolitan Life Ins. Co. v. Monroe, 26 Ga. App. 332, 106 S. E. 209), yet the general rule does not apply in its entirety in a cause where there is no eventual condemnation money in the case. In such a suit, where the plaintiff in certiorari has paid the accrued costs and given a.bond providing for the payment of all future costs (but not providing for the payment of the eventual condemnation money), he has substantially complied with the statute. Holton v. Hendley, 75 Ga. 847.

2. In the instant case the plaintiff sued the defendant in the municipal court of Atlanta upon a cheek for money had and received, and upon the trial a general judgment was rendered in favor of the defendant. The plaintiff obtained a writ of certiorari from the superior court, and upon the hearing the certiorari was dismissed on the ground that the bond executed by the plaintiff in certiorari was not the bond required by the statute, in that while it provided for the payment of all future costs, it did not provide also for the payment of the eventual condemnation money. In this case the defendant had no counter-claim against the plaintiff, and there was no possibility of the plaintiff’s being mulcted for any eventual condemnation money. Therefore, as in the Holton case, supra, there is no eventual condemnation money in the case, and the [508]*508bond given was a substantial compliance with the statute. The court erred in dismissing the certiorari.

Decided August 31, 1932. Mose 8. Hayes, for plaintiff. William, T. Dean, Waller Erie Daley, for defendant.

Judgment reversed.

Luke and Hooper, JJ., concur.

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Bboxles, O. J.

1. While, “under the provisions of section 5185 of the Civil Code (1910), it is the general rule that before any writ of certiorari shall issue, the party applying for the same shall give bond and security for all future costs and the eventual condemnation money, payable to the adverse party, and if he fails so to do the superior court does not acquire jurisdiction of the case” (Metropolitan Life Ins. Co. v. Monroe, 26 Ga. App. 332, 106 S. E. 209), yet the general rule does not apply in its entirety in a cause where there is no eventual condemnation money in the case. In such a suit, where the plaintiff in certiorari has paid the accrued costs and given a.bond providing for the payment of all future costs (but not providing for the payment of the eventual condemnation money), he has substantially complied with the statute. Holton v. Hendley, 75 Ga. 847.

2. In the instant case the plaintiff sued the defendant in the municipal court of Atlanta upon a cheek for money had and received, and upon the trial a general judgment was rendered in favor of the defendant. The plaintiff obtained a writ of certiorari from the superior court, and upon the hearing the certiorari was dismissed on the ground that the bond executed by the plaintiff in certiorari was not the bond required by the statute, in that while it provided for the payment of all future costs, it did not provide also for the payment of the eventual condemnation money. In this case the defendant had no counter-claim against the plaintiff, and there was no possibility of the plaintiff’s being mulcted for any eventual condemnation money. Therefore, as in the Holton case, supra, there is no eventual condemnation money in the case, and the [508]*508bond given was a substantial compliance with the statute. The court erred in dismissing the certiorari.

Decided August 31, 1932. Mose 8. Hayes, for plaintiff. William, T. Dean, Waller Erie Daley, for defendant.

Judgment reversed.

Luke and Hooper, JJ., concur.

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Bluebook (online)

165 S.E. 452, 45 Ga. App. 507, 1932 Ga. App. LEXIS 581, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hartsfield-co-v-luddy-gactapp-1932.

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