Henry v. American Railway Express Co.

104 S.E. 16, 25 Ga. App. 646, 1920 Ga. App. LEXIS 128

Opinion

Stephens, J.

1. The answer to the writ of certiorari not having been filed at the term to which it was returnable, and no order having been taken directing the magistrate to answer, the petition for certiorari should, upon this ground, on motion of the defendant in certiorari, have been dismissed. High v. Georgia Railway & Power Co., 12 Ga. App. 505 (77 S. E. 588). This is true although the answer was filed before the case was reached in its order for a hearing, and notwithstanding there was a local practice of permitting such delay in the filing of answers to writs of certiorari.

2. A certificate by the magistrate admitting the truth of the allegations in the petition for certiorari, which is entered upon or attached to the petition before the petition has been sanctioned or the writ of certiorari has been issued, cannot be considered as an answer to the writ of certiorari. The magistrate has no authority to answer a certiorari until after -the issuance of the writ.

3. It was' error to overrule the motion to dismiss the certiorari.

Judgment reversed.

Jenkins, P. J., and Smith, J., concur.