Mayor of Macon v. Shaw

14 Ga. 162

• Court: Supreme Court of Georgia
• Decided: August 15, 1853
• Docket: No. 24
• Status: Published

Opinion

By the Court.

Nisbet, J.,

delivering the opinion.

[1.] The defendant joins issue with a protest against the right of the plaintiff to be heard, on the ground that a writ of error does not lie to an order of the Judge of the Superior Court, granting a certiorari. .This question came before this Court, in Van Ness vs. Cheeseborough, Stearns & Co., in the precise form that it assumes here; and the writ of error was dismissed. The mere granting the certiorari, decides nothing, but that the record shall be sent up. A writ of error, on the allowance of the writ, is premature. It may be, that when the grounds of error, set forth in the petition for certiorari are heard, (and they cannot be heard until the record is sent up,) the present plaintiff in error will have no cause of complaint.— As yet, nothing is determined against him — as yet, no judgment, final as to the cause, or final as to the immediate subject-matter, has been pronounced. The protest, therefore, so far as regards that part of the Judge’s order, which sanctions the certiorari is sustained; and the writ of error, as to that subject-matter is dismissed. (Carter & Wife vs. Buchanan, 2 Kelly, 338. Jones et al. vs. Dougherty, 11 Geo. R. 305. Van Ness vs. Cheeseborough, Stearns & Co., 11 Ga. R. 377.)

The order of the Judge was not limited, however, to a sanction of the certiorari, in the usual form. It was brought to review the proceedings of the Mayor and Council of the City of Macon, upon charges of mal-practice in office, and neglect of duty, brought against the Marshal of the City tíf MaJdón, the plaintiff in error. Upon the hearing of those charges, that body found him guilty, and ordered that he be removed from office ; and that an election be held on a day designated, for a Marshal of the city. When the certiorari was presented to Judge Powers, he passed an order that their proceedings be sent up for review; and that, in the meantime, Shaw, the Marshal, be restored to office ; and the Mayor and Council be restrained from holding a new election. The protest is not sustained as to the latter part of this order, re-instating the officer, and superceding the order of the Mayor and Council, for a new election. Eor we are satisfied that it does not fall within the principle upon which the protest is sustained, as to the former part of the order. It is a decision final as to the subject-matter — it is immediately operative in the revocation of the decision of the Mayor and Council. It is not a final judgment in the cause, it is true, as to the tenure of the office; but it is final as to the immediate effect which it works upon the judgment of the Court beloAY. As to that, this writ of error is properly before us, and we are to determine whether the Judge erred in his action or not. Council for the defendants in error, denies the jurisdiction of the Superior Court over the Mayor and Council of the City of Macon, by writ of certiorari. He insists that the plaintiff in error has mistaken his remedy.— This is a question of some difficulty — one upon which we are not fully satisfied; and we leave it, therefore, open for decision, when, if error, the cause reaches us on its general merits.

[2.] The order in question was erroneous. It is not questioned but that the allowance of a certiorari, operates as a supersedeas to farther proceedings on the record, which it brings up for review. And all proceeding on the record, after it is allowed and returned to the Court below, are illegal. This is the C. Law rule, and so far as regards certiorari’s to Justices of the Peace, it is made the rule by Statute in Georgia. (Cobb’s N. D. 520. Bacon’s Ab. title, certiorari.)

But the granting of a certiorari does not revoke a judgment executed or in process of execution. The effect of the writ, when allowed, is to stay all farihef action on the record; and its power cannot be extended by a special order of the Judge of the Superior Court. The record of a judgment consummated, is subject to review; yet, the judgment stands, until in due course reversed; and if reversed, the party is admitted to such rights as the Law gives him.

[3.] The remedy by certiorari is a legal remedy. The Judge in the exercise of the power to grant it, may not assume the functions of a Chancellor. Hence, it is settled at C. Law, that if a certiorari is not delivered until after a Sheriff has begun the enforcement of a process of execution, he may proceed.— The C. Law writ of error does not supercede an execution, if allowed after a Sheriff has levied. It would seem that in such case, a writ of venditioni exponas would be necessary to enable him to proceed; that being so, the principle is not altered. For the right to grant the writ of venditioni exponas yields the point, that the certiorari, or the writ of error, does not operate as a supersedeas. (Bacon’s Ab. title Certiorari. Meriton vs. Stephens, Willes R. 271. Cro. Elir. 597. 2 LaRaymond, 989.) The same doctrine is settled in New York. (Blanchard vs. Myers, 9 Johns. R. 66. Patchin vs. Mayor, &c., of Brookline, 13 Wend. 664. Kinnie vs. Whitford, 17 Johns. R. 34.) These cases are said to be overruled. (See The People vs. The New York Com. Pleas, 1 Wend. 81, and note by the reporter.) But are affirmed in Payfer vs. Bissel, 3 Hill N. Y. R. 239; and they do not go alone upon any Statutes of New York, but are really decided on the authority of cases determined at Common Law. See farther, Kingland vs. Could, 1 Halst. 161. Mairs vs Sparks, 2 South. 513. Case vs. Shepherd, 2 Johns. Cas. 27. Gardiner vs. Mundy, 4 Yeates, 560.

Let the judgment be reversed.