McGee v. Lowry National Bank

72 S.E. 67, 9 Ga. App. 668, 1911 Ga. App. LEXIS 289

Opinion

Rtjssell, J.

1. As to certiorari cases the Civil Code (1910), § 5190, provides: “The plaintiff in certiorari shall cause written notice to be given to the opposite party in interest, his agent, or attorney, of the sanction of the writ of certiorari, and also the time and place of hearing, at least ten days before the sitting of the court to which the same shall be returnable, and in default of such notice (unless prevented, by unavoidable cause) the certiorari shall be dismissed.”

2. Acknowledgment of service or waiver of service is a courtesy which the law does not compel, and failure to serve the notice required by the foregoing code section is not excused by the refusal of counsel for the defendant in certiorari either to waive or to acknowledge service of the notice. The fact that counsel for defendant in error has actual parol notice of the sanction of the certiorari and of the time and place of the hearing makes no difference. Frank v. May, 86 Ga. 659, 661 (13 S. E. 19). Judgment affirmed.