Murray v. Bleckley

118 S.E. 600, 30 Ga. App. 592, 1923 Ga. App. LEXIS 538

Opinion

Broyles, C. J.

1. Rule 41 of the Supreme Court (Park’s Ann. Code, Supp., 1922, vol. 10, § 6259 (a) ), providing that “no decision of the Court of Appeals will be reviewed by certiorari, unless the applicant gives written notice to the clerk of the Court of Appeals, within 10 days after the filing of the judgment, of his intention to apply to the Supreme Court for a writ of certiorari,” is mandatory, and, properly construed, means that the applicant cannot have a decision of the Court of Appeals reviewed by certiorari unless notice of his intention to apply to the Supreme Court for the writ of certiorari actually reaches the clerk of the Court of Appeals within 10 days after the filing of the judgment complained of. The mailing of the notice within the 10 days is not sufficient. See, in this connection, Griffith v. Mitchell, 117 Ga. 476 (6), 477, 479 (43 S. E. 742).

Decided July 10, 1923. Eldon L. Bowen, for the applicant.

(a) When such a notice is received by the clerk of the Court of Appeals after the expiration of the 10 days, he is without authority to file it.

2. Under the above ruling and the facts of the instant case, the clerk of the Court of Appeals properly declined to file the notice of the applicant’s intention to apply to the Supreme Court for a writ of certiorari, and the petition for the issuance of a mandamus to compel the clerk to file the notice is denied.

Mandamus nisi denied.

Luhe and Bloodworth, JJ., eoneur.