Outlaw v. Christy

43 Ga. 269

• Court: Supreme Court of Georgia
• Decided: July 15, 1871
• Status: Published

Opinion

McCay, Judge.

It is true that the provisions of sections 3978 to 3988 of the Code were enacted when oertiorari was a matter of right, and was issued by the Clerk of the Superior Court, on the petition of the applicant. That such a petition should be verified and bond given, was very important. But is it any less so now ? If the party may state anything he pleases in the petition, the sanction of the Judge gives no new security; for if the applicant seeks delay he will state facts enough to secure the sanction, whether they be true or not. The object of the Constitution was, doubtless, to stop the practice of obtaining certioraris as matter of course, and it hence requires the sanction of the Judge. But we see no ground for holding that the affidavit of the truth of the facts, and the bond, etc., are not still required. That part of the affidavit which swears that the applicant is informed and believes he has good cause for certiorari, may, perhaps, be now unnecessary, as that is for the Judge and not the party to say. But we think he must still swear to the facts. The certificate appended in this case by the magistrate, that the facts are true, is not required or authorized by law, and is, therefore, unofficial. The return or certificate of an officer, that certain facts exists, must, to be evidence, be official; that is such a return or certificate as the law provides for, otherwise it is no better than the certificate of a mere citizen. We think the certiorari was properly dismissed.

Judgment affirmed.