Redd v. Dure

40 Ga. 389

• Court: Supreme Court of Georgia
• Decided: December 15, 1869
• Status: Published

Opinion

McCay, J.

This was a judgment of an Ordinary, during term time, with both parties, pro and con, before him, granting temporary letters of administration. Will a writ of certiorari lie? The Constitution provides that the Superior Court shall have power by writ of certiorari to correct the errors of inferior tribunals: Constitution, art. 5, sec. 3, par. 2. It is true, the Code, section 3977, provides that the writ shall not lie in cases touching the probate of wills and granting letters testamentary and of administration. Another remedy, by way of appeal to the Superior Court, is provided, (Code, sec. 3553,) but this last section expressly excepts orders appointing temporary administrators. So that, by the" Code, there is no remedy directly provided, unless a judgment granting temporary letters is not “a case touching the granting letters of administration.” But the Constitution gives the Superior Court this jurisdiction, and that Court may exercise it, notwithstanding there is no reiteration of the power in the Code.

In ordinary cases, temporary letters are granted by the Clerk or by the Ordinary as Clerk, (Code, section 377,) and perhaps no certiorari lies from the judgment of the Clerk, as' he is a mere ministerial officer, and in this acts as' a matter of course. But here was a judgment by the Ordinary, during term time,’ on an issue with contesting parties, and we see no way to deny the right to certiorari but to deny a constitutional right.

Perhaps the true solution of the conflict is to draw a distinction between a temporary administrator proper, and an administrator pendente lite. The former' is granted by the Clerk, only lasting until the next term of the Court of Ordinary, when letters are granted, and the latter is either granted by the Ordinary after a suit-or contest has commenced, at term, or continued by him to last until the suit is decided. This was the old law. At any rate, we think the Constitution gives the right when the letters are granted by the Ordinary during term time, with,parties contesting, and they intended to hold until the contest over the permanent letters is ended. And on this ground we reverse the judgment of the Court below. Judgment reversed.