Shirley v. Gardner

Supreme Court of Georgia

Shirley v. Gardner

127 S.E. 855, 160 Ga. 338, 1925 Ga. LEXIS 152

CourtSupreme Court of Georgia

DecidedApril 18, 1925

DocketNo. 4748

StatusPublished

Cited by7 cases

This text of 127 S.E. 855 (Shirley v. Gardner) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Shirley v. Gardner, 127 S.E. 855, 160 Ga. 338, 1925 Ga. LEXIS 152 (Ga. 1925).

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Opinion

Hines, J.

1. The office of the writ of prohibition is to restrain subordinate courts and inferior judicial tribunals from exceeding their jurisdiction, so that each tribunal shall confine itself to the exercise of those powers with which, under the constitution and laws of the State, it has been entrusted. This writ lies “to arrest illegal proceedings by any court officer, where no other legal remedy or relief is given.” Civil Code (1910), § 5458; Doughty v. Walker, 54 Ga. 595; Seymour v. Almond, 75 Ga. 112; 32 Cyc. 598. The language of section 5450 of the Civil Code, that this writ will “lie to all other executive. or military officers,” means when they are acting as a judicial or quasi-judicial tribunal.

2. In hearing and determining a contest of a municipal election the ordinary does not act in a judicial or quasi-judicial capacity. Seymour v. Almond, supra; Carter v. Janes, 96 Ga. 280 (23 S. E. 201); Tupper v. Dart, 104 Ga. 179 (30 S. E. 624); Cutts v. Scandrett, 108 Ga. 620 (34 S. E. 186); Harris v. Sheffield, 128 Ga. 299 (57 S. E. 305).

3. Applying the above principles, the trial judge erred in not dismissing the application for this writ.

Judgment reversed.

All the Justices concur. J. P. Broolce, for plaintiffs in error. George F. Gober and G. B. Walicer, contra.

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Hines, J.

1. The office of the writ of prohibition is to restrain subordinate courts and inferior judicial tribunals from exceeding their jurisdiction, so that each tribunal shall confine itself to the exercise of those powers with which, under the constitution and laws of the State, it has been entrusted. This writ lies “to arrest illegal proceedings by any court officer, where no other legal remedy or relief is given.” Civil Code (1910), § 5458; Doughty v. Walker, 54 Ga. 595; Seymour v. Almond, 75 Ga. 112; 32 Cyc. 598. The language of section 5450 of the Civil Code, that this writ will “lie to all other executive. or military officers,” means when they are acting as a judicial or quasi-judicial tribunal.

2. In hearing and determining a contest of a municipal election the ordinary does not act in a judicial or quasi-judicial capacity. Seymour v. Almond, supra; Carter v. Janes, 96 Ga. 280 (23 S. E. 201); Tupper v. Dart, 104 Ga. 179 (30 S. E. 624); Cutts v. Scandrett, 108 Ga. 620 (34 S. E. 186); Harris v. Sheffield, 128 Ga. 299 (57 S. E. 305).

3. Applying the above principles, the trial judge erred in not dismissing the application for this writ.

Judgment reversed.

All the Justices concur. J. P. Broolce, for plaintiffs in error. George F. Gober and G. B. Walicer, contra.

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Bluebook (online)

127 S.E. 855, 160 Ga. 338, 1925 Ga. LEXIS 152, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shirley-v-gardner-ga-1925.

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