Singer Sewing Machine Co. v. Dacus & Co.

96 S.E. 8, 22 Ga. App. 297, 1918 Ga. App. LEXIS 313

• Court: Court of Appeals of Georgia
• Decided: May 14, 1918
• Docket: 9555
• Status: Published

Opinion

Broyles, P. J.

1. A certiorari which h%s been dismissed can be renewed within six months from the date of dismissal, unless the dismissal was upon the ground that no notice of the sanction of the certiorari and of the time and place of hearing was given to the opposite party, or unless for some reason the original petition was itself void. Citizens Banking Co. v. Paris, 119 Ga. 517 (46 S. E. 638); Bass v. Milledgeville, 121 Ga. 151 (48 S. E. 919); Veazey v. Crawfordville, 126 Ga. 89 (54 S. E. 817).

(а) Where there has been a failure to serve the opposite party with notice , of the sanction of the certiorari and of the time and place of hearing, that which was commenced as a good suit was never completed and perfected by service, and there was no suit to renew. Toole v. Davenport, 63 Ga. 161.

(б) To render a petition for certiorari void there (must be something inherently defective, in the petition itself'—something precedent to the issuance of the writ; as where the certiorari bond, or the pauper affidavit, was defective, or where the petition itself contained no sufficient assignment of error. Bass v. Milledgeville, supra.

2. Prom the foregoing ruling it follows that where a certiorari has been dismissed solely upon the ground that material'allegations in the petition were not verified by the answer of the trial magistrate, the eer-' tiorari could be renewed within six months from the date of its dismissal.

Judgment reversed.

Bloodworth and Harwell, JJ., concur.