Sirmans, Morris & Co. v. Zucker Importing Co.

72 S.E. 190, 9 Ga. App. 789, 1911 Ga. App. LEXIS 329

Opinion

Russell, J.

1. When a certiorari comes on for hearing, the recitals of the petition are not to be taken as true, unless verified by the answer or by the record sent up in connection therewith. Taft Co. v. Smith, 112 Ga. 196 (1), (37 S. E. 424) ; Landrum v. Moss, 1 Ga. App. 216 (57 S. E. 965). The rule applicable in cases of refusal to sanction a petition, that the allegations of the petition are to be taken as true (see Green v. State, 4 Ga. App. 261, 61 S. E. 234; Hood v. State, 4 Ga. App. 847, 62 S. E. 570; Bush v. Roberts, 4 Ga. App. 531, 62 S. E. 92), does not apply when the case comes on for final hearing.

2. It is proper to dismiss a certiorari where, after the answer is in, it does not affirmatively appear that the writ was applied for within thirty days from the final determination of the case in the magistrate’s court. Aliunde proof is not admissible to show that the writ of certiorari was applied for within the time prescribed. Landrum v. Moss, 1 Ga. App. 216 (1, 4), (57 S. E. 965). Judgment affirmed.

Decided September 30, 1911.

Certiorari; from Coffee superior court — Judge Parker. October 20, 1910.

O’Bleen & Wallace, for plaintiffs in error. B. T. Allen, contra.