Stallworth v. Mayor of Macon

54 S.E. 142, 125 Ga. 250, 1906 Ga. LEXIS 113

• Court: Supreme Court of Georgia
• Decided: May 10, 1906
• Status: Published

Opinion

Fisi-i, C. J.

(After stating the facts.) Under the act approved December 10, 1902 (Acts 1902, p. 105), any one who seeks a writ of certiorari to review and correct a judgment of any municipal court in this State shall file with the clerk of such court, o.r, if no clerk, with the judge thereof, a bond payable to the municipality under which the court exists, in amount and with surety acceptable to and approve^! by the clerk or judge as the case may be, conditioned for the personal appearance of the defendant to abide the final order, judgment, or sentence of such court, or of the superior court, in the case; unless such defendant be unable from his poverty to give the bond, in which case he shall make the same appear by affidavit, and the judge- of the superior court shall, in granting the writ of certiorari, order a supersedeas. “The filing of the bond or making of the pauper affidavit is a condition precedent to the application for certiorari, and the filing of the bond together with the approval of the clerk or judg;e, or the making of the pauper affidavit; must affirmatively appear in the application for the writ.” Johns v. Tifton, 122 Ga. 734. In the case cited a judge of the superior court refused to sanction a petition for certiorari-seeking to review a judgment of a police court; and no mention of a bond was made in the petition. In the certificate to the bill of exceptions the judge directed the clerk of the superior court to transmit with the bill of exceptions a “copy of certiorari bond,” and there came to this court, with the bill of exceptions, a copy of a certiorari bond, which was “for the payment of the eventual condemnationmone3q together with all costs.” This court affirmed the judgment of the judge of the superior court refusing to sanction the petition for certiorari, and ruled as above quoted, and further, that “a bond conditioned to pay the eventual eondemnation-mone3>’ is not such a bond as the statute prescribes.” In the case now under consideration it does affirmatively appear, in the petition for certiorari, that the petitioner had filed a bond as required by the statute, acceptable to and approved by the clerk of the recorder’s court; and the allegation of the petition to this effect was verified by the oath of the petitioner. Upon this evidence in the verified petition, as to compliance with the statute in giving the bond, the judge of the superior court sanctioned the petition for certiorari and ordered the writ to issue. We think his action was authorized by the evidence before him, and, even if the answer of the recorder, verifying the petition in respect to the filing of the bond) be not considered, that the court erred in dismissing the certiorari, without proof that the bond had not been given as required by law.

Judgment reversed.

All the Justices concur, except Beck, J., absent.