Talley v. Commercial Credit Co.

Court of Appeals of Georgia

Talley v. Commercial Credit Co.

155 S.E. 907, 42 Ga. App. 337, 1930 Ga. App. LEXIS 395

CourtCourt of Appeals of Georgia

DecidedDecember 12, 1930

Docket20720

StatusPublished

This text of 155 S.E. 907 (Talley v. Commercial Credit Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Talley v. Commercial Credit Co., 155 S.E. 907, 42 Ga. App. 337, 1930 Ga. App. LEXIS 395 (Ga. Ct. App. 1930).

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Opinion

Stephens, J.

It is essential to the validity of a writ of certiorari, except to the court of ordinary, that the affidavit required to be filed with the petition contain an averment that “the petition for certiorari is not filed . . for the purpose of delay only.” Civil Code (1910), § 5184. Where the affidavit does not contain this averment, but on the contrary contains an averment that the petition for certiorari is “filed in the case for the purpose of delay only,” dismissal of the petition is proper. This is true notwithstanding the allegations of the petition are supported by the answer made by the judicial officer, or officers, whose decision or judgment is excepted to in the petition for certiorari. If [338]*338such an answer could, as was held in Taylor v. Gay, 20 Ga. 77, cure any defect or omission in the affidavit, the answer could not verify the applicant’s state of mind with respect to the purpose for which the petition for certiorari was filed. Velvin v. Austin, 109 Ga. 200 (34 S. E. 335). See also Hamilton v. Phenix Ins. Co., 107 Ga. 728 (33 S. E. 705); Veazey v. Crawfordville, 126 Ga. 89 (54 S. E. 817); Simpkins v. Johnson, 3 Ga. App. 437 (60 S. E. 202) ; Farley v. The State, 12 Ga. App. 643 (77 S. E. 1131); Roberts v. Selman, 34 Ga. App. 171 (128 S. E. 694).

Decided December 12, 1930. W. H. Terrell, for plaintiff in error. Frank Carter, J. N. Johnson, contra.

Judgment affirmed.

Jenkins, P. J., and Bell, J., concur.

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Stephens, J.

It is essential to the validity of a writ of certiorari, except to the court of ordinary, that the affidavit required to be filed with the petition contain an averment that “the petition for certiorari is not filed . . for the purpose of delay only.” Civil Code (1910), § 5184. Where the affidavit does not contain this averment, but on the contrary contains an averment that the petition for certiorari is “filed in the case for the purpose of delay only,” dismissal of the petition is proper. This is true notwithstanding the allegations of the petition are supported by the answer made by the judicial officer, or officers, whose decision or judgment is excepted to in the petition for certiorari. If [338]*338such an answer could, as was held in Taylor v. Gay, 20 Ga. 77, cure any defect or omission in the affidavit, the answer could not verify the applicant’s state of mind with respect to the purpose for which the petition for certiorari was filed. Velvin v. Austin, 109 Ga. 200 (34 S. E. 335). See also Hamilton v. Phenix Ins. Co., 107 Ga. 728 (33 S. E. 705); Veazey v. Crawfordville, 126 Ga. 89 (54 S. E. 817); Simpkins v. Johnson, 3 Ga. App. 437 (60 S. E. 202) ; Farley v. The State, 12 Ga. App. 643 (77 S. E. 1131); Roberts v. Selman, 34 Ga. App. 171 (128 S. E. 694).

Decided December 12, 1930. W. H. Terrell, for plaintiff in error. Frank Carter, J. N. Johnson, contra.

Judgment affirmed.

Jenkins, P. J., and Bell, J., concur.

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155 S.E. 907, 42 Ga. App. 337, 1930 Ga. App. LEXIS 395, Counsel Stack Legal Research, https://law.counselstack.com/opinion/talley-v-commercial-credit-co-gactapp-1930.

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