Toliver v. Mayor of Wrightsville

Court of Appeals of Georgia

Toliver v. Mayor of Wrightsville

86 S.E. 823, 17 Ga. App. 345, 1915 Ga. App. LEXIS 409

CourtCourt of Appeals of Georgia

DecidedNovember 5, 1915

Docket6846

StatusPublished

Cited by6 cases

This text of 86 S.E. 823 (Toliver v. Mayor of Wrightsville) 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

Toliver v. Mayor of Wrightsville, 86 S.E. 823, 17 Ga. App. 345, 1915 Ga. App. LEXIS 409 (Ga. Ct. App. 1915).

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Opinion

Wade, J.

The act of 1902 (Acts 1902, p. 105) declares, as a condition precedent, that where one seeks to review the judgment of a municipal court, he shall file with the clerk of said court, and if there be no clerk, with the judge thereof, a bond (unless such defendant is unable from his poverty to give such bond) conditioned for the personal appearance of the defendant to abide the final order, judgment, etc., of the said court. In this case it does not affirmatively appear in the petition for certiorari itself that the petitioner had filed a bond as required by the statute, acceptable to and approved by the clerk of the municipal court. The recital therein that the petition for certiorari was presented “within 10 days from the date of trial, petitioner having complied with the requirements of law in such cases,” states a conclusion only, and not the essential substantive facts. The law requires either an affidavit in forma pauperis or a bond approved by the clerk, ' and it does not appear that- either condition precedent was complied with, and therefore the judge of the superior court did not err in refusing the writ. Johns v. Tifton, 122 Ga. 734 (50 S. E. 941); Stallworth v. Macon, 125 Ga. 250 (54 S. E. 142); Veazey v. Crawfordville, 126 Ga. 89 (54 S. E. 817); Sims v. Atlanta, 6 Ga. App. 802 (65 S. E. 841); McDonald v. Ludowici, 3 Ga. App. 654 (60 S. E. 337); Simon v. Savannah, 4 Ga. App. 171 (60 S. E. 1036); Kendricks v. Millen, 16 Ga. App. 273 (85 S. E. 264). Judgment affirmed.

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Wade, J.

The act of 1902 (Acts 1902, p. 105) declares, as a condition precedent, that where one seeks to review the judgment of a municipal court, he shall file with the clerk of said court, and if there be no clerk, with the judge thereof, a bond (unless such defendant is unable from his poverty to give such bond) conditioned for the personal appearance of the defendant to abide the final order, judgment, etc., of the said court. In this case it does not affirmatively appear in the petition for certiorari itself that the petitioner had filed a bond as required by the statute, acceptable to and approved by the clerk of the municipal court. The recital therein that the petition for certiorari was presented “within 10 days from the date of trial, petitioner having complied with the requirements of law in such cases,” states a conclusion only, and not the essential substantive facts. The law requires either an affidavit in forma pauperis or a bond approved by the clerk, ' and it does not appear that- either condition precedent was complied with, and therefore the judge of the superior court did not err in refusing the writ. Johns v. Tifton, 122 Ga. 734 (50 S. E. 941); Stallworth v. Macon, 125 Ga. 250 (54 S. E. 142); Veazey v. Crawfordville, 126 Ga. 89 (54 S. E. 817); Sims v. Atlanta, 6 Ga. App. 802 (65 S. E. 841); McDonald v. Ludowici, 3 Ga. App. 654 (60 S. E. 337); Simon v. Savannah, 4 Ga. App. 171 (60 S. E. 1036); Kendricks v. Millen, 16 Ga. App. 273 (85 S. E. 264). Judgment affirmed.

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86 S.E. 823, 17 Ga. App. 345, 1915 Ga. App. LEXIS 409, Counsel Stack Legal Research, https://law.counselstack.com/opinion/toliver-v-mayor-of-wrightsville-gactapp-1915.

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