Veal v. Eagle Fire Insurance

120 S.E.2d 674, 103 Ga. App. 757, 1961 Ga. App. LEXIS 1054

• Court: Court of Appeals of Georgia
• Decided: May 12, 1961
• Docket: 38837
• Status: Published

Opinion

Townsend, Presiding Judge.

1. Under Code § 19-206 it is necessary that in all applications for certiorari in civil cases bond be given in an amount approved by the trial' judge and that such judge certify under his own signature that the '‘•bond has been approved and that the costs have been paid; otherwise the certiorari is void. Hester v. Keller, 74 Ga. 369; Dykes v. Twiggs County, 115 Ga. 698 (42 S. E. 36); Southern Ry. Co. v. Oliver, 13 Ga. App. 5 (78 S. E. 684); Georgian Co. v. Sutton, 18 Ga. App. 507 (89 S. E. 601). Approval of the bond by the clerk,' or certification by the clerk or other officer that the costs have been paid, is in- sufficient. Tippins v. DeLoach, 9 Ga. App. 362 (71 S. E. 497); Southeastern Mutual Fire Ins. Co. v. Davidson, 25 Ga. App. 83 (1) (102 S. E. 460); Davis v. Joiner, 1 Ga. App. 106 (2) (58 S. E. 62); Ray v. Cruce, 18 Ga. App. 265 (89 S. E. 302); Thoms v. John R. Thompson Co., 38 Ga. App. 779 (145 S. E. 533).

2. Assuming that á statute creating a 'city or county court and prescribing a special method’ for suing • out certiorari varying’the'general law on that subject would be valid in the absence of proper attack, there is' nothing in the act creating the City Court of Buford (Ga. L. 1906, 'p. 176 et seq.) which allots the clerk to approve the bond or certify that the bond fias' been accepted or the costs'paid, rather than the 'judge who is required by statute so tó do. Section '46 provides that certiorari shall issue as in- the case' of county courts under the’ Code of 1895, " which contained the-same provision as oúr present Code § 19-206. The'exception' made in Harte v. Sturtevant, 20 Ga. App. 822 (93 S. E. 530) ''was based on the fact that the act creating 'the Múnicipal Court óf Savannah not only'expressly gave the clerk of that court ■ the power to a-pprov'e' boridsj but also to perform all fúnctions ■ of a ministerial character which might under the law be performed by'justices bf the peace'.' 'T-he'abt creating the City Court of Buford gives no' such broad' powers to the clerk.

3. The record showing that'the' bond was' accepted,''approved and' certifiéd by' the' clérk'on'ly; as was the ’certificate that the costs'had been‘paid, it was' error -for’the Judge'o'f the ■ Superior Court’ of Gwinnett County ’to overrule 'the motion to'dismiss 'the petition for Certiorari based' on these facts.

Decided May 12, 1961 Rehearing denied May 31, 1961. Joseph E. Cheele for plaintiff in error. Powell, Goldstein, Frazer & Murphy, Frank Love, Jr., Glyndon C. Pruitt, contra.

Judgment reversed.

Frankum and Jordan, JJ., concur.