O'Keefe v. Cotton
| Decision Date | 08 March 1897 |
| Citation | 27 S.E. 663,102 Ga. 516 |
| Parties | O'KEEFE v. COTTON. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Notice to the opposite party of the sanction of a writ of certiorari, and of the time and place of hearing, at least 10 days before the sitting of the court to which the same shall be returnable, being indispensable in the prosecution of a petition for certiorari, a failure to give such notice renders the entire proceeding void; and the mere pendency of the petition does not suspend the statute of limitations which requires the bringing of the certiorari within 30 days nor authorize a renewal of such petition within 6 months whether it be dismissed by the court or upon motion of the plaintiff. Bonds v. Pearce, 74 Ga. 837, and Mercer v. Davidson, 6 S.E. 175, 80 Ga. 495.
Error from superior court, Chatham county; R. Falligant, Judge.
Action by P. H. Cotton against J. A. O'Keefe. Judgment for plaintiff. From an order dismissing a writ of certiorari, defendant brings error. Affirmed.
The following is the official report:
On August 28, 1895, a verdict was rendered in a magistrate's court against O'Keefe, in favor of Cotton. On September 12, 1895, within 30 days of the judgment on said verdict, a writ of certiorari was granted O'Keefe, but notice of the sanction of the certiorari was not given until November 27, 1895, being only 5 days before the sitting of the court to which the certiorari was returnable. Before the certiorari came on for hearing, and on January 3, 1896, O'Keefe dismissed the same of his own motion. Afterwards, and within 6 months from the dismissal of the first certiorari, the same was renewed, under section 2932 of the Code, returnable to the March term, 1896, of the superior court, and the statutory notice was given February 10, 1896. The cause coming on to be heard, Cotton moved to dismiss the second or renewed certiorari, on the ground that, plaintiff in certiorari having failed to give the statutory notice of bringing the first certiorari, the time had passed, on account of such failure, in which the certiorari would lie, and therefore the bringing of the second within 6 months after the voluntary dismissal of the first would not lie, the case being dead for want of notice, under Code,§ 4059. The motion was sustained, and O'Keefe excepted.
Geo. W. Beckett and Anderson, Felder & Davis, for plaintiff in error.
G. H. Miller and D. H. Clark, for defendant in error.
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