Loftin v. Southern Sec. Co, (No. 5120.)

• Decision Date: 21 September 1926
• Docket Number: (No. 5120.)
• Citation: 162 Ga. 730,134 S.E. 760
• Parties: LOFTIN. v. SOUTHERN SECURITY CO.
• Court: Georgia Supreme Court

162 Ga. 730

134 S.E. 760

LOFTIN.

v.SOUTHERN SECURITY CO.

(No. 5120.)

Supreme Court of Georgia.

Sept. 21, 1926.

(Syllabus by Editorial Staff.)

Error from Superior Court, Fulton County; Geo. L. Bell, Judge.

Bail trover by the Southern Security Company against L. L. Loftin. Judgment was rendered for plaintiff. certiorari was denied by the superior court, and defendant brings error. Transferred to the Court of Appeals.

R. R. Jackson and C. E. Moore, both of Atlanta, for plaintiff in error.

Syllabus Opinion by the Court.

ATKINSON, J. A judgment was rendered in the municipal court of Atlanta for the plaintiff in a bail trover action. The defendant presented a petition for certiorari to the judge of the superior court, assigning error directly on the judgment. The judge of the superior court entered an order denying the petition for certiorari, "on account of the failure of the plaintiff in certiorari to comply with the act of 1925 by first making a motion for a new trial and appealing to the appellate division of the municipal court." The petitioner for certiorari assigned error upon this judgment, on the ground that the judgment denied to the plaintiff in error his constitutional rights as provided in article 6, § 4, par. 5, of the Constitution of the state of Georgia (Civil Code of 1910, § 6514), providing that judges of the superior courts "shall have power to correct errors in inferior judicatories, by writ of certiorari, which shall only issue on the sanction of the judge, " and that deprivation of such constitutional right was contrary to law. Held:

1. Section 2 of the act approved July 31, 1925, amending the acts relating to the Atlanta municipal court (Acts 1925, pp. 370, 386), provides as follows:

"That before the writ of certiorari shall lie to any verdict, judgment order, or ruling of the municipal court of Atlanta, a motion for a new trial must be made before the judge trying the case, and his judgment thereon must be reviewed by the appellate division of said court in the manner herein provided, and the writ of certiorari shall lie only to the final judgment of the appellate division of said court. It shall be the duty of the chief judge of said court to designate one of the three judges sitting in the said appellate division to act as presiding judge, whose official title shall be 'presiding judge in the appellate division' of said court, whose duty it shall be to accept and acknowledge service in all petitions and writ for certiorari; to prepare the answer to such petition, signing the same in the name of the three judges presiding in said case; to certify as to payment of costs and to approve all bonds in matters of certiorari and see that said answer is properly filed with the clerk of the superior court, and in his absence or disqualification, either of the associate judges sitting in the appellate division may be served, approve bonds, certify as to payment ofcosts and make answer to said writ of certiorari."

2. The petition for certiorari alleged:

"Tour petitioner shows that under article 6, § 4, par. 5 (Code of 1910, § 6514, being a constitutional provision of the state of Georgia, it is provided as follows: 'Certiorari, mandamus, etc. They shall have power to correct...