Milam v. Sproull

• Decision Date: 30 June 1867
• Parties: THOMAS MILAM, plaintiff in error. v. REBECCA SPROULL, defendant in error.
• Court: Georgia Supreme Court

36 Ga. 393

THOMAS MILAM, plaintiff in error. v. REBECCA SPROULL, defendant in error.

Supreme Court of the State of Georgia

(Milledgeville, June Term, 1867.)

Note.—Warner, C. J., did not preside in this case.

Certiorari from Inferior Court of Bartow County. Decided by Judge Milner, Chambers.

Certain citizens of Bartow County petitioned the Justices of its Inferior Court that they order "the road leading from near Dr. Thomas Milam's so as to intersect the Cartersville road near Mrs. Burges', (it being an old established road, and used by many citizens as a mill and church road, and recently closed up by Mrs. Rebecca Sproull,)" to be opened.

Thereupon the Justices appointed three reviewers to examine and report upon the same. They reported that the proposed road was practicable and ought to be established, &c. This report was not sworn to.

Without more, on the 26th February, 1866, the Justices of said Court ordered said road opened, and to be kept open, and worked as a public road.

On the 7th March, 1866, Mrs. Rebecca Sproull (and John A. Crawford, as administrator of George W. Underwood,) showed to the said Justices that said road ran through their lands, and moved to set aside said order, because said report was not sworn to; because no notice was posted at the Court House door, norpublished in a public gazette, and no notice was given to said land owners, their agents, overseers, or any *one living on said lands, prior to giving said order; and because no provision was made to pay said parties for the damages done them by the opening of said road.

On the same day last aforesaid, upon the petition of Mrs. Sproull and said Crawford, the Clerk of said Court was ordered to summon a jury (for each of them) to assess the damages. Whether this was done before or after said motion was made does not appear.

Said motion was overruled.

Mrs. Sproull filed her petition for certiorari, upon the grounds stated in said motion. By consent of counsel, made 15th September, 1866, it was ordered that the certiorari be heard and determined on the 26th September, 1866.

Defendant's attorney moved to dismiss the certiorari, because no written notice had been given of the time and place of hearing the same ten days before the sitting of the Court to which it was returnable.

Plaintiff's attorney relied upon the following facts as a compliance with the statute requiring such notice: While the Superior Court was in session in March, 1866, the Judge from the bench informed attorney for defendant in certiorari that a writ of certiorari had been applied for, and said attorney objected to having the same granted, because the exceptions signed by the Inferior Court were not produced, saying he was entitled, as matter of right, to their production, and thereupon the Judge refused to sanction the writ till said exceptions, so signed, were produced. They were produced, and the writ was granted during the term without further notice. Afterwards, at the instance of Mrs. Sproull, an injunction was granted against defendant in certiorari, (et al.,) and served on him the 5th April, 1866. In the bill for injunction was the following statement: "Your oratrix, through her counsel, as she is advised and believes, applied to and obtained from your Honor a writ of certiorari, directed to the Inferior Court of said county, directing and requiring the Clerk of said Inferior Court to certify and send up all the proceedings in said Court relative to said road, and that inthe meantime all other and further proceedings in said *case relative to said road be stayed. Copies of which writ of certiorari, as well as said orders of said Courtappointing said reviewers, opening said road, the petition of said Milam, Tinsley, and others, asking to have said road laid out, the report of said reviewers, and the motion of your oratrix to revoke said order establishing said road, are to this bill attached as exhibits." The bill prayed that said defendants be enjoined (from using said road, &c.) until said certiorari was disposed of. None of the said exhibits were, in fact, attached to said bill.

And upon this, the Court refused to dismiss the certiorari.

Defendant in certiorari then produced the separate affidavits of ten persons, all dated in May and June, 1866, who swore that said road had been open and used as a public road for many years, (most of them saying thirteen years, and one saying twenty-five years,) and offered to read them, insisting that the facts stated in them may have been made known to the Inferior Court before the passage of the order, as nothing appeared in the return to the certiorari but a copy of the record.

The Court would not hear said affidavits read.

After argument, the Court sustained the certiorari, and ordered that the order of the Inferior Court be set aside, because the reviewers were not sworn, because no notice was posted or published, nor any written notice served on Mrs. Sproull or her overseer residing on the land through which the road ran, and because no provision...