Ray v. Cruce

• Decision Date: 21 January 1918
• Docket Number: 8636.
• Citation: 94 S.E. 899,21 Ga.App. 539
• Parties: RAY ET AL. v. CRUCE.
• Court: Georgia Court of Appeals

94 S.E. 899

21 Ga.App. 539

RAY ET AL. v. CRUCE.

No. 8636.

Court of Appeals of Georgia, First Division

January 21, 1918

Syllabus by the Court.

If a certiorari, after being sanctioned by the judge of the superior court, be dismissed on the hearing before him for the reason that it does not properly appear that the cost has been paid, the judgment dismissing it is equivalent to holding that the proceeding is void, and, there being no legal writ before him, the court is therefore without jurisdiction to entertain the proceeding, for the purpose of rendering its own final decision in the case, including judgment against the surety on the certiorari bond. But since a judgment is thus rendered upon the question of the validity of the certiorari, the surety is liable together with his principal for the cost of that proceeding.

Error from Superior Court, Jackson County; C. H. Brand, Judge.

Action between L. L. Ray and others and S. M. Cruce. Judgment for the latter, certiorari dismissed, and the former bring error. Reversed in part and affirmed in part.

Ray & Ray, of Jefferson, and Thos. J. Shackelford, of Athens, for plaintiffs in error.

J. S Ayers, of Jefferson, for defendant in error.

JENKINS J.

The difficulty in the point raised by the present case lies in the proper interpretation of section 5205 of Civil Code 1910 which provides as follows:

"If the certiorari shall be dismissed, and a final decision made in the cause by the superior court, the defendant in certiorari may sign up judgment in said superior court against the plaintiff and his security for the sum recovered by him, together with the costs in said superior court; and if said case be sent back to the court below, and there be a judgment in said case in favor of said defendant in the court below, the security on the certiorari bond shall then be included as in case of security on appeal."

If the meaning of this section is as broad as the literal import of the words might seem to imply, to wit, that notwithstanding the summary dismissal of a certiorari for any cause by the judge of the superior court, he nevertheless has jurisdiction to entertain it for the purpose of rendering a final decision as of that court and on the certiorari in favor of the defendant in certiorari, then the judge did not err in also rendering judgment against the surety on the certiorari bond since no objection as to its validity as such was made or shown. But if the word "dismissed," as used in the Code section quoted, should be taken as synonymous with "overruled" whenever "a final decision [is] made in the cause by the superior court," then this section would not be authority for the rendition of a final judgment against the defendant and his surety on a bond given in a void certiorari proceeding which the superior court is without jurisdiction to entertain. It would seem that the word "dismiss" is in fact used in a sense synonymous with "overrule" throughout the sections of the Code dealing with the subject of certioraries. See section 5201. Even the language of section 5205 itself is that, "If the certiorari shall be dismissed, and a final decision made in the cause by the superior court, the defendant in certiorari may sign up judgment," etc which language is susceptible of what seems to us the more reasonable interpretation that, if the certiorari is dismissed in the sense that it is overruled, and consequently a final decision can properly be entered in the case (see Pittman v. Alexander, 19 Ga.App. 475, 91 S.E. 910), Dykes v. Twiggs County...