Ryals v. Commissioners of Tattnall County

• Decision Date: 04 February 1913
• Docket Number: 4,417.
• Citation: 77 S.E. 8,12 Ga.App. 221
• Parties: RYALS v. COMMISSIONERS OF TATTNALL COUNTY.
• Court: Georgia Court of Appeals

77 S.E. 8

12 Ga.App. 221

RYALS v. COMMISSIONERS OF TATTNALL COUNTY.

No. 4,417.

Court of Appeals of Georgia

February 4, 1913

Syllabus by the Court.

The statute makes it the duty of the petitioner for certiorari, his agent or attorney, to see that the writ, together with the petition, shall be served upon the inferior judicatory, to whom the writ is addressed, "at least 15 days previous to the court to which the return is to be made," and, when it appears that service of the writ has not been made as thus provided, the proceedings should be dismissed, unless it clearly appears that the failure to serve was in no way attributable to the fault of the party making application for the writ. Civil Code 1910, § 5189; Zachery v. State, 106 Ga. 123, 32 S.E. 22, and citations.

If the clerk of the superior court, at the request of the attorney for the petitioner for the writ, undertakes to make service upon the magistrate to whom the writ is addressed, he does so, not as an official, but as the agent of the petitioner, and any failure of the clerk to make proper service is to be treated as the failure of his principal. Tucker v. Mayor, etc., 120 Ga. 148, 47 S.E. 523.

The mailing by the clerk of the writ of certiorari to the magistrate, to whom it is addressed, together with the petition, at the request of the attorney for the petitioner, is not service in accordance with the statute, which requires that the "writ, together with the petition, shall be delivered to the party to whom it is directed," etc. § 5189, supra.

There being no proper service of the writ with the petition, and no answer filed, and the failure being attributable to the laches of the petitioner, the judge of the superior court did not err in refusing to continue the case in order to perfect service, and in dismissing the certiorari proceedings. Smith v. City of Washington, 4 Ga.App. 514, 61 S.E. 923.

Error from Superior Court, Tattnall County; W. W. Sheppard, Judge.

Certiorari by Henry Ryals against the County Commissioners of Tattnall County. From a judgment dismissing the writ, petitioner brings error. Affirmed.

H. H. Elders, of Reidsville, for plaintiff in error.

Way & Burkhalter, of Reidsville, for defendants in error.

HILL, C.J.

Judgment affirmed.