Scott v. Oxford
| Decision Date | 19 January 1962 |
| Docket Number | No. 39236,No. 3,39236,3 |
| Citation | 105 Ga.App. 301,124 S.E.2d 420 |
| Parties | O. E. SCOTT v. Dixon OXFORD, Commissioner, etc |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. A law prescribing and liberalizing the form of pleadings will apply to all pleadings filed after its enactment, although the action is pending before that time. Ga. L. 1956 p. 190 et seq. was properly applied to a petition for certiorari pending at the time of its enactment, so as to allow the amendment of the petition in both form and substance.
2. Where a bond is required and its form prescribed by statute, the bond is not void because other conditions not authorized by or repugnant to the statute are inserted therein, or because the approval of the bond is accompanied by a condition unauthorized by statute, but the condition is ineffective and the nature of the bond as a statutory bond remains unchanged.
Olon E. Scott, a former employee of the Revenue Department of the State of Georgia, Income Tax Unit, was dismissed by letter of the Director of Personnel of the department on Decembr 31, 1959, for alleged improper performance of his duties. The employee appealed to the State Personnel Board of the State Merit System of Personnel Administration, which after a hearing, affirmed the dismissal. The plaintiff filed a petition for certiorari to review this ruling in the Superior Court of Fulton County on June 22, 1960, which was sanctioned by that court, but to which no copy of bond was attached. The defendant in error Revenue Commissioner moved to dismiss the certiorari on this ground. On August 24, 1961, plaintiff hiled an amendment to his petition, attached to which as as exhibit was a bond for all future costs and eventual condemnation money, signed by the plaintiff as principal and J. D. McDonough as surety dated May 9, 1961, and containing a certificate of approval signed by two of the three members of the State Personnel Board, as follows: 'The foregoing and within bond tendered by Olon E. Scott, offered as a compliance with the statutes with reference to bonds provided for in cases of certiorari, is hereby approved without prejudice to the rights of any parties to object to the effect, if any, to said bond tendered, and subject to the approval of the surety and security on said bond by the Clerk of the Superior Court of Fulton County.' The defendant in error objected to the amendment and again moved to dismiss the petition for certiorari on the grounds that, (a) on the date the amendment was filed, there were no proceedings pending and consequently nothing to amend, and (b) that the bond was insufficient because not unqualifiedly approved by the members of the State Personnel Board. The amendment was disallowed on ground (b) of the objection and the petition dismissed, which judgments are assigned as error.
Olon E. Scott, Atlanta, for plaintiff in error.
Eugene Cook, Atty. gen., Louis F. McDonald, Asst. Atty. Gen., for defendant in error.
1. Prior to the act of 1961 (Ga.L.1961, p. 190), certiorari proceedings were not amendable and the failure to file a proper bond resulted in the dismissal of the case because the petition was in such circumstances absolutely void. Hamilton & Co. v. Phenix Ins. Co., 107 Ga. 728, 33 S.E. 705. The act amending certiorari procedure substituted a new Code § 19-403, as follows: 'Certiorari proceedings shall be amendable at any stage, as to matters of form or substance, both as to the petition, bond, answer and traverse, and a valid bond may by amendment be substituted for a void bond or no bond at all.' Procedurally, then, the course adopted by the plaintiff in error was correct unless, as urged, this results in giving the amendatory act an inhibited retrospective effect. We do not have a situation where an amendment was offered at a time when such action was not permitted by law, and a statute, passed subsequently to such action, is urged for the purpose of validating it, which would be a retrospective application of the law. Nor do we have a situation where any contract, title, or substantive right of the opposite party has accrued, a divestiture of which would impair his vested interests. At the time the amendment was offered for the purpose of adding a bond, this was specifically recognized by law as a proper procedure. Statutes which do not interfere with the substantive rights of the citizen are not void because retrospective. Specifically, statutes which merely effect changes in the procedure of the courts, apply to cases pending at the time of their passage. See Willis v. Fincher, 68 Ga. 444, where it was held that a garnishee summoned to answer a garnishment in a justice's court at a time when the answer must be filed within 10 days was relieved from so doing where the time for making answer was extended by a law passed after the filing of the garnishment, the pleading being filed within the extended time. In Baker v. Smith, 91 Ga. 142(1), 16 S.E. 967, it was held that the repeal of a statute, providing that an amendment to an execution which had been levied would cause the levy to fall, applied to pending cases so that the execution, although amended after levy, was good. In Godwin v. Hudson, 94 Ga.App. 491(1), 95 S.E.2d 291, it was held that, as to a petition filed in the Civil Court of Fulton County in 1955, the 1956 act extending the time for filing bills of exceptions in that court from 15 days to 30 days applied to the pending action, and the bill of exceptions was not subject to dismissal because presented 17 days after the date of the judgment complained of. For a thorough discussion of the applicability of procedural changes to pending actions, see Pritchard v. Savannah Ry. Co., 87 Ga. 294, at page 299, 13 S.E. 493, at page 495, 14 L.R.A. 721, where the following is quoted In Seaboard Air-Line Ry. Co. v. Benton, 175 Ga. 491, 165 S.E. 593, relied upon by the defendant in error, there is the following language contrary to his contentions quoted from 25 R.C.L. 791 § 38: 'A law prescribing the form of pleadings will apply to all pleadings filed after its enactment, although the action is begun before that time.'
Counsel for the defendant in error contends that under authority of Hamilton & Co. v. Phenix Ins. Co., supra, and similar cases, the petition for certiorari, filed without bond attached, was absolutely void because, as stated therein: 'As there was no legal writ of certiorari, there was really no case at all lawfully before the superior court.' The reason for this language, as stated...
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Cobb County v. Herren, A97A2262
...to the superior court could not be amended. See Hudson v. Watkins, 225 Ga.App. 455, 456, 484 S.E.2d 24 (1997); Scott v. Oxford, 105 Ga.App. 301, 303(3), 124 S.E.2d 420 (1962). The descriptive caption of the act to Ga.L.1961, p. 190 states as the purpose of the statute: "[a]n Act to clarify,......
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Cohen v. Garland, 43856
...when it would have been conclusive, but which is no longer conclusive of the issue, is substantive or procedural. See Scott v. Oxford, 105 Ga.App. 301, 305, 124 S.E.2d 420. We feel that it must be treated as procedural on two grounds. First, our courts have in effect decided the question, s......
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Buckler v. Dekalb County
...in the dismissal of the case because the petition was in such circumstances absolutely void." (Citation omitted.) Scott v. Oxford, 105 Ga.App. 301, 303, 124 S.E.2d 420 (1962). Under OCGA § 5-4-10, the Petitioners had the right to amend the certiorari proceedings as to form or substance at a......
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Ballard v. Frey
...merely effect changes in the procedure of the courts, apply to cases pending at the time of their passage." Scott v. Oxford, 105 Ga.App. 301, 303(1), 124 S.E.2d 420 (1962). Where verification of pleadings is required by statute, the lack thereof has been considered to be a mere procedural d......