Seagraves v. W.E. Powell Co.
| Decision Date | 23 June 1915 |
| Docket Number | 394. |
| Citation | 85 S.E. 760,143 Ga. 572 |
| Parties | SEAGRAVES v. W. E. POWELL CO. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Application to the judge of the superior court for the sanction of a petition for certiorari to an inferior judicatory must be made within 30 days from the date of the judgment complained of. Civ. Code 1910, § 5188. By section 4365 it is provided that all writs of certiorari shall be allowed within three months from the date of the judgment of which complaint is made. Accordingly, where an application for a writ of certiorari, complaining of a judgment of the court of ordinary dated November 19, 1913, was presented to the judge of the superior court within 30 days, and duly sanctioned by him on November 29th, and was filed on January 2, 1914, in the office of the clerk of the superior court to which the writ was made returnable, there was no error in refusing to dismiss the petition on the ground that it was not filed within the time allowed by law.
Where an administrator was discharged by the court of ordinary, and subsequently an application was made to set aside the judgment of discharge on the ground that it was obtained by fraud, and the ordinary sustained a demurrer to such application, a writ of certiorari would lie to correct such judgment.
(a) A motion to dismiss a writ of certiorari taken to correct an alleged error in the judgment of the court of ordinary, based on the ground that appeal, not certiorari, was the proper remedy, did not raise a question as to whether the applicant for certiorari had filed written exceptions in the court of ordinary, which had been overruled, before he applied for the writ.
A certain corporation obtained a judgment against one S.E Seagraves and Mrs. J. P. Seagraves. The former was the administrator on the estate of J. P. Seagraves, deceased. The judgment creditor garnished the administrator, who answered and his answer was traversed. While the case was pending, the administrator obtained a discharge from the court of ordinary. The judgment creditor which had caused the garnishment to be served upon the administrator thereupon made a motion to set aside the discharge, on the ground that it was fraudulently procured. Held, that the corporation which held the judgment, and which had garnished the administrator as such, thereby proceeding against the estate to subject the amount which might be due to the judgment debtors, had such an interest as authorized it to make a motion to set aside the discharge on the ground that such discharge was procured by fraud.
If a judgment creditor of two named persons caused a garnishment based on the judgment, to be served on the administrator of a decedent, and if pending such garnishment proceedings, on a traverse to the answer of the garnishee, the administrator procured a discharge from the court of ordinary by falsely and fraudulently representing to that court that he had fully administered the estate of the decedent, when in fact he had not done so, and as the administrator was indebted to the judgment debtors, or one of them, a petition by the judgment creditor to set aside the judgment of discharge on the ground that it was thus procured by fraud and without his knowledge was not subject to general demurrer.
(a) There was no special demurrer to such allegations of the petition, and they were good as against a general demurrer.
Error from Superior Court, Pike County; Robt. T. Daniel, Judge.
Petition by the W. E. Powell Company to set aside a discharge granted to S.E. Seagraves, administrator. The sustaining of a demurrer to the petition was held erroneous on certiorari and the case remanded for trial on the merits, and the administrator brings error. Affirmed.
E. C. Armistead, of Barnesville, for plaintiff in error.
Cleveland & Goodrich, of Griffin, for defendant in error.
An application was made to the court of ordinary to set aside a discharge granted to an administrator, which it was alleged had been obtained by falsely and fraudulently representing to the ordinary that the administrator had fully discharged all of his duties as such. The ordinary sustained a demurrer to the petition, and the petitioner obtained a writ of certiorari. A motion was made to dismiss the certiorari proceedings. It was overruled, and the presiding judge held that it was error to sustain the demurrer to the petition to set aside the judgment of discharge, and remanded the case for a trial on the facts. The defendant in certiorari excepted.
1. One ground of the motion to dismiss the certiorari proceedings was because the application for certiorari was not filed in the clerk's office within the time allowed by law. The judgment sustaining the demurrer was rendered by the ordinary on November 19, 1913. The application for certiorari was sanctioned on November 29th. There is no entry of filing in the record; but the writ of certiorari was dated January 2, 1914, showing that the papers were in the hands of the clerk by that date. The contention of counsel for the plaintiff in error was that it was necessary for the application to be filed in the clerk's office within 30 days from the date of the judgment complained of. This contention involves a glance at the legislation and decisions bearing on the point raised. In the judiciary act of 1799, it was provided that if a party should take exception to any proceedings in a cause in an inferior court, and they should be overruled, it should be lawful for the dissatisfied party, "on giving twenty days' notice to the opposite party or his attorney, to apply to one of the judges of the superior court, and if such judge shall deem the said exceptions to be sufficient, he shall forthwith issue a writ of certiorari." Cobb's Digest, p. 523. By the act of December 29, 1838, it was declared that it should not be lawful for any judge to sanction or grant a writ of certiorari, "unless such writ of certiorari shall be applied for within the term of six months next after the case has been determined in the court below." Cobb's Digest, p. 528. The act of February 21, 1850, contained the first express reference to filing. It provided that it should be lawful for either party in a justice's court, who might be dissatisfied with the judgment, "to apply for and obtain a certiorari on complying with the requisitions heretofore prescribed by law; * * * and on being filed in the office of the clerk of the superior court, it shall be his duty to issue the writ," which should be returnable to the next term of court, sitting 20 days after the issuing thereof. Cobb's Dig. 529. On March 6, 1856, a general law in regard to the limitations of actions was passed. By the sixteenth section it was declared that "all writs of certiorari shall be allowed and brought within six months from the time [the] judgment sought to be reversed was rendered." Acts 1855-6, pp. 233, 234. By the act of December 11, 1858, the act of December 29, 1838 (Acts 1838, p. 54), was so amended as to require parties desiring writs of certiorari "to apply for the same" within three months after the final determination of the case in the justice's court. Acts 1858, p. 88. The sixteenth section of the act of 1856 appeared in the first Code (which took effect on January 1, 1863) as section 2861. Here the words are shall "be allowed and brought within three months." Several acts on the subject of writs of certiorari and the manner of applying for and issuing them, serving notice, etc., were codified in section 3958 et seq. Section 3965 states that all writs of certiorari shall be applied for within three months after the final termination of the case, and shall be made returnable to the next superior court sitting not less than 20 days after the issuing of the writ. It will be seen that the section last cited was derived from several acts in reference to the practice in regard to writs of certiorari, and the provision of that section on the subject of time was codified from the act of 1838 as amended by the act of 1858, without reference to the limitation act of 1856, while the section first cited was taken from that act. The Code containing both of these sections was adopted, and they were carried forward in later Codes, appearing in the Codes of 1873 and 1882, as section 2920 and section 4057. On November 12, 1889, an act was approved which amended section 4057 of the Code of 1882, by changing the words shall be applied for "in three months" after the termination of the case, so as to read "in thirty days." Laws 1889, p. 84. No reference was made to the other section taken from the act of 1856, which declared that the writ must be "allowed and brought" within three months. In the Code of 1895, for some reason, the words "and brought," appearing in section 2920 of the Code of 1882, were omitted, and the corresponding section of the Code of 1895 (section 3771) declares that the writ shall be "allowed within three months," and the same is true of the Code of 1910, § 4365. The other provisions still stood in the Code of 1895 as section 4642, and in the Code of 1910 as section 5188. It will thus be seen that two provisions have long coexisted, one requiring that the writ shall be "applied for" in 30 days, the other that it shall be "allowed and brought" (or "allowed" in the last two Codes) in three months.
Let us now look at some of the decisions on the subject. Jones v. Smith, 28 Ga. 41, was decided in 1859, while the act of 1856, employing the words "allowed and brought," and the act of 1858, amending the act of 1838, and using the words "applied for," both stood, but had not been codified. It was held that where a trial took place in a justice's court on November 27, 1857, and the petition for certiorari was filed on May 28, 1858,...
To continue reading
Request your trial