Staub v. City of Baxley

• Decision Date: 17 March 1955
• Docket Number: No. 35554,No. 2,35554,2
• Citation: 86 S.E.2d 712,91 Ga.App. 650
• Parties: Rose STAUB v. CITY OF BAXLEY
• Court: Georgia Court of Appeals

Page 712

86 S.E.2d 712

91 Ga.App. 650

Rose STAUB v. CITY OF BAXLEY.

No. 35554.

Court of Appeals of Georgia, Division No. 2.

March 17, 1955.

The plaintiff in error presented and had sanctioned a petition for certiorari to review her conviction in the Mayor's Court of the City of Baxley for the violation of an ordinance. The mayor before whom the case was tried filed an answer, in which he admitted the paragraph of the plaintiff's petition to the effect that the required bond, a copy of which was attached to the petition, was approved by Mrs. Lois T. Sharp, but in which he set out in substance that she was not the clerk of the mayor's court but the clerk of the city council of the City of Baxley. The answer further states that there is not now and was not then any clerk of the mayor's court. To this answer of the mayor a traverse was duly interposed, which alleges in substance that counsel for the plaintiff in certiorari, upon arriving with her at the city hall of Baxley at the time and place of trial, inquired of the city attorney who was there prosecuting the case, in the presence of the Mayor who was there acting as the judge of the court, and in the presence of Mrs. Lois T. Sharp, whether or not there was a clerk of the mayor's court; that the city attorney, in the presence of these persons, said that Mrs. Lois T. Sharp was the clerk of the mayor's court; that, as a result of this representation made by the city attorney to counsel for the plaintiff in certiorari, the latter filed with Mrs. Lois T. Sharp a plea in abatement to the summons; that Mrs. Lois T. Sharp marked the same filed as clerk of the mayor's court and, over written words designating her as such; that the mayor as judge of the court ratified this and subsequent acts of Mrs. Sharp as the clerk of the court over which he was presiding; that, immediately after the completion of the trial, counsel for the plaintiff in certiorari having previously prepared the necessary papers and documents, presented to Mrs. Lois T. Sharp plaintiff's bond for the purpose of obtaining an order of supersedeas; that said bond was accepted, attested, approved, and filed by the said Mrs. Lois T. Sharp as clerk of the mayor's court over written words designating her as such; that Mrs. Sharp thereupon executed her certificate as clerk of the mayor's court and, over written words designating her as such, that such supersedeas bond had been filed, approved and accepted by her as such clerk, and also issued an order of supersedeas over written words designating her as such clerk; that all of this was done in the presence of counsel for the city and the mayor acting as judge of such court; that counsel for the plaintiff in certiorari, not knowing whether there was a clerk of such court or not, had prepared these papers in advance of his arrival to be approved by the mayor as judge; but, because of the aforesaid statements and representations made to him, changed the designation thereto from 'judge' to 'clerk'; that whether the court had a clerk or not was a question of fact; and that counsel for the plaintiff in certiorari had no way of determining this question except by making inquiry of the proper officials of the defendant in certiorari, and that, if indeed Mrs. Lois T. Sharp was not the clerk of the mayor's court and this resulted in any defect in the bond which was filed on behalf of the plaintiff in certiorari, it was the result of the misrepresentations of fact made by the officers of the court before which the plaintiff in certiorari was being tried. It was agreed that all questions of fact would be determined by the judge of the superior court acting without a jury, and the evidence on the traverse to the answer demands a finding in support thereof.

The testimony of counsel for the plaintiff in certiorari supported the traverse, which was not substantially contradicted by the testimony in behalf of the city. Obviously, counsel for the plaintiff in certiorari was fully conversant with the law to the effect that the certiorari bond must be signed by the clerk if there is a clerk, and otherwise by the judge, or his petition would be subject to dismissal, Griffin v. City of Albany, 88 Ga.App. 229, 76 S.E.2d 436, and obviously he made every effort to ascertain whether or not there was in fact a clerk, and relied upon the aforesaid representations to the effect that there was one.

The mayor testified that he heard counsel for the plaintiff in certiorari ask counsel for the city if 'you have a clerk,' and that the latter replied, 'Mrs. Lois Sharp is the clerk.' The mayor testified that counsel for the plaintiff in certiorari did not ask if the mayor's court had a clerk, that the clerk of the City of Baxley, which is the office held by Mrs. Sharp, has an office separated from the place where the trial was held by a wainscoting up four or five feet and then an iron grill, and that Mrs. Sharp remained in this office during the trial. He further testified that the Mayor's Court of the City of Baxley does not have a clerk; that Mrs. Sharp does not keep the docket of the mayor's court, but each Monday morning she enters the cases on the docket at his direction, and that the docket is kept in the police section of the city hall. Counsel for the city testified that he did not remember telling opposing counsel anything about a clerk; that he had never heard of Mrs....