Yield, Inc. v. City of Atlanta
| Decision Date | 09 January 1980 |
| Docket Number | No. 57774,57774 |
| Citation | 152 Ga.App. 171,262 S.E.2d 481 |
| Parties | YIELD, INC. v. CITY OF ATLANTA. |
| Court | Georgia Court of Appeals |
Hirsch Friedman, Brian Spears, Atlanta, for appellant.
Paul L. Howard, Jr., Sol., for appellee.
This case involves a renewed petition for writ of certiorari to the Municipal Court of the City of Atlanta to review its decision with respect to an order closing the petitioner's businesses known as R & R Bath House, Harem Bath House and Cheshire Cat Bath House, for violation of Georgia Code § 72-401 and § 20-180 of the Atlanta City Code. This case has no relation to Yield, Inc. v. City of Atlanta, 239 Ga. 578, 238 S.E.2d 351 and Yield, Inc. v. City of Atlanta, 145 Ga.App. 172, 244 S.E.2d 32, both of which involved businesses known as The Blue Fox and House of Erotica.
In the case sub judice an earlier petition for certiorari had been denied by the superior court because no answer had been filed, and the superior court held that the petitioner was "guilty of laches in that they failed to exercise due diligence in perfecting the certiorari, and in fact, made no efforts whatsoever until approximately 82 days after the answer was due to be filed . . ." This judgment was affirmed in Yield, Inc. v. City of Atlanta, 144 Ga.App. 637, 639, 242 S.E.2d 478 (writ of certiorari dismissed, improvidently granted, 241 Ga. 593, 247 S.E.2d 764).
The renewal petition was sanctioned. The magistrate answered, and a number of motions were filed, including a motion to dismiss as amended, based upon a plea of res judicata, failure to obtain a bond required by Code § 19-206, and alleging the petition is defective in that it fails to show it is a renewal of a previously filed certiorari. The petitioner also moved to strike the motion to dismiss. These motions were heard, and the court rendered its finding of fact and conclusions of law, holding (1) the renewal was in violation of Code § 3-808 in that it was not filed within six months after the dismissal; (2) the original petition was heard on its merits by virtue of the finding that the petitioner was guilty of laches and lack of due diligence, and the order of dismissal did not contain the language "without prejudice" in order for a refiling of the order to be valid; and (3) the present petition is wholly defective in that petitioner failed to obtain a bond required by law. The motion to strike the motion was denied; the motion to dismiss was granted and petitioner's renewed petition for writ of certiorari was dismissed. The petitioner appeals. Held :
1. The superior court was of the opinion that as the renewal petition was not filed within six months of the dismissal, without regard to the period of time tolled during the pendency of a valid writ of error to this court, that more than six months had passed in which the petitioner could renew. The running of any statute of limitation is suspended during the pendency of an appeal. See Seaboard Air Line R. v. Randolph, 126 Ga. 238(4), 244, 55 S.E. 47; Central of Ga. R. Co. v. Macon R. & Light Co., 140 Ga. 309, 310(2), 78 S.E. 931. Compare Hesters v. Coats, 32 Ga. 448.
2. The same question raised here as to whether the dismissal of the prior petition for certiorari was on its merits was considered by this court in Schaffer v. City of Atlanta, 151 Ga.App. 1, 258 S.E.2d 674 (1979), in a 5 to 4 decision by this court. Consequently we are controlled here under the doctrine of stare decisis as to whether or not the findings of fact and conclusions of law of the superior court in considering this renewal petition that the first dismissal of the original petition by the superior court (see Yield, Inc. v. City of Atlanta, 144 Ga.App. 637, 639, 242 S.E.2d 478, supra) was heard on its merits as the superior court made a finding of laches and lack of due diligence. Based on the Schaffer case the ruling on the original petition would not be res judicata.
However, considering the author's dissent in Schaffer v. City of Atlanta, supra, he is still of the opinion that even though in some instances a certiorari may be renewed, the facts of this case and those of Schaffer show clearly that the judgment of the superior court was a ruling on the merits. See Code Ann. § 81A-181 () and Code Ann. § 81A-141 (Ga.L.1966, pp. 609, 653).
3. The certiorari procedure, and, in particular, Code § 19-206, requires that the party applying for the writ "shall give bond and good security, condition(ed) to pay the adverse party in the...
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Ajayi v. Williams, A00A2471.
...Group v. Fuller Enterprises, 233 Ga.App. 717, 720(1), 505 S.E.2d 755 (1998) (physical precedent only); Yield, Inc. v. City of Atlanta, 152 Ga.App. 171, 173(1), 262 S.E.2d 481 (1979). ...
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HARDIN CONST. GROUP v. Fuller Enterprises
...that "[t]he running of any statute of limitation is suspended during the pendency of an appeal. [Cits.]" Yield, Inc. v. City of Atlanta, 152 Ga.App. 171, 173(1), 262 S.E.2d 481 (1979). However, the limitation period is not tolled merely because a lawsuit is filed and pending in the trial co......
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Duncan v. State
...sub judice was pending before this Court. The sole authority cited for this proposition is a civil case, Yield, Inc. v. City of Atlanta, 152 Ga.App. 171, 172, 173(1), 262 S.E.2d 481, which may be conceptually distinguished. In a criminal statute of limitation only an exception or condition ......
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Butler v. Glen Oak's Turf, Inc., A90A0690
...of limitation has been suspended during the pendency of the appeal of the case at bar to this court. Yield, Inc. v. City of Atlanta, 152 Ga.App. 171, 173(1), 262 S.E.2d 481 (1979).) To hold otherwise would place appellant in an intolerable " 'Catch 22' " situation and would be inequitable i......