Zachery v. State
| Decision Date | 13 December 1898 |
| Parties | ZACHERY. v. STATE. |
| Court | Georgia Supreme Court |
Certiorari—Service—Dismissal Where it appears that the writ of certiorari has not been served upon the judge, or other officer, whose decision is sought to be reviewed, "fifteen days previous to the court to which the return is to be made, " the proceeding 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 thi writ.
(Syllabus by the Court.)
Error from superior court Carroll county, S. W. Harris, Judge.
Charley Zachery, being convicted of misdemeanor in a city court brought certiorari. From an order dismissing the writ, plaintiff therein brings error. Affirmed.
Cobb & Bros, and L. D. McPherson, for plaintiff in error.
R. D. Jackson and I. A. Atkinson, Sol. Gen., for the State.
COBB, J. Charley Zachery was placed on trial in the city court of Carroll county, charged with a misdemeanor, and upon being convicted he made application to the judge of the superior court for a writ of certiorari, which was sanctioned on March 21, 1898; and the writ was duly and regularly issued on March 24 by the clerk of the superiorcourt of Carroll county, returnable to a term of that court beginning on the 3d day of October, 1898. The city court of Carroll county was abolished on the 1st day of July, 1898. Acts 1897, p. 522. When the case came on to be heard at the October term of the superior court, no answer to the certiorari had been filed; the former judge of the city court having filed in office simply a refusal to answer the certiorari, which refusal was in the following words: The judge of the superior court declined to require the former judge of the city court to answer the certiorari, and dismissed the same, upon the ground that it was not served on the judge who tried the case 15 days before the term of the court to which the writ was returnable. To these rulings the plaintiff in certiorari excepted.
When an application for a writ of certiorari shall have been made in due form, and sanctioned by a judge of the superior court, and the writ duly Issued, the law requires that the clerk of the superior court shall place the same on the docket; and the writ, "together with the petition, shall be delivered to the party to whom it is directed by the party applying for the certiorari, his agent or attorney, or the sheriff, deputy-sheriff, or any constable, at least fifteen days previous to the court to which the return is to be made." Civ. Code, § 4643. When the clerk has failed to...
To continue reading
Request your trial
-
Bass v. City Of Milledgeville
...of the plaintiff in certiorari. Where this appears, an order will be granted allowing further time within which to serve. Zachery v. State, 106 Ga. 123, 32 S. E. 22, and cit.; A., K. & N. Ry. Co. v. Whitaker, 115 Ga. 644, 42 S. E. 56 (1). And if, notwithstanding the failure to serve, the of......
-
Bass v. City of Milledgeville
...the plaintiff in certiorari. Where this appears, an order will be granted allowing further time within which to serve. Zachery v. State, 106 Ga. 123, 32 S.E. 22, and cit.; A., K. & N. Ry. Co. v. Whitaker, 115 Ga. 644, 42 S.E. 56 (1). And if, notwithstanding the failure to serve, the officer......
-
Ryals v. Commissioners of Tattnall County
...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, citations. If the clerk of the superior court, at the request of the attorney for the petitioner for the writ, undertakes to mak......
-
Zachery v. State
...32 S.E. 22 106 Ga. 123 ZACHERY v. STATE. Supreme Court of GeorgiaDecember 13, Syllabus by the Court. Where it appears that the writ of certiorari has not been served upon the judge, or other officer, whose decision is sought to be reviewed, "fifteen days previous to the court to which the r......