Zachery v. State , 1898 Ga. LEXIS 33 ( 1898 )

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 superior court 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: “I decline to answer the certiorari in the above-stated case, because it was not served upon me fifteen days before the court-to which the return is to be made. It was delivered to me this-day, Sept. 20th, 1898. W. F. Brown, Ex-J. C. C. 0.” .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 fifteen 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 jlfteen days previous to the court to which the return is to be made.” Civil Code, §4643. When the clerk has failed to issue the writ and the plaintiff in certiorari is not at fault, it has been held that it was error to dismiss the proceeding. Hopkins v. Suddeth, 18 Ga. 518. See also Mitchell v. Simmons, 58 Ga. 166. After the writ has been issued, the duty is placed upon the party applying for the certiorari to see that the same is served upon the judge whose decision is sought to be reviewed, it not being required that any officer shall serve the same, but the party, his agent or attorney, being allowed to do so. The moment the writ is issued- this duty is placed upon the party applying for the same. If he fails to have the "writ served upon the judge within the time re--' quired by law, before an order allowing further time will be granted it must appear that the party has used a reasonable degree of diligence in attempting to serve the writ and has failed through no fault of his.

In the present case the plaintiff in certiorari gives as an excuse for not serving the writ in time, that his attorney “went to Judge Brown’s office three or four times to deliver the certiorari, and this was more than sixty days before the present'term of this court, and did not sooner deliver it for the reason that said- judge of Carroll city court was absent on political matters.” From the time that the writ of certiorari was issued until the last day for service was more than five months, and it seems that nothing was done towards making service until sixty days before the court. Even if the plaintiff in certiorari is hot to bé charged with a want of diligence in not making an ■effort to serve the writ until sixty days before the term of court began, no sufficient reason appears why he could not have had service made within the forty-five days then remaining. It does not appear that the presiding judge was absent from the State, nor does it appear distinctly that he was absent from the county; but even if he was absent from the county and within the State, it seems that by the exercise of a small degree of' diligence he could have been found and served either by the party, his agent or attorney, or some officer of the law authorized to make service. We do not think there was any error in refusing to require the former judge of the city court to answer the certiorari, or in dismissing the same for a failure to serve it within the time required by law.

It was contended that the written refusal of the former judge of the city court should have been sworn to, as he had retired from office. The law requires that the answer to the certiorari, if made after the party making the same has retired from office,, shall be verified by affidavit. Civil Code, § 4648. A refusal to answer is in no sense an answer, and therefore the law contained in the section quoted is not applicable.

Judgment affirmed.

All the Justices concurring..