Bass v. City of Milledgeville , 121 Ga. 151 ( 1904 )

Cobb, J.

It is settled that a petition for certiorari is such a suit as can be renewed under the provisions of the Civil Code, § 3786. Hendrix v. Kellogg, 32 Ga. 435 ; Mercer v. Davidson, 80 Ga. 495. If, however, such a petition be void for any reason, the suit can not be renewed. Citizens Banking Co. v. Paris, 119 Ga. 517, and cit. The Civil Code, § 4643, requires that the petition and the writ shall be delivered to the party to whom the writ is directed, at least fifteen days previous to the term of the superior court to which the return is to be 'made. The question to be decided, therefore, is whether the failure to comply with this provision of the statute renders the petition void and prevents a renewal. It has been held that where the certiorari bond was invalid, the petition was void and could not be renewed. Southern Ry. Co. v. Goodrum, 115 Ga. 689. The same ruling was made where a petition was sued out in forma pauperis and the pauper affidavit was insufficient. Hill v. State, 115 Ga. 833. Where the petition contains no sufficient assignment of error on any ruling or decision of the inferior judicatory, it is void. Citizens Banking Co. v. Paris, 119 Ga. 517. And it has been held that the failure to give to the adverse party notice of the sanction of the petition and of the time and place of hearing renders the proceeding void. O’Keefe v. Cotton, 102 Ga. 516, and cit. In all these cases there was something inherently defective in the proceeding itself. A good bond, or a good pauper affidavit, as the case may be, is an indispensable condition precedent to the issuance of the writ. A petition without an assignment of error of course presents no question for decision and amounts to nothing. And failure to serve the opposite party with notice of the sanction and of the time and place of hearing renders nugatory and void that which had been commenced as a good suit, but bad never been completed and perfected by service. Where there is no such service “there is no suit,” and nothing to renew. Toole v. Davenport, 63 Ga. 160. A like result does not, however, follow from the failure to deliver the writ and a copy of the petition to the officer whose decision is sought to be reviewed. Such a failure will not even result in a dismissal of the proceeding where it is shown that the failure was not due to the fault or negligence of the plaintiff in certiorari. Where this appears, an order will be granted allowing further time within which to serve. Zachry v. State, 106 Ga. 123, and cit.; A.,K. & N. Ry. Co. v. Whitaker, 115 Ga. 644 (1). And if, notwithstanding the failure' to serve, the officer whose decision is under review should answer the petition, it will not-be dismissed. Crapp v. Morris, 108 Ga. 793 (1); A., K. & N. Ry. Co. v. Whitaker, 115 Ga. 644 (2). It is apparent from these decisions that the failure to deliver, within the time required by the statute, the petition and Writ to the officer whose decision is under review will not render the proceeding void, but that it is a mere irregularity which can be cured either by a waiver by the officer himself, evidenced by the filing of bis answer, or by an extension of time by the judge of the superior court.

It was argued that the judgment ought to be affirmed, because there was in the petition no question which could be properly decided. We will not, however, in advance of a decision by the trial judge on the merits, undertake to determine whether any assignment of error has been properly made, or whether, if so, it is meritorious.

Judgment reversed.

All the Justices concur.