Carroll v. Inner Shoe Tire Co. , 21 Ga. App. 397 ( 1917 )

Broyles, P. J.

1. A petition for certiorari, including the necessary affidavit or bond attached thereto, is not amendable; and aliunde proof is not admissible to correct material errors therein. Western & Atlantic Railroad Co. v. Jackson, 81 Ga. 478 (8 S. E. 209); Gildea v. Hill, 115 Ga. 136 (41 S. E. 492); Landrum v. Moss, 1 Ga. App. 216 (57 S. E. 965); Simpkins v. Johnson, 3 Ga. App. 437 (60 S. E. 202); Haywood v. Kitchens, 15 Ga. App. 618 (83 S. E. 1102) ; Hackett v. Tate, 18 Ga. App. 453 (89 S. E. 535).

Decided December 12, 1917.

Certiorari; from Fulton superior court — Judge Bell. March 24, 1917.

E. G. Buchanan, for plaintiffs in error. Anderson, Slate & D’Orr, contra.

2. In a certiorari proceeding in a civil cause, where no affidavit in forma pauperis is filed, the bond required, duly executed and approved, must be filed at the same time when the petition for certiorari is filed; and if not so filed, the writ must be dismissed on the hearing.’ Hamilton v. Phenix Insurance Co., 107 Ga. 728 (33 S. E. 705); Cole v. Thurman, 119 Ga. 55 (45 S. E. 718); State of Georgia v. Wynne, 4 Ga. App. 719 (62 S. E. 499); Smith v. McCranie, 14 Ga. App. 721 (82 S. E. 307); Sanford v. Wade, 17 Ga. App. 366 (86 S. E. 945). It is likewise clear that the execution and approval of the bond, to be valid, must he made subsequently to the rendition of the judgment which, in the petition for certiorari itself, is assigned as error. It is obvious that the certiorari proceedings can not be commenced before the rendition of the very judgment which is the foundation of such proceedings.

3. In the instant case (no affidavit in forma pauperis having been filed) the petition "for certiorari shows that the judgment which is assigned as error therein, and which is the basis of the certiorari proceeding, was rendered on the first day of December, 1916; while the copy of the bond attached to the petition shows on its face that it was executed and approved on the 17th day of November, 1915, — -more than twelve months prior to the rendition of said judgment. It is obvious that a bond so executed and approved is fatally defective; and since no part of the petition for certiorari, including the bond attached thereto, is amendable, the judge of the superior court did not err in dismissing the certiorari.'

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.