Alley v. Elliott-Madison Co. , 1918 Ga. App. LEXIS 574 ( 1918 )

Wade, C. J.

1. “The plaintiff in certiorari shall cause written notice to be given to the opposite party in interest, his agent, or attorney, of the sanction of the writ of certiorari, and also the time and place of hearing, at least ten days before the sitting of the court to which the same shall be returnable, and in default of such notice (unless prevented by unavoidable cause) the certiorari shall be dismissed.” Civil Code, § 5190.

2. While it has been held that the following acknowledgment, endorsed on the petition and signed by counsel for the defendant in certiorari, ' was sufficient evidence that he “not only waived written notice of the time and place of hearing, but also received due and legal notice of the judge’s sanction,” to wit: “Due and legal service of the within petition for certiorari and certiorari acknowledged; notice of time and place of hearing waived” (Asher v. Cape, 95 Ga. 31, 22 S. E. 41), in this case no written notice was given to the opposite party in interest, his agent, or attorney, of the sanction of the'writ of ‘certiorari and of the time and place of hearing, and the only acknowledgment or waiver of notice made by counsel for the defendant in certiorari was the following: “Due and legal notice of the sanction of the writ of certiorari in the foregoing ease acknowledged.” No reference whatever was made therein to “the time and place of hearing,” and the acknowledgement of notice of'the sanction of the writ was therefore insufficient to prevent the dismissal of the certiorari upon motion. The cases of McAlister v. State, 77 Ga. 599 (3 S. E. 163), and American Bonding & Surety Co. v. Adams, 124 Ga. 510 (52 S. E. 622), are not in conflict with this ruling.

Decided July 11, 1918.

Certiorari; from Fulton superior court—Judge Bell. April 8, 1918.

B. B. Jackson, for plaintiff in error. Emile Breibenbucher, M. Eerzberg, contra.

Judgment affirmed.

Jenkins and Luke, JJ., concur.