Turner v. State , 85 Ga. App. 609 ( 1952 )

85 Ga. App. 609 (1952) 70 S.E.2d 45

TURNER
v.
THE STATE.

33868.

Court of Appeals of Georgia.

Decided March 10, 1952.

Chas. W. Anderson, for plaintiff in error.

Paul Webb, Solicitor-General, John I. Kelley, B. B. Zellars, C. O. Murphy, contra.

GARDNER, P. J.

This case involves a certiorari from the Criminal Court of Fulton County. The certiorari was duly made returnable to the January term, 1951, of Fulton Superior Court. No answer was filed by the trial judge at the first term to which the certiorari was made returnable. No order was obtained to have the time extended for the magistrate in the lower court to file his answer at any time beyond the term to which it was made returnable. In fact, the record reveals that no answer was ever filed by the magistrate. The judge of the superior court duly dismissed the certiorari for the reason that "No answer was filed in said case by the trial court as provided by law." The dismissal was had several terms after the term to which the certiorari was returnable. The duty rests upon the plaintiff in certiorari to discover that no answer has been filed by the magistrate during the term to which the certiorari is returnable. If not filed, it is the duty of the plaintiff in certiorari to obtain an order requiring such answer to be filed within some specified time. See J. M. High Co. v. Georgia Ry. &c. Co., 12 Ga. App. 505 (77 S.E. 588); Douglas v. Wilson, 12 Ga. App. 666 (78 S.E. 50); Mertins v. Gavalos, 28 Ga. App. 438 (111 S.E. 684); Mathis v. City of Nashville, 49 Ga. App. 309 (175 S.E. 383); Henry v. American Railway Express Co., 25 Ga. App. 646 (104 S.E. 16). If no answer is filed, the whole procedure is void so far as empowering this court to pass upon the certiorari. See Hendricks v. State, 70 Ga. App. 805 (29 S.E. 2d, 447).

The court did not err in dismissing the certiorari.

Judgment affirmed. Carlisle, J., concurs. Townsend, J., concurs specially.

TOWNSEND, J., concurring specially. I concur in the result because, while the rule stated in the majority opinion is clearly imposed by a long line of precedents, I consider it to be harsh and illogical. However, under these circumstances, the plaintiff in error has the right to renew his petition for certiorari within six months after dismissal. See Allen v. McGuire, 49 Ga. App. 60 (174 S.E. 147); Georgia Ry. &c. Co. v. J. M. High Co., 15 Ga. App. 243 (82 S.E. 932).