Spencer v. Gill , 23 Ga. 8 ( 1857 )

By the Court. —

Lumpkin J.

delivering the opinion.

This was a motion to dismiss a certiorari on the ground, that no writ of certiorari had ever issued in the case.

It appears that the petition for a certiorari, had been filed with the Clerk, and that there was another writ filed in the office, between the same parties. The Clerk testifies that he did what he was directed to do by Mr. Hawkins, the attorney of the plaintiff, and that he annexed the necessary process to one of these papers, he cannot say which ; the magistrates to whom the certiorari was directed, answer it, and say in their answer, that they did it “in obedience to the writ of certiorari to them directed.” Their answer not being full, an order was taken, requiring them to answer over.

Ought the certiorari to have been dismissed under 'these circumstances ? especially after it had been pending in the Court for several years, and when the six months had elapsed, so that another certiorari could not have been sued out?

We think not.

The proof rather supports the conclusion that, in point of fact the writ was attached to the petition; but whether it was there originally or not, the order to answer over was equivalent itself to the grantingof the writ, and this was taken without objection.

We hold therefore, that the judgment be reversed, and the certiorari be re-instated.

Judgment reversed.