Milam v. Sproull , 36 Ga. 393 ( 1867 )

Walker, J.

1. The application for a writ of certiorari was made in open Court. The Judge from the bench notified the opposite counsel of the application, and that counsel objected to the granting of the writ until the exceptions signed by the Inferior Court should be produced, and the Judge refused his sanction until the cause of this objection was removed. If the counsel did not examine the petition for certiorari, how did he know that the bill of exceptions did not accompany it ? The petitioned was backed, showing to what term of the Court it was made returnable. It was applied for and granted in open Court, during a regular term, and, of course, would be returnable to the next term. The calling of the attention of the counsel to the application, which application contained evidence that the case was returnable to the next term, and which, from the facts apparent, must have been examined by the counsel, certainly was notice in writing of the time and place where the certiorari would be heard. The bill served on the party was written notice that the writ had been granted. Together they are a substantial compliance with the statute. At the proper time and place of hearing, the counsel is present, a continuance for ten days is agreed on, and then a host of affidavits, taken months before, presented, for the purpose of showing the rights of the parties respecting the matters in controversy. And notwithstanding all this, the Court is gravely asked to dismiss the certiorari because the party had no notice! There was a substantial compliance with the requirements of the statute, and the Court did right to overrule the motion to dismiss.

2. The object of giving notice to a party of the sanction of a writ is to inform him of the fact, so that he may take such steps as he may deem proper for his protection in the premises. If the party be in fact notified in writing, though not formally, and appear at the time and place of hearing the certiorari, the writ should not be dismissed. Courts administer to parties substantial justice according to law, and listen with little favor to mere technical objections not affecting the merits of the controversy. The Acts of our Legislature, as well as the spirit of the age, are in favor of arriving at substantial justice without much regard to mere forms. If a party be notified, however informally, and is present in Court at the proper time, the tendency, of the Courts is to hold him bound. If in consequence of a want of time for preparation the party be unprepared to proceed then, the Courts by continuance, or otherwise, are disposed so to direct the proceedings that a hearing may be had on the real merits rather than turn parties out of Court on mere technicalities. The Courts possess ample discretionary powers to protect the rights of all suitors, so that complete justice may be meted out to all. If a party be guilty of laches, the Court will impose such penalty as the justice of the case may require.

3. Upon the hearing, the defendant in certiorari proposed to read sundry affidavits taken after the trial in the Inferior Court, for the purpose of showing that though upon the case as then made the plaintiff might have a good cause for certiorari, yet that upon a new trial it could do the party no good; and the Superior Court should pass upon the merits of the controversy, viewed in the light of these ex parte affidavits. Or to express it differently, if the Inferior Court, upon the case as made before it, committed an error, the Superior Court should not correct that error for the reason that on another trial the defendant can get up evidence sufficient to show that justice was done after all. The object of a certiorari is “ to correct errors in inferior judicatories,” and to enable the Superior Court to correct these errors, the case, as made in the Court below, should be presented to the Superior Court, and it has no authority to hear the case de novo. Certainly the Inferior Court committed no error in not hearing and acting on these affidavits, because they were not tendered. When the case is remanded, the party can offer such legal testimony as he may see proper, and the action of the Court upon it will be subject to review. The course proposed by plaintiff in error would confer upon the Superior Court original jurisdiction in cases which are properly cognizable elsewhere. No authority was read in favor of the power thus claimed for the Superior Court, and we have no knowledge that any such exists. The Superior Court did right to repel the proposed affidavits.

4. There being no evidence that the road in controversy had existed for seven years, the Inferior Court had no authority to declare it a public road without compensating the owners of the soil for the damages thereby sustained. Whether a road made by use, such as is usually called a “ neighborhood road,” is technically a “ private way,” may admit of doubt. The Code, section 692, authorizes the Inferior Courts <c to grant private ways to individuals,” &c. Does not section 709 refer to private ways thus granted ? Of course, the rights of the public by presciption or dedication may exist aside from this provision of the Code. The Court did right to sustain the certiorari.

Judgment affirmed.