Attebery v. City of Manchester , 76 Ga. App. 265 ( 1947 )

1. The ten-day's written notice of the sanction of a writ of certiorari, and also the time and place of hearing provided for in § 19-212 of the Code, must be given the opposite party in interest, his agent, or attorney, unless prevented by unavoidable cause or unless waived in writing. When such notice is not given and the failure to give it is not shown to be due to unavoidable cause, the certiorari should be dismissed unless there is a waiver in writing. Watson v. American Nat. Bank, 13 Ga. App. 599 (79 S.E. 586); DeVane v. Williams, 49 Ga. App. 82 (174 S.E. 184); Walker v. District Grand Lodge, 15 Ga. App. 644 (83 S.E. 1101).

2. Where the certiorari is from the judgment of a municipal court for the violation of a city ordinance, service of notice of the sanction, and the time and place of hearing of the certiorari, upon the solicitor-general of the circuit in which the municipality is located, is ineffectual for the purpose of serving such municipal corporation, there being no provision of law to require a solicitor-general to represent municipal corporations within his circuit. Smith v. Washington, 4 Ga. App. 514 (5) (61 S.E. 923).

3. Serving of the writ of certiorari and petition for certiorari upon an officer of a municipality authorized to accept service within the required time is not such service of notice of the sanction of the writ of certiorari and of the time and place of hearing as meets the requirements of the mandatory provision of the Code. Darby v. Ball Ground, 53 Ga. App. 700 (187 S.E. 120); Franke v. May, 86 Ga. 659 (12 S.E. 1068); Federal Life Insurance Co. v. Hurst, 39 Ga. App. 807 (148 S.E. 614).

4. Noncompliance with the rule providing for the service of briefs on opposing counsel is not cause for the striking of the brief.

DECIDED DECEMBER 5, 1947. V. G. Attebery was convicted in the Recorder's Court of the City of Manchester for the violation of a city ordinance. He petitioned the superior court for a writ of certiorari, and the same was sanctioned. The writ was issued by the Clerk of the Superior Court of Meriwether County to the Recorder of the City of Manchester, directing that the record be certified and sent to the superior court to be held in and for said county, on the third Monday in August, 1947. L. M. Wyatt, Solicitor-General of the Coweta Judicial Circuit, in which is embraced Meriwether County and the City of Manchester, acknowledged service of the petition, writ and sanction of certiorari, and notice of sanction, time and place of hearing, and waived all other notice and service. The record also contained the following entry of service, "Georgia, Meriwether County. Before me, the undersigned authority, personally appeared Sam Gregory, who, being duly sworn, deposes and says, that he did on the 5th day of July, 1947, personally serve Hon. I. H. Davis with writ of certiorari, process and petition for certiorari, as amended, in the matter of V. G. Attebery vs. Hon. I. H. Davis, case no. ____ in the Superior Court of Meriwether County." (Signed) "Sam Gregory — Sworn to and subscribed before me this 7 day of August, 1947, M. R. Twitty, Notary Public, Ga. State at Large."

On the 3rd Monday in August G. C. Thompson, attorney for the City of Manchester, filed a written motion in the superior court as follows: "Now comes the City of Manchester and makes its appearance in said case solely for the purpose of making this motion; and, without having filed any pleadings in said case or making any appearance except for the purpose of making this motion, moves that the said certiorari be dismissed because the said City of Manchester, defendant in certiorari, was not served with notice of sanction of said certiorari as required by section 19-212 of the Code of Georgia."

Upon the hearing of this motion, the judge of the superior court sustained the same and dismissed the certiorari. This ruling is assigned as error.

After the case reached this court, the attorney for the plaintiff in error filed a motion in this court to strike the brief of the defendant in error because the same was not served on him within the time provided for in Rule 21 of this court (Code, § 24-3621). 1. The principle of law set out in headnote 1 is well settled in this State, and this headnote need no elaboration. For authorities in support thereof, see cases cited in the headnote and the many cases cited under Code (Ann.) § 19-212.

2. A solicitor-general in his capacity as a member of the bar and private practitioner may be employed to represent municipalities in certiorari cases brought to the superior court by persons who have been tried and convicted for the violation of municipal ordinances; and when he is such attorney of record for such municipality, service upon him of the notice of the sanction and the time and place of hearing would meet the requirements of the Code. However, in his official capacity as solicitor-general there is no provision of law either to authorize or to require him to represent a municipality in such a case. Therefore, he not being an agent or an attorney of such municipality, service of such notice upon him, or waiver of such notice by him, is ineffectual.

3. The motion to dismiss the certiorari was based upon the ground that the defendant in certiorari was not served with notice of sanction of such certiorari. It is insisted by the plaintiff in error in his brief that the service of the writ of certiorari, process, and petition for certiorari, as amended, on I. H. Davis, shown by the record to be the city recorder who tried the case against the plaintiff in certiorari in the Recorder's Court of the City of Manchester, the record of which service is disclosed by the affidavit of Sam Gregory, is sufficient. Assuming, but not deciding, that Davis is an officer of the City of Manchester authorized to accept service, does the service of the writ of certiorari, process, and petition for certiorari as amended meet the requirements of the Code? In a certiorari case the process is the writ itself. The amendment to the petition did not strengthen it for the purpose of service; the amendment when allowed only becomes a part of the petition for certiorari. Therefore what was actually served on Mr. Davis by Mr. Gregory was the writ of certiorari and the petition. The sanction of the certiorari is the authority which the clerk has for issuing the writ. There is nothing in the record to indicate that the sanction was served on Mr. Davis. This instrument properly should remain in the clerk's office as evidence of his authority for issuing the writ. There is nothing in the writ itself or the petition for the writ that the same had been sanctioned except the recital in the writ itself that the plaintiff in error "has complied with the requirements of the law in cases of application for certiorari." In Darby v. Ball Ground, 53 Ga. App. 700 (supra), the court held as follows: "The following writing is not a compliance with the mandatory requirements of the foregoing section [Code, § 19-212], and the judge did not err in dismissing the certiorari because it appeared that `no notice of the time and place of hearing has been given be petitioner as required by law:' `This is to certify that I have this day personally left at the office of Mr. H. Roy Cobb, Mayor of and for the City of Ball Ground, Ga., petition and writ of certiorari in the above and foregoing case. I do hereby certify that I have this day served personally the Solicitor-General of the Blue Ridge Judicial Circuit with a copy in said case. This the 7th day of Feb., 1935. M. G. Hicks, Atty. for petitioner.'" The giving of the notice of sanction is mandatory, and required with equal dignity as the giving of the notice of time and place of hearing. See Bunn v. Henderson,113 Ga. 609 (1) (39 S.E. 78).

Regardless of what our decision on this subject might have been had we been accorded the privilege of first deciding it, the foregoing decisions require us to determine here that the service disclosed in the affidavit of Sam Gregory does not meet the requirements of Code § 19-212.

Martin v. Tifton, 6 Ga. App. 16 (63 S.E. 1132), relied upon by the defendant is distinguished from the instant case andDarby v. Ball Ground, supra, because in the first-stated case notice of sanction of the writ and of the time and place of hearing was given the mayor, he being a proper official of Tifton to accept service, and the fact that as mayor the subject of review was his judgment did not affect the rule. In Darby v.Ball Ground, and in the instant case, assuming but not deciding that the proper officers were served, and the subject of review being their judgments, yet the matter served did not contain the substance required by the Code.

4. The motion to strike the brief of the defendant in error is denied. Noncompliance with Rule 21 of this court (Code, § 24-3621), with reference to failure to serve a brief on opposing counsel, has often been held by this court not to constitute cause for dismissing the writ of error, but is matter for contempt. See many cases cited under § 24-3621 of the Code (Ann.), catchword "Noncompliance." Since it is not a ground for dismissal of the writ of error, but is only a matter for contempt, it certainly should not be held to constitute a ground for striking the brief. The purpose of filing a brief is to aid the court in arriving at a proper conclusion of the law of the case.

A perusal of the allegations contained in the petition for the writ of certiorari discloses charges indicative of a need for judicial investigation as to their truthfulness on the merits of the case. However, the suspension of the rules of law governing the practice in certiorari cases is not justified as the means of accomplishing this end in a particular case, especially where other means of judicial investigation are open.

The judgment of the superior court dismissing the certiorari is without error.

Judgment affirmed. MacIntyre, P. J., and Gardner, J.,concur.