Mercer & Company vs. Davidson

Supreme Court of Georgia1888-04-11

80 Ga. 495

Summary · law.co

Holding. The court affirmed the judgment of the court below, holding that a second petition for certiorari may be filed within six months of dismissal of the first petition when the initial dismissal was based on a defect in the petition's execution, even if the filing exceeds the general three-month deadline for certiorari applications.

A party sought a second writ of certiorari after the first was dismissed due to improper bond execution. The trial court allowed the second petition to proceed despite it being filed more than three months after the original decision, relying on a statute permitting renewal of dismissed cases within six months. The defendant challenged this, arguing that the three-month deadline for certiorari applications could not be extended by the renewal statute. The appellate court acknowledged the logical tension in this interpretation but felt bound by prior precedent, particularly Hendrix v. Kellogg and Grimes v. Jones, which had established that a second certiorari could be brought within six months of the first's dismissal when the initial petition contained procedural defects.

The court emphasized that this rule applied only when the first certiorari had been dismissed due to technical defects in the petition itself (such as improper bond or missing affidavit), not when the dismissal resulted from failures in notice or service. The court affirmed the lower court's decision permitting the second certiorari to proceed, treating it as controlled by established precedent despite the justice's expressed reservations about the statutory interpretation.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a second certiorari petition may be filed beyond the statutory three-month deadline
Applicability of the dismissal-and-renewal statute to certiorari proceedings
Distinction between procedural defects in a petition versus defects in notice or service

Procedural posture

An application for certiorari challenging the trial court's allowance of a second certiorari petition filed beyond the standard deadline.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Blandford, Justice.

This was an application to the court below for a certiorari. The defendant in error had presented a petition for certiorari to the judge, who granted it, and it was dismissed on the ground that the bond was improperly executed ; and within six months from that time, but after the time allowed by law to apply for the writ of certiorari, she applied for a second certiorari, which was granted by the judge. On the trial of the case a motion was made to dismiss the second certiorari, upon the ground that she could not, under the circumstances, apply for the certiorari, because it was more than three months after the decision complained of. The court overruled the objection, and gave judgment for the plaintiff in the certiorari, the defendant in error here.

"We think this case is ruled by several decisions of this court, notably by the case of Hendrix vs. Kellogg; 32 Ga. 435. In that case, the first certiorari was dismissed on account of a defect in the affidavit; the second certiorari was sued out within six months after the dismissal of the first; and this court held that under the act of March 6th, 1856, (which is embraced in section 2932 of the code,) the second certiorari might be sustained. In the case of Grimes vs. Jones, 48 Ga. 362, where the first certiorari had been dismissed upon the ground that no affidavit had been filed, this court held that the case fell within the provisions of the act above cited, (code, §2932,) and that the application for the second certiorari could be made at any time within six months from the dismissal of the first.

As for myself, I cannot see how, when a statute prescribes the time in which an application for certiorari shall be made, the time can be extended beyond that period; and I cannot see how it falls within this provision of the code (§2932), that where a suit is dismissed, nonsuited or discontinued, the suit may be renewed within six months. The petition for certiorari is a petition for a writ to be directed to an inferior tribunal, requiring the latter to certify and send up the proceedings in that case and answer the allegations in the petition for certiorari; and for myself, I do not think that is a suit or an action within the meaning of the section of the code above cited. And if this were an original case, it would make a great difference in our ruling in the case. But the question has been adjudicated by at least two decisions of this court, and we feel bound as a court to follow these cases. The question arose in the case of Bonds vs. Pearce et al., 74 Ga. 837; but in that case the court held that where the first certiorari had been dismissed because of the failure of the plaintiff in certiorari to give proper notice to the opposite party, it did not fall within the principles of the decisions above referred to. It was held that as there was no notice, there was no application for certiorari. That was the distinction sought to be drawn between that case and the others above cited. So we affirm the decision of the court below.

Judgment affirmed.