(Laws 1811, Cobb's 1851 Digest, pp. 523, 524; Code 1863, §§ 3962, 3963, 3964; Code 1868, §§ 3982, 3983, 3984; Code 1873, §§ 4054, 4055, 4056; Code 1882, §§ 4054, 4055, 4056; Civil Code 1895, §§ 4639, 4640, 4641; Ga. L. 1897, p. 33, § 1; Civil Code 1910, §§ 5185, 5186, 5187; Code 1933, §§ 19-206, 19-207, 19-208.)
Law reviews.- For annual survey on zoning and land use law, see 69 Mercer L. Rev. 371 (2017). For annual survey on zoning and land use law, see 70 Mercer L. Rev. 301 (2018).
JUDICIAL DECISIONSANALYSIS
Giving bond or making affidavit is condition precedent, in civil case, to issuance of writ. Page v. White, 77 Ga. App. 21, 47 S.E.2d 662 (1948).
Filing of bond or making of pauper affidavit is condition precedent to application to superior court for writ of certiorari. Bickers v. Georgia Real Estate Comm'n, 89 Ga. App. 815, 81 S.E.2d 535 (1954).
Petition must affirmatively show filing of bond or pauper affidavit and approval of clerk or judge. Bickers v. Georgia Real Estate Comm'n, 89 Ga. App. 815, 81 S.E.2d 535 (1954).
Failure to pay costs and give bond, or to make pauper's affidavit renders certiorari void. Quinn v. O'Neal, 57 Ga. App. 248, 194 S.E. 911 (1938).
Writ of certiorari in civil case is void when issued before applicant has given bond, or has made and filed affidavit in forma pauperis, in lieu of such bond. Page v. White, 77 Ga. App. 21, 47 S.E.2d 662 (1948).
When it affirmatively appears from petition for certiorari that there was failure to give bond or to make pauper affidavit, such failure renders the petition for certiorari void and an absolute nullity, and the petition cannot proceed. Bickers v. Georgia Real Estate Comm'n, 89 Ga. App. 815, 81 S.E.2d 535 (1954).
Court was correct in dismissing petition for writ of certiorari when it affirmatively appeared from the petition that no attempt had been made to comply with requirements of section relative to making of proper bond or execution of proper pauper's affidavit. Calloway v. Georgia Real Estate Comm'n, 89 Ga. App. 823, 81 S.E.2d 540 (1954).
Writ of certiorari is void, when the writ is issued in case where bond required by section, properly approved, has not been given. Fairfax Loan & Inv. Co. v. Turner, 49 Ga. App. 300, 175 S.E. 267 (1934).
Dismissal or writ of certiorari proper.
- Certiorari is properly dismissed when record does not show that bond was filed with petition. Odom Bros. Co. v. Stovall, 28 Ga. App. 661, 112 S.E. 907 (1922).
Effect of failure to comply.
- Superior court acquires no jurisdiction of case when the party fails to comply with section. Hartsfield Co. v. Luddy, 45 Ga. App. 507, 165 S.E. 452 (1932).
Certiorari from municipal court proceeding regarding nuisance.
- Proceeding in municipal court to determine question of whether nuisance existed was not criminal or quasi criminal in nature since the court cannot fine or imprison the defendant in error, and bond required for certiorari is that provided for in former Code 1933, §§ 19-206, 19-207, and 19-208 (see O.C.G.A. § 5-4-5) for civil proceedings, and a bond under Code 1933, §§ 19-214, 19-215, and 19-216 (see O.C.G.A. § 5-4-20) would not suffice. City of Atlanta v. Pazol, 95 Ga. App. 598, 98 S.E.2d 216 (1957).
Provisions of section are inapplicable to criminal cases. Brown v. State, 124 Ga. 411, 52 S.E. 745 (1905); Bickers v. Georgia Real Estate Comm'n, 89 Ga. App. 815, 81 S.E.2d 535 (1954) (decided under former Civil Code 1910, § 4185, now subsection (a) of this section).
Section inapplicable when certiorari is sought for review of conviction for violation of municipal ordinance. Ellett v. City of College Park, 233 Ga. 858, 213 S.E.2d 700 (1975).
Judicial notice.
- Trial court erred by relying upon a county ordinance not properly in the record to support the court's conclusion that a writ of certiorari was an appropriate method of judicial review of actions undertaken by a county planning commission in approving a developer's plan to build a subdivision of town homes; as a result, the appellate court was precluded from reviewing the owners' constitutional challenge to the ordinance. Monterey Cmty. Council v. DeKalb County Planning Comm'n, 281 Ga. App. 873, 637 S.E.2d 488 (2006).
Construction with O.C.G.A. § 51-1-27. - Upon the grant of certiorari in a medical malpractice action filed by plaintiff parents against a pediatrician, a nurse, and others, a Georgia trial court did not abuse the court's discretion by prohibiting the parents from showing that the nurse failed to pass the nursing board examination, as such evidence was irrelevant, and even if it could be said that the evidence had any probative value, it was substantially outweighed by the danger of undue prejudice. Snider v. Basilio, 281 Ga. 261, 637 S.E.2d 40 (2006).
Arbitration proceedings.
- Upon certiorari review, the Court of Appeals erroneously held that the arbitrator, and not the court, should have decided whether arbitration was barred by res judicata, as: (1) no presumption existed that an arbitrator was in a better position than a court to apply a legal doctrine such as res judicata; (2) the parties did not expressly reserve the issue for arbitration; and (3) there was no presumption under Georgia law that the application of a procedural bar such as res judicata was a matter to be determined exclusively by an arbitrator. Bryan County v. Yates Paving & Grading Co., 281 Ga. 361, 638 S.E.2d 302 (2006).
Action under Dram Shop Act.
- Upon certiorari review, given proof of spoliation under former O.C.G.A. § 24-2-22 in an action filed against a tavern pursuant to Georgia's Dram Shop Act, O.C.G.A. § 51-1-40(b), the trial court erred in granting summary judgment to an injured party's guardian, as the tavern's manager was aware of the potential for litigation and failed to preserve whatever videotaped evidence might have been captured as to whether one of the tavern's intoxicated patron's would soon be driving; hence, a rebuttable presumption arose against the tavern that the evidence destroyed would have been harmful to the tavern, rendering summary judgment inappropriate. Baxley v. Hakiel Indus., 282 Ga. 312, 647 S.E.2d 29 (2007).
Cited in Fuller v. Arnold, 64 Ga. 599 (1880); Hendrix & McBurney v. Mason, 70 Ga. 523 (1883); Hester v. Keller, 74 Ga. 369 (1884); Baker & Lawrence v. McDaniel, 87 Ga. 18, 13 S.E. 130 (1891); Mohrman v. City Council, 103 Ga. 841, 31 S.E. 95 (1898); Hamilton & Co. v. Phenix Ins. Co., 107 Ga. 728, 33 S.E. 705 (1899); New York Life Ins. Co. v. Rhodes, 4 Ga. App. 25, 60 S.E. 828 (1908); American Inv. Co. v. Cable Co., 4 Ga. App. 106, 60 S.E. 1037 (1908); Foley & Williams Mfg. Co. v. Bell & Harrell, 4 Ga. App. 447, 61 S.E. 856 (1908); Sanford v. Wade, 17 Ga. App. 366, 86 S.E. 945 (1915); Le Bron v. Stewart, 26 Ga. App. 133, 105 S.E. 650 (1921); Roberts v. Selman, 34 Ga. App. 171, 128 S.E. 694 (1925); King v. Gafford, 43 Ga. App. 452, 159 S.E. 292 (1931); Howard v. Boone, 45 Ga. App. 356, 164 S.E. 470 (1932); Garvin v. Ray, 174 Ga. 905, 164 S.E. 677 (1932); Deep v. De Vane, 49 Ga. App. 323, 175 S.E. 386 (1934); Roberts v. Citizens Bank, 62 Ga. App. 584, 8 S.E.2d 900 (1940); Brooks v. Arline, 68 Ga. App. 791, 24 S.E.2d 230 (1943); Hunter v. Lanier, 74 Ga. App. 177, 39 S.E.2d 79 (1946); Delinski v. Dunn, 206 Ga. 825, 59 S.E.2d 248 (1950); Taylor v. City of Atlanta, 84 Ga. App. 739, 67 S.E.2d 143 (1951); Palmer Tire Co. v. Maxwell Bros. Furn. Co., 99 Ga. App. 87, 107 S.E.2d 695 (1959); Yield, Inc. v. City of Atlanta, 145 Ga. App. 172, 244 S.E.2d 32 (1978); Buckler v. DeKalb County, 290 Ga. App. 190, 659 S.E.2d 398 (2008); Williams v. City of Douglasville, 354 Ga. App. 313, 840 S.E.2d 715 (2020).
Bond
1. In General
Provisions of subsection (a) are mandatory. Bickers v. Georgia Real Estate Comm'n, 89 Ga. App. 815, 81 S.E.2d 535 (1954).
Bond must be given and approved before writ issues.
- Writ of certiorari in civil case, unless sued out in forma pauperis, is void if the writ be issued before applicant has given bond prescribed. Before writ of certiorari can properly issue it must appear from record that the writ has been duly approved, and to be duly approved the writ must, among other things, be approved before writ of certiorari issues. Butters Mfg. Co. v. Fraley, 46 Ga. App. 712, 169 S.E. 55 (1933).
Bond is condition precedent to issuance of writ, but not to sanction of petition for certiorari. Smith v. McCranie, 14 Ga. App. 721, 82 S.E. 307 (1914); Gragg Lumber Co. v. Collins, 37 Ga. App. 76, 139 S.E. 84 (1927).
Bond is required when pauper affidavit is not filed. Simon v. Mayor of Savannah, 4 Ga. App. 171, 60 S.E. 1036 (1908); Tuten v. Showalter, 14 Ga. App. 690, 82 S.E. 154 (1914); Belk v. Cannon, 19 Ga. App. 487, 91 S.E. 790 (1917).
Certiorari bond need not be under seal. A.R. King & Co. v. Cantrell, 4 Ga. App. 263, 61 S.E. 144 (1908).
Bond is not void because the bond includes provision not authorized by section. Scott v. Oxford, 105 Ga. App. 301, 124 S.E.2d 420 (1962).
Bond complying with section need not bind parties to pay stated penal sum.
- When condition of bond complies with provisions of this section, fact that the bond does not bind parties to pay stated penal sum does not vitiate the bond. Bank of Am. Nat'l Trust & Sav. Ass'n v. Reserve Life Ins. Co., 90 Ga. App. 332, 83 S.E.2d 66 (1954).
Bond providing for payment of future costs, but not for recovery sought.
- When plaintiff in certiorari has paid accrued costs and given bond providing for payment of all future costs, but not providing for payment of eventual condemnation money, the plaintiff has substantially complied with statute. Hartsfield Co. v. Luddy, 45 Ga. App. 507, 165 S.E. 452 (1932) (see O.C.G.A. § 5-4-2).
Bond providing penalty for less than amount sought as award.
- When bond pursuant to section provides for penalty of $20.00 and $20.00 is insufficient to meet sum sought as award, bond is insufficient and certiorari should be dismissed. Gullatt v. Blakenship, 42 Ga. App. 139, 155 S.E. 353 (1930).
Party taking bond cannot delegate right under subsection (b) to justification by surety.
- When party taking bond is State Personnel Board, by a majority of the board's members, nothing in the law gives it the right to delegate the board's right to justification by surety to any other officer. The board alone has power to approve or disapprove bond, and such authority cannot be exercised even by judge of superior court, or by clerk of trial court. When there is no approval of bond by judicial officer, writ must be dismissed. Scott v. Oxford, 105 Ga. App. 301, 124 S.E.2d 420 (1962).
Best way to show that proper bond has been given is to attach to petition a certified copy of the bond, with certificate of approval by proper officer, and allege affirmatively that bond was given and approved as required by law. Beard v. City of Atlanta, 91 Ga. App. 584, 86 S.E.2d 672 (1955).
Bond filed with first petition does not meet requirements of law as to a second petition. Yield, Inc. v. City of Atlanta, 152 Ga. App. 171, 262 S.E.2d 481 (1979).
2. Execution and Attestation
Certiorari bond may be executed by an agent. Porterfield v. City of La Grange, 60 Ga. App. 646, 4 S.E.2d 732 (1939).
Authority of agent to sign bond will be presumed, unless rebutted. Georgia-Alabama Bus. College v. Constitution Publishing Co., 8 Ga. App. 348, 69 S.E. 34 (1910).
Agent or attorney authorized to represent party in case may give bond.
- Bond shall be given by party personally, or by the party's agent, either general or special, who is authorized to represent party in that particular case, or by attorney whose employment includes services in that case or who is authorized by party to give bond. Alabama M. Ry. v. Stevens, 116 Ga. 790, 43 S.E. 46 (1902).
Bond must be signed by surety.
- When bond given by plaintiff in certiorari was not signed by any person or corporation as surety, the only signature thereto being that of principal (the plaintiff in certiorari), bond given did not meet requirements of section. Gleason v. Burgess, 46 Ga. App. 486, 167 S.E. 916 (1933).
When agent of surety signs bond, authority must expressly appear.
- When on certiorari from trial court, certiorari bond is signed by one as agent for surety named thereon, authority of such agent must expressly appear. Taylor v. City of Atlanta, 84 Ga. App. 739, 67 S.E.2d 143 (1951); Edwards v. City of Atlanta, 88 Ga. App. 329, 76 S.E.2d 635 (1953).
When plaintiff sues on non-severable cause of action, both parties must sign bond, absent authority to the contrary. Harwell v. Marshall, 125 Ga. 451, 54 S.E. 93 (1906).
When corporation is surety, bond signed by the corporation's attorney must be accompanied by power of attorney. Hunter v. Lanier, 74 Ga. App. 177, 39 S.E.2d 79 (1946).
Bond for partnership.
- When applicant for writ of certiorari is a partnership and bond required by section is not signed in firm name, nor by one professing to act for the partnership, proceedings are void. Camp, Saunders & Co. v. Bacon Fruit Co., 117 Ga. 149, 43 S.E. 425 (1903).
Commercial notary may attest signatures to certiorari bond. Hendrix & McBurney v. Mason, 70 Ga. 523 (1883).
Any attesting officer may witness a certiorari bond. Southern Ry. v. Oliver, 13 Ga. App. 5, 78 S.E. 684 (1913).
3. Approval
Bond must be approved by judge or justice of court in which case was originally tried. Butters Mfg. Co. v. Fraley, 46 Ga. App. 712, 169 S.E. 55 (1933).
Approval of bond required.
- Bond given under section, to render the bond effectual, must in some manner be approved by judge or justice of court in which case was originally tried. Stover v. Doyle, 114 Ga. 85, 39 S.E. 939 (1901).
Applicability to petitions from appellate division of municipal court of Atlanta.
- There being no special provision of law for any different procedure governing manner in which application for issuance of writ of certiorari may be made when directed to presiding judge of appellate division of Municipal Court of Atlanta, the bond required of petitioner in such a case must be properly and duly approved by presiding magistrate as condition precedent to issuing of writ of certiorari. Butters Mfg. Co. v. Fraley, 46 Ga. App. 712, 169 S.E. 55 (1933).
Trial judge must certify that amount of bond is approved and costs have been paid.
- Under this section, it is necessary that in all applications for certiorari in civil cases bond be given in amount approved by trial judge and that such judge certify under the judge's own signature that bond has been approved and that costs have been paid; otherwise, certiorari is void. Veal v. Eagle Fire Ins. Co., 103 Ga. App. 757, 120 S.E.2d 674 (1961).
Fact of approval of bond given under section, must appear upon papers themselves. State v. Wynne, 4 Ga. App. 719, 62 S.E. 499 (1908).
Approval may appear on face of bond. Dykes v. Twiggs County, 115 Ga. 698, 42 S.E. 36 (1902); Southeastern Mut. Fire Ins. Co. v. Davison, 25 Ga. App. 83, 102 S.E. 460 (1920).
Bond cannot be approved by anyone other than judge or justice of trial court. Southern Ry. v. Oliver, 13 Ga. App. 5, 78 S.E. 684 (1913).
Clerk of court cannot approve bond. Tippins v. De Loach, 9 Ga. App. 362, 71 S.E. 497 (1911).
Approval of bond by clerk, or certification by clerk or other officer that costs have been paid, is insufficient. Veal v. Eagle Fire Ins. Co., 103 Ga. App. 757, 120 S.E.2d 674 (1961).
Commercial notary public cannot approve bond. Southeastern Mut. Fire Ins. Co. v. Davison, 25 Ga. App. 83, 102 S.E. 460 (1920).
Magistrate's statement that bond and security has been given.
- Statement by trial magistrate in the magistrate's certificate to petition for certiorari, that the petitioner has given bond and security as required by law, is not an equivalent, nor a sufficient substitute, for the magistrate's approval of a certiorari bond. If bond is unapproved at date of the bond's filing with the petition, the bond is insufficient to authorize the clerk to issue a writ, and no subsequent approval which might be implied from the magistrate's certificate or otherwise can cure a deficiency. Butters Mfg. Co. v. Fraley, 46 Ga. App. 712, 169 S.E. 55 (1933).
No subsequent action approving or ratifying bond will save certiorari from dismissal. State v. Wynne, 4 Ga. App. 719, 62 S.E. 499 (1908); Butters Mfg. Co. v. Fraley, 46 Ga. App. 712, 169 S.E. 55 (1933).
Costs
Hearing officer could not waive bond requirement.
- Trial court erred in granting a petition for a writ of certiorari as the petition was not accompanied by a bond as required by O.C.G.A. § 5-4-5(a), the hearing officer originally hearing the dispute did not have authority to waive the bond requirement, and a bond by amendment under O.C.G.A. § 5-4-10 was invalid as the bond was not approved by the hearing officer. Duty Free Air & Ship Supply, Inc. v. Atlanta Duty Free, LLC, 275 Ga. App. 381, 620 S.E.2d 616 (2005).
1. In General
Requirement that costs be paid is intended for protection of officers. Johns v. Lewis Drug Co., 120 Ga. 640, 48 S.E. 127 (1904).
Costs must be paid, not merely deposited. Abrahams v. Ryan, 61 Ga. 597 (1878).
Costs include costs accrued on trial resulting in verdict excepted to, but not costs accrued on previous hearings. Johns v. Lewis Drug Co., 120 Ga. 640, 48 S.E. 127 (1904); Standard Gas Prods. Co. v. Vismor, 31 Ga. App. 418, 121 S.E. 854 (1923).
2. Certificate
Writ may be sanctioned, although certificate of payment of costs is not filed. Fuller v. Arnold, 64 Ga. 599 (1880).
Applicability to Municipal Court of Atlanta.
- There is nothing in act creating Municipal Court of Atlanta, or in any of the Acts amendatory thereof, which could be taken to change rule with respect to necessity of signing certificate as to costs by officer whose decision is subject-matter of complaint. Thoms v. John R. Thompson Co., 38 Ga. App. 779, 145 S.E. 533 (1928).
No certificate of payment of costs is required in forcible entry and detainer case. Taylor v. Gay, 20 Ga. 77 (1856).
Certificate not required when second writ of certiorari was procured under former Civil Code 1910, § 4381 (see O.C.G.A. § 9-2-61), when the first writ in the same case was dismissed. Standard Gas Prods. Co. v. Vismor, 31 Ga. App. 418, 121 S.E. 854 (1923).
Receipt of costs may satisfy requirement of certificate that costs have been paid. Western & Atl. R.R. v. Carder, 120 Ga. 460, 47 S.E. 930 (1904).
Statements held insufficient.
- Mere statement that costs of certiorari in municipal court have been paid is insufficient. Osborn v. Osborn, 70 Ga. 716 (1883).
Statement that all costs but three dollars allowed to garnishee for answering garnishment was insufficient. Buchanan v. Satterwhite, 22 Ga. App. 23, 95 S.E. 309 (1918).
Certificate made by clerk of court is insufficient. Davis v. Joiner, 1 Ga. App. 106, 58 S.E. 62 (1907).
Judge of superior court did not err in dismissing petition for certiorari which was accompanied by certificate as to payment of costs, signed only by deputy clerk of municipal court. Thoms v. John R. Thompson Co., 38 Ga. App. 779, 145 S.E. 533 (1928).
Affidavit of Indigence
1. In General
Language of subsection (c) is plain and mandatory. Garvin v. Ray, 174 Ga. 905, 164 S.E. 677 (1932); Bickers v. Georgia Real Estate Comm'n, 89 Ga. App. 815, 81 S.E.2d 535 (1954).
Writ of certiorari may be sanctioned even when improper affidavit has been filed with the clerk, but valid writ of certiorari may not issue in such case. Smith v. McCranie, 14 Ga. App. 721, 82 S.E. 307 (1914).
2. Contents
What must affidavit state.
- Affidavit should allege that owing to poverty affiant is unable to give required security; merely stating that affiant is unable to give security, as required by law, is not sufficient. Roberts v. Selman, 34 Ga. App. 171, 128 S.E. 694 (1925).
Affidavit must state applicant is advised and believes applicant has good cause.
- When affidavit in lieu of bond does not recite that applicant is advised and believes that the applicant has good cause for certiorari application is not sustainable. Williams v. Williams, 117 Ga. App. 161, 159 S.E.2d 456 (1968).
Omission of declaration in pauper affidavit that applicant "is advised" renders affidavit fatally defective. Garvin v. Ray, 174 Ga. 905, 164 S.E. 677 (1932).
Affidavit must state affiant is advised and believes the affiant has good cause for certiorari. Dorsey v. Black, 55 Ga. 315 (1875); Belk v. Cannon, 19 Ga. App. 487, 91 S.E. 790 (1917).
Applicant making affidavit stating only inability to pay costs.
- When applicant for certiorari does not pay costs and give bond with security or make affidavit that owing to the applicant's poverty the applicant was unable to pay costs or give security, but makes affidavit only that the applicant is unable to pay costs, the judge of superior court may properly dismiss certiorari. Quinn v. O'Neal, 57 Ga. App. 248, 194 S.E. 911 (1938).
Affidavit stating party is unable to pay costs "and" rather than "or" give security is insufficient and writ issued in such case should be dismissed. Hackett v. Tate, 18 Ga. App. 453, 89 S.E. 535 (1916).
Writ of certiorari is void when pauper affidavit allowed in lieu of bond uses conjunctive "and," the pauper is unable to pay costs and give security instead of disjunctive "or," as required by section. Fairfax Loan & Inv. Co. v. Turner, 49 Ga. App. 300, 175 S.E. 267 (1934).
3. Who May Make Affidavit
Minor with sufficient discretion may make a pauper affidavit. Bowers v. Kanaday, 94 Ga. 209, 21 S.E. 458 (1894).
Agent cannot make a pauper affidavit. Hadden v. Larned, 83 Ga. 636, 10 S.E. 278 (1889).
Attorney at law cannot make a pauper affidavit. Selma, R. & D.R.R. v. Tyson, 48 Ga. 351 (1873).
Personal affidavit of partner cannot operate in favor of firm. Marlow & Bro. v. Hughes Lumber Co., 92 Ga. 554, 17 S.E. 922 (1893).
RESEARCH REFERENCES
Am. Jur. 2d.
- 14 Am. Jur. 2d, Certiorari, § 72 et seq.
5B Am. Jur. Pleading and Practice Forms, Certiorari, §§ 81, 88.
C.J.S.- 14 C.J.S., Certiorari, § 53 et seq.
ALR.- Right to sue or appeal in forma pauperis as dependent on showing of financial disability of attorney or other nonparty or nonapplicant, 11 A.L.R.2d 607.
What costs or fees are contemplated by statute authorizing proceeding in forma pauperis, 98 A.L.R.2d 292.