(Laws 1838, Cobb's 1851 Digest, p. 528; Laws 1850, Cobb's 1851 Digest, p. 529; Ga. L. 1855-56, p. 233, § 16; Ga. L. 1858, p. 88, § 1; Code 1863, §§ 2861, 3965; Code 1868, §§ 2869, 3985; Code 1873, §§ 2920, 4057; Code 1882, §§ 2920, 4057; Ga. L. 1889, p. 84, § 1; Civil Code 1895, §§ 3771, 4642; Civil Code 1910, §§ 4365, 5188; Ga. L. 1924, p. 59, §§ 1, 2; Code 1933, §§ 19-209, 19-210; Ga. L. 1961, p. 190, §§ 2, 3.)
Law reviews.- For annual survey on zoning and land use law, see 70 Mercer L. Rev. 301 (2018).
JUDICIAL DECISIONSANALYSIS
General Consideration
Editor's note.
- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 19-212 are included in the annotations of this Code section.
Dismissal proper when respondent does not answer.
- In a dispute involving coin-operated amusement machines that resulted in an arbitration award for the appellee, the appellant complied with O.C.G.A. § 5-4-6(b) to seek certiorari, but when the Georgia Lottery Corporation (GLC) failed to file an answer as required by O.C.G.A. § 5-4-7, dismissal of the petition was proper; the lower tribunal, not the parties, was statutorily required to certify the record under O.C.G.A. § 5-4-3. Ultra Group of Cos. v. Inam Int'l, Inc., 354 Ga. App. 304, 840 S.E.2d 708 (2020).
Cited in Gregory v. Daniel & Son, 93 Ga. 795, 20 S.E. 656 (1894); Carson v. Mayor of Forsyth, 97 Ga. 258, 22 S.E. 955 (1895); Seagraves v. W.E. Powell Co., 143 Ga. 572, 85 S.E. 760 (1915); Hudson v. State, 21 Ga. App. 507, 94 S.E. 645 (1917); Bull & Son v. Armour Fertilizer Works, 26 Ga. App. 151, 105 S.E. 616 (1921); Johnson v. Barrett, 26 Ga. App. 781, 107 S.E. 168 (1921); Kirkland v. Luke, 30 Ga. App. 203, 117 S.E. 259 (1923); Russell v. Kennington, 160 Ga. 467, 128 S.E. 581 (1925); Towery v. City of McCaysville, 38 Ga. App. 85, 142 S.E. 702 (1928); Jordan v. State, 172 Ga. 857, 159 S.E. 235 (1931); Hudson v. Higgins, 45 Ga. App. 358, 164 S.E. 688 (1932); Nalley & Co. v. Moore, 51 Ga. App. 718, 181 S.E. 429 (1935); Quinn v. O'Neal, 58 Ga. App. 628, 199 S.E. 359 (1938); Howard v. Williams, 72 Ga. App. 822, 35 S.E.2d 389 (1945); Washburn v. Thompson, 78 Ga. App. 133, 50 S.E.2d 761 (1948); Taylor v. Golian Steel & Iron Co., 86 Ga. App. 639, 72 S.E.2d 196 (1952); Bickers v. Georgia Real Estate Comm'n, 89 Ga. App. 815, 81 S.E.2d 535 (1954); Hipp v. City of East Point, 105 Ga. App. 775, 125 S.E.2d 672 (1962); Allison v. City of Atlanta, 109 Ga. App. 114, 135 S.E.2d 524 (1964); Murdock v. Perkins, 219 Ga. 756, 135 S.E.2d 869 (1964); Barrett v. City of Chamblee, 117 Ga. App. 205, 160 S.E.2d 278 (1968); Bellew v. State Hwy. Dep't, 127 Ga. App. 301, 193 S.E.2d 202 (1972); Goldstein v. Smith, 141 Ga. App. 493, 233 S.E.2d 864 (1977); Schaffer v. City of Atlanta, 144 Ga. App. 702, 242 S.E.2d 288 (1978); Williams v. Brownlee, 147 Ga. App. 831, 250 S.E.2d 567 (1978); Fulton County v. Williams, 150 Ga. App. 496, 258 S.E.2d 155 (1979); Mulling v. Wilson, 245 Ga. 773, 267 S.E.2d 212 (1980); Kaplan v. City of Atlanta, 158 Ga. App. 58, 279 S.E.2d 307 (1981); Village Ctrs., Inc. v. DeKalb County, 248 Ga. 177, 281 S.E.2d 522 (1981); Georgia Farm Bureau Mut. Ins. Co. v. DeKalb County, 167 Ga. App. 577, 306 S.E.2d 924 (1983); City of Atlanta v. Houston, 221 Ga. App. 61, 471 S.E.2d 12 (1996); Buckler v. DeKalb County, 290 Ga. App. 190, 659 S.E.2d 398 (2008); City of Dunwoody v. Discovery Practice Management, Inc., 338 Ga. App. 135, 789 S.E.2d 386 (2016); Munye v. State, 342 Ga. App. 680, 803 S.E.2d 775 (2017), cert. denied, No. S18C0239, 2018 Ga. LEXIS 236 (Ga. 2018); Hous. Auth. of Augusta v. Gould, 305 Ga. 545, 826 S.E.2d 107 (2019); Amazing Amusements Group, Inc. v. Wilson, 353 Ga. App. 256, 835 S.E.2d 781 (2019); Williams v. City of Douglasville, 354 Ga. App. 313, 840 S.E.2d 715 (2020).
Time for Filing Application
1. In General
Provisions of subsection (a) are mandatory.
- Provisions of section are absolute and mandatory in respect of time within which writs of certiorari shall be applied for, and cannot be varied or departed from in exercise of any judicial discretion. Hitt v. City of Atlanta, 103 Ga. App. 717, 120 S.E.2d 339 (1961).
Petition must be presented within thirty days from rendition of verdict, if the petition does not complain of error in dismissing motion for new trial. Autrey & Peebles v. Carson Naval Stores Co., 29 Ga. App. 422, 115 S.E. 924 (1923).
Application for writ of certiorari must be made within 30 days of final determination of case in inferior court. Eisenberg v. Fuller, 148 Ga. App. 603, 252 S.E.2d 17 (1979).
Failure to obtain the requisite sanction from the appropriate judge is not an amendable defect if the 30-day time requirement for applying for certiorari under O.C.G.A. § 5-4-6(a) has expired. Cobb County v. Herren, 230 Ga. App. 482, 496 S.E.2d 558 (1998).
Although a trial court's decision to dismiss an action by dismissed city employees was erroneously based on the court's determination that the employees had failed to exhaust their administrative remedies from their claim that the reduction-in-force ordinance, Atlanta, Ga., Code § 114-55, was not properly followed, as they had properly appealed to the Service Board and the Board had denied their claims on appeal, the dismissal was proper for other reasons; after the Board's final decision denying the employees' appeals, the employees failed to properly and timely file a writ of certiorari in the trial court pursuant to O.C.G.A. §§ 5-4-1(a) and5-4-6 in order to obtain review of that decision. Jordan v. City of Atlanta, 283 Ga. App. 285, 641 S.E.2d 275 (2007).
When judgment is not final, subsequent judgments pertaining to it are not final.
- When verdict and judgment rendered in Municipal Court of Atlanta is not a final judgment, neither judgment of trial judge overruling motion for new trial excepting to such verdict and judgment, nor judgment of appellate division of that court affirming such judgment of trial judge, is a final judgment. Reed v. V.H. Kriegshaber & Son, 44 Ga. App. 64, 160 S.E. 560 (1931).
Filing of mandamus action does not excuse compliance with section.
- Because certiorari and mandamus are completely different remedies as to subject matter, procedure, and nature of relief, filing a mandamus action does not excuse compliance with requirements of this section. Richardson v. Rector, 134 Ga. App. 116, 213 S.E.2d 488 (1975).
Mandamus not appropriate remedy for homeowners denied building permit.
- Mandamus was not the appropriate remedy for homeowners whose building permit had been denied by a city; rather, the homeowners were required to pursue the homeowners' appeal through the filing of a petition for a writ of certiorari, pursuant to Statesboro, Ga., Zoning Ordinance § 1809 and O.C.G.A. § 5-4-1(a); moreover, the homeowners' appeal was untimely under O.C.G.A. § 5-4-6(a). City of Statesboro v. Dickens, 293 Ga. 540, 748 S.E.2d 397 (2013).
Section does not deal with means of preserving exceptions to trial court rulings.
- This section merely limits time after final judgment in which writ of certiorari may be applied for, but does not attempt to go into manner in which exceptions to orders and rulings prior to final judgment may be preserved. Taylor v. Golian Steel & Iron Co., 86 Ga. App. 639, 72 S.E.2d 196 (1952).
Certiorari from appeals in justice's court are from jury verdict.
- It is from verdict of jury in appeal cases in justice's court that certiorari may be taken, not from judgment which justice may enter thereon. Western & A.R.R. v. Carson, 70 Ga. 388 (1883).
Fact of timely application must appear from record, unless answer of justice verifies that fact. Duke v. Story, 113 Ga. 112, 38 S.E. 337 (1901); Landrum v. Moss, 1 Ga. App. 216, 57 S.E. 965 (1907).
Section governs time for second application when first application dismissed for noncompliance.
- When application for certiorari is a nullity, because of failure to comply with the requirement as to bond, time within which second application may be made was governed by former Civil Code 1910, §§ 4365, 5188 (see O.C.G.A. § 5-4-6), and was not extended by law as to renewal of cases within six months after dismissal under former Civil Code 1910, § 4381 (see O.C.G.A. § 9-2-61). Tuten v. Showalter, 14 Ga. App. 690, 82 S.E. 154 (1914); Autrey & Peebles v. Carson Naval Stores Co., 29 Ga. App. 422, 115 S.E. 924 (1923).
Renewal of previously dismissed, but timely certiorari in same cause.
- When certiorari is applied for after expiration of statutory period from date of judgment complained of, petition should show on the petition's face that the petition is a renewal of a previously dismissed certiorari sued out within proper time in same cause, and that renewal is within six months from date of dismissal of previous certiorari. Unless all of these facts appear in petition for certiorari, the judge of superior court has no jurisdiction of case, and should refuse to sanction petition; and, if such petition is sanctioned, it should be dismissed when proper motion therefor is made upon hearing of certiorari. Smith v. City of Atlanta, 48 Ga. App. 853, 174 S.E. 171 (1934).
Valid writ of error suspends running of time limit for application for writ of certiorari. Gavant v. Berger, 51 Ga. App. 628, 181 S.E. 210 (1935).
Time ran from denial of motion to set aside default judgment, not default judgment itself.
- In a dispute between a seller of storage units and the buyer's spouse, resulting in a default judgment for the seller in magistrate court, the superior court erred in dismissing the spouse's petition for certiorari as untimely because the petition was filed within 30 days of the denial of the spouse's motion to set aside as required by O.C.G.A. § 5-4-6(a); it was not required that the motion be filed within 30 days of the default judgment. Jorree v. PMB Rentals, LLC, 349 Ga. App. 332, 825 S.E.2d 817 (2019).
Timely petition was improperly dismissed.
- Superior court improperly dismissed as untimely appellant city's petition for a writ of certiorari challenging a civil service board's decision as the petition was timely filed for purposes of O.C.G.A. § 5-4-6(a) since: (1) the last day to file the petition fell on Thanksgiving Day; (2) the Friday after Thanksgiving day, like Thanksgiving day, was a legal holiday as set forth in O.C.G.A. § 1-4-1; and (3) the petition was filed on the very next business day, as allowed by O.C.G.A. § 1-3-1(d)(3). City of Atlanta v. Hector, 256 Ga. App. 665, 569 S.E.2d 600 (2002).
Eleventh of November, although a legal holiday, is included in computing 30-day period.
- In computing 30 days within which petition for certiorari must be presented eleventh of November, although a legal holiday and last day, must be included. Freeman v. Beneficial Loan Soc'y, 42 Ga. App. 294, 155 S.E. 786 (1930).
2. What Are Final Judgments
Writ of certiorari lies only after rendition of judgment making final disposition of case, and then only to correct errors which affect such final judgment. It does not lie to correct errors affecting only judgment which is not final. Reed v. V.H. Kriegshaber & Son, 44 Ga. App. 64, 160 S.E. 560 (1931).
Writ of certiorari lies only after rendition of final judgment. Hayes v. Brown, 205 Ga. 234, 52 S.E.2d 862 (1949).
Final disposition of case in inferior court is prerequisite to writ of certiorari. Singer Mfg. Co. v. McNeal Paint & Glass Co., 117 Ga. 1005, 44 S.E. 801 (1903).
Absent final judgment, court is correct in refusing to act.
- When there has been no final judgment rendered by the state court, the superior court is correct in refusing to exercise the superior court's supervisory powers through a writ of certiorari. Attwell v. Sears Roebuck & Co., 159 Ga. App. 811, 285 S.E.2d 199 (1981).
Judgment of justice of peace, refusing to allow amendment to petition is not final determination. Felker v. Freeman, 46 Ga. App. 767, 169 S.E. 247 (1933).
Verdict and judgment against special plea of no partnership is not a final judgment. Reed v. V.H. Kriegshaber & Son, 44 Ga. App. 64, 160 S.E. 560 (1931).
Judgment sustaining motion to dismiss and granting leave to amend is not final judgment, judgment sustaining demurrer (now motion to dismiss) to petition, which grants leave to plaintiff to amend on pain of dismissing suit, is not a final judgment, and certiorari does not lie thereto. Massengale v. Colonial Hill Co., 34 Ga. App. 807, 131 S.E. 299 (1926).
Notice
Service on the opposite party within five days is mandatory and in the absence of such service the application for certiorari is properly dismissed. City of Atlanta v. Saunders, 159 Ga. App. 566, 284 S.E.2d 77 (1981).
Provisions for notice to opposite party are mandatory. Glover v. Berry Sch., 90 Ga. App. 232, 83 S.E.2d 22 (1954);(decided under former Code 1933, § 19-212).
Notice to opposite party is required unless prevented by unavoidable cause or waived in writing.
- Notice to be given to opposite party in interest, that party's agent, or attorney, unless prevented by unavoidable cause or unless waived in writing, and when such notice is not given and it is not shown to be due to unavoidable cause, certiorari shall be dismissed unless waived in writing. Attebery v. City of Manchester, 76 Ga. App. 265, 45 S.E.2d 781 (1947);(decided under former Code 1933, § 19-212).
Service must be made diligently.
- Although an employee failed to serve the city with a copy of a petition for certiorari within five days as required by O.C.G.A. § 5-4-6(b), the trial court was required to determine whether service was made in a reasonable and diligent manner to effectuate service as quickly as possible. Mangram v. City of Brunswick, 324 Ga. App. 725, 751 S.E.2d 523 (2013).
Failure to serve writ on judge whose decision is to be reviewed.
- When it appears that the writ of certiorari has not been served upon the judge, or other officer whose decision is sought to be reviewed, 15 days previous to the term of court to which the return is to be made, the proceeding should be dismissed, unless it clearly appears that the failure to serve was in no way attributable to the fault of the party making application for the writ. City of Atlanta v. Saunders, 159 Ga. App. 566, 284 S.E.2d 77 (1981).
Failure to serve judge, not basis for dismissal.
- Failure to properly serve respondent, a municipal court judge whose decision was being reviewed, was not a basis for dismissal when the judge made a general appearance and addressed the merits of the case. Hudson v. Watkins, 225 Ga. App. 455, 484 S.E.2d 24 (1997).
Failure to serve city.
- "Opposite party" in a case of certiorari from a municipal court was the city, not the municipal court judge, and failure to serve the city warranted dismissal of the petition. Hudson v. Watkins, 225 Ga. App. 455, 484 S.E.2d 24 (1997).
Superior court erred in denying the city board of appeals' motion to dismiss a petition for writ of certiorari because the service of the original petition upon the city attorney was not sufficient service upon the city as an opposite party when the city was not named as the opposite party, and only the board and the board's members were named in the original petition as the board (as respondent) and the city (as the proper opposite party) were two separate entities with possibly conflicting interests. City of Sandy Springs Bd. of Appeals v. Traton Homes, LLC, 341 Ga. App. 551, 801 S.E.2d 599 (2017).
Failure to serve board.
- Superior court did not err in dismissing petition for certiorari from a decision of the Atlanta Civil Service Board, since the board was not named as a party as required by subsection (b) of O.C.G.A. § 5-4-6, and service of the petition on the City of Atlanta was not service on the City of Atlanta Civil Service Board as a matter of law. Fisher v. City of Atlanta, 212 Ga. App. 635, 442 S.E.2d 762 (1994).
Although the city board of appeals was served with a copy of the petition for certiorari, a sanction of the writ by the superior court, and summonses, the superior court erred in denying the board's motion to dismiss because there was a failure to comply with the statutory requirements as no writ had been issued and served; and, while it was the clerk's duty to issue the writ, it was also separately the duty of the petitioner or the petitioner's counsel to ensure that a writ was served, and the petitioner could not completely divorce itself from the failure that occurred in the current case. City of Sandy Springs Bd. of Appeals v. Traton Homes, LLC, 341 Ga. App. 551, 801 S.E.2d 599 (2017).
Superior court erred in denying the city board of appeals' motion to dismiss a petition for writ of certiorari because there was a complete failure to even issue a writ of certiorari, let alone serve the same upon the board as the respondent; and the petitioner failed to name the city as an opposite party, and failed to serve the city with a copy of the petition and with a copy of the writ in the time required. City of Sandy Springs Bd. of Appeals v. Traton Homes, LLC, 341 Ga. App. 551, 801 S.E.2d 599 (2017).
O.C.G.A. § 5-4-10 may not be utilized to permit service beyond time permitted in O.C.G.A. § 5-4-6. City of Atlanta v. Saunders, 159 Ga. App. 566, 284 S.E.2d 77 (1981).
It is the actual filing of petition in clerk's office which gives the petition validity, but the petition cannot have any validity as such unless the petition is actually filed with the custodian upon whom the law casts duty of receiving the petition. Hunter v. City of Blue Ridge, 79 Ga. App. 719, 54 S.E.2d 510 (1949).
Giving of required notice must affirmatively appear from certiorari proceedings.
- When it does not affirmatively appear from certiorari proceedings that required notice or a waiver thereof was given, proceedings are fatally defective, and superior court does not err in overruling and denying petition for certiorari. Williams v. State, 91 Ga. App. 124, 85 S.E.2d 91 (1954).
Personal service upon respondent is required. Gornto v. City of Brunswick, 119 Ga. App. 673, 168 S.E.2d 323 (1969).
Failure to comply with subsection (b) renders petition and writ invalid.
- When certiorari was dismissed for want of compliance with provisions of former Civil Code 1910, §§ 4365, 5188 (see O.C.G.A. § 5-4-6), petition for certiorari and writ of certiorari were invalid, and for this reason there was no case pending which could be recommenced within six months as provided in § 9-2-61. Butters Mfg. Co. v. Sims, 47 Ga. App. 648, 171 S.E. 162 (1933) (decided under former Code 1933, § 19-210, prior to amendment by Ga. L. 1961, p. 190, § 3, now embodied in subsection (b) of O.C.G.A. § 5-4-6).
Jurisdiction over appeal from dismissal of petition for failure of service.
- When sole question for review on appeal is dismissal of petition for certiorari because of failure of service, the Court of Appeals has jurisdiction of the appeal. Gornto v. City of Brunswick, 225 Ga. 128, 166 S.E.2d 349 (1969).
Failure to give notice to opposite party shall be mandatory ground for dismissal of certiorari unless prevented by unavoidable cause, or unless waived. Glover v. Berry Sch., 90 Ga. App. 232, 83 S.E.2d 22 (1954);(decided under former Code 1933, § 19-212).
Failure to give notice to opposite party is fatal to proceedings and subjects the proceedings to dismissal at any time before final judgment. Goldberg v. City of Atlanta, 71 Ga. App. 269, 30 S.E.2d 661 (1944);(decided under former Code 1933, § 19-212).
Acknowledgment of service does not estop one from claiming service was untimely.
- Mere acknowledgment of service of notice of sanction of writ of certiorari does not estop person making acknowledgment from setting up that the same was, under the law relating thereto, served too late. Scott v. State, 75 Ga. App. 684, 44 S.E.2d 391 (1947);(decided under former Code 1933, § 19-212).
RESEARCH REFERENCES
Am. Jur. 2d.
- 14 Am. Jur. 2d, Certiorari, § 52 et seq.
5B Am. Jur. Pleading and Practice Forms, Certiorari, §§ 81, 88.
C.J.S.- 14 C.J.S., Certiorari, §§ 30 et seq., 41 et seq., 61 et seq.
ALR.- Applicability of statute of limitations or doctrine of laches to certiorari, 40 A.L.R.2d 1381.