Franke v. May

Bleckley, Chief Justice. The requirement of the statute as to notice is, that “ The plaintiff in certiorari shall cause written notice to be given to the opposite party in interest, his agent- or attorney, of the sanction of the writ of certiorari, and also the time and place of hearing, at least ten days before the sitting of the court to which the same shall be returnable, and in default of such notice (unless prevented by unavoidable cause) the certiorari shall be dismissed.” Code, §4059. How this statute has generally been construed and administered may be seen by reference to the following cases, besides others. Granade v. Wood, 34 Ga. 120; Glenn v. Shearer, 44 Ga. 16; Bryans v. Mabry, 72 Ga. 208; Southern Express Co. v. Wheeler. Id. 210; McAlister v. The State, 77 Ga. 599. The general spirit of the cases is, that the mandate of the statute, “ the certiorari shall be dismissed,” is not to be disobeyed where there has been a failure to give the written notice required. A decision, not by a full court, in Milam v. Sproull, 36 Ga. 393, gives some countenance to a disregard of this imperative mandate upon the theory that the special facts of that case amounted to a substantial compliance with the statute. These special facts were: First, that while the superior court was in session, the judge from the bench informed the attorney for defendant in certiorari that a writ had been applied for, and the attorney objected to granting it because the exceptions signed by the inferior court 661 were not produced, saying that he was entitled to their production as matter of right. Thereupon the judge refused to sanction the writ until the exceptions were produced; they were produced, and the writ was granted during the term. Secondly, the application for and sanction of the writ was recited in a hill for injunction which was afterwards brought by the plaintifr against the defendant in certiorari, and this bill, it would seem, was served on the defendant. Putting these things together, the court held them sufficient notice and a substantial compliance with the requirements of the statute. "We need not approve or disapprove this ruling, for no such facts appear in the present case. What is relied on here as a substitute for the statutory notice is, that after the sanction and issuing of the writ, all the original papers appertaining to the ease were handed by the plaintiff’s attorney to the defendant’s attorney ; that this was done more than ten days before the sitting of the court to which the writ was returnable, and that defendant’s attorney had the custody of the papers for a long time afterwards. All this was in parol, and the delivery seems, from a memorandum made by the plaintiff’s counsel on the same day, to have taken place “ on street between Hunt’s drug-store and First National Bank.” If actual knowledge of the matter would suffice, and if parol evidence could be used to prove such knowledge, it is undoubtedly established; but the statute requires written notice, and doubtless it means what it says. The proper custodian of these papers was the clerk of the superior court. They were office papers, and there was no legal right to use them out of the office by passing them from hand to hand as a substitute for a written notice required by law to be given. It would be strange if a use of these papers which, tested by the general law applicable to office papers, was, to say the least of it, 662 irregular, could be deemed a compliance with so strict and exacting a statute respecting notice as that which we are considering. It could as easily be held that if a sheriff delivers the original declaration and process to the defendant, and leaves them in his possession until the appearance term of the case, that would dispense with service or a waiver of service. It can be seen that at the bottom of this question is something that touches public policy, as well as compliance with the terms of a particular statute. 'It is not sound policy to allow parties to withdraw from the proper custody the papers of a court and employ them in functions appropriate to private papers only. The court committed no error in dismissing the certiorari at the hearing because the statutory notice had not been given. Tor the lack of such notice, there was no proper case pending in the court. Toole v. Davenport, 63 Ga. 160. The death of the ordinary before answering the writ was not a relevant fact on the motion to dismiss. Judgment affirmed. .