Kieve v. Ford

Lewis, J. It appears that this suit originated in a justice’s court in Dougherty county. The same was a suit upon a forthcoming bond in that court, and the party against whom the magistrate decided excepted to his judgment, and sought to review and reverse it by petition for certiorari to the judge of the city court of Albany, for Dougherty county. .Under the constitution of this State, embodied in Civil Code, § 5846, in treating of the jurisdiction of the superior courts, it is declared: “They shall have power to correct errors in inferior judicatories, by writ of certiorari, which shall only issue on the sanction of the judge.” The judge therein referred to evidently means the judge of the superior court. The constitution, therefore, expressly declares that a writ of certiorari can not issue except on the sanction of a judge of the superior court. The action of the judge of the city court in this case in sanctioning the writ of certiorari is clearly contrary to the express provision of the constitution which we have above cited. If the sanctioning of the writ was void, the subsequent proceedings had upon the petition for certiorari and the answer of the magistrate thereto, in which the judge sustained the petition for certiorari, are absolutely void. This proceeding was doubtless based upon the provision in the act approved December 16, 1897 (Acts 1897, p. 409, §2), establishing the city court of Albany. Under that act it is declared : “ That the city court shall have concurrent jurisdiction with the superior court of all appeals and certioraris from all inferior courts in said county, except the court of ordinary, said appeals and certioraris to be had under the same rules governing such remedies in the superior court. The city judge is hereby given authority to sanction petitions for certiorari returnable to said city court.” Under the view above expressed as to the provision of the constitution upon the [32] subject of certiorari, we think, this provision in the act establishing the city court of Albany is clearly unconstitutional. The city court of Albany, therefore, instead of hearing and entertaining jurisdiction of this petition for certiorari, should have dismissed the same for want of jurisdiction. We feel, therefore, constrained to reverse the judgment of the court below, because the court erred in entertaining any jurisdiction of the case. He should have granted an order dismissing the petition for certiorari for want of jurisdiction, and direction is accordingly given. Judgment reversed with direction. All the Justices concurring,, except Fish, J, absent.