Sauceman v. State

Head, Justice. 1. The overruling of a general demurrer by an inferior judicatoiy exercising criminal jurisdiction is a final judgment, and will authorize an application by the demurrant for a writ of certiorari to the superior court. Barnes v. Fleetwood, 5 Ga. App. 296 (63 S. E. 60); Nalley & Co. v. Moore, 51 Ga. App. 718 (181 S. E. 429). 2. It has been held in civil cases that it is not necessary to pay the costs and give security before the sanction of a writ of certiorari. Jones v. Johnson & Ledbetter &c. Co., 185 Ga. 323, 325 (4) (194 S. E. 902). A different rule is applicable in all cases for a writ of certiorari from an inferior judicatory exercising criminal or quasi-criminal jurisdiction. The filing of the bond required by the Code, § 19-214, or the making of a pauper’s affidavit, is a condition precedent to the application for certiorari. Johns v. City of Tifton, 122 Ga. 734 (50 S. E. 941). “The failure to aver in the petition for certiorari that the bond has been filed or the affidavit made renders the petition void.” Veazey v. Mayor &c. of Crawfordville, 126 Ga. 89 (54 S. E. 817); Simon v. Mayor &c. of Savannah, 4 Ga. App. 171 (60 S. E. 1036); Toliver v. Mayor &c. of Wrightsville, 17 Ga. App. 345 (86 S. E. 823); Hubert v. City of Thomasville, 18 Ga. App. 756 (90 S. E. 720). 3. In the present case, the petition contains no -allegation that the bond had been given, pursuant to the above rule, at the time the petition for certiorari was sanctioned by the judge of the superior court. The [61] petition, for certiorari was therefore void and a nullity, and should not have been sanctioned. The judge of the superior court having sanctioned the writ, however, committed no error in dismissing it after a hearing. Gillespie v. Mayor &c. of Macon, 19 Ga. App. 1. (90 S. E. 970); Nilsen v. City of LaGrange, 55 Ga. App. 676 (191 S. E. 175). The ruling in Stallworth v. Mayor &c. of Macon, 125 Ga. 250 (54 S. E. 142), is not in conflict with the ruling here made. In the Stallworth case the petition alleged that the bond had been made. No. 17832. Submitted April 14, 1952 — Decided May 12, 1952. Bobby Lee Cook, for plaintiff in error.' John W. Davis, Solicitor-General, contra. Judgment affirmed. All the Justices concur.