Watson v. American National Bank

Bussell, J. The American National Bank of Macon, Georgia, obtained in a justice’s court a judgment against the present plaintiff in error, who thereupon sued out a writ of certiorari to the superior court. Upon the call of the case the certiorari was dismissed by the judge of the superior court, on the ground that no service of notice of the sanction of the writ of certiorari had been perfected within the legal time limit. Upon the hearing of the motior it was agreed that the petition for certiorari was sanctioned May 11, 1912, and that the writ of certiorari was returnable to the November term, 1912, of Bibb superior court, which convened on November 4, 1912, in accordance with the law regulating the terms of that court, and that the answer of the justice to the writ was duly filed. It was admitted that notice of sanction of the writ, and of the time and place of hearing, was given on November 16, 1912. The judge of the superior court sustained the motion to dismiss the petition, and exception is taken to this judgment. The question raised by the writ of error is whether the notice required by the Civil Code, § 5190, may be given ten days before the date when the certiorari is called for hearing, or whether the expression, "at least ten days before the sitting of the court to which the same shall be returnable,” requires that the notice shall be given ten days before the date fixed by law for the convening of the court at which the hearing upon the petition for certiorari may legally be had. We do not think there can be any doubt 600 that the trial judge correctly held that the notice required by this section of the code must be given at least ten days before the opening of the court to which the certiorari was returnable, and the code section is mandatory in the provision that when this has not been done “the certiorari shall be dismissed.” Judgment affirmed'.