Smith v. McCranie

Wade, J. 1. Before any writ of certiorari shall issue in a civil case, a proper bond or an affidavit in lieu thereof, as provided by sections 5185 and 5187 of the Civil Code of 1910, must be filed with the petition. Giving bond or making the affidavit is in a civil ease a condition precedent to the issuance of the writ, but not to the sanction of the petition for certiorari. 2. Where such a petition was verified as provided in section 5184 of the Civil Code, the applicant for certiorari had until after the sanction of the petition, and until the filing thereof with the clerk of the superior court, in which to supply either the necessary bond or the required affidavit in lieu thereof; and a defective affidavit in forma pauperis, which failed to comply with section 5187 of the Civil Code of 1910, in that it set out that the petitioner was “unable to pay the cost and give security,” etc., instead of that he was “unable to pay the cost or give security,” etc., should have been treated as mere surplusage, and the petition should have been sanctioned, it being otherwise deserving of sanction. 3. Upon the trial of the issues raised by an attachment, levy, and claim, when neither title to nor possession of the property levied upon is set up, except by proof of slight circumstances and by opinions and conclusions expressed by witnesses, and on the other hand the' unimpeached evidence of the claimant is clear and unequivocal, both as to her possession and her title, a verdict finding the property subject is contrary to law. 4. Until the coming in of the answer, a petition for certiorari must be assumed to speak the truth, and where the recitals therein show that the verdict complained of was contrary to the legal evidence adduced at the trial, the petition should be sanctioned and the writ of certiorari ordered to issue. Judgment reversed.