Metropolitan Life Insurance v. Monroe

Jenkins, P. J. 1. Under the provisions of section 5185 of the Civil Code • (1910), it is the general rule that before any writ of certiorari shall issue, the party applying for the same shall give bond and security for [333] all future costs and tlie eventual condemnation money, payable to the adverse party, and if he fails so to do the superior court does not acquire jurisdiction of the case. Miller v. Adamson, 118 Ga. 432, 433(2) (45 S. E. 365) ; Jones v. Gill, 121 Ga. 93, 96 (48 S. E. 688) ; Carroll v. Inner Shoe Tire Co., 21 Ga. App. 397 (94 S E. 643). Decided February 24, 1921. Certiorari; from Bibb superior court — Judge Mathews. April 9, 1920. Application for certiorari was denied by the Supreme Court. 2. A certiorari bond payable on its face to a named individual, followed by the word “ administrator,” which fails within itself to furnish the means whereby the actual principal for whose benefit the bond is executed can be ascertained with absolute and legal certainty, amounts to nothing more than an undertaking in favor of the named individual, and the word “ administrator ” is to be taken merely as deseriptio person®. Civil Code (1910), § 3570. (a) Thus, where the caption to a certiorari bond is entitled “Turner Monroe, administrator, v. Metropolitan Life Ins. Co., in the Municipal Court of the City of Macon, September Term, 1919,” and where the bond recites dissatisfaction with the verdict rendered in said case, and a desire to certiorari the same, as a reason for entering into said bond, and where the obligor binds himself for future cost and the eventual condemnation money unto “Turner Monroe, administrator,” the obligation must be taken as being executed in favor of Turner Monroe individually, and cannot be construed as payable to “ Turner Monroe as administrator upon the estate of Jeannette Green.” although 'the bond may be physically attached to a petition for certiorari (to which no reference is made) reciting a verdict and judgment adverse to petitioner in the c'ase of Turner Monroe as administrator upon the estate of Jeanette Green v. Metropolitan Life Insurance Co., filed to the September term, 1919, of the municipal court of the City of Macon. 3. The fact that the judge of the superior court may have allowed the answer of the trial judge and the writ of certiorari issued by the clerk, both referring to the case as “ Turner Monroe, administrator,” to be amended nunc pro tunc, so as to read “Turner Monroe as administrator upon the estate of Jeannette Green,” would not operate to give the superior court jurisdiction of a ease which in the absence of the required bond it could not entertain. Miller Co. v. Anderson, 118 Ga. 432(2) (45 S. E. 365). 4. Irrespective of whether or not, under § 5707 of the Civil Code (1910), a certiorari bond is amendable in any respect (see Simpkins v. Johnson, 3 Ga. App. 437 (60 S. E. 202), and Carroll v. Inner Shoe Tire Co., 21 Ga. App. 397, 94 S. E. 643, holding it to be not amendable), no offer to amend was made in this case; and while it is sometimes true that an instrument may be void' as a statutory bond and yet he good when properly sued on as a common-law obligation (Paxson v. Planters Warehouse & Loan Co., 20 Ga. App. 267, 92 S. E. 1023), yet the defendant in certiorari is entitled to whatever rights were his pertaining to the statutory requirements of the bond, and the judge of the superior comt did not err in dismissing the writ. Judgment affirmed. Sill, J., concurs. Jones, Parle & Johnston, for plaintiff in error. G. E. Eallj contra.