Freedman v. Bush

Jenkins, P. J. (After stating the foregoing facts.)' While it is true that “ assignments of error and recitals of fact in a petition for certiorari not affirmatively verified in the answer can not be considered” (Shirling v. Kennon, 119 Ga. 501 (2), 46 S. E. 630; Moore v. Coleman, 28 Ga. App. 427, 111 S. E. 579), and while “ it is essential to the maintenance of the certiorari . . that the answer should show- that there has been a final judgment or verdict rendered,” still “ this fact may properly appear either in the answer, in the form of a direct statement, or in any other way which will sufficiently verify it.” Ga. So. Ry. Co. v. Goodman, 4 Ga. App. 631 (62 S. E. 97). Where, therefore, a petitioner in certiorari from the municipal court of Atlanta set forth in exhibits referred to and attached to his petition the judgment overruling his motion for new trial, with its date, besides the original judgment rendered in the case, and his application for the writ was duly made within the statutory period from the judgment on the motion for a new trial, although beyond the statutory period from the original judgment, the petition was not subject to dismissal as [759] being too late, upon tbe ground that the judgment on the motion for new trial and its date were not verified or shown in the answer of the municipal-court judge, where the answer stated that “the errors complained of and the exhibits attached to said petition for certiorari, together with the judgment thereon, are correct copies of the originals on file in this office.” See also Landrum v. Moss, 1 Ga. App. 216 (57 S. E. 955); Brown v. Atlanta, 123 Ga. 497 (51 S. E. 507). This ground of the motion to dismiss was without merit. The second ground of the motion to dismiss should have been sustained, not because of technical insufficiency in the form of the assignment of error, but because the assignment is not verified by the answer of the municipal-court judge. The question here involved is thus different from that in Green v. Patterson, 25 Ga. App. 374 (103 S. E. 437), and Starnes v. Bacon, 25 Ga. App. 360 (103 S. E. 39). While the 8th paragraph and the next paragraph of the petition allege that the ground of the motion for a new trial was that the court erred in sustaining the defendants’ demurrer to the second count of the petition, the answer fails to verify these averments or to show what the ground actually was. Nor is the ground of the demurrer shown. The allegations being unverified, the superior court had before it no valid assignment of error which could properly be considered. There is no general assignment or exception to the overruling of the motion for a new trial, or to the original judgment against the plaintiff as being contrary to law because without-evidence to support it, which- — • had this been done — might perhaps have analogized the case to those precedents where it has been held that the appellate court 'may consider the general grounds of a motion for new trial, although the trial judge has failed to approve or verify them. DeVaughn v. Armstrong, 69 Ga. 771; Ga. Land & Lumber Co. v. Humphries, 66 Ga. 754; Cox v. Moore, 142 Ga. 487 (6) (83 S. E. 115). But see Holcomb v. Finch, 25 Ga. App. 261 (2) (103 S. E. 38), where it was held that such a general assignment of error in a certiorari will not suffice, where it does not appear “what grounds of error were urged in the oral motion for new trial.” See also L. & N. R. Co. v, Lovelace, 26 Ga. App. 286 (106 S. E. 6). As stated, however, this question is not here involved, since it is in effect conceded that the petition contained no such general [760] assignment of error. Since the petition contained no general grounds or assignment of error, and the only ground or assignment made is invalid because unverified, the case does not fall within the ruling of this court in Gresham, v. Lee, 28 Ga. App. 576 (112 S. E. 524), where it was held by a majority of this division that, where the court has jurisdiction under a valid assignment of error, the first grant of a new trial on certiorari will always be affirmed, unless the verdict and judgment rendered in the trial court were as a matter of law demanded, and that this is true “even though the judge in granting the new trial had no jurisdiction to pass upon the discretionary grounds, and even though the court may have committed error in passing upon the specific ground upon which it awarded a new trial.” See also the recent case of Rowe Express Co. v. Twiggs County, 152 Ga. 548 (110 S. E. 303). Judgment reversed. Stephens and Bell, JJ., concur.