Rice v. City of Moultrie

Russell, J.

So far as appears from the record, the certiorari bond required by law had been filed with the clerk of the municipal court as provided by law. The clerk of the municipal court had so certified, and this certificate was attached to the petition. The answer of the mayor, while not affirming, did not deny the allegation of the petition for certiorari, or the certificate of the clerk of the mayor’s court; consequently it was error to dismiss the certiorari upon the ground that the clerk of the mayor’s court had not approved the bond filed in the case. The petition for certiorari alleged, and the certificate of the clerk of the mayor’s court confirmed the statement, that the very bond required by law had been given; and nothing appears in the record to dispute this statement.

,The ruling would be different if it appeared from the record that the judge of the superior court, as he can do (Stallworth v. Macon, 125 Ga. 250 , 54 S. E. 142 ), had made an investigation into the facts in relation to the bond, and upon such investigation had discovered (either because of failure to recite the proper conditions, as in Roach v. Atlanta, 7 Ga. App. 172 , 66 S. E. 484 , or because it was approved by the mayor instead of the clerk, or for some other reason) that the bond had not been given as required. In the present ease we learn this fact from the brief of the counsel for the defendant in error, but the fact does not appear from the record, nor is it certified in the bill of exceptions that such is the fact, so that this court may know that such is the ‘truth of the case, and that for that reason the judge of the superior court dismissed the certiorari. Judgment reversed.