Buchanan v. Satterwhite

Wade, C. J.

1. Section 5185 of the Civil Code of 1910 requires2 among other things, that “before any writ of certiorari shall issue, the party-applying for the same, his agent or attorney, . . shall . . produce a certificate from the officer whose decision or judgment is the subject-matter of complaint, that all [italics ours] costs which may have accrued on the trial below have been paid.” Where such a certificate shows that all the costs which accrued on the trial below were paid “except tlnee dollars allowed by the court to the garnishee for cost of answering the garnishment,” it is obvious that the mandatory provision of the code that all costs shall be paid before the writ will issue was not complied with; and the judge of the superior court did not err *24 in dismissing the certiorari for this reason. See Savannah, Griffin & North Alabama Railroad v. Shell, 72 Ga. 201 ; Western & Atlantic R. Co. v. Carder, 120 Ga. 460 ( 47 S. E. 930 ).

Decided March 13, 1918. Certiorari; from Muscogee superior court—Judge Howard. June 20, 1917. B. Terry, 8. T. Pinkston, for plaintiff in error. Paul Blanchard, contra.

2. Section 5294 of the Civil Code of 1910 provides that “if the garnishee shall have to incur any expense in making his or her answer to the garnishment, or in turning over said personal property, the amount so incurred shall be taxed in the bill of costs, under the approval of the court, and be paid by the party east in the suit, as other costs are now paid.” The amount incurred in answering the garnishment in the present suit was therefore a proper item of costs.

(a) The contention of the plaintiff in error that the cost of answering the garnishment was not proved in the lower court, and therefore could not be taxed as a part of the costs, cannot be considered, since this complaint was made in the bill of exceptions for the first time, whereas the question as to the sufficiency of the evidence to warrant the judgment allowing the garnishee the cost of answering should have been raised in the petition for certiorari. See Jefferson v. City of Perry, 18 Ga. App. 690 ( 90 S. E. 366 ).

Judgment affirmed.

Jenkins and Luke, JJ., concur.