Opinion
35139.
DECIDED MAY 12, 1954. REHEARING DENIED MAY 27, 1954.
Certiorari. Before Judge Manning, presiding. Floyd Superior Court. February 2, 1954.
Graham Glover, for plaintiffs in error.
Aubrey Matthews, contra.
The provisions of Code § 19-212, that "the plaintiff in certiorari shall cause written notice to be given to the opposite party in interest, his agent or attorney, of the sanction of the writ of certiorari, and also the time and place of hearing, at least ten days before the sitting of the court to which the same shall be returnable," are mandatory, and failure to comply therewith shall be mandatory ground for dismissal of the certiorari unless prevented by unavoidable cause, or unless waived. Without deciding whether the conduct of a defendant in certiorari in the course of the proceeding can ever constitute such waiver, or whether such waiver must always be expressed in writing, the conduct of the defendant in certiorari here was not such as to invoke a ruling of the superior court on the merits, and consequently did not constitute such waiver.
DECIDED MAY 12, 1954 — REHEARING DENIED MAY 27, 1954.
The defendant in error, The Berry Schools, petitioned the County Board of Roads and Revenues of Floyd County, Georgia, to have a certain section of the O'Bryan Gap public road closed, which petition was opposed by the plaintiffs in error, Eleanor Graham Glover and Carl Terrell, and some five hundred other persons similarly situated. After a hearing the County Board of Roads and Revenues, on August 6, 1953, declared the portions of the roads in dispute to be permanently abandoned and discontinued. The plaintiffs in error then filed their petition in certiorari in the Superior Court of Floyd County to review this decision on September 4, 1953, and the same was sanctioned on the same date. On September 25, 1953, the Clerk of the Floyd County Superior Court issued the writ to the County Board of Roads and Revenues, requiring this tribunal to "certify and send up all the proceedings in said cause to the Superior Court to be held in and for said county on the second Monday in October, 1953" (which date was less than 20 days from the date of issuance of the writ). No hearing was held in October, however, and nothing further appears until an order of the judge of the superior court dated January 11, 1954, reading as follows: "Aubrey Matthews, attorney for the Berry Schools, Inc., having on January 9, 1954, made a motion that Eleanor Graham Glover et al. be not allowed to file their proceeding of traverse to the answer filed by the County Board of Roads and Revenues, and after hearing argument thereon, the Court overruled and denied said motion for the reason the time for filing said traverse had not expired and said motion and order having been handled orally and by error no order had been entered, it is therefore ordered, nunc pro tunc, that the motion of Aubrey Matthews, attorney for Berry Schools, Inc., be denied and that said traverse be allowed to proceed." No exception was taken to this order. While the traverse is not included in the record, it appears from a statement of counsel, recited in the bill of exceptions, that the same was filed. The case came on for hearing on February 2, 1954, and counsel for the defendant in error moved to dismiss the proceedings on the grounds, (a) that no valid writ of certiorari had been issued, and (b) that no proper notice had been given by the plaintiffs in certiorari to the opposing party in interest as required by Code § 19-212. The court then granted the motion and dismissed the proceedings, and this judgment is here assigned as error.
Code § 19-212 provides as follows: "The plaintiff in certiorari shall cause written notice to be given to the opposite party in interest, his agent, or attorney, of the sanction of the writ of certiorari, and also the time and place of hearing, at least 10 days before the sitting of the court to which the same shall be returnable, and in default of such notice (unless prevented by unavoidable cause) the certiorari shall be dismissed." No notice pursuant to this statute appears in the record in this case, and the only statement in regard thereto is that of counsel for the defendant in error, made in connection with his motion to dismiss the proceedings, as follows: "I have that notice that he left in my office. It is undated and unsigned. It is giving notice that the case was returnable to the October term, and to be heard on the second Monday in October, and that was not signed, and that is the only notice or attempt of notice of anything."
The statutory notice must include notice of the sanction of the writ, the time and place of hearing, and must show that it was given ten days before the hearing date. Whether or not the notice contained any of these essential averments, except that concerning the time of hearing, does not appear from the statement of counsel (construing the statement as being an admission that a notice of some sort was received). Nor was the notice as to time of hearing correct, since, under the provisions of Code § 19-209, the writ could not legally be made returnable to the October term, it having been issued within less than 20 days before the commencement of such term. Accordingly, no sufficient notice appears from the record before this court. See Chaffin v. Chaffin, 79 Ga. App. 257 ( 53 S.E.2d 576).
It is insisted, however, that, under the authority of Atlanta Woodenware Co. v. Franklin Ridley, 11 Ga. App. 245 ( 75 S.E. 9) and Peoples Bank of Oliver v. Ash, 18 Ga. App. 315 ( 89 S.E. 441), the defendant in certiorari waived his right to insist upon the dismissal of the proceedings on the ground of lack of notice by appearing in the case and moving to not allow plaintiffs in certiorari to traverse the answer of the County Board of Roads and Revenues, thereby invoking a ruling of the court in the case. Upon reviewing these cases in connection with the later case of Goldberg v. City of Atlanta, 71 Ga. App. 269 ( 30 S.E.2d 661), and the earlier cases therein cited, including Granade v. Wood, 34 Ga. 120, Franke v. May, 86 Ga. 659 ( 12 S.E. 1068), and McConnell v. Folsom, 4 Ga. App. 535 ( 61 S.E. 1051), we conclude it is well settled that failure to give the required notice renders the entire proceeding void, except where the giving of such notice is prevented by unavoidable cause or where such notice is waived. In the McConnell case it is held that the required notice may be waived, but the waiver must be in writing, while in the Atlanta Woodenware Company and Peoples Bank cases it was held that the conduct of the defendant in prosecuting the case on its merits was such that it would be held to be trifling with the court, after such efforts had proved unsuccessful, to say that he had not waived the required notice. Whether the notice may be waived by conduct short of express written waiver is not, however, before this court and need not be here decided, for the reason that there is no express written waiver here and the conduct of the defendant in certiorari in opposing the filing of a traverse to the answer of the Road Commissioners of Floyd County (which is relied upon by the plaintiff in certiorari as constituting a waiver of notice) was in no sense directed to the merits of the case.
The judge of the superior court did not err in dismissing the petition in certiorari.
Judgment affirmed. Gardner, P. J., and Carlisle, J., concur.