Opinion
36633.
DECIDED APRIL 3, 1957. REHEARING DENIED APRIL 19, 1957.
Petition for certiorari. Before Judge Pharr. Fulton Superior Court. December 28, 1956.
J. C. Savage, J. M. B. Bloodworth, Henry L. Bowden, Newell Edenfield, Robert S. Wiggins, Ferrin Y. Matthews, for plaintiff in error.
M. L. Kahn, contra.
A proceeding in the Municipal Court of Atlanta to determine the question of whether a nuisance exists is not criminal or quasi criminal in nature and upon certiorari of the judgment rendered in such proceeding to the superior court, the petitioner must comply with Code § 19-206, and a bond given under Code § 19-214 will not suffice; therefore, the court erred in denying the motion to dismiss the petition for certiorari.
DECIDED APRIL 3, 1957 — REHEARING DENIED APRIL 19, 1957.
Mrs. Sarah R. Pazol filed a petition for certiorari in the Superior Court of Fulton County to review a judgment of the Municipal Court of Atlanta. The City of Atlanta moved to dismiss the certiorari on the following grounds: "1. No proper bond as required by law (Section 19-206 Code of 1933) has been given, in that (a) There is no bond for the payment of the eventual condemnation money. (b) There is no bond for the payment of future costs. (c) If the bond as given were in the form required, it has not been approved by the judge presiding in the case, as required by law. 2. There is no certificate from the officer whose decision or judgment is the subject matter of complaint, that all costs which may have accrued on the trial below have been paid, as required by law." The court denied this motion to dismiss, and the City of Atlanta excepts.
The petition for certiorari discloses the following: Mrs. Pazol was notified to show cause before the Municipal Court of Atlanta why certain houses owned by her and situated in the City of Atlanta should not be adjudicated to be a nuisance and upon such adjudication that direction be given for the abatement of the same. Evidence was introduced by both parties. The court found that such houses constituted a nuisance and ordered, "Accordingly it is the judgment of the court that Mrs. Sarah R. Pazol, as the owner of the houses located as described in the City of Atlanta, is required to abate said nuisance by demolishing said houses within a period of 45 days from the date of this judgment; and upon her failure so to do the Marshal of the City of Atlanta, or his deputy, is ordered and directed to demolish the same at the expense of the said Mrs. Sarah R. Pazol, as provided by law." Mrs. Pazol sought review in the superior court of such finding and judgment.
It is contended by the defendant in error that the proceeding before the Municipal Court of Atlanta was criminal or quasi criminal in nature and that on certiorari to the superior court, the proper bond was the one prescribed for criminal cases by Code § 19-214. This contention is without merit. The proceeding was under Code § 72-401. The defendant was notified of the hearing and was notified to show cause why the houses on her property should not be declared a nuisance and the same abated. She appeared, and evidence on both sides was heard, and the court ruled that the houses did constitute a nuisance. The court's order gave the defendant in error forty-five days within which to voluntarily abate the nuisance and provided that if she did not abate within that time, the marshal of the court or his deputy should abate. The sole purpose of the proceeding was to determine whether or not a nuisance existed. The only power the court had at such time was to find that a nuisance did or did not exist and if one did exist, to order its abatement. The court did not have the power to fine or imprison the defendant in error. The only power the court could ultimately have exercised in a further proceeding of the matter that might even be close to penal in nature was the power of the court, upon failure of the defendant to abate after notice, to bind the defendant in error over to a State court under the authority of Code § 72-9901, but this he could not do until there had been a failure to abate after notice. Vason v. City of Augusta, 38 Ga. 543 (3); Healey v. City of Atlanta, 125 Ga. 736, 737 ( 54 S.E. 749).
Since the court, in the proceeding to determine the existence of a nuisance, could not fine or imprison the defendant in error, such proceeding was not criminal or quasi criminal in nature and the bond required for certiorari was that provided for in Code § 19-206 for civil proceedings, and a bond under Code § 19-214 would not suffice. City of Atlanta v. Stallings, 198 Ga. 510 ( 32 S.E.2d 256); s. c., 72 Ga. App. 52 ( 33 S.E.2d 18). The fact that this would not be a case involving eventual condemnation money would not relieve the petitioner for certiorari from giving the required bond at least as to all future costs. See Hartsfield Co. v. Luddy, 45 Ga. App. 507 (1) ( 165 S.E. 452), and cases cited.
Since the petition for certiorari fails to disclose that the petitioner had complied with Code § 19-206, the court erred in denying the motion to dismiss the petition. See Page v. White, 77 Ga. App. 21, 22 (1) ( 47 S.E.2d 662).
Judgment reversed. Quillian and Nichols, JJ., concur.