Opinion
36140.
DECIDED APRIL 6, 1956.
Certiorari. Before Judge Wood. Fulton Superior Court. January 10, 1956.
Haas, Holland Blackshear, for plaintiff in error.
Newell Edenfield, J. C. Savage, J. C. Murphy, J. M. B. Bloodworth, Henry L. Bowden, Robert S. Wiggins, contra.
Where, as here, a certiorari bond is signed by one on behalf of the surety named therein, the authority so to sign must expressly appear.
DECIDED APRIL 6, 1956.
A. M. Holloway was convicted in the Municipal Court of the City of Atlanta for the violation of an ordinance forbidding false advertising. He was found guilty and sentenced to 60 days imprisonment or a fine of $200. He sought and obtained a writ of certiorari, and for that purpose gave the following bond: "Georgia, Fulton County: We, A. M. Holloway, as principal, and the undersigned as security, acknowledge ourselves jointly and severally bound unto the City of Atlanta, in the sum of $400.00 subject to the following conditions, to wit: The principal of this bond having been on the 8th day of July, 1954, convicted in the Municipal Court of the City of Atlanta for violating § 36.11 and 2.7 of the Code of the City of Atlanta of 1953 and having been given a sentence of 60 days in the city stockade or pay a fine of $200.00 and his bond being assessed at $400.00, the said principal having filed notice of intention to certiorari said case as by law provided. Now, if the said A. M. Holloway shall personally appear and bide the final order, judgment or sentence upon him in said case, then this bond to be void; else of force.
Witness our hand and seals 8th day of July, 1954.
A. M. Holloway (Seal)
Principal.
Mrs. A. M. Garner (Seal)
Approved: Forrest E. Johnson.
E. B. Treadwell,
Atty. in Facts
Security."
The name of Mrs. A. M. Garner was affixed to this bond by E. B. Treadwell, who had no power of attorney under seal. The City of Atlanta moved to dismiss the writ for the lack of a written power of attorney, under seal, from Mrs. A. M. Garner to E. B. Treadwell, and the writ was dismissed because of this defect. In dismissing the writ of certiorari in the Superior Court of Fulton County, Judge Jesse M. Wood wrote the following order: "The within and foregoing petition for certiorari coming regularly for hearing, and counsel for the city moving to dismiss on ground of insufficient bond, the motion is granted and this petition is hereby dismissed. . ."
The petition for certiorari had in it the following allegations, paragraph 20 reading: "The name of the surety upon said bond, Mrs. A. M. Garner, was affixed in her behalf by E. B. Treadwell, her attorney in fact. Prior to the execution, approval and filing of said bond Mrs. A. M. Garner executed a written power of attorney to the said E. B. Treadwell authorizing and empowering him to execute the aforesaid bond in her name and on her behalf, a true copy of which power of attorney is hereto attached and by reference incorporated herein as `Certiorari Exhibit 7'."
Paragraph 21 reads: "The power of attorney described in paragraph 20 hereof is now, and prior to the execution and filing of said bond, was on file with and in the possession of the clerk of the municipal court."
The sole question presented for determination here is whether or not the court erred in dismissing the certiorari for lack of a certiorari bond legally providing for a surety. Distinguished counsel contend that the record does not provide for Mrs. A. M. Garner as surety, but contends that, since E. B. Treadwell signed as shown in the certiorari bond set forth hereinabove, the words, "Attorney in Facts, Security," are mere descriptive words and E. B. Treadwell thus makes himself surety. There is nothing in this record to show that E. B. Treadwell was ever intended to be a surety on this certiorari bond. In fact, it would seem that the defendant himself went along throughout the trial of the case, including his certiorari, on the theory that E. B. Treadwell was never intended to be made a surety on this certiorari bond now under consideration. We call attention to paragraphs 20 and 21 of the petition for certiorari set out hereinabove, contradicting this contention. While we are not unmindful of the many decisions to the effect that certain words used following a signature, such as administrator, trustee, etc., are merely descriptive words, these cases are not similar in point of fact to those in the instant case. This court has many times held that, in cases involving facts as shown in the instant case, such certiorari bonds show no proper person signing as surety. It must clearly appear that the person designated as surety is brought into the record as such. As representative of these cases, see Garrett v. City of Atlanta, 51 Ga. App. 69 ( 179 S.E. 597); Chiles v. City of Atlanta, 51 Ga. App. 69 ( 179 S.E. 596); Darby v. City of Atlanta, 83 Ga. App. 579 ( 63 S.E.2d 906); Taylor v. City of Atlanta, 84 Ga. App. 739 ( 67 S.E.2d 143); Crawford v. State, 87 Ga. App. 121 ( 73 S.E.2d 105); and Edwards v. City of Atlanta, 88 Ga. App. 329 ( 76 S.E.2d 635).
The court did not err in dismissing the writ of certiorari.
Judgment affirmed. Townsend and Carlisle, JJ., concur.