Opinion
17832.
SUBMITTED APRIL 14, 1952.
DECIDED MAY 12, 1952.
Certiorari; constitutional question. Before Judge McClure. Walker Superior Court. December 26, 1951.
Bobby Lee Cook, for plaintiff in error.
John W. Davis, Solicitor-General, contra.
1. The overruling of a general demurrer by an inferior judicatory exercising criminal jurisdiction is a final judgment, and will authorize an application by the demurrant for a writ of certiorari to the superior court. Barnes v. Fleetwood, 5 Ga. App. 296 ( 63 S.E. 60); Nalley Co. v. Moore, 51 Ga. App. 718 ( 181 S.E. 429).
2. It has been held in civil cases that it is not necessary to pay the costs and give security before the sanction of a writ of certiorari. Jones v. Johnson Ledbetter c. Co., 185 Ga. 323, 325 (4) ( 194 S.E. 902). A different rule is applicable in all cases for a writ of certiorari from an inferior judicatory exercising criminal or quasi-criminal jurisdiction. The filing of the bond required by the Code, § 19-214, or the making of a pauper's affidavit, is a condition precedent to the application for certiorari. Johns v. City of Tifton, 122 Ga. 734 ( 50 S.E. 941). "The failure to aver in the petition for certiorari that the bond has been filed or the affidavit made renders the petition void." Veazey v. Mayor c. of Crawfordville, 126 Ga. 89 ( 54 S.E. 817); Simon v. Mayor c. of Savannah, 4 Ga. App. 171 ( 60 S.E. 1036); Toliver v. Mayor c. of Wrightsville, 17 Ga. App. 345 ( 86 S.E. 823); Hubert v. City of Thomasville, 18 Ga. App. 756 ( 90 S.E. 720).
3. In the present case, the petition contains no allegation that the bond had `been given, pursuant to the above rule, at the time the petition for certiorari was sanctioned by the judge of the superior court. The petition for certiorari was therefore void and a nullity, and should not have been sanctioned. The judge of the superior court having sanctioned the writ, however, committed no error in dismissing it after a hearing. Gillespie v. Mayor c. of Macon, 19 Ga. App. 1 ( 90 S.E. 970); Nilsen v. City of LaGrange, 55 Ga. App. 676 ( 191 S.E. 175). The ruling in Stallworth v. Mayor c. of Macon, 125 Ga. 250 ( 54 S.E. 142), is not in conflict with the ruling here made. In the Stallworth case the petition alleged that the bond had been made.
Judgment affirmed. All the Justices concur.
No. 17832. SUBMITTED APRIL 14, 1952 — DECIDED MAY 12, 1952.
Dwight Sauceman entered a plea of guilty, in the City Court of Walker County, to an accusation charging him with the operation of a motor vehicle in an intoxicated condition over and along a certain public street and highway. The defendant was sentenced to pay a fine of $100 and costs, and to serve twelve months in the public-works camp. Probation of the twelve months' sentence was provided by the court upon certain stipulated terms and conditions, including the condition that the defendant make restitution for certain damages inflicted by the defendant upon a named person, payment to be made at the rate of $75 per month, until a total of $915 was paid.
The defendant failed to make the first two payments, and a motion to vacate and revoke the probationary sentence was filed by the solicitor-general. The defendant was duly served, and at the hearing his general demurrer to the motion to revoke his probationary sentence, and attacking the original sentence on certain constitutional grounds, was overruled. The defendant filed a petition for certiorari to the superior court, which was sanctioned and, upon the hearing thereof, dismissed. The defendant excepts to the judgment dismissing his certiorari.