Opinion
31678.
DECIDED SEPTEMBER 13, 1947.
Certiorari; from Troup Superior Court — Judge Boykin. May 12, 1947.
Raymond W. Martin, for plaintiff in error.
P. T. Hipp, Solicitor, L. M. Wyatt, Solicitor-General, contra.
1. The court rules, as adopted and prescribed by the Supreme Court on January 12, 1946, pursuant to the act approved February 16, 1945, (Ga. L. 1945, pp. 145 et seq.), which became effective January 1, 1947, do not apply to cases brought by writ of certiorari from city courts to superior courts. See Rule 24, Exhibit "2-B," Report No. 2, General procedure in trial courts; Code, § 102-102 (9).
2. ( a) A failure to give the solicitor-general at least ten-days written notice of the sanction of a writ of certiorari and of the time and place of hearing (unless prevented by unavoidable cause), or to obtain a waiver of such notice, is fatal to the proceedings. Glenn v. State, 122 Ga. 593 ( 50 S.E. 371); Moore v. State, 96 Ga. 309 ( 22 S.E. 960); Butts v. State, 90 Ga. 450 ( 16 S.E. 96); Johnson v. State, 2 Ga. App. 181 (1) ( 58 S.E. 415); Culbreth v. State, 115 Ga. 242 ( 41 S.E. 594); McElhannon v. State, 112 Ga. 221 ( 37 S.E. 402); Hudson v. State, 21 Ga. App. 506 ( 94 S.E. 581); Franke v. May, 86 Ga. 659 ( 12 S.E. 1068); McGee v. Lowry National Bank, 9 Ga. App. 668 ( 72 S.E. 67); Goldberg v. Atlanta, 71 Ga. App. 269 ( 30 S.E.2d 661).
( b) Service of such notice may be acknowledged. Asher v. Cape, 95 Ga. 31 ( 22 S.E. 41); Flood v. Empire Investment Co., 42 Ga. App. 257 ( 155 S.E. 492); Burns v. Bibb Brokerage Co., 42 Ga. App. 259 ( 155 S.E. 493). But a mere acknowledgment of service of such notice does not estop the person making the acknowledgement from setting up that the same was, under the law relating thereto, served too late. Shearouse Co. v. Morgan, 111 Ga. 858 ( 36 S.E. 927).
3. ( a) Notice of sanction and of the time and place of hearing of such certiorari may be waived. New v. LeHardy, 46 Ga. 616 (1); Maddox v. Central of Ga. Ry., 1 Ga. App. 46 ( 57 S.E. 1062); Lovvorn v. Jones, 119 Ga. 229 (2) ( 46 S.E. 92); McConnell v. Folsom Bros., 4 Ga. App. 535 ( 61 S.E. 1051); Peacock v. American Plant Co., 49 Ga. App. 267 ( 175 S.E. 262).
( b) While a mere acknowledgment of service of written notice does not estop the person making the acknowledgment from setting up that the notice was served too late, one who has waived the written notice will not be heard to move the dismissal of a certiorari upon the ground that no notice has been given, even though such notice was waived at a time later than that required by statute. King Brothers v. Turner, 6 Ga. App. 495 ( 65 S.E. 321); Walker v. Grand Lodge, 15 Ga. App. 644 ( 83 S.E. 1101); New v. LeHardy, supra; Hamil v. Rigdon, 60 Ga. App. 831 (3) ( 5 S.E.2d 403).
DECIDED SEPTEMBER 13, 1947.
Charlie Scott, referred to herein as the petitioner, filed a petition for a writ of certiorari in the Superior Court of Troup County to a judgment of the City Court of Troup County overruling his motion to allow him to vacate a plea of guilty based on an accusation purporting to charge him with the offense of unlawful possession of intoxicating liquor, vacating the sentence of the court based on his plea, and allowing his case to go to trial before a jury in said court.
The superior court sanctioned the petition and ordered the writ of certiorari to issue on November 18, 1946, thus making the writ returnable to the February term, 1947, of Troup Superior Court. On February 20, 1947, and after the beginning of the February term, 1947, L. M. Wyatt, Solicitor-General of Troup County, entered on the papers in said cause an acknowledgment and waiver, as follows: "Due and legal service of foregoing writ of certiorari is hereby acknowledged, copy received, and all other further notice and service is hereby waived."
On May 12, 1947, and during the May term of Troup Superior Court, on the call of said cause in open court, Honorable P. T. Hipp, Solicitor of the City Court of LaGrange, presented a motion to dismiss, as follows: "Because plaintiff in certiorari filed said petition on November 19, 1946, to the February term, 1947, of Troup Superior Court, and notice of same was not given to the solicitor-general, as required by law, until February 20, 1947, and which time was after the February term of this court and was in law too late."
Counsel for the petitioner then and there objected thereto and resisted said motion for dismissal on numerous grounds, only two of which are material to this decision. They are: first, that the solicitor-general waived the required notice of the sanction and the time and place of hearing the petition for the writ of certiorari; and second, that February 20, 1947, the date of the execution by the solicitor-general of an acknowledgment and waiver of service was not too late for such notice to have been served, because, although not in compliance with the Code, § 19-212, providing for such notice, said section was by implication repealed by certain of the court rules adopted and prescribed by the Supreme Court on January 12, 1946, pursuant to the act approved February 16, 1945 (Ga. L. 1945, p. 145 et seq.), and that, therefore, said section is no longer in force; that under the court rules hereinbefore referred to, the date the notice was acknowledged or waived (February 20, 1947), was not too late for such notice to have been served.
After hearing the motion to dismiss the petition for certiorari and the objections thereto, the trial court entered a judgment sustaining the motion and dismissing said writ. This judgment is assigned as error.
1. Rule 24, Exhibit "2-B," Report No. 2, General Procedure in Trial Courts, provides as follows: "Nothing in this section of these rules shall repeal or affect the mode of any special statutory proceeding, such as the foreclosure of liens and mortgages, proceedings to eject tenants and intruders, claims and illegalities, mandamus, quo warranto, prohibition, habeas corpus, establishment of lost papers, petitions to the judge of the superior court at chambers, nor other special proceedings of like nature, nor the fictitious forms of pleading in ejectments, nor change the existing law or procedure as to alimony or divorce cases." (Italics ours.)
Certiorari is a special statutory proceeding, and although not listed as one of the classes of cases constituting exceptions to the foregoing rule, it does fall within the exceptions as being one of other special proceedings of like nature.
Section 102-102, subparagraph 9 of the Code provides, as follows: "In all interpretations, the courts shall look diligently for the intention of the General Assembly, keeping in view, at all times, the old law, the evil, and the remedy." One of the evils of the old law of civil procedure was that it was regarded as being too slow, and one of the purposes of the new law was to speed up civil actions. Should the rules changing civil procedure be construed to apply to certiorari actions, they would be slowed down rather than speeded up.
2, 3. Section 19-212 of the Code 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 ten 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." The giving of this notice in writing has been held to be necessary, and failure to give it, unless prevented by unavoidable cause, or unless waived, is fatal to the proceeding. Glenn v. State, 122 Ga. 593, Moore v. State, 96 Ga. 309, Butts v. State, 90 Ga. 450, Johnson v. State, 2 Ga. App. 181, Culbreth v. State, 115 Ga. 242, McElhannon v. State, 112 Ga. 221, Hudson v. State, 21 Ga. App. 506, Franke v. May, 86 Ga. 659, McGee v. Lowry National Bank, 9 Ga. App. 668, and Goldberg v. Atlanta, 71 Ga. App. 269 (supra).
Service of notice may be acknowledged, but a mere acknowledgment of service does not estop the person making the acknowledgment from setting up that it was served too late. Shearouse c. Co. v. Morgan, 111 Ga. 858 (supra). However, where by the same written instrument one acknowledges service and at the same time waives all service not acknowledged, one so waiving is estopped to move later for dismissal of the proceeding upon the ground that no notice has been given, even though such notice was waived at a time later than that required by statute. King Bros. v. Turner, 6 Ga. App. 495, Walker v. Grand Lodge, 15 Ga. App. 644, New v. LeHardy, 46 Ga. 616, and Hamil v. Rigdon, 60 Ga. App. 831 (3) (supra). In Hamil v. Rigdon, the language of the waiver of notice is very similar to that in the instant case. In Walker v. Grand Lodge, it is said that the waiver may be executed at any time before the hearing.
Many of the cases cited herein hold that, where certiorari is from an inferior court to a superior court in a criminal case, it becomes the duty of the solicitor-general to represent the State therein, and that he is the proper person upon whom such notice shall be served.
The trial court erred in dismissing the writ of certiorari.
Judgment reversed. MacIntyre, P. J., and Gardner, J., concur.