Opinion
35554.
DECIDED MARCH 17, 1955.
Certiorari. Before Judge Thomas. Appling Superior Court. November 13, 1954.
Poole, Pearce Hall, Wilson Wilson, for plaintiff in error.
J. H. Highsmith, contra.
Where, on the issue here formed by the filing of a traverse by the plaintiff in error to the answer of the judge of the mayor's court where the plaintiff in error had been convicted, in a certiorari proceeding in the superior court, in which it was sought to reverse such conviction, the evidence demands a finding that the traverse to the answer, setting out that the certiorari bond had been improperly approved and filed, should have been sustained — the judge of the superior court erred in dismissing the proceeding upon motion by the defendant in error.
DECIDED MARCH 17, 1955.
The plaintiff in error presented and had sanctioned a petition for certiorari to review her conviction in the Mayor's Court of the City of Baxley for the violation of an ordinance. The mayor before whom the case was tried filed an answer, in which he admitted the paragraph of the plaintiff's petition to the effect that the required bond, a copy of which was attached to the petition, was approved by Mrs. Lois T. Sharp, but in which he set out in substance that she was not the clerk of the mayor's court but the clerk of the city council of the City of Baxley. The answer further states that there is not now and was not then any clerk of the mayor's court. To this answer of the mayor a traverse was duly interposed, which alleges in substance that counsel for the plaintiff in certiorari, upon arriving with her at the city hall of Baxley at the time and place of trial, inquired of the city attorney who was there prosecuting the case, in the presence of the mayor who was there acting as the judge of the court, and in the presence of Mrs. Lois T. Sharp, whether or not there was a clerk of the mayor's court; that the city attorney, in the presence of these persons, said that Mrs. Lois T. Sharp was the clerk of the mayor's court; that, as a result of this representation made by the city attorney to counsel for the plaintiff in certiorari, the latter filed with Mrs. Lois T. Sharp a plea in abatement to the summons; that Mrs. Lois T. Sharp marked the same filed as clerk of the mayor's court and, over written words designating her as such; that the mayor as judge of the court ratified this and subsequent acts of Mrs. Sharp as the clerk of the court over which he was presiding; that, immediately after the completion of the trial, counsel for the plaintiff in certiorari having previously prepared the necessary papers and documents, presented to Mrs. Lois T. Sharp plaintiff's bond for the purpose of obtaining an order of supersedeas; that said bond was accepted, attested, approved, and filed by the said Mrs. Lois T. Sharp as clerk of the mayor's court over written words designating her as such; that Mrs. Sharp thereupon executed her certificate as clerk of the mayor's court and, over written words designating her as such, that such supersedeas bond had been filed, approved, and accepted by her as such clerk, and also issued an order of supersedeas over written words designating her as such clerk; that all of this was done in the presence of counsel for the city and the mayor acting as judge of such court; that counsel for the plaintiff in certiorari, not knowing whether there was a clerk of such court or not, had prepared these papers in advance of his arrival to be approved by the mayor as judge; but, because of the aforesaid statements and representations made to him, changed the designation thereto from "judge" to "clerk"; that whether the court had a clerk or not was a question of fact; and that counsel for the plaintiff in certiorari had no way of determining this question except by making inquiry of the proper officials of the defendant in certiorari; and that, if indeed Mrs. Lois T. Sharp was not the clerk of the mayor's court and this resulted in any defect in the bond which was filed on behalf of the plaintiff in certiorari, it was the result of the misrepresentations of fact made by the officers of the court before which the plaintiff in certiorari was being tried. It was agreed that all questions of fact would be determined by the judge of the superior court acting without a jury, and the evidence on the traverse to the answer demands a finding in support thereof.
The testimony of counsel for the plaintiff in certiorari supported the traverse, which was not substantially contradicted by the testimony in behalf of the city. Obviously, counsel for the plaintiff in certiorari was fully conversant with the law to the effect that the certiorari bond must be signed by the clerk if there is a clerk, and otherwise by the judge, or his petition would be subject to dismissal ( Griffin v. City of Albany, 88 Ga. App. 229, 76 S.E.2d 436) and obviously he made every effort to ascertain whether or not there was in fact a clerk, and relied upon the aforesaid representations to the effect that there was one.
The mayor testified that he heard counsel for the plaintiff in certiorari ask counsel for the city if "you have a clerk," and that the latter replied, "Mrs. Lois Sharp is the clerk." The mayor testified that counsel for the plaintiff in certiorari did not ask if the mayor's court had a clerk, that the Clerk of the City of Baxley, which is the office held by Mrs. Sharp, has an office separated from the place where the trial was held by a wainscoting up four or five feet and then an iron grill, and that Mrs. Sharp remained in this office during the trial. He further testified that the Mayor's Court of the City of Baxley does not have a clerk; that Mrs. Sharp does not keep the docket of the mayor's court, but each Monday morning she enters the cases on the docket at his direction, and that the docket is kept in the police section of the city hall. Counsel for the city testified that he did not remember telling opposing counsel anything about a clerk; that he had never heard of Mrs. Sharp being designated as clerk of the mayor's court; that he was preparing the defense of this certiorari when he noticed this designation for the first time, and then the question arose in his mind whether or not she had been designated as such clerk; that the transcript of the record of this case had written under Mrs. Sharp's signature, "Clerk, City of Baxley" in his handwriting; that, based on these facts and his recollection, he would say that he did not tell Mr. Wilson that Mrs. Sharp was clerk of the mayor's court; that, after the plaintiff in certiorari had been found guilty, her counsel handed him a prepared bond, and asked if he would get Mrs. Sharp to approve it; that he stated he would, and called Mrs. Sharp and told her to sign where opposing counsel had prepared for her signature; that at that time he did not notice that she had been designated as clerk of the mayor's court. Following this testimony, the judge of the superior court entered a judgment finding against the exceptions and traverse, which judgment is assigned as error. Thereupon the defendant in certiorari filed a written motion to dismiss the petition for writ of certiorari, and the judge of the superior court entered a judgment sustaining the same, which judgment is also assigned as error.
The act of 1911 (Ga. L. 1911, pp. 700, 707), which set up a new charter for the City of Baxley, provides as follows: "In addition to such duties as may be prescribed by the council, it shall be the duty of the clerk to attend all meetings of the council, keep a careful and accurate record of its proceedings, carefully collect all revenues due said city except such as the ordinances of said city require to be collected by some other officer, and to faithfully account for the same, furnish to the mayor or council such information as may be requested by either, open his books at any time to any citizen of said city requesting to see the same, and perform such other duties as may be required of him by the mayor or by the city council." (Emphasis added.) The same act provides that the mayor shall have the right and authority to hold a mayor's court for the trial of offenses committed against the ordinances of the city. Although the provision in the original act of 1896 (Ga. L. 1896, pp. 129, 130), which was not expressly repealed by the act of 1911, to the effect that the clerk of the council shall enter all cases on a docket for offenses against the ordinances, stipulates in the clerk a duty usually performed by the clerk of court, this alone would not be sufficient to create the office of clerk of the mayor's court, but it does have the effect of expressly conferring upon Mrs. Sharp a duty to perform work which would be the work of such clerk of court. Where, in addition to this, the mayor is by express enactment clothed with judicial function, and where such clerk is by specific enactment clothed with the duty of performing such duties as may be required of her by the mayor, it is clearly within the power of the mayor, acting as judge of the mayor's court, to require the city clerk to serve in the capacity of clerk of the court over which he presides.
The testimony of the mayor that the court had no clerk, construed in the light of charter provisions, must be taken to mean that the mayor had not required of the city clerk generally to serve in the capacity of clerk of the mayor's court, although he did require of her certain functions which are normally the functions of the clerks of such courts. Further, the testimony as a whole fails to show that the mayor required such service in this instance. It does, however, show without dispute that Mrs. Sharp signed a certificate showing she had filed a pleading as clerk of such court in his presence and in a case which was before him. This fact, coupled with the fact that the mayor heard counsel for the plaintiff in certiorari inquire as to whether there was a clerk, and heard counsel for the city designate Mrs. Sharp as such clerk, for the purpose of filing a pleading in a court, and accepted such pleading so filed as having been filed in his court, conclusively established Mrs. Sharp as such clerk for the purposes of this particular case. The mayor, acting as judge of the court, knew the business of the plaintiff in certiorari at that time and place, and could not possibly have thought that counsel was speaking of some matter foreign to the business at hand. Also, as pointed out, counsel for the city knew the business of counsel for the plaintiff in certiorari, and not only designated Mrs. Sharp as "the clerk," but later had approved and filed for the plaintiff in certiorari the very bond which he now seeks to question as having been improperly approved and filed.
As pointed out by counsel for the plaintiff in certiorari, whether the court had a clerk or not was a question of fact. He undertook to determine that question in the only possible manner in which he could do so, by inquiry before the judge, counsel for the city, and Mrs. Sharp. These facts, coupled with his acquiescence in Mrs. Sharp's actions as such clerk, made her clerk of the mayor's court in so far as this particular case is concerned.
Griffin v. City of Albany, 88 Ga. App. 229 ( 76 S.E.2d 436), does not require a conclusion contrary to that here reached, for the reason that there, while it appears that the City Clerk of Albany, rather than the clerk of the recorder's court, approved the bond, it further appears that it was counsel who was seeking to certiorari the case who assumed that the City Clerk of Albany was the clerk of the court, whereas here counsel acting on the recommendations of the city attorney made in the presence of the Mayor, having the authority to appoint the Clerk of the City Council of the City of Baxley as clerk of the mayor's court, accepted her services as such.
Further, while it is true that all persons must take notice of the powers of public officers as defined by law (Code § 89-903; National Park Bank of New York v. City of Marietta, 29 Ga. App. 29, 113 S.E. 96), the legislative enactments pertinent to this case were not decisive of the question as to whether Mrs. Sharp, clerk of the city council, might not also be clerk of the mayor's court, and accordingly counsel for the plaintiff in error cannot be presumed to have known whether she was or was not such clerk.
The bond being properly approved and certified by the Clerk of the Mayor's Court of the City of Baxley, the judge of the superior court erred in finding against the traverse to the answer of the mayor and also erred in dismissing the certiorari. The case should be returned to the superior court for decision on its merits. Bailey v. Ware Harper, 19 Ga. App. 255 ( 91 S.E. 275).
Judgment reversed. Townsend and Carlisle, JJ., concur.