O.C.G.A.

O.C.G.A. § 5-4-10 (2019)

Amendment of petition, bond, answer, and traverse

✓ O.C.G.A. — 2019 edition (Public.Resource.Org Release 73)

Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.

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Certiorari proceedings shall be amendable at any stage, as to matters of form or substance, as to the petition, bond, answer, and traverse; and a valid bond may by amendment be substituted for a void bond or no bond at all.

History

(Code 1933, § 19-403, enacted by Ga. L. 1961, p. 190, § 9.)

Annotations

JUDICIAL DECISIONS Purpose of section. - This section has for the statute’s obvious purpose the curing of certain procedural defects inherent in former certiorari mechanism by allowing amendments at any stage of appeal. Scott v. Oxford, 105 Ga. App. 301, 124 S.E.2d 420 (1962). Section inapplicable to filing of late answer. - When motion to dismiss writ

of certiorari preceded filing of late answer to petition for writ by respondent judge, dismissal is correct, since section does not apply to filing of a later answer. Schaffer v. City of Atlanta, 144 Ga. App. 702, 242 S.E.2d 288 (1978); City of Atlanta v. Saunders, 159 Ga. App. 566, 284 S.E.2d 77 (1981). Ga. L. 1961, p. 190, § 9 (see O.C.G.A.

Page: 244

GA RV 13 RV 4(T4-6) - EP

§ 5-4-10) could not be utilized to permit service beyond time permitted in former Code 1933, §§ 19-209 and 19-210 (see O.C.G.A. § 5-4-6). City of Atlanta v. Saunders, 159 Ga. App. 566, 284 S.E.2d 77 (1981). Failure to serve cannot be cured by amendment. - Failure to serve the opposite party is not a defect which can be cured by amendment under O.C.G.A. § 5-4-10. Hudson v. Watkins, 225 Ga. App. 455, 484 S.E.2d 24 (1997). Bond by amendment was invalid. - Trial court erred in granting a petition for a writ of certiorari as the petition was not accompanied by a bond as required by O.C.G.A. § 5-4-5(a), the hearing officer originally hearing the dispute did not have authority to waive the bond requirement, and a bond by amendment under O.C.G.A. § 5-4-10 was invalid as the bond was not approved by the hearing officer. Duty Free Air & Ship Supply, Inc. v. Atlanta Duty Free, LLC, 275 Ga. App. 381, 620 S.E.2d 616 (2005).

Date: 06/14/13 Time: 12:24:49

Right to amend found. - Absent any judicial determination that dismissal was required for lack of an approved bond, the petitioners were entitled to voluntarily dismiss the petitioners’ first request for certiorari, filed pursuant to O.C.G.A. § 5-4-1, relying on the renewal statute codified at O.C.G.A. § 9-2-61(a), and file a second request after the 30-day limitation period had expired. Moreover, the petitioners had the right to amend the certiorari proceedings as to form or substance at any stage, including the right to amend, by substituting a valid bond for a void bond or no bond at all. Buckler v. DeKalb County, 290 Ga. App. 190, 659 S.E.2d 398 (2008). Cited in Morman v. Pritchard, 108 Ga. App. 247, 132 S.E.2d 561 (1963); Ellett v. City of College Park, 233 Ga. 858, 213 S.E.2d 700 (1975); Yield, Inc. v. City of Atlanta, 144 Ga. App. 637, 242 S.E.2d 478 (1978); Willis v. Jackson, 163 Ga. App. 26, 293 S.E.2d 498 (1982).

RESEARCH REFERENCES Am. Jur. 2d. - 14 Am. Jur. 2d, Certiorari, §§ 83 et seq., 107 et seq.

C.J.S. - 14 C.J.S., Certiorari, §§ 48, 68.

Notes of Decisions

Cited in 10 cases (1 in the last 5 years), 1994–2021 · leading case: Cobb Cnty. v. Herren, 496 S.E.2d 558 (Ga. Ct. App. 1998).

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Cobb Cnty. v. Herren, 496 S.E.2d 558 (Ga. Ct. App. 1998). · cites it 28× “The superior court denied the motion, permitted the Allgood family to amend their petition in accordance with OCGA § 5-4-10 and sanctioned the petition.”

City of Sandy Springs Bd. of Appeals v. Traton Homes, LLC, 801 S.E.2d 599 (Ga. Ct. App. 2017). · cites it 6× “Traton Homes also argued that its failure to name the City as a defendant was not fatal to its petition, and it filed an amended petition to that *552 effect, citing OCGA § 5-4-10 as authority for doing so. 2 Finally, Tra-ton Homes contended that by serving counsel for the City…”

Buckler v. DeKalb Cnty., 659 S.E.2d 398 (Ga. Ct. App. 2008). · cites it 8× “Prior to the 1961 enactment of OCGA § 5-4-10, “certiorari proceedings were not amendable and the failure to file a proper bond resulted in the dismissal of the case because the petition was in such circumstances absolutely void.”

Fisher v. City of Atlanta, 442 S.E.2d 762 (Ga. Ct. App. 1994). · cites it 4× “” OCGA § 5-4-10 allows the petitioner or “defendant in certiorari” to traverse or “except to the answer of the respondent.”

Hudson v. Watkins, 484 S.E.2d 24 (Ga. Ct. App. 1997). · cites it 4× “” Prior to the enactment of the Civil Practice Act, the legislature in 1961 enacted OCGA § 5-4-10 which provided for the first time that “[cjertiorari proceedings shall be amendable at any stage, as to matters of form or substance, as to the petition, bond, answer, and traverse;…”

Duty Free Air & Ship Supply, Inc. v. Atlanta Duty Free, LLC, 620 S.E.2d 616 (Ga. Ct. App. 2005). · cites it 2× “6 OCGA §5-4-10. 7 Dykes v. Twiggs County, 115 Ga.”

Pope v. Bd. of Commissioners, 546 S.E.2d 333 (Ga. Ct. App. 2001). · cites it 2× “Because a petition for certiorari “shall be amendable at any stage, as to matters of form or substance” (OCGA § 5-4-10), a defendant in certiorari was named in this case.”

Christine Williams v. City of Douglasville (Ga. Ct. App. 2020). · cites it 12× “3 Williams contends that the superior court erred in dismissing her petition for writ of certiorari because under OCGA § 5-4-10, certiorari proceedings are “amendable at any stage.”

Thomas Wheeler v. Mayor Phil Best, City of Dublin (Ga. Ct. App. 2020). · cites it 6× “But Cobb County does not stand for that proposition regarding a bond or affidavit, and instead it held that the failure to obtain the requisite sanction of the appropriate judge was not an amendable defect because it was not expressly listed as such in OCGA § 5-4-10. Id. at 485.…”

Mack Young Ham v. City of Milton (Ga. Ct. App. 2021). · cites it 4× “OCGA § 5-4-10 does state that “[c]ertiorari proceedings shall be amendable at any stage[.”

Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.