O.C.G.A.

O.C.G.A. § 5-4-12 (2019)

Grounds of error considered generally; scope of review; technical distinctions abolished

✓ 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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(a) No ground of error shall be considered which is not distinctly set forth in the petition. (b) The scope of review shall be limited to all errors of law and determination as to whether the judgment or ruling below was sustained by substantial evidence. (c) All technical distinctions as to what questions will be considered, such as questions concerning judgments absolutely void or assignments of error drawing in question the legal constitution or jurisdiction of the tribunal below, are abolished.

History

(Orig. Code 1863, § 3973; Code 1868, § 3993; Code 1873, § 4065; Code 1882, § 4065; Civil Code 1895, § 4650; Civil Code 1910, § 5199; Code 1933, § 19-402; Ga. L. 1961, p. 190, § 8.)

Annotations

JUDICIAL DECISIONS Section applies where certiorari petition fails to set out all errors of trial court. Brown v. Alexander, 112 Ga. 247, 37 S.E. 368 (1900); Perry v. Brunswick & W. Ry., 119 Ga. 819, 47 S.E. 172 (1904). Issues neither raised at trial nor in certiorari petition. - Question of freight charges not raised in justice’s court on trial cannot properly be raised in superior court or Court of Appeals. Fine & Bro. v. Southern Express Co., 10 Ga. App. 161, 73 S.E. 35 (1911). Writ of certiorari lies only for correction of errors committed in trial court, and no question, unless first raised there, can be considered by superior court or by this court. Cohen v. Finkovitch, 40 Ga. App. 94, 149 S.E. 66 (1929). When it does not appear from record that certain issues were raised in the trial court, the issues cannot be raised by certiorari in the superior court. Bell v. City of Valdosta, 47 Ga. App. 808, 171 S.E. 572 (1933). Issues neither raised at trial nor in certiorari petition cannot be reviewed by Court of Appeals. Bell v. City of Valdosta, 47 Ga. App. 808, 171 S.E. 572 (1933). When issue not raised in petition for certiorari nor considered by the trial court, the appellate court is without authority to review the petition. Hodnett v.

City of Atlanta, 145 Ga. App. 285, 243 S.E.2d 605 (1978). Admission of illegal evidence at trial without objection is not ground for certiorari when both parties were represented by counsel. Cohen v. Finkovitch, 40 Ga. App. 94, 149 S.E. 66 (1929). Supreme Court cannot hold dismissal of certiorari improper when petition sets forth no errors. Richards v. Little, 88 Ga. 176, 14 S.E. 207 (1891). Petition must specify ruling complained of to avoid dismissal. - Petition which fails to point out as erroneous any specific ruling of judge who tried case, and which does not complain specifically of any ruling that was made by the judge during the trial, is properly dismissed. Cohen v. Finkovitch, 40 Ga. App. 94, 149 S.E. 66 (1929). Petition must allege error specifically and distinctly so that reviewing court may understand grounds relied on. Lynn v. Crapps, 47 Ga. App. 744, 171 S.E. 398 (1933). Petition must state what objection was made at trial. - Alleged error in admitting evidence cannot be considered by superior court when petition for certiorari does not state what, if any, objection was made when evidence was offered. Cohen v. Finkovitch, 40 Ga. App. 94, 149 S.E. 66 (1929).

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Petition for certiorari from conviction for violation of municipal ordinance should contain provisions of ordinance. - Because a city’s petition for certiorari plainly and distinctly asserted the errors complained of, the superior court did not err in denying the city’s motion to dismiss; moreover, the record reflected that the bar managers cited for violation of Atlanta, Ga., Code of Ordinances § 10-46 (1995) preserved the issue as to the constitutionality of the ordinance and the ordinance’s enforcement. City of Atlanta v. Jones, 283 Ga. App. 125, 640 S.E.2d 698 (2006). Assignment of error that verdict was contrary to or unsupported by evidence is sufficient. Gresham v. Lee, 28 Ga. App. 576, 112 S.E. 524 (1922). Assignment of error that verdict is contrary to law, truth, and justice is insufficient and dismissal is proper. Taft Co. v. Smith, 112 Ga. 196, 37 S.E. 424 (1900); Callaway v. City of Atlanta, 6 Ga. App. 354, 64 S.E. 1105 (1909); Huson v. Farmer, 53 Ga. App. 131, 185 S.E. 119 (1936). When only error assigned is that dismissal below was erroneous, dismissal of petition will result. Hicks v. Smith, 28 Ga. App. 594, 112 S.E. 295 (1922). Ground of motion for new trial that verdict is excessive is too general. Bart v. Scheider, 39 Ga. App. 467, 147 S.E. 430 (1929). Overruling certiorari upon legal ground apparent in record. - Section does not preclude judge from overruling certiorari and affirming judgment of trial court upon legal ground apparent in record, without reference to reason given for judgment. Fowler v. King, 29 Ga. App. 500, 116 S.E. 54 (1923). Any evidence test. - Appropriate standard of review to be applied to issues of fact on writ of certiorari to the superior court is whether the decision below was supported by any evidence. City of Atlanta Gov’t v. Smith, 228 Ga. App. 864, 493 S.E.2d 51 (1997). ‘‘Substantial evidence’’ test prescribed. - Bolton v. City of Newman, 22 Ga. App. 15, 95 S.E. 472 (1918), which established the ‘‘slight evidence’’ test as a

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

correct test to be used in determining whether the superior court erred in ‘‘overruling’’ a petition for certiorari, is no longer the proper standard to be applied. Subsection (b) of O.C.G.A. § 5-4-12 prescribes the use of the ‘‘substantial evidence’’ test. Graham v. Wilkes, 188 Ga. App. 402, 373 S.E.2d 90 (1988). Upon certiorari, judge of superior court has right to pass upon credibility of witnesses. Atlantic Coast Line R.R. v. Thomas, 12 Ga. App. 209, 77 S.E. 13 (1913). Upon certiorari, judge of superior court may exercise original discretion as to correctness of verdict, which is not possessed by other courts of review. Atlantic Coast Line R.R. v. Thomas, 12 Ga. App. 209, 77 S.E. 13 (1913); Macon v. United States Fid. & Guar. Co., 41 Ga. App. 774, 154 S.E. 702 (1930). Nature and extent of superior court judge’s discretion in reviewing evidence upon certiorari. - Brown v. Mosteller, 181 Ga. 457, 182 S.E. 519 (1935). Administrative ruling. - Standard of appellate court review of superior court decisions, that of ‘‘some’’ or ‘‘any evidence,’’ is not intended to supervene or diminish the requirement that an administrative ruling be supported by substantial evidence. Wherever evidence before the administrative board is equivocal, the superior court errs in denying certiorari to determine whether the administrative board’s ruling is supported by substantial evidence. Guntharp v. Cobb County, 168 Ga. App. 33, 307 S.E.2d 925 (1983). Hearing before county board of commissioners issuing ‘‘order’’ finding liability for business taxes and directing that a fieri facias be issued for the amount of taxes due does not constitute a decision of an inferior judicatory from which the taxpayer should petition for certiorari in the superior court when the hearing is not transcribed or recorded, but is memorialized only by the minutes of the meeting, the hearing is not conducted in accordance with judicial procedure, and the ordinance in question does not give an appellant as a matter of right a trial in accordance with judicial procedure. Accordingly, declaratory judgment relief is

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proper. Georgia Farm Bureau Mut. Ins. Co. v. DeKalb County, 167 Ga. App. 577, 306 S.E.2d 924 (1983). Hearing officer’s decision not reversible based on outcome of subsequent criminal trial. - Hearing officer affirmed a county’s dismissal of a police officer for conduct unbecoming an officer based on an act of domestic violence; the officer sought a writ of certiorari under O.C.G.A. § 5-4-12(b). Reversal of the hearing officer’s decision based on the officer’s subsequently being found not guilty of all criminal charges stemming from the incident was improper as this occurred after the hearing officer’s decision was issued, was not a part of the administrative record, and was irrelevant to the determination of whether the

county properly terminated the officer’s employment. DeKalb County v. Bull, 295 Ga. App. 551, 672 S.E.2d 500 (2009). Cited in Long v. England, 28 Ga. App. 818, 113 S.E. 50 (1922); Logan v. State, 56 Ga. App. 460, 192 S.E. 839 (1937); Britt v. State, 65 Ga. App. 812, 16 S.E.2d 523 (1941); Morman v. Pritchard, 108 Ga. App. 247, 132 S.E.2d 561 (1963); City of Atlanta v. Whitten, 144 Ga. App. 224, 240 S.E.2d 771 (1977); International Funeral Servs., Inc. v. DeKalb County, 244 Ga. 707, 261 S.E.2d 625 (1979); Sullivan v. Brownlee, 174 Ga. App. 813, 331 S.E.2d 622 (1985); Lee v. Hutson, 810 F.2d 1030 (11th Cir. 1987); Foreman v. City of College Park, 199 Ga. App. 827, 406 S.E.2d 261 (1991); Bearden v. City of Austell, 212 Ga. App. 398, 441 S.E.2d 782 (1994).

RESEARCH REFERENCES Am. Jur. 2d. - 14 Am. Jur. 2d, Certiorari, § 93 et seq. C.J.S. - 14 C.J.S., Certiorari, § 92 et seq.

ALR. - Existence of jurisdictional facts found by inferior tribunal as subject of inquiry on certiorari, 5 ALR2d 675.

Notes of Decisions

Cited in 35 cases (6 in the last 5 years), 1983–2026 · leading case: City of Atlanta Gov't v. Smith, 493 S.E.2d 51 (Ga. Ct. App. 1997).

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City of Atlanta Gov't v. Smith, 493 S.E.2d 51 (Ga. Ct. App. 1997). · cites it 12× “The appropriate standard to be applied by the superior court in reviewing on certiorari a decision of an inferior tribunal such as the Board is statutorily controlled.”

Smith v. Elder, 329 S.E.2d 511 (Ga. Ct. App. 1985). · cites it 12× “§ 19-402), which specifies that the scope of superior court review in certiorari cases shall include a determination "as to whether the judgment or ruling below was sustained by substantial evidence." This standard was recently applied in Guntharp v.”

Sullivan v. Brownlee, 331 S.E.2d 622 (Ga. Ct. App. 1985). · cites it 12× “The parties agree that *814 the superior court held a hearing on appellant's petition and requested briefs regarding the proper standard for review.”

Rockdale Cnty.. v. U. S. Enter., Inc.; & Vice Versa, 312 Ga. 752 (Ga. 2021). · cites it 2× “As for the Owners’ vagueness challenge, we can assume without deciding that it was properly raised, because we conclude on the merits that the superior court erred by determining that the “truck stop” definition was unconstitutionally vague; we therefore reverse that part of the…”

Jackson v. Spalding Cnty., 462 S.E.2d 361 (Ga. 1995). · cites it 4× “[11] See OCGA § 5-4-12 (providing that scope of review is limited to errors of law and whether judgment was sustained by substantial evidence); see also Martin Marietta, 235 Ga.”

City of Dunwoody v. Discovery Practice Mgmt., Inc. Et Al., 789 S.E.2d 386 (Ga. Ct. App. 2016). · cites it 2× “” OCGA § 5-4-12 (b). “[T]he substantial-evidence standard is effectively the same as the any-evidence standard.”

Angell v. Hart, 501 S.E.2d 594 (Ga. Ct. App. 1998). · cites it 6× “OCGA § 5-4-12 (b). Whatever inequities may exist in this matter, there have been no violations of Petitioners’ rights under the Fourteenth Amendment of the United States Constitution or under the charter and code of the City of Warner Robins.”

Lewis v. City of Savannah, 784 S.E.2d 1 (Ga. Ct. App. 2016). · cites it 2× “” OCGA § 5-4-12 (b). Whether a court has jurisdiction and the authority to enter a contempt finding is a legal question, and we owe no deference to the ruling of the superior court or recorder’s court on this question and instead “conduct a de novo review of the matter for plain…”

MacOn-bibb Cnty. Plan. & Zoning Comm'n v. Epic Midstream, LLC, 826 S.E.2d 403 (Ga. Ct. App. 2019). · cites it 4× “In related enumerations of error, the Commission asserts that the superior court, applying judicial review by certiorari, erred because it weighed the evidence 8 presented before the Commission rather than applying the appropriate any evidence standard. We agree. When reviewing…”

Bearden v. City of Austell, 441 S.E.2d 782 (Ga. Ct. App. 1994). · cites it 4× “” OCGA § 5-4-12 (b). Contrary to Bearden’s contention that the superior court erroneously applied an “any evidence” test, the order of the superior court expressly recites that the “substantial evidence” standard of review was applied below.”

Guntharp v. Cobb Cnty., 307 S.E.2d 925 (Ga. Ct. App. 1983). · cites it 4× “His refusal to complete the test procedure under these circumstances, if indeed his request to consult counsel before continuing the test was a “refusal,” was thus not a refusal to submit to a polygraph test conducted “under the .”

DeKalb Cnty. v. Bull, 672 S.E.2d 500 (Ga. Ct. App. 2009). · cites it 2× “2 See OCGA § 5-4-12 (b) (on writ of certiorari to the superior court, “[t]he scope of review shall be limited to all errors of law and determination as to whether the judgment or ruling below was sustained by substantial evidence”); Norris v.”

Show all 35 citing cases →

— 5-4-12(b) — 3 cases

City of Atlanta Gov't v. Smith, 493 S.E.2d 51 (Ga. Ct. App. 1997). “The appropriate standard to be applied by the superior court in reviewing on certiorari a decision of an inferior tribunal such as the Board is statutorily controlled.”

Hundley v. Greene, 461 S.E.2d 250 (Ga. Ct. App. 1995).

Girls Galore, Inc. v. City of Atlanta (Ga. Ct. App. 2026).

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.