Petition containing no assignment of error is void.

- Petition for certiorari which does not plainly and distinctly set forth assignment of error on any ruling, decision, or judgment of inferior judicatory is void. Wood v. Fairfax Loan & Inv. Co., 50 Ga. App. 123, 177 S.E. 260 (1934).

Valid, dismissed certiorari may be renewed under

§ 9-2-61, but void certiorari is not renewable. - When valid certiorari had been dismissed, it could be renewed within six months under provisions of former Code 1933, § 3-808 (see O.C.G.A. § 9-2-61), but a petition for certiorari void for any reason could not be renewed. Wood v. Fairfax Loan & Inv. Co., 50 Ga. App. 123, 177 S.E. 260 (1934).

Judgment of superior court sustaining first certiorari is equivalent to first grant of new trial, and will not be interfered with unless verdict or judgment set aside by the court was, as a matter of law, demanded. Macon v. United States Fid. & Guar. Co., 41 Ga. App. 774, 154 S.E. 702 (1930).

Court may, upon final decision of case, direct magistrate to refund costs.

- Such magistrate, though insolvent, may be compelled to perform the magistrate's official duty. Gault v. Wallis, 53 Ga. 675 (1875).

Cited in Dorsey v. Black, 55 Ga. 315 (1875); Crusselle v. Chastain, 76 Ga. 840 (1886); Rogers v. Bennett, 78 Ga. 707, 3 S.E. 660 (1887); Mathis v. Bagwell, 101 Ga. 167, 28 S.E. 638 (1897); Hubert v. Southern Live-Stock Ins. Co., 103 Ga. 294, 29 S.E. 938 (1898); Wilensky v. Brady, 121 Ga. 90, 48 S.E. 687 (1904); Strickland v. American Nat'l Bank, 34 Ga. App. 549, 130 S.E. 598 (1925); Shehane v. Wimbish, 34 Ga. App. 608, 131 S.E. 104 (1925); Flood v. Empire Inv. Co., 35 Ga. App. 266, 133 S.E. 60 (1926); Whitworth v. Carter, 39 Ga. App. 625, 147 S.E. 904 (1929); Sellers v. McNair, 42 Ga. App. 731, 157 S.E. 373 (1931); J.M. High Co. v. Arrington, 45 Ga. App. 392, 165 S.E. 151 (1932); Rogers v. Echols, 50 Ga. App. 711, 179 S.E. 131 (1935); Murphy v. Drum & Bugle Corps., 55 Ga. App. 293, 190 S.E. 67 (1937); Lewallen v. Dalton Auto & Mach. Co., 57 Ga. App. 328, 195 S.E. 305 (1938); Williams v. Smith, 66 Ga. App. 120, 17 S.E.2d 206 (1941); Sneed v. State, 72 Ga. App. 102, 33 S.E.2d 29 (1945); Roberson v. City of Rome, 72 Ga. App. 55, 33 S.E.2d 33 (1945); Deaton v. Taliaferro, 80 Ga. App. 685, 57 S.E.2d 215 (1950); Brinkman v. City of Gainesville, 83 Ga. App. 508, 64 S.E.2d 344 (1951); Law v. State, 92 Ga. App. 604, 89 S.E.2d 550 (1955); Rogers v. Mayor of Atlanta, 110 Ga. App. 114, 137 S.E.2d 668 (1964); Mayor of Atlanta v. Williams, 124 Ga. App. 802, 186 S.E.2d 480 (1971); Davey v. City of Atlanta, 130 Ga. App. 687, 204 S.E.2d 322 (1974); City of Atlanta v. Whitten, 144 Ga. App. 224, 240 S.E.2d 771 (1977); Hoyt v. Transfreight Lines, 160 Ga. App. 154, 286 S.E.2d 491 (1981); Lee v. Hutson, 810 F.2d 1030 (11th Cir. 1987); Johnson v. DeKalb County, 214 Ga. App. 756, 449 S.E.2d 311 (1994); City of Atlanta v. Houston, 221 Ga. App. 61, 471 S.E.2d 12 (1996).

"Dismiss" and "overrule" synonymous.

- It would seem that the word "dismiss" under this section is in fact used in the sense synonymous with "overrule." Ray v. Cruce, 21 Ga. App. 539, 94 S.E. 899 (1918).

When judge's order uses "denied" instead of "dismissed," correction will be directed. Atlantic C.L.R.R. v. Peters, 32 Ga. App. 791, 124 S.E. 815 (1924).

Failure of judge to file proper answer will be sufficient reason to dismiss a certiorari, when no timely motion is made to perfect the answer. City of Atlanta v. Schaffer, 245 Ga. 164, 264 S.E.2d 6 (1980).

Dismissal for justice's failure to send up copies of proceedings.

- Failure of justice of peace to send up copies of proceedings in the justice's court when the copies are necessary to determination of cause is good ground for dismissal of certiorari, but certiorari will not be dismissed when the magistrate fails to send up copies of proceedings when errors complained of in petition, as verified by answer can be fully considered and determined without reference to such proceedings. Lynn v. Crapps, 47 Ga. App. 744, 171 S.E. 398 (1933).

Dismissal of certiorari affirmed when legally justified for reason other than that assigned.

- When order of judge of superior court dismissing petition for certiorari is proper and legally justified for reason other than that assigned by the judge, the judge's action will be affirmed. Anderson v. West Lumber Co., 51 Ga. App. 333, 179 S.E. 738 (1935).

Judgment overruling certiorari on merits will be affirmed when record indicates court lacked jurisdiction to entertain petition for certiorari. Gilbert v. Land Estates, Inc., 62 Ga. App. 845, 9 S.E.2d 914 (1940).

Certiorari renewed under former Civil Code 1910, § 4381 (see O.C.G.A. § 9-2-61) was properly dismissed when first certiorari was not dismissed on merits. Sheehan v. City Council, 8 Ga. App. 539, 69 S.E. 916 (1911).

Dismissal not proper, though evidence is doubtful whether writ was filed with petition. Spencer v. Gill, 23 Ga. 8 (1857).

No dismissal due to insufficiency of affidavit to support petition when answer supports petition. Taylor v. Gay, 20 Ga. 77 (1856).

Failure to prosecute writ.

- Dismissal is not proper for failure to prosecute writ when counsel for defendant removes papers. Hopkins, Allen & Co. v. Suddeth, 18 Ga. 518 (1855).

Judge may give directions as to verdict on retrial in event evidence is same.

- In such case, the court may direct that if evidence is substantially the same on the next trial, a verdict for the defendant should be rendered. Baker v. Kendrick, 9 Ga. App. 382, 71 S.E. 498 (1911).

When certiorari is sustained on ground that venue was not established.

- When, upon conviction in criminal court of county, defendant applied for writ of certiorari to superior court of county on ground that state had failed to establish venue of case, and upon hearing, state admitted the state's failure to establish venue, it is proper for the superior court to sustain certiorari and remand the case to the trial court for another trial, and it is not proper for the superior court in such case to enter final judgment therein, as error complained of is not an error of law which must finally govern the case, and it cannot be known with certainty that evidence on another trial would be the same. Arnold v. State, 88 Ga. App. 710, 77 S.E.2d 550 (1953).

On new trial by superior court order, formal evidence of latter's judgment is unnecessary.

- After case has been tried in justice's court and on certiorari new trial has been ordered, a new trial may be lawfully had in the magistrate's court without producing therein any formal evidence of a judgment rendered in superior court. Odell v. Dozier, 104 Ga. 203, 30 S.E. 813 (1898).

When court must render final judgment on certiorari.

- Provision of section, which requires judge of superior court to make a final decision in case which is before the judge on certiorari, is mandatory only when the nature of error complained of is such that the law forbids the result which was reached, no matter what testimony was, and regardless of what testimony may be adduced should there be another trial of the case. Atlantic Coast Line R.R. v. Thomas, 12 Ga. App. 209, 77 S.E. 13 (1913).

Wherever case can be determined as a matter of law, the court must make final disposition of the case. Longshore v. Collier, 37 Ga. App. 450, 140 S.E. 636 (1927).

When issues of fact are involved, case must be returned to lower court with instructions. Sapp v. Adams, 65 Ga. 600 (1880); Rogers v. Georgia R.R., 100 Ga. 699, 28 S.E. 457 (1897); Williams v. Bradfield, 116 Ga. 705, 43 S.E. 57 (1902); Jeffries v. Luke, 5 Ga. App. 157, 62 S.E. 719 (1908).

When court may render final judgment on certiorari.

- Court may render final judgment on certiorari, when no issue of fact is involved, and error assigned is a question of law which must finally govern the case. James v. Smith & Bro., 62 Ga. 345 (1879); Cone Export & Comm'n Co. v. McCalla, 113 Ga. 17, 38 S.E. 336 (1901); Hewett v. Robertson, 124 Ga. 920, 53 S.E. 456 (1906); Porterfield v. Thompson, 4 Ga. App. 524, 61 S.E. 1055 (1908); Walton v. Shakespear, 18 Ga. App. 140, 88 S.E. 906 (1916); Dixon v. Pierce, 22 Ga. App. 291, 95 S.E. 995 (1918).

Discretion of court will not be controlled unless manifestly abused. Ayers v. Taylor, 54 Ga. 264 (1875).

When no dispositive question of law is presented.

- Judge of superior court is not authorized to render final decision when there is no question of law before it which must finally govern case, and only issues of fact are involved. Sellers v. McNair, 42 Ga. App. 731, 157 S.E. 373 (1931).

When issues of fact are involved, final judgment cannot be passed on certiorari. Desvergers v. Kruger, 60 Ga. 100 (1878); Almand v. Georgia R.R. & Banking Co., 102 Ga. 151, 29 S.E. 159 (1897); Pittman v. Alexander, 19 Ga. App. 475, 91 S.E. 910 (1917).

If there is question of fact, whether disputed or not, court cannot enter final judgment. Hardison v. Gledhill, 72 Ga. App. 432, 33 S.E.2d 921 (1945). But see Rome R.R. v. Ransom, 78 Ga. 705, 3 S.E. 626 (1887); Longshore v. Collier, 37 Ga. App. 450, 140 S.E. 636 (1927).

When issues of fact are involved, superior court has no authority to render final judgment, and even though former judgment is without evidence to support the judgement, the superior court must remand the case for a new trial. Putnam v. Sewell, 86 Ga. App. 298, 71 S.E.2d 566 (1952).

When only question involves sufficiency of evidence to support finding in justice's court, superior court judge errs in rendering final judgment. Gowder v. Smith, 62 Ga. App. 647, 9 S.E.2d 197 (1940).

Court may make final disposition of case involving law and facts when latter not disputed. Longshore v. Collier, 37 Ga. App. 450, 140 S.E. 636 (1927). But see Hardison v. Gledhill, 72 Ga. App. 432, 33 S.E.2d 921 (1945).

Section permits final disposition of case, even though facts are involved, if not conflicting. Rome R.R. v. Ransom, 78 Ga. 705, 3 S.E. 626 (1887). But see Hardison v. Gledhill, 72 Ga. App. 432, 33 S.E.2d 921 (1945).

Certiorari may be sustained at instance of defendant, although evidence is conflicting. Hancock v. Allen, 29 Ga. App. 611, 116 S.E. 321 (1923).

Use of legal question involved in motion to dismiss, overruled below, to render final judgment.

- Superior court judge may make use of question of law involved in demurrer (now motion to dismiss), which was wholly overruled by justice at trial, to dispose finally of case without sending the case back for a new hearing. Sellers v. McNair, 42 Ga. App. 731, 157 S.E. 373 (1931).

It is immaterial upon what ground judge based decision if the judgment on certiorari is correct. Nightingale v. Mayor of Brunswick, 26 Ga. App. 43, 105 S.E. 382 (1920); Hines v. Porter, 26 Ga. App. 178, 106 S.E. 16 (1921).

When verdict exceeds amount claimed.

- Court may under this section, with assent of plaintiff, correct verdict and judgment entered thereon by reducing the judgment to amount claimed in action, and then allow the judgment to stand. Seaboard Air-Line Ry. v. Christian, 115 Ga. 742, 42 S.E. 66 (1902).

When superior court properly overrules all grounds of petition for certiorari save one presenting point that verdict under review was contrary to law because for an amount larger than that sued for, that court may, with assent of the plaintiff, correct the verdict and judgment entered thereon by reducing the judgment to amount claimed in action, and then allow the judgment to stand. Sellers v. McNair, 42 Ga. App. 731, 157 S.E. 373 (1931).

If trial jury erred in finding interest, error should be corrected on certiorari. Carnes v. Mattox, 71 Ga. 515 (1883).

Am. Jur. 2d.

- 14 Am. Jur. 2d, Certiorari, §§ 85 et seq., 103 et seq.

5B Am. Jur. Pleading and Practice Forms, Certiorari, §§ 81, 88.

C.J.S.

- 14 C.J.S., Certiorari, §§ 92 et seq., 111 et seq.

ALR.

- Existence of jurisdictional facts found by inferior tribunal as subject of inquiry on certiorari, 5 A.L.R.2d 675.