Section to be strictly construed.

- O.C.G.A. § 5-4-2 is construed strictly because the statute is in derogation of common law. Walden v. John D. Archbold Mem. Hosp., 197 Ga. App. 275, 398 S.E.2d 271 (1990), but see First Christ Holiness Church, Inc. v. Owens Temple First Christ Holiness Church, Inc., 282 Ga. 883, 655 S.E.2d 605 (2008).

Certiorari lies only as to issues raised in trial court.

- Error which may be corrected by writ of certiorari is one made by tribunal whose judgment is being reviewed because of such error. When it does not appear from the record that the issue was made in the trial court, the issue cannot be raised for the first time by certiorari in superior court and reviewed in the Supreme Court. Smith v. Mayor of Macon, 202 Ga. 68, 42 S.E.2d 128, answer conformed to, 75 Ga. App. 136, 42 S.E.2d 569 (1947).

Constitutional question may not be raised for first time in petition for writ of certiorari. Smith v. Mayor of Macon, 202 Ga. 68, 42 S.E.2d 128, answer conformed to, 75 Ga. App. 136, 42 S.E.2d 569 (1947).

Certiorari is a proper but not exclusive remedy, in a proper case, to correct error in decision of court of ordinary (now probate court). Stephens v. Bell, 41 Ga. App. 353, 153 S.E. 99 (1930).

Void judgments may be set aside only by certiorari proceedings. Latimer v. Burtz, 28 Ga. App. 691, 112 S.E. 912 (1922).

Special assignment of error necessary.

- No questions are presented for review under section unless raised by special assignment of error. Huson v. Farmer, 53 Ga. App. 131, 185 S.E. 119 (1936) (see now O.C.G.A. § 5-4-2).

Written exceptions to decision of court of ordinary (now probate court) are necessary for certiorari. Morris v. Morris, 74 Ga. 826 (1885); Burdett v. Burdett, 130 Ga. 514, 61 S.E. 121 (1908).

Noncompliance with requirements as to setting forth errors.

- Noncompliance with requirements of setting forth "plainly and distinctly the error complained of," and failure to set forth grounds of motion for new trial or attach the grounds to petition as an exhibit, is ground for dismissal. East River Nat'l Bank v. Ellman, 36 Ga. App. 263, 136 S.E. 799 (1927).

Former Civil Code 1910, § 5181 (see O.C.G.A. § 5-4-2) was inapplicable to decisions of ordinary (now judge of probate court) not sitting as a court; in such case, former Civil Code 1910, § 5183 (see O.C.G.A. § 5-4-3) applied § 5-4-3. Fortson v. Mattox, 67 Ga. 282 (1881); Davis v. James, 145 Ga. 325, 89 S.E. 203 (1916).

Section inapplicable to wrongful death action.

- O.C.G.A. § 5-4-2 does not encompass the maintenance of a wrongful death action by the siblings of a decedent. Walden v. John D. Archbold Mem. Hosp., 197 Ga. App. 275, 398 S.E.2d 271 (1990), but see First Christ Holiness Church, Inc. v. Owens Temple First Christ Holiness Church, Inc., 282 Ga. 883, 655 S.E.2d 605 (2008).

Remedy for decision concerning homestead.

- Unless provision is made for appeal, remedy of leasing party to complain of any error in judgment of ordinary (now judge of probate court) in setting apart or in refusing to set apart homestead, is by certiorari. Cunningham v. United States Sav. & Loan Co., 109 Ga. 616, 34 S.E. 1024 (1900); Fontano v. Mozley & Co., 121 Ga. 46, 48 S.E. 707 (1904).

Grant of temporary letters of administration.

- Certiorari will lie to correct error of ordinary (now judge of probate court) who, in term time, on contest with parties before the ordinary, grants letters of administration pendente lite. Redd v. Dure, 40 Ga. 389 (1869).

When motion to dismiss is improperly sustained.

- When demurrer (now motion to dismiss) to application to set aside fraudulent discharge granted an administrator is improperly sustained, writ of certiorari lies to correct such judgment. Seagraves v. W.E. Powell Co., 143 Ga. 752, 85 S.E. 760 (1915).

Probate judge's refusal to entertain petition to commit incompetent veteran.

- Refusal of court of ordinary (now probate court) to entertain jurisdiction of petition to commit incompetent World War I veteran to a United States hospital, is not reviewable by mandamus; certiorari is appropriate remedy by which that judgment should be reviewed. Cheek v. Eve, 182 Ga. 30, 184 S.E. 700 (1936).

Correction of erroneous fact statements in exception.

- Party excepting to judgment of ordinary (now judge of probate court) is entitled to have pointed out to the ordinary the alleged incorrect statement of fact in exceptions and to have opportunity to correct the errors or compel decision on exceptions as the exceptions stand, if exceptor is correct in the exceptor's contention that exceptions state facts. Guest v. Rucker, 77 Ga. App. 696, 49 S.E.2d 687 (1948).

Probate judge's refusal to certify exceptions due to misstated facts.

- When the distributee and creditor cite administrator for settlement and, after judgment in case, file exception to judgment with ordinary (now judge of probate court), refusal of ordinary to certify to exceptions for reason that facts set out in exceptions are not true, is not such a judgment overruling exceptions as to be the basis for a petition for writ of certiorari. Guest v. Rucker, 77 Ga. App. 696, 49 S.E.2d 687 (1948).

Cited in Barrett v. Jackson, 38 Ga. 181 (1868); Logan v. State, 56 Ga. App. 460, 192 S.E. 839 (1937); Head v. Waldrup, 193 Ga. 165, 17 S.E.2d 585 (1941); Brockett v. Maxwell, 73 Ga. App. 663, 38 S.E.2d 176 (1946); Gray v. Gunby, 206 Ga. 63, 55 S.E.2d 588 (1949); Miller v. Miller, 96 Ga. App. 469, 100 S.E.2d 594 (1957); Georgia Farm Bureau Mut. Ins. Co. v. DeKalb County, 167 Ga. App. 577, 306 S.E.2d 924 (1983).

Procedure.

- Certiorari is a proper procedure, upon election, for a defendant dissatisfied with the rulings of the probate court and, in response to the writ of certiorari, when issued by the superior court, the probate judge must certify and send to the superior court the entire record of the case. 1986 Op. Att'y Gen. No. U86-13.

Am. Jur. 2d.

- 5 Am. Jur. 2d, Appellate Review, § 333 et seq. 14 Am. Jur. 2d, Certiorari, § 62 et seq.

ALR.

- Certiorari after judgment to test sufficiency of indictment or information as regards the offense sought to be charged, 150 A.L.R. 743.