O.C.G.A. § 5-4-7 (2019)
Time for filing of answer; manner of service; effect of failure to perfect service
The answer to the writ of certiorari shall be filed in the clerk’s office within 30 days after service thereof on the respondent unless further time is granted by the superior court. A copy of the answer shall be mailed or delivered to the petitioner by the respondent or by the clerk of the superior court. Failure to perfect service shall be grounds for continuance but shall not otherwise affect the validity of the proceedings.
History
(Orig. Code 1863, § 3969; Code 1868, § 3989; Code 1873, § 4061; Code 1882, § 4061; Civil Code 1895, § 4646; Civil Code 1910, § 5195; Ga. L. 1918, p. 124, §§ 1, 2; Code 1933, § 19-301; Ga. L. 1961, p. 190, § 5.)
Annotations
JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION CONTENT AND SUFFICIENCY OF ANSWER General Consideration Answer provides source of facts of case and rulings for reviewing court. - In certiorari case, answer of trial judge is only source from which knowledge of facts of case and rulings therein can be derived by reviewing court. Adams v. Bishop, 46 Ga. App. 32, 166 S.E. 460 (1932). Only answer of justice embodies and can identify evidence before jury in the justice’s court. Akridge v. Watertown Steam Engine Co., 77 Ga. 50 (1886). If answer is not traversed, the answer becomes part of record. Mossman v. McKinley, 67 Ga. 391 (1881). Burden is on applicant to cause timely answer by magistrate. - Burden is on applicant for certiorari to cause magistrate’s answer to be filed within 30 days of service. Schaffer v. City of Atlanta, 151 Ga. App. 1, 258 S.E.2d 674 (1979), rev’d on other grounds, 245 Ga. 164, 264 S.E.2d 6 (1980). Petition shall not be dismissed for insufficient affidavit when answer supports petition. - That affidavit in support of petition for certiorari is insufficient is no ground for dismissal after certiorari has been answered, if answer supports petition. Taylor v. Gay, 20 Ga. 77 (1856). Dismissal under section due to petitioner’s failure to act timely. - When plaintiff in certiorari was at fault, in failing to make appropriate motion in due time, and dismissal under former Code 1933, § 19-301 (see O.C.G.A. § 5-4-7) results from this fault, and not from bare failure of judge to file the judge’s answer, such dismissal will not be affected by former Code 1933, § 19-502 (see O.C.G.A. § 5-4-15), which provided that when the trial judge dies before making the judge’s answer to certiorari filed on the judge, a new trial will be granted. Mathis v. City of Nashville, 49 Ga. App. 309, 175 S.E. 383 (1934).
Cited in Bunn v. Henderson, 113 Ga. 609, 39 S.E. 78 (1901); Daniels v. State, 118 Ga. 18, 44 S.E. 818 (1903); Sutton v. State, 120 Ga. 865, 48 S.E. 342 (1904); J.M. High Co. v. Georgia Ry. & Power Co., 12 Ga. App. 505, 77 S.E. 588 (1913); Carroll v. Upchurch, 25 Ga. App. 646, 104 S.E. 16 (1920); Heinz v. Backus, 34 Ga. App. 203, 128 S.E. 915 (1925); Galfas v. City of Atlanta, 88 Ga. App. 385, 76 S.E.2d 641 (1953); Allison v. City of Atlanta, 109 Ga. App. 114, 135 S.E.2d 524 (1964); Copeland v. White, 172 Ga. App. 198, 322 S.E.2d 523 (1984). Content and Sufficiency of Answer Return or answer must constitute verification or denial, from record or otherwise, of material assertions in petition. Herault v. Department of Human Resources, 137 Ga. App. 446, 224 S.E.2d 480 (1976). Answer should contain evidence in case or adopt statement of evidence contained in petition for certiorari in whole or in part. Norris v. Sibert & Robinson, 53 Ga. App. 440, 186 S.E. 199 (1936) (decided under former Code 1933, § 19-301, as it read prior to amendment by Ga. L. 1961, p. 190, § 5). Sufficiency of answer is to be determined by whether it sufficiently verifies factual situation upon which alleged errors are predicated. Herault v. Department of Human Resources, 137 Ga. App. 446, 224 S.E.2d 480 (1976). Answer substantially complying with section. Lunsford v. State, 60 Ga. App. 537, 4 S.E.2d 112 (1939) (decided under former Code 1933, § 19-301, as it read prior to amendment by Ga. L. 1961, p. 190, § 5). Better practice when trial judge does not care to categorically admit or deny allegations of various paragraphs of petition for certiorari, but desires to stand on stenographic report of proceedings as truth of matters alleged, is
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GA RV 13 RV 4(T4-6) - EP
Content and Sufficiency of Answer (Cont’d) in the judge’s answer to each paragraph containing allegations as to evidence, objections of counsel, and rulings of the court, to quote pertinent part of report in reference to allegations made in each paragraph, instead of merely admitting allegations except insofar as the allegations may conflict with stenographic report attached. Lunsford v. State, 60 Ga. App. 537, 4 S.E.2d 112 (1939) (decided under former Code 1933, § 19-301, as it read prior to amendment by Ga. L. 1961, p. 190, § 5).
Date: 06/14/13 Time: 12:24:49
Answer from memory will suffice, if testimony was recollected. Colbert v. State, 118 Ga. 302, 45 S.E. 403 (1903); Harris v. Daly, 121 Ga. 511, 49 S.E. 609 (1904). Original papers from trial court are not to be sent up on certiorari. Barfield v. McCombs, 89 Ga. 799, 15 S.E. 666 (1892). Certificate of magistrate, required by former Civil Code 1910, §§ 5185, 5186, 5187 (see O.C.G.A. § 5-4-5) before sanction of certiorari will not operate as answer. Henry v. American Ry. Express Co., 25 Ga. App. 646, 104 S.E. 16 (1920).
RESEARCH REFERENCES Am. Jur. 2d. - 14 Am. Jur. 2d, Certiorari, § 56 et seq.