Distinction between function of exceptions and function of traverse.

- Function of exceptions to answer of magistrate to petition for certiorari is to specify defects in such answer, and such exceptions do not take place of traverse to answer whose function is to controvert truth of facts set forth in answer. West v. State, 103 Ga. App. 71, 118 S.E.2d 491 (1961).

Traverse of answer of trial judge must be verified affidavit. West v. State, 103 Ga. App. 71, 118 S.E.2d 491 (1961).

Absent traverse, answer is conclusive as to recital of facts.

- Upon trial of certiorari when judge's answer to petition is untraversed, judge of superior court must take as true the statement of facts and evidence adduced upon the trial of case as contained in an answer and in those portions of the petition for certiorari verified thereby as true. West v. State, 103 Ga. App. 71, 118 S.E.2d 491 (1961).

Although the statute does not require that the answer be traversed, if no traverse is filed, the answer becomes conclusive as to recitals of fact contained therein, and the answer becomes the record on which the superior court is authorized to rule on the merits of the petition. Bembry v. Johnson, 152 Ga. App. 422, 263 S.E.2d 229 (1979).

Although a traverse to an answer is now optional, the recitals of fact contained in the answer are rendered conclusive when neither a traverse nor an exception is filed. This being so, the court is entitled to rely upon the factual recitals of the answer as a part of the record, and to use the recitals as a basis for the court's findings. Cox v. City of Lawrenceville, 168 Ga. App. 119, 308 S.E.2d 224 (1983).

Traverse and exception unnecessary when petition sufficiently establishes error and answer merely denies allegations.

- When facts sufficient to establish error are alleged in petition and inferior court files answer merely denying these allegations, issues are sufficiently developed for superior court review and exception and subsequent traverse to answer are no longer necessary. Williamson v. City of Tallapoosa, 238 Ga. 522, 233 S.E.2d 777 (1977).

Cited in Phillips v. City of Atlanta, 79 Ga. 510, 4 S.E. 256 (1887); Daniels v. State, 118 Ga. 18, 44 S.E. 818 (1903); Fulton Bag & Cotton Mills v. Booze, 8 Ga. App. 430, 69 S.E. 494 (1910); DeBerry v. Spikes, 188 Ga. 222, 3 S.E.2d 719 (1939); Lunsford v. State, 60 Ga. App. 537, 4 S.E.2d 112 (1939); Boatright v. Moody, 210 Ga. 80, 77 S.E.2d 529 (1953); Ross v. City of Lilburn, 114 Ga. App. 428, 151 S.E.2d 490 (1966); Davey v. City of Atlanta, 130 Ga. App. 687, 204 S.E.2d 322 (1974); Eisenberg v. Fuller, 148 Ga. App. 603, 252 S.E.2d 17 (1979); Willis v. Jackson, 163 Ga. App. 26, 293 S.E.2d 498 (1982).

Editor's notes.

- The following decisions were rendered under this section as it read prior to amendment by Ga. L. 1961, p. 190, § 6, which added traverse (previously dealt with under a separate section) to its scope as well as a more specific time limit for filing of exceptions and traverse.

Section prescribes method for correcting answer which omits evidence adduced upon trial.

- If answer is subject to correction because it does not contain evidence adduced upon trial, proper method to make the evidence adequate and complete in that respect is prescribed by this section. Loomis v. City of Atlanta, 82 Ga. App. 346, 60 S.E.2d 397 (1950).

Section prescribes exclusive means for perfecting incomplete answer.

- Section prescribes only means of perfecting answer and other relief cannot be granted to the plaintiff by the Supreme Court. Wyatt v. Turner, 40 Ga. 36 (1869); Stoner v. Magins, 116 Ga. 797, 43 S.E. 45 (1902); Tyner v. Leake, 117 Ga. 990, 44 S.E. 812 (1903).

Incomplete answer to writ of certiorari can be perfected only by exceptions taken thereto in manner prescribed by section. Macris v. Tsipourses, 35 Ga. App. 671, 134 S.E. 621 (1926).

Motion to dismiss answer will not lie to perfect it. Star Glass Co. v. Longley & Robinson, 64 Ga. 576 (1880).

Section provides remedy for both parties when answer of magistrate is not specific. Landrum v. Moss, 1 Ga. App. 216, 57 S.E. 965 (1907).

Written exceptions.

- If defendant in certiorari is dissatisfied with answer, the defendant should file written exceptions thereto. Lynn v. Crapps, 47 Ga. App. 744, 171 S.E. 398 (1933).

Answer binds plaintiff in certiorari, even though incomplete and insufficient, unless exceptions are filed in accordance with section. Norris v. Sibert & Robinson, 53 Ga. App. 440, 186 S.E. 199 (1936).

Absent proper exceptions or traverse to answer of trial magistrate allegations thereof are conclusive. Wadsworth v. Olive, 53 Ga. App. 539, 186 S.E. 590 (1936).

Requirements when dissatisfied with answer.

- Any party, dissatisfied with an answer to writ of certiorari must in due time either file exceptions thereto, or traverse same, and, failing to do either, is bound by recitals of fact contained in such answer. Davis v. Rhodes, 112 Ga. 106, 37 S.E. 169 (1900).

Absent exceptions, improper answer by trial judge will cause dismissal.

- When there is an improper or incomplete answer by a trial judge to petition for certiorari, the judge of the superior court will not continue hearing on certiorari until answer is perfected and certiorari will be dismissed, unless exceptions thereto have been filed as provided in this section. Norris v. Sibert & Robinson, 53 Ga. App. 440, 186 S.E. 199 (1936).

When answer does not show that final judgment was rendered, judge may dismiss proceeding. Southern Ry. v. Leggett & Co., 117 Ga. 31, 43 S.E. 421 (1903); Hill v. Anderson Banking Co., 18 Ga. App. 41, 88 S.E. 749 (1916).

Exceptions will lie only when omissions are material to proper decision of case. Hardy v. Hardy, 2 Ga. App. 530, 58 S.E. 779 (1907).

When omissions in answer are immaterial to proper decision of case, exceptions will be overruled. Baird v. Smith, 124 Ga. 251, 52 S.E. 655 (1905).

Exceptions must specify defects.

- Exceptions must be so definite, apt, and certain that magistrate may be able to understand exact nature of deficiency. Macris v. Tsipourses, 35 Ga. App. 671, 134 S.E. 621 (1926).

Section does not require that exceptions be verified by affidavit. Rumph v. Cleveland, 72 Ga. 189 (1883).

Party may except to judge's failure to send up copy of record.

- When copies of pleading and other part of record are not certified and sent up with answer, it is error to overrule exceptions. Stoufer v. Missenheimer, 26 Ga. App. 554, 106 S.E. 560 (1921), later appeal, 28 Ga. App. 350, 111 S.E. 692 (1922).

Failure to attach copy of proceedings, where answer indicates intention to do so.

- When, in certiorari proceeding, record does not show that any copy of proceedings was sent up with answer of trial judge, although statement of judge indicates intention to attach such papers, answer is incomplete in that respect. But if applicant for certiorari desires such information before superior court, it is the applicant's duty to except to the answer in order that the judge might be required to complete the answer. Beavers v. Cassells, 56 Ga. App. 146, 192 S.E. 249 (1937), aff'd, 186 Ga. 98, 196 S.E. 716 (1938).

Oral objection that answer of retired magistrate is not verified is sustainable. Love v. Bush, 21 Ga. App. 436, 94 S.E. 626 (1917).

Additional answer prepared before exceptions to original answer are sustained cannot become part of record, if objected to. Bailey v. Ware & Harper, 17 Ga. App. 492, 87 S.E. 712 (1916), later appeal, 19 Ga. App. 255, 91 S.E. 282 (1917).

When exceptions and traverse are both filed, court should dispose of exceptions first. Chandler v. Baggett, 13 Ga. App. 333, 79 S.E. 179 (1913).