Syfert Injury Law Firm

Your Trusted Partner in Personal Injury & Workers' Compensation

Call Now: 904-383-7448

2018 Georgia Code 9-6-41 | Car Wreck Lawyer

Link to State of Georgia Official Statute 2018 Georgia Code Annotated (sourced from legal.resource.org)
O.C.G.A. 9-6-41 Case Law from Google Scholar Amendments to OCGA 9-6-41

TITLE 9 CIVIL PRACTICE

Section 6. Extraordinary Writs, 9-6-1 through 9-6-66.

ARTICLE 3 PROHIBITION

9-6-41. When writ granted; time for return; trial of fact issues.

The writ of prohibition may be granted at any time, on proper showing made. The return must be in term. Any issue of fact made thereon must be tried as in equity cases.

(Code 1863, §§ 3133, 3136; Code 1868, §§ 3145, 3148; Code 1873, §§ 3201, 3209a; Code 1882, §§ 3201, 3209a; Civil Code 1895, §§ 4876, 4885; Civil Code 1910, §§ 5449, 5458; Code 1933, §§ 64-301, 64-302.)

History of section.

- The language of this Code section is derived in part from the decision in Mayor of Brunswick v. Dure, 59 Ga. 803 (1877).

JUDICIAL DECISIONS

Prohibition can only operate to restrain pending action or proceeding. Martin v. Crawford, 199 Ga. 497, 34 S.E.2d 699 (1945).

Before the writ of prohibition should issue, there must be some pending action or proceeding upon which the writ could apply and prohibit some act of a judicial tribunal from exercising jurisdiction over matters not within its cognizance, or from exceeding its jurisdiction in matters in which it has cognizance. Martin v. Crawford, 199 Ga. 497, 34 S.E.2d 699 (1945).

Writ of prohibition will not lie after judgment sought to be restrained has been issued. Almand v. Brock, 227 Ga. 586, 182 S.E.2d 97 (1971).

Return of writ.

- An application for the writ of prohibition may be sanctioned in vacation, but must be made returnable to the next term. Doughty, Pearson & Co. v. Walker, 54 Ga. 595 (1875) (decided prior to amendment of O.C.G.A. § 15-6-19.)

The writ of prohibition must be returned in term. Mayor of Savannah v. Grayson, 104 Ga. 105, 30 S.E. 693 (1898).

Title to public office not proper subject for relief by prohibition.

- Where a petition is predicated upon the issue of title to a public office, and the prayers are for the writ of prohibition, and that a defendant be prohibited and restrained from acting as such public official, the petition cannot be held to state a cause of action for injunctive relief, for the reason that injunction is not a primary remedy to determine the question of title to public office. Martin v. Crawford, 199 Ga. 497, 34 S.E.2d 699 (1945).

Cited in Harris v. Jones, 141 Ga. 563, 81 S.E. 881 (1914).

RESEARCH REFERENCES

Am. Jur. 2d.

- 63C Am. Jur. 2d, Prohibition, §§ 41, 42, 57.

C.J.S.

- 72A C.J.S., Prohibition, § 1 et seq.

ALR.

- Availability of writ of prohibition or similar remedy against act of public prosecutor, 16 A.L.R.4th 112.

Cases Citing O.C.G.A. § 9-6-41

Total Results: 2  |  Sort by: Relevance  |  Newest First

Copy

Williams v. the Stats, 315 Ga. 498 (Ga. 2023).

Cited 12 times | Published | Supreme Court of Georgia | Feb 7, 2023

...County’s petition for declaratory relief. 3. Writ of Prohibition: The County also sought a writ of prohibition against Judge Sweatt on the grounds that he lacked authority and jurisdiction to call for the special election. See OCGA §§ 9-6-40,23 9-6-41,24 and 9-6-42.25 A writ of prohibition seeks “to prevent a tribunal possessing 23 OCGA § 9-6-40 provides: The writ of prohibition is the counterpart of mandamus, to restrain subordinate courts and infer...
...removal of a judge shall issue where no motion to recuse has been filed, if such motion is available, or where a motion to recuse has been denied after assignment to a separate judge for hearing. (Emphasis supplied.) 24 Under OCGA § 9-6-41, a “writ of prohibition may be granted at any time, on proper showing made.” 25 “The writ of prohibition will not lie to the duly inaugurated Governor, but it lies to all other executive or military officers when acting as a...

Camden Cnty. v. Sweatt, Judge (Ga. 2023).

Published | Supreme Court of Georgia | Feb 7, 2023

...County’s petition for declaratory relief. 3. Writ of Prohibition: The County also sought a writ of prohibition against Judge Sweatt on the grounds that he lacked authority and jurisdiction to call for the special election. See OCGA §§ 9-6-40,23 9-6-41,24 and 9-6-42.25 A writ of prohibition seeks “to prevent a tribunal possessing judicial powers from exercising jurisdiction over matters not within 23 OCGA § 9-6-40 provides: The writ of prohibition is the counterp...
...compel the removal of a judge shall issue where no motion to recuse has been filed, if such motion is available, or where a motion to recuse has been denied after assignment to a separate judge for hearing. 24 Under OCGA § 9-6-41, a “writ of prohibition may be granted at any time, on proper showing made.” 25 “The writ of prohibition will not lie to the duly inaugurated Governor, but it lies to all other executive or military officers when acting as a...