Opinion
39460.
DECIDED APRIL 19, 1962.
Certiorari; beer violation. Fulton Superior Court. Before Judge Pharr.
Bagwell Hames, James A. Bagwell, for plaintiff in error.
Ezra E. Phillips, contra.
Under the act of 1961 (Ga. L. 1961, pp. 190, 191; Code Ann. § 19-210), after a writ of certiorari is sanctioned and filed in the clerk's office, the opposite party, as well as the respondent, must be served within 5 days.
DECIDED APRIL 19, 1962.
The defendant was tried and convicted in the Recorder's Court of the City of East Point for the offense of selling beer, and sought, by writ of certiorari, to have such conviction reviewed by the Superior Court of Fulton County. When the cause came on to be heard in the superior court, the oral motion of the City of East Point to dismiss the writ of error, because no service of the writ of certiorari had been perfected, was sustained, and thereafter the motion of the defendant to reinstate the cause was denied. The defendant now assigns error on the judgments dismissing, and refusing to reinstate, the writ of certiorari.
The act of 1961 (Ga. L. 1961, p. 190), amended Code §§ 19-209 and 19-210 and repealed Code §§ 19-211 and 19-212. Such act also amended other Code sections not material to the present case. Prior to such time, the failure to serve the opposite party, unless such service was waived in writing, required a judgment dismissing the writ of certiorari. While the act of 1961 was entitled in part as "An Act to clarify, simplify and conform the procedure in certiorari proceedings to that prevailing in ordinary civil cases as to appearance day. . ." and to provide for amendments, it does not appear that the necessity of a timely service on the opposite party was dispensed with. Code § 19-210 as amended, supra, provides: "All certiorari proceedings shall be filed in the clerk's office within a reasonable time after sanction thereof, and shall be served on the respondent within five (5) days after such filing by the sheriff or his deputy, or by the petitioner or his attorney. A copy of the petition and writ shall also be served on the opposite party or his counsel or other legal representative, in person or by mail, and service shown by acknowledgment, or by certificate of the counsel or person perfecting such service." Under such language it appears that the service upon the opposite party should "also" be made within five days after the filing of such writ in the clerk's office. No service, or written waiver, appears in the record, and the judgments of the superior court dismissing the writ of certiorari and denying the motion to reinstate such writ of certiorari must be
Affirmed. Frankum and Jordan, JJ., concur.