
    14697.
    Johnson v. Hicks.
    Decided October 3, 1923.
    Certiorari; from Fulton superior court—Judge Bell. April 2, 1923.
    The judgment dismissing the certiorari was as follows: “The within certiorari coming on for a hearing at the time the same is assigned for-trial, and it appearing to the court that there 'has been no service of the same since the issuing of the writ of certiorari, the acknowledgment of service being prior to the issuing of the writ of certiorari, and it further appearing to the court that the petition and writ of certiorari was not served upon the respondent, Judge C. L. Pettigrew, until March 26, 1923, which was during the March term, 1923, of this court and too late to require the respondent to make answer to the certiorari as provided in the Acts of 1918, p. 124, upon motion of counsel for defendant in certiorari it is considered, ordered, and adjudged by the court that the certiorari be and is hereby dismissed for failure to serve the same as provided by law,” etc.
   Luke, J.

1. This case is here to review the judgment of the judge of the superior court in dismissing a writ of certiorari upon the ground that it had not been properly served. The court properly dismissed the certiorari. See Bass v. Milledgeville, 121 Ga. 152 (48 S. E. 919), and eases there cited.

2. It being clearly apparent that the bill of exceptions was prosecuted in this court for delay only, the statutory damages of ten per cent. (Civil Code of 1910, § 6213) are awarded to the defendant in error.

Judgment affirmed, with damages.

Broyles, G. J., and Bloodworth, J., concur.

The acknowledgment of service referred to above was made by counsel for the defendant in certiorari on the fifth day after the sanction of the writ, and was as follows: “Due and legal notice of the sanction of the writ of certiorari in the foregoing case, and of the time and place of hearing, acknowledged; all other or further notice and service waived. This the 10th day of February, 1923.” The writ of certiorari was issued February 13, 1923, and was returnable to the term of the superior court to be held on the first Monday in March, 1923. The judge of the superior court passed an order on March 29, 1923, as follows: “It appearing to the court upon, the call of the above-stated case that the judge of the municipal court to whom said writ of certiorari was directed has not answered the same, it is on motion of plaintiff ordered by the court that said judge answer said petition for certiorari and have the same filed in the office of the clerk, of the superior court by the'16th day of April, 1923.” An acknowledgment of service of this order was made by the judge of the municipal court on March 29. Next in the record is the following statement of the judge of the municipal court: “The above writ of certiorari was handed me on the 26th day of March, 1923, and on this day was my first knowledge of the writ. March 30th, 1923. C. L. Pettigrew, Judge M. C. of Atlanta.” The statute referred to in the judgment of the judge of the superior court (Acts of 1918, p. 124) amends section 5195 of the Civil Code (1910), so as to make the section read as follows: “The answer to the writ of certiorari shall be filed in office five days before the first day of the term to which it is returnable, unless further time is given, and shall reply specifically to the allegations in the petition.” It was contended by counsel for the plaintiff in error that the failure to serve the judge of the municipal court was cured by the order of the judge of the superior court allowing him until April 16 to file his answer, and that “the acknowledgment of service of the sanction, and the other recitations set out, waived.the fact that the writ had not issued and the petition had not been filed at the time of the service of the same.” Counsel for the defendant in error cited: Singer Sewing Machine Go. v. Dacus, 22 Ga. App. 297, and cases there cited. See Civil Code (1910), §§ 5189-90.

A. S. Johnson, for plaintiff in error.

Frank P. Stochion, Morris Macks, contra.  