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Certiorari. Before Judge Whitman. Fulton Superior Court. October 12, 1953.
Where a complaint is brought against a real-estate broker or salesman before the Georgia Real Estate Commission, alleging misconduct as a broker or salesman, and where a hearing is had under Code (Ann. Supp.) 84-1420, and the license of the broker suspended for a period of sixty days, and an appeal "to the superior court by a writ of certiorari as provided by law" is sought under Code (Ann. Supp.) 84-1421, the same is not a criminal proceeding or case, and the judge of the superior court did not err in dismissing the petition for certiorari where there was no effort made to comply with the provisions of Code 19-206 or 19-208 as to bond or affidavit in lieu thereof.
R. S. Monroe, doing business in the City of Atlanta as Monroe Realty Company, filed a complaint in writing against Joseph T. Bickers, as a real-estate broker and salesman, the petition being filed with the Georgia Real Estate Commission (namely two of its three members sitting for the board, Leo Griffin and L. C. Pitts), and alleged that Bickers had violated the provisions of section II of the act of the General Assembly of Georgia, approved August 14, 1925, regulating and licensing brokers and salesmen of real estate in certain counties in Georgia (including Fulton County). Monroe alleged that "Alexander-Calloway Realty Company and Joseph T. Bickers, its agent, while engaged in the business and acting in the capacity as a real-estate broker or salesman" in this county, violated "subparagraphs (a), (b), (c), (f) and (h) of the said act in the following manner: On or about December 10, 1952, Bickers contacted complainant at such time and stated that he had noticed that complainant had a listing upon property known as 709 Willoughby Way, N. E., Atlanta, Fulton County, Georgia, and requested permission of complainant to show said property to prospects interested in its purchase, and received from complainant full information pertaining to said property, including the price and terms of sale, and did at such time agree with complainant while acting for and on behalf of said Alexander-Calloway Realty Company, to share equally with complainant, any commission received by him and/or his company in connection with the sale of said property. Subsequently, to wit, several days thereafter, complainant went with said Bickers at said Bickers' request and permitted said Bickers to inspect the property and imparted to Bickers the name of the owner of the property, a description of same, and the price and terms upon which said owner would be willing to sell said property, said Bickers assuring complainant at such time as well as at the time aforesaid, that his, the said Bickers' company would share equally any commission derived from the sale of said property. On or about January 20, 1953, complainant is reliably informed and believes that said Bickers, acting for and on behalf of said Alexander-Calloway Realty Company, negotiated the sale of said property to one W. R. Cochran at a price, so complainant understands and believes to be, in the sum of . . . $12,869, and subsequently upon the closing of said sale, according to complainant's information and belief, received a commission amounting to $569 through and by reason of said sale. Complainant, upon obtaining information pertaining to the sale of said property by said Bickers, made demand upon said Bickers and his broker, Alexander-Calloway Realty Company, for one-half of said commission in accordance with the terms of said agreement between complainant and Bickers and the Alexander-Calloway Realty Company. Both . . . Bickers and" said company "have refused and declined to pay to complainant his portion of the said commission derived from the sale" of said property. "Complainant was, at all times mentioned herein, a licensed real-estate broker" of said State "with an office and place of doing business in" said State and county, "and he avers upon information and belief that the Alexander-Calloway Realty Company was at all times mentioned herein" a licensed realty broker of said State and that said Bickers was the duly licensed agent of said company, and "complainant alleged" that said company and its agent, Bickers, "did by virtue of the foregoing conduct violate the following subparagraphs of section II" of said act: "(a) Making any substantial misrepresentations. (b) Making any false promises of a character likely to influence, persuade or induce. (c) Pursuing a continued and flagrant course of misrepresentation, or the making of false promises through agents or salesmen or advertising or otherwise. (f) Failure to account for or to remit any money coming into his possession which belongs to others. (h) Has demonstrated unworthiness or incompetency to act as real estate broker or salesman in such manner as to safeguard the interests of the public."
Monroe prayed "that an investigation and hearing of said complaint be had by the Georgia Real Estate Commission, pursuant to the provisions of said act."
The respondent, hereinafter referred to as petitioner (for certiorari), was given proper notice and filed his response to the charges made by said Monroe, in which he denied that he has in any way violated the "subparagraphs" set out by the complainant Monroe, and "specifically denies each and every material allegation contained in said complaint." This response was sworn to by Joseph T. Bickers before Marvin O'Neal, Jr., notary public of Fulton County.
On April 20, 1953, said complaint filed by Monroe against the Alexander-Calloway Realty Company and Joseph T. Bickers came on for a hearing before the Georgia Real Estate Commission. Evidence was heard by the two commissioners above mentioned. This evidence and testimony included that of Jim Petkus, who testified that in 1952 he was the owner of the property referred to in the complaint, and listed the property for sale with "everybody, and I listed it with Mr. Monroe," who placed a sign on the property, which was thereon the early part of 1953; that he recalled signing a deed to his property some time in January 1953; that he signed a sales contract and agreed to take $12,300 net to himself; that he lived on these premises until January 27, 1953, and did not turn the keys over to anyone before then; and that "Joseph T. Bickers and Alexander-Calloway Realty Company . . . negotiated the sale of my home to Mr. Cochran." The complainant, R. S. Monroe, testified that he had an understanding with Bickers, acting as agent and salesman for Alexander-Calloway Realty Company, that the commissions received from the sale of the Petkus property would be divided evenly, and that he gave to Bickers all of the information he possessed relative to the property, its owner, the price and terms, and went with him to the property, and that he had said sign displayed on the property.
The defendant's evidence and testimony tended to contradict that there was any liability on the part of said Alexander-Calloway Realty Company or upon his part to give to said Monroe one-half of the commissions received from the sale of the property. He testified that he could get only $12,500 for the property, and the owner wanted $12,300 net to him, and he sold same knowing "I would not get but $200 out of it. I know the ethics of the Commission. I understand it was unethical, but I was placed in an embarrassing position, where it might seem I did not know what I was doing, and to save face, I agreed to take what I could get out of it." H. M. Holmes, Jr., testified that he was the licensed agent of Alexander-Calloway Realty Company, and he showed the property of Petkus to some prospects during 1952, and he had a listing thereof. There were other witnesses, including Alexander and Calloway of said corporation of Alexander-Calloway Realty Company, and they testified that Bickers was their sales manager. Any direct agreement to allow the complainant half of the commissions was denied, and it was denied that $569 was received, the testimony for the respondents being that only $200 was received from the sale of the Petkus property on Willoughby Way, N. E.
After said hearing, on April 23, 1953, said commission, acting through the two commissioners first named, rendered the following order and ruling: "R. S. Monroe, d/b/a Monroe Realty Company v. Alexander Realty Company, and Joseph T. Bickers: Hearing before the Georgia Real Estate Commission. The above stated matter coming on for a hearing before the Georgia Real Estate Commission, on April 20, 1953. After hearing the testimony of the witnesses and examining the documentary evidence the Commission finds that Joseph T. Bickers is guilty of violating (h) 'Has demonstrated unworthiness or incompetency to act as real-estate broker or salesman in such manner as to safeguard the interest of the public.' Wherefore, it is ordered, adjudged and decreed that the license of Joseph T. Bickers be, and the same is hereby suspended for 60 days."
Thereupon said Bickers, the petitioner, filed in the Superior Court of Fulton County his petition for certiorari, which was sanctioned. Said two named commissioners were named as parties (and as the Georgia Real Estate Commission), and the said R. S. Monroe, who filed said written complaint, was named in the petition for certiorari as party defendant or respondent. No costs were paid and no pauper affidavit in lieu thereof nor bond was made by the petitioner. The said Monroe moved in writing to dismiss the petition for certiorari because it appears affirmatively from the petition for certiorari that the petitioner has not given bond or pauper's affidavit in lieu thereof to pay the costs, and the Attorney-General of Georgia, acting through Hon. J. R. Parham, as counsel for the Georgia Real Estate Commission and said two named commissioners made an oral motion to dismiss said petition for certiorari for failure to comply with the law as to filing a bond to pay all costs. Thereafter, on October 12, 1953, a judge of the superior court rendered this order and judgment: "The above-stated matter coming on for a hearing, and the defendant in certiorari, R. S. Monroe, after argument of counsel and examination of the record of the case, it appearing therefrom that bond for the payment of future costs has not been given, nor in lieu thereof has there been made and filed pauper's affidavit, it is the opinion of the court that the plaintiff has not complied with the provisions of Code Sections 19-206 or 19-209 of the Code of Georgia of 1933. It is therefore, considered, ordered and adjudged that the motion to dismiss of the defendant, R. S. Monroe, be and it is hereby sustained and the petition dismissed." Thereupon petitioner objected and excepted and stated that said Monroe was not properly named as a real party but only as a nominal party, and that the court treat naming him as surplusage and consider the case with no written motion interposed. Thereafter and on said date the court on the oral motion of the Attorney-General and said two commissioners, rendered this final order and judgment: "The within petition for certiorari coming on for hearing and the defendants, Georgia Real Estate Commission and L. C. Pitts and Leo Griffin having made an oral motion to dismiss the same upon the grounds that plaintiff in certiorari has failed to comply with the law pertaining to the filing of a bond and good security to pay all future costs: It is considered, ordered and adjudged that the motion be and it is hereby sustained and the petition dismissed, the same showing upon its face that no bond for payment of future costs having been filed or approved, nor a pauper's affidavit having been filed, as provided by law, the costs are hereby taxed against the plaintiff." To this final judgment the petitioner in certiorari excepts to this court and says that the oral motion to dismiss should not have been sustained, and the entering of said order and judgment was contrary to law in that in a case like the case under consideration "there is no provision in law for the giving and filing of a bond for future costs, nor the making and filing of a pauper's affidavit in lieu thereof."
When the trial judge of Fulton Superior Court, to whom the petition for certiorari was properly presented upon an order of the Georgia Real Estate Commission, adverse to the respondent therein, Joseph T. Bickers (now petitioner), which board has the power to render an order suspending the license of a realty broker and salesman in this county and which hearing was under Code (Ann. Supp.) 84-1420 (having been amended in 1929 and in 1949), rendered his order and judgment dismissing the petition for a certiorari as not having complied with the provisions of Code 19-206, 19-208 as to the giving of bond or making of a pauper affidavit in lieu thereof, said petition was sued out and heard under and pursuant to the provisions of the original act of 1925 (Ga. L. 1925, p. 334), embodied as Code 84-1421, which law has been three times amended (Ga. L. 1929, pp. 316, 319; Ga. L. 1931, pp. 7, 37; Ga. L. 1949, pp. 943, 947), and now appears in the Code Supplement as Code 84-1421 and reads as follows: "The action of the Georgia Real Estate Commission in granting, refusing to grant or to renew a license under this Chapter, or in revoking or suspending or refusing to revoke or suspend such a license, shall be subject to appeal to the superior court by a writ of certiorari as provided by law as in other cases, and when the Commission shall have made and filed its decision, any person, firm or corporation desiring to appeal from the decision shall give 10 days' written notice to the Commission of their intention to appeal said decision." It will be noted that the losing party before the commission shall have the right to appeal to the superior court "by a writ of certiorari as provided by law as in other cases."
It is provided by Code 19-206, applying to applications for writs of certiorari generally, that "Before any writ of certiorari shall issue, except as hereinafter provided, the party applying for the same, his agent, or attorney shall give bond and good security, condition[ed] to pay the adverse party in the cause the eventual condemnation money, together with all future costs, and shall also produce a certificate from the officer whose decision or judgment is the subject matter of complaint, that all costs which may have accrued on the trial below have been paid; which bond and certificate shall be filed with the petition for certiorari, and security on said bond shall be liable as securities on appeal." (Italics ours.) The giving of this bond (which must be approved) and certificate is a condition precedent to the issuance of the writ of certiorari by the judge of the superior court. See Davis v. Joiner, 1 Ga. App. 106 (2) (58 S. E. 62); Smith v. McCranie, 14 Ga. App. 721 (82 S. E. 307). It is true that the courts have ruled that the provisions of this section have no application to criminal cases. Colvard v. State, 118 Ga. 13 (43 S. E. 855). Such petition for certiorari in a civil proceeding is void. Page v. White, 77 Ga. App. 21 (47 S. E. 2d 662). It is the duty of the judge of the superior court in such an instance to dismiss the petition for certiorari.
"If the party applying for the writ of certiorari will make and file with his petition an affidavit, in writing, that he is advised and believes that he has good cause for certiorari to the superior court, and that owing to his poverty he is unable to pay the costs or give security as the case may be, as required in the preceding section, such affidavit shall in every respect answer instead of the certificate and bond above mentioned, as the case may be." Code 19-208. The provisions of this section along with Code 19-206 are mandatory, and where it affirmatively appears from the petition for certiorari that there was a failure to give bond under Code 19-206 or a failure to make the affidavit under Code 19-208, such failure renders the petition for certiorari void and an absolute nullity, and the petition cannot proceed. Page v. White, supra. The filing of the bond or making of the pauper affidavit is a condition precedent to an application to the superior court for writ of certiorari, and such filing, together with the approval of the clerk or judge, must affirmatively appear in the application or petition for the writ. Clay v. City of LaGrange, 55 Ga. App. 239 (189 S. E. 863); Nilsen v. City of LaGrange, 55 Ga. App. 676 (191 S. E. 175); Veazey v. City of Crawfordville, 126 Ga. 89 (54 S. E. 817).
A proceeding and hearing before the Georgia Real Estate Commission brought under and heard pursuant to Code (Ann Supp.) 84-1420 is not a criminal case, nor does the order and judgment of the commission suspending or revoking the license of any real-estate broker or salesman on a hearing before the commission brought under this law have the effect of an order of a criminal or penal nature. The case of the petitioner, Bickers, brought on the written complaint of R. S. Monroe, is not a criminal case, and it is not for that reason rendered such a case or proceeding that compliance with the provisions of the general law is sufficient. See Code 19-206, 19-208; Colvard v. State, supra; Dixon v. State, 121 Ga. 346 (49 S. E. 311); Brown v. State, 124 Ga. 411 (52 S. E. 745).
While there was no eventual condemnation money involved in such proceeding before the Georgia Real Estate Commission, the bond is required for future costs, a certificate that any costs due have been paid, or an affidavit that the party seeking the writ of certiorari is unable because of his poverty to make the bond and pay the costs. See Code 19-206 and 19-208, supra.
The Judge of the Superior Court of Fulton County properly dismissed the petition of Joseph T. Bickers for the writ of certiorari.
Judgment affirmed. Townsend and Carlisle, JJ., concur.
E. H. Stanford, Marvin O'Neal, Jr., for plaintiff in error.
Saturday May 23 03:25 EDT

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