Browse Caselaw

Where, as here, on a certiorari from a trial court, the certiorari bond is signed by one as agent for the surety named thereon, the authority of such agent must expressly appear. The signature on the bond in this case being "Robert Lee Taylor (Seal) Principal; Mrs. A. M. Garner (Seal) By John Mitchell, Atty. in fact, Security" and no power of attorney being shown in John Mitchell to act for the security in such manner as to make the signing of her name by him binding upon her, the bond was not valid, and the court did not err in dismissing the certiorari. Darby v. City of Atlanta, 83 Ga. App. 579 (63 S. E. 2d, 121); Duncan v. City of Atlanta, 59 Ga. App. 335 (200 S. E. 815); Chiles v. City of Atlanta, 51 Ga. App. 69 (179 S. E. 596); Garrett v. City of Atlanta, 51 Ga. App. 69 (179 S. E. 597); Mantovani v. City of Atlanta, 43 Ga. App. 787 (160 5. E. 129).

Robert Lee Taylor was tried and convicted in the Recorder's Court of the City of Atlanta for a violation of a municipal ordinance. He applied for writ of certiorari to the Superior Court of Fulton County, and, upon hearing, the certiorari was dismissed for the reason stated in the headnote. This rule of law was first applied in a civil case (Southern Express Company v. Wheeler, 72 Ga. 210), and followed in Foley & William Mfg. Co. v. Bell, 4 Ga. App. 447 (61 S. E. 856); American National Insurance Co. v. Jordan, 26 Ga. App. 320 (105 S. E. 852); Harwell v. Marshall, 125 Ga. 451 (54 S. E. 93). The rule has also been applied in the following criminal cases: Darby v. City of Atlanta, supra, Duncan v. City of Atlanta, supra, Chiles v. City of Atlanta, supra, Garrett v. City of Atlanta, supra, and Mantovani v. City of Atlanta, supra. It is argued by counsel for the defendant in error that while this rule is reasonable and necessary in civil cases where the bond, under Code 19-206 is conditioned to pay the adverse party in the cause the eventual condemnation money and costs, it is not reasonable or necessary in criminal cases where, under Code 19-214, the defendant is required to make bond "in amount and with security acceptable to and to be approved by the clerk, judge or majority of the commissioners, as the case may be, conditioned that the defendant will personally appear and abide the final judgment, order or sentence upon him in said case," and where, as here, the bond and security were in fact accepted by the clerk so that the provisions of the Code section should be deemed to have been complied with. The same distinction was urged in the Darby case, and, had it been a case of first impression, this court might well have felt justified in refusing to follow the precedents of the civil cases. However, the courts have over a period of time uniformly held that, both as to civil and criminal cases, it is necessary for the power of attorney to affirmatively appear where the names of either the principal or security upon the certiorari bond are signed by third parties as agent or attorney in fact for the parties thereto, and this court is constrained by prior decisions. In view of the stringency of this rule, it would appear that the better practice would be the use of such printed certiorari bond forms as contain a printed power of attorney form in connection therewith.