Ross v. City of Lilburn

Annotate this Case

114 Ga. App. 428 (1966)

151 S.E.2d 490

ROSS v. CITY OF LILBURN.

42338.

Court of Appeals of Georgia.

Argued October 3, 1966.

Decided October 7, 1966.

William W. Miller, Jr., John M. Hames, for appellant.

*429 Webb & Fowler, W. Howard Fowler, William G. Tanner, for appellee.

DEEN, Judge.

1. Code Ann. § 19-302 specifies that a traverse to an answer to a petition for certiorari "shall be filed in writing, specifying the defects, within 15 days after the filing of such answer." Accordingly, where the answer was filed in the office of the Clerk of the Superior Court of Gwinnett County on May 25, 1966, and the traverse was not filed until June 10, it was proper to sustain a motion to dismiss the traverse. The mere fact that a copy of the answer which was mailed to defendant's counsel on May 25 was not received until May 27 is irrelevant. Chapter 19-3 does not in terms call for serving a copy of the answer upon the defendant. This action is necessitated by Code Ann. § 81-301 relating to service of pleadings generally, which was complied with. A failure to serve the copy at the time of filing would have resulted in the right to a continuance (Wright Contracting Co. v. Waller, 89 Ga. App. 827 (2c) (81 SE2d 541)), but here the copy was mailed on the same day on which the answer was filed.

2. Code Ann. § 68-1707 requires that motor vehicles used by the police on official business shall be marked on the back and on each side. This is an expression of the public policy of the state that vehicles used for the purpose of traffic arrests shall be identified, and where failure to make such identification is the proximate cause of injury, a civil action will lie. Poole v. City of Louisville, 107 Ga. App. 305 (130 SE2d 157). We are cited to no authority, however, for the proposition that use of a vehicle which, although marked, is not marked in accordance with this statute, will void an otherwise valid arrest, nor do we conceive this to be the law, especially where there is no contention on the part of the defendant that he was ignorant of the identity of the officers or that any act on his part was caused by his ignorance of their identity.

The judge of the superior court properly overruled the petition for certiorari from a conviction in the Mayor's Court of the City of Lilburn.

Judgment affirmed. Nichols, P. J., and Hall, J., concur.