2021 Georgia Code
Title 5 - Appeal and Error
Chapter 4 - Certiorari to Superior Court
§ 5-4-10. Amendment of Petition, Bond, Answer, and Traverse
Certiorari proceedings shall be amendable at any stage, as to matters of form or substance, as to the petition, bond, answer, and traverse; and a valid bond may by amendment be substituted for a void bond or no bond at all.
(Code 1933, § 19-403, enacted by Ga. L. 1961, p. 190, § 9.)
Law reviews.- For annual survey on zoning and land use law, see 70 Mercer L. Rev. 301 (2018).
JUDICIAL DECISIONS
Purpose of section.
- This section has for the statute's obvious purpose the curing of certain procedural defects inherent in former certiorari mechanism by allowing amendments at any stage of appeal. Scott v. Oxford, 105 Ga. App. 301, 124 S.E.2d 420 (1962).
Section inapplicable to filing of late answer.
- When motion to dismiss writ of certiorari preceded filing of late answer to petition for writ by respondent judge, dismissal is correct, since section does not apply to filing of a later answer. Schaffer v. City of Atlanta, 144 Ga. App. 702, 242 S.E.2d 288 (1978); City of Atlanta v. Saunders, 159 Ga. App. 566, 284 S.E.2d 77 (1981).
Ga. L. 1961, p. 190, § 9 (see O.C.G.A. § 5-4-10) could not be utilized to permit service beyond time permitted in former Code 1933, §§ 19-209 and 19-210 (see O.C.G.A. § 5-4-6). City of Atlanta v. Saunders, 159 Ga. App. 566, 284 S.E.2d 77 (1981).
Failure to serve cannot be cured by amendment.
- Failure to serve the opposite party is not a defect which can be cured by amendment under O.C.G.A. § 5-4-10. Hudson v. Watkins, 225 Ga. App. 455, 484 S.E.2d 24 (1997).
Bond by amendment was invalid.
- Trial court erred in granting a petition for a writ of certiorari as the petition was not accompanied by a bond as required by O.C.G.A. § 5-4-5(a), the hearing officer originally hearing the dispute did not have authority to waive the bond requirement, and a bond by amendment under O.C.G.A. § 5-4-10 was invalid as the bond was not approved by the hearing officer. Duty Free Air & Ship Supply, Inc. v. Atlanta Duty Free, LLC, 275 Ga. App. 381, 620 S.E.2d 616 (2005).
Right to amend found.
- Absent any judicial determination that dismissal was required for lack of an approved bond, the petitioners were entitled to voluntarily dismiss the petitioners' first request for certiorari, filed pursuant to O.C.G.A. § 5-4-1, relying on the renewal statute codified at O.C.G.A. § 9-2-61(a), and file a second request after the 30-day limitation period had expired. Moreover, the petitioners had the right to amend the certiorari proceedings as to form or substance at any stage, including the right to amend, by substituting a valid bond for a void bond or no bond at all. Buckler v. DeKalb County, 290 Ga. App. 190, 659 S.E.2d 398 (2008).
Application may be amended to show valid bond.
- Defendant convicted in municipal court of leaving the scene of an accident and driving without insurance failed to comply with the bond requirement in O.C.G.A. § 5-4-20(a) before the defendant filed the defendant's application for a writ of certiorari; however, under O.C.G.A. § 5-4-10, the defendant was entitled to amend the defendant's petition once the defendant had a valid bond. Williams v. City of Douglasville, 354 Ga. App. 313, 840 S.E.2d 715 (2020).
Cited in Morman v. Pritchard, 108 Ga. App. 247, 132 S.E.2d 561 (1963); Ellett v. City of College Park, 233 Ga. 858, 213 S.E.2d 700 (1975); Yield, Inc. v. City of Atlanta, 144 Ga. App. 637, 242 S.E.2d 478 (1978); Willis v. Jackson, 163 Ga. App. 26, 293 S.E.2d 498 (1982).
RESEARCH REFERENCES
Am. Jur. 2d.
- 14 Am. Jur. 2d, Certiorari, §§ 83 et seq., 107 et seq.
C.J.S.- 14 C.J.S., Certiorari, §§ 48, 68.
