THIRD DIVISION

MCFADDEN, C. J.,

DOYLE, P. J., and HODGES, J.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

https://www.gaappeals.us/rules

DEADLINES ARE NO LONGER TOLLED IN THIS

COURT. ALL FILINGS MUST BE SUBMITTED WITHIN

THE TIMES SET BY OUR COURT RULES.

October 13, 2020

In the Court of Appeals of Georgia

A20A1517. WHEELER v. BEST.

MCFADDEN, Chief Judge.

This appeal contests the dismissal of a petition for certiorari to superior court

from a municipal court decision. The superior court dismissed the petition for failure

to comply with the bond requirement. 

A bond for sums sought for recovery and all future costs must be filed with a

petition for certiorari to superior court, and such bond must have been approved by

the judicial officer before whom the case was tried in the first instance and whose

decision is being challenged. In the absence of such a bond, an affidavit of indigence

may instead be filed with the petition for certiorari. Because the required bond or

affidavit of indigence was not filed with the petition in this case, the superior court

did not err in dismissing the petition. So we affirm. 
1. Facts and procedural posture. 

The MunicipalCourt of the City of Dublin issued an order finding that property

owned by Thomas Wheeler was being maintained in a blighted condition and was

subject to a blight tax under city ordinances. Wheeler filed a petition for a writ of

certiorari in the Superior Court of Laurens County, seeking review of the municipal

court decision. The superior court dismissed the petition because no bond or affidavit

of indigence was filed with the petition. Wheeler’s application for discretionary

appeal to this court was granted, and this appeal followed. 

2. Dismissal of certiorari petition.

Wheeler contends that the superior court erred in dismissing his certiorari

petition based on the absence of a bond or affidavit of indigence. We disagree. 

“OCGA § 5-4-1 et seq. governs certiorari to superior court. OCGA § 5-4-1 (a)

providesthat a writ of certiorarishall lie for the correction of errors committed by any

inferior judicatory or any person exercising judicial powers.” Williams v. City of

Douglasville, 354 Ga. App. 313, 315 (840 SE2d 715) (2020) (punctuation omitted).

OCGA § 5-4-3 provides, in pertinent part, that “[o]n the filing of the petition in the

office of the clerk of the superior court, with the sanction of the appropriate judge

endorsed thereon, together with the bond or affidavit, as provided in Code Section

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5-4-5, it shall be the duty of the clerk to issue a writ of certiorari[.]” (Emphasis

supplied.) “OCGA § 5-4-5 (a) plainly states that before a writ of certiorari may be

issued, the party applying for the writ must file a bond with the petition.” Duty Free

Air & Ship Supply v. Atlanta Duty Free, 275 Ga. App. 381, 382 (1) (620 SE2d 616)

(2005). OCGA § 5-4-5 (a) provides:

Before anywrit of certiorarishall issue, except as provided in subsection

(c) of this Code section, the party applying for the same, his agent, or his

attorney shall give bond and good security, conditioned to pay the

adverse party in the case the sums sought as an award to be recovered,

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. The bond and certificate shall be filed with the petition for

certiorari, and security on the bond shall be liable as securities on

appeal. 

(Emphasis supplied). “[T]he bond given by the plaintiff in certiorari as a condition

precedent to the issuance of the writ should be approved by the magistrate or judge

whose decision is complained of.” Butters Mfg. Co. v. Fraley, 46 Ga. App. 712, 715

(169 SE 55) (1933). Accord Roberts v. Citizens Bank, 62 Ga. App. 584 (8 SE2d 900)

(1940) (“[I]t must appear from the record that the bond required by [OCGA § 5-4-5]

has been duly approved by the judicial officer before whom the case was tried in the

first instance.”) (citations and punctuation omitted). 

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OCGA § 5-4-5 (a) “refers to just one exception to the bond requirement[,

which] is set forth in subsection (c), and applies only where the party seeking the writ

files an affidavit of indigence.” Duty Free Air & Ship Supply, supra. 

If the party applying for the writ of certiorari makes and files with his

petition a written affidavit that he is advised and believes that he has

good cause for certiorari to the superior court and that because of his

indigence he is unable to pay the costs or give security, as the case may

be, the affidavit shall in every respect answer instead of the certificate

and bond above-mentioned. 

OCGA § 5-4-5 (c). Consequently, “[p]ursuant to OCGA § 5-4-5, [Wheeler’s] petition

was required to be filed with a bond approved by the judicial officer who heard the

case, unless the petition was filed with an affidavit from [Wheeler] stating that [he

was] indigent and unable to pay costs or give security.” Buckler v. DeKalb County,

290 Ga. App. 190, 191 (1) (659 SE2d 398) (2008). But it is undisputed that Wheeler

did not file such a bond or affidavit of indigence contemporaneously with his petition

for certiorari. 

Nevertheless, Wheeler claimsthat he should have been allowed by the superior

court to post a valid bond by amendment. We note that the appellee has cited Cobb

County v. Herren, 230 Ga. App. 482 (496 SE2d 558) (1998), for the proposition that

the failure to file the requisite bond or affidavit is not an amendable defect if the time

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for petitioning for certiorari has expired. But Cobb County does not stand for that

proposition regarding a bond or affidavit, and instead it held that the failure to obtain

the requisite sanction of the appropriate judge was not an amendable defect because

it was not expressly listed as such in OCGA § 5-4-10. Id. at 485. (“[T]he language of

the legislature in OCGA § 5-4-10 is clear and unambiguous as to what defects are

amendable, and sanctioning is not listed.”) OCGA § 5-4-10 expressly lists a missing

or void bond as an amendable defect. “Indeed, certiorari proceedings are amendable

at any stage and a valid bond may by amendment be substituted for a void bond or no

bond at all.” Duty Free Air & Ship Supply, supra at 383 (1) (citation and punctuation

omitted). 

But contrary to Wheeler’s claim, he has notshown that the superior denied him

the opportunity to file a valid bond by amendment. Rather, Wheeler points to a

motion to set aside that he filed after the certiorari petition had been dismissed and

that the superior court did not rule upon prior to the filing of this appeal. See Crippen

v. Outback Steakhouse Intl., 321 Ga. App. 167, 170 (1) (741 SE2d 280) (2013) (this

is a court for the correction of errors of law committed by the trial court, so we do not

consider issues not yet ruled on by the trial court). Under these circumstances,

Wheeler has failed to show that the superior court committed reversible error. 

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The failure to give a valid bond [or affidavit of indigence] under

OCGA § 5-4-5 renders the petition for certiorari void. And until a valid

bond by amendment is made, the petition is lifeless. Because [Wheeler]

did not file a valid bond [or affidavit of indigence] contemporaneously

with [his] petition or a valid bond by amendment [prior to the trial

court’s dismissal], the petition was lifeless and the superior court

[properly] dismissed it. 

Duty Free Air & Ship Supply, supra at 383-384 (citations omitted). Upon the return

of the case to the superior court, any ruling regarding the motion to set aside would

be a matter for the trial court to decide in the first instance. 

Judgment affirmed. Doyle, P. J., and Hodges, J., concur. 

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