The appellant Barbara Schaffer, d/b/a Love Machine, whose business was closed as a public nuisance by the Municipal Court of Atlanta, timely applied for certiorari to the Superior Court of Fulton County. The writ issued, the magistrate was ordered to respond but failed to do so until after the city had moved to dismiss. That motion was granted and this court affirmed the dismissal on January 18,1978. Schaffer v. City of Atlanta, 144 Ga. App. 702 (242 SE2d 288) (1978). Certiorari to the Supreme Court was denied June 29, 1978.
A second application for writ of certiorari to the Superior Court of Fulton County was filed on August 22, 1978. The motion to dismiss this writ was granted on the ground that the prior dismissal "constitutes a ruling on the merits by virtue of what was and what was not stated in the order, ^nd thereby bars the filing of a second petition for certiorari in the same matter.” From this ruling the defendant appeals. What was stated in the *2order of July 21, 1977 (the prior dismissal) was that the dismissal was granted because "the writ of certiorari was not answered by the respondent (Magistrate) on or before the appearance day... and petitioner had at no time filed any motions or applied for any orders designed to have such answer produced.” The defendant appeals from the second order of dismissal.
1. In Yield v. City of Atlanta, 144 Ga. App. 637 (242 SE2d 478) (1978) certiorari dismissed, 241 Ga. 593 (247 SE2d 764) (1978), it was held that the burden is on the applicant for certiorari to cause the magistrate’s answer to be filed within 30 days of service upon him as required by Code § 19-209. Justice Hill, dissenting from the dismissal of the writ of certiorari issuing from the Supreme Court, complained, "We should retain this case and decide the petitioner’s claims on their merits, if any.” The denial by the Court of Appeals of a motion to dismiss the Yield case in that court (Id., p. 638, hd. 1) on the ground that the "substance of the motion involves the merits of the order of the trial court in dismissing the writ of certiorari” refers only to actions of the superior court judge. The motion was made on the dual grounds that the enumerations of error were not ruled on in the superior court and that no error was raised on which a ruling could be granted. These grounds, in the motion to dismiss filed in the Court of Appeals, referred only to the late filing of the magistrate’s response which the City of Atlanta successfully contended was a ground for dismissal of the certiorari in the superior court. Thus, the merits of the final order of the superior court referred to the technicality of when the magistrate’s response must be filed, not the merits of the case which seeks a ruling reversing the magistrate’s decision that the defendant’s business constitutes a nuisance. No appeal from this final judgment has yet been considered on its merits.
2. "Under the decision of the Supreme Court in Clark v. Newsome, 180 Ga. 97 (178 SE 386), a plaintiff who has had his action dismissed other than on the merits may refile within six months under Code § 3-808 where the original action was not barred by the statute of limitation.” Covil v. Stansell, 113 Ga. App. 179 (3) (147 SE2d 479) (1966). That this ruling applies to applications *3for a second writ of certiorari from an inferior judicatory, where the first has been dismissed for a reason not affecting the merits, and the second is filed within the 6-month period for renewal, see Turner v. State, 85 Ga. App. 609 (70 SE2d 45) (1952); Jameson v. State, 50 Ga. App. 111 (176 SE 903) (1934).
Submitted March 7, 1979 Decided July 10, 1979In support of this position, special attention is called to Singer Sewing Machine Co. v. Dacus & Co., 22 Ga. App. 297 (2) (95 SE 998) (1918), holding that "where a certiorari has been dismissed solely upon the ground that material allegations in the petition were not verified by the answer of the trial magistrate, the certiorari could be renewed within six months from the date of its dismissal.” It is obvious that if a certiorari petition has not been decided on its merits because certain answers were not verified by the trial magistrate, a fortiori, where no answer at all is filed by the magistrate there is no decision on the merits and the dismissal on this ground is error.
3. When a case is dismissed in the trial court under circumstances which will allow it to be refiled within six months under Code § 3-808, the time during which the original ruling is on appeal, if any, is not to be counted in determining the six-month statute of limitations. Seaboard Air-Line R. v. Randolph, 126 Ga. 238(4) (55 SE 47) (1906); Central of Ga. R. Co. v. Macon R. &c. Co., 140 Ga. 309 (78 SE 931) (1913). Accordingly where, as here, the ruling of the magistrate was certioraried to the superior court and there dismissed and a timely appeal made to the Court of Appeals, which affirmed the dismissal, and application for writ of certiorari from that judgment was denied by the Supreme Court on June 29, 1978, the present appeal, which was commenced by the filing of a second application to the superior court for writ of certiorari on August 22, 1978, was timely filed. The dismissal by the judge of the superior court on the erroneous ground that the merits of the appeal had previously been decided must be reversed.
Judgment reversed.
Shulman, Birdsong, UnderWQod and Carley, JJ., concur. Quillian, P. J., McMurray, P. J., Smith and Banke, JJ., dissent. *4Rehearing denied July 26, 1979 Glenn Zell, for appellant. Andrew J. Hairston, Solicitor, Paul Howard, Jr., Deputy Solicitor, for appellee.