Wyatt v. Turner

Brown, C. J. It is insisted by counsel for plaintiff in error that this Court shall decide upon the nature and dignity of the landlord’s lien in this case. In the shape in which it is now before us, we do not think that question is made by the record, and we will not go out of the record „to discuss or decide'it. The vast increase in the business of this Court makes our duties so onerous that we do not feel called upon-to do more than decide the questions which are legally presented for our consideration. Was Mr. Turner, the defendant in error, entitled to have the answer of the Justice of the Peace to the certiorari amended after the ease had been tried in the Superior Court, and brought to this Court, and a judgment rendered? We are very well satisfied that he was not. Under sections 3990 and 3994 of the Revised Code, either party who may be dissatisfied with the Justice’s answers to the certiorari, must take the exceptions, or traverse the answer, before the case is called in its order for a hearing in the Superior Court, and if there be more than one objection to the answer, all the exceptions mus,t be taken together, before the hearing. The issue must be fully made up, and the record complete before the hearing, and the parties will not be allowed to have the return amended after the. case has been heard in the Superior Court and in this Court. We can readily see the fraud and [38] injustice which might result if the .Courts would allow parties to practice upon them in this way. If the feelings of the Justice of the Peace should be strongly in favor of one of the parties, any other rule might open the door for the practice of unfairness, by allowing the Justice to amend the answer after the party had ascertained by the judgment of this Court what might be necessary for the answer to contain to enable him to succeed. We charge no such'practice in this case. But we confess we are not very well satisfied that another note was not substituted by mistake or otherwise for the one upon which the case was tried in the Justice’s Court. The record shows that the note then before .the Court was for an arpount different from the one set forth in the amended return: Nothing appeared from the record to show that the stipulation giving the lien upon the crop, which appears appended to the nóte copied into the amended return, was annexed to the note used on the trial in the Justice’s Court. These discrepances at least satisfy our minds that it is not wise to relax the salutáry rule laid down in the Code. We may remark, in conclusion, that there is nothing in this record that shows that the wheat sold, from which the money in dispute is brought into Court, was raised upon the lands cultivated by the defendant in fi. fa., or to what year’s crop it belonged, or that Mr. Turner ever had any lien of any sort upon it; and, if we admit that it was part of the crop which he advanced the money to make, and that he had a lien upon it, the record does not show that he preserved the lien by having it foreclosed within twelve months, as the law, requires, before the amended return was made, or before the last hearing in'the Superior Court. If the lien had not been preserved by foreclosure within the time allowed by law, it was lost, and the judgment of the Court ordering the money paid to the landlord in place of the judgment creditor, must be erroneous. See this case reported in 37 Georgia, 640. Judgment reversed.