Grimes v. Jones

TrippE, Judge. 1. The second application for the writ of certiorari was made within three months from the time the first writ was dismissed, but not within three months from the decision of the Justice complained of. By the law in force in 1861, the writ of certiorari could be sued out within six months from the time of the decision complained of. Under that law, this Court held in Hendrix vs. Kellogg, 32 Georgia, 436, that where such a writ is 271 dismissed or non-suited, etc., the plaintiff may renew his application within six months from such dismissal, *non-suit, etc. This decision was made by virtue of the construction given to the 23d section of the statute of limitations of 6th March, 1856, allowing suits which had been dismissed to be renewed within six months where they would otherwise be barred by the statute. Section 2881 of the Code preserves the same right to the plaintiff in this case which was held to be his under the Act of 1856. 2. From the facts set forth in the application for the certiorari we 'think the petitioner was entitled to a hearing on the merits and to a decision by the Judge as to whether he should have a new trial in the Justice Court, or to such a judgment as from the answer of the Justice and the facts of the case the Judge should be authorized to render. Judgment reversed.