Wright v. Rutledge

Warner, Chief Justice. The error complained of in this case is that the court below dismissed the plaintiff’s 'certiorari on the ground that the amount in controversy between the parties in the justice’s court exceeded the sum of $50 00, and that the plaintiff’s remedy was by an appeal to the superior court and not by certiorari. Without expressing any opinion as to whether the remedy by certiorari, as provided for by the 4049th and 4052d sections of the Code, is taken away in any case where the amount in controversy exceeds $50 00, by the proviso to the 2d section of the act of 1868, we are of the opinion that this case comes within the principle decided by this court in Clements vs. Painter, 46 Georgia Reports, 486. The plaintiff, in the justice’s court claimed damages to the amount of $55 00, $50 00 for injury done to a cow, and $5 00 for injury done to a hog. At the trial the plaintiff abandoned his claim for damages to the hog, and insisted on damages for the injury done to the cow only, and that was. the only question considered and determined in the justice’s court, as appears from the justice’s return. The plaintiff having abandoned his claim for damages to the hog, the only amount which he claimed before the justice’s court was $50 00 for the injury done to [195] the cow, so that the defendant was entitled to his certiorari in that view of the case, and the court below erred in dismissing it. • Let the judgment of the Court below be reversed.