Stephens v. Wallis

Hall, Justice. We agree with the judge of the superior court that a certiorari does not lie to proceedings before-a justice of the peace, binding over a party to the superior court, arrested upon a warrant either to keep the peace or for his good behavior. While we know, of no precedent or authority for inserting in such a warrant a direction to the arresting officer to levy upon and hold the property of the defendant for the payment of costs in case of conviction, and if he does so levy and proceed to sell the property seized,' as seems to have been the case here, it is without lawful warrant or authority, we are yet of opinion that the writ of certiorari is not the proper remedy to restrain this excessive exercise of power. It is true that in Hayden vs. The State, 40 Ga., 476, it was decided that, while the judgment of a committing court that the defendant be committed, or give bond, could not be corrected by the superior court by certiorari, yet if a magistrate, after a hearing, orders a prisoner to be committed, or give bond to appear at the superior court to answer, and gives judgment against him for costs other than such as his own witnesses may exact, such judgment is illegal and may be corrected by certiorari, yet this was in a proceeding for bastardy, in which the case might have been ended before the magistrate by defendant’s entering into arecognizancefor the maintenance of the bastard child. In the case of a peace warrant or warrant for good behavior, however, there could be no such termination of the suit in the magistrate’s court; the bond has to be returned to the next term of the superior court, where it expires by its own limitation, unless it is continued upon good cause shown. The whole matter is thus remitted to that tribunal, and it may look into the case, and thus correct any errors in the proceeding. Code, §§4749 et seq. In this case, there was no judgment of the court authorizing the seizure and sale vf thé defend 728 ant’s property. The command to that effect before the hearing was a bare usurpation or excess of authority, which we think could not be corrected by a certiorari; and if the sale could not be stopped by an affidavit of illegality, which, to say the least, is, perhaps, doubtful, then we are quite confident that this can be effected by a writ of jirohibition, which lies to arrest illegal proceedings by any court or officer when no other legal remedy or relief is given; its granting or refusal is governed by the same principles of right, necessity and justice as obtain in other cases. Code, §3209(a). We are quite agreed with the enforcement of the policy which prohibits magistrates from exacting costs from parties before the arrival of the time for claiming them, or upon conditions other than those prescribed by the law. There are remedies against such extortiohate demands, which may and ought to be resorted to whenever a clear case of such oppression is made out. We do not intimate, however, that such was the case here; the act complained of may have been an honest error of judgment, for which the party would incur no penal liability. Judgment affirmed.