Wade v. Wisenant

Simmons, Justice. The facts in this case will he found in the official report. Under those facts the trial judge erred in dismissing the eertiorari. The evidence shows that at the time the suit was brought in the justice’s court, Wade resided in Whitfield county, and not in Murray county where the suit was brought. His affidavit of illegality set up that he was never served with said suit nor did he appear and plead thereto. When the illegality was called for trial in the justice’s court and Wade failed to appear, the magistrate should have dismissed his illegality instead of trying the same ex parte. The evidence disclosed on the ex parte trial showed that Wade was never legally summoned to appear in the original suit. The constable’s return that he had served Wade with a copy of the summons and that Wade waived jurisdiction, did not give the magistrate jurisdiction to enter up a judgment against Wade. Nor did the fact' that Wade said to the constable that it was all right and he waived jurisdiction, give the magistrate jui’isdiction over him, he not residing in the district or county where the justice’s court was held. Nor was that part 485 of the constable’s return as to what Wacle said as to waiving jurisdiction, sufficient to bind him. The magistrate having tried the case in Wade’s absence, and this being the only evidence before him as to jurisdiction, he erred in overruling the illegality and in ordering the execution to proceed, and the trial judge should have sustained the certiorari. Judgment reversed.