Meeks v. Guckenheimer & Sons

Atkinson, J. The writ of certiorari lies for the correction of errors committed by inferior judicatories in ruling upon questions made before them; and if, upon the hearing of a writ of certiorari, a question is for the first time raised which was not ruled upon by the court whose judgment is under review, such a question will not be considered. This principle applied to the record in this case affirms the judgment of the court below in overruling the certiorari. Though the facts relating to the alleged disqualification of the trial judge were known to counsel for the losing party, no question thereon was either raised or suggested until after the verdict, of which complaint was made, was rendered. .We do not mean that a disqualification in fact existed. In view of the statement contained in the answer of the county judge to the writ of certiorari, we think it was perfectly competent for him, under authority of the decision of this court in the case of McMillan v. Nichols, 62 Ga. 36, to preside upon the trial of this case. Conceding, however, the disqualification to have existed, we rule that, no question having been made upon the legal capacity of the trial judge to preside, his incapacity could not be suggested upon a writ of certiorari sued out to review the judgment. If he had been in fact disqualified to preside on the trial, and such fact was unknown to the losing party, and he was thus prevented from invoking a ruling thereon by the trial judge, his remedy was to move to set aside the judgment, and not to reverse it. [714] There was sufficient evidence to support the judgment of the county judge, and this court will not control the discretion of the circuit judge in refusing to set it aside. Judgment affirmed. All the Justices concurring.