Lovvorn v. Jones

Pish, J. 1. An assignment of error, that the court erred in not dismissing a certiorari, “ upon the ground that the affidavit for certiorari was not in compliance with the statute for same and was not sufficient,” is without merit when the record fails- to disclose wherein the affidavit was claimed to be defective. 2. Where the record shows a writing signed by the plaintiff and directed to the defendant in certiorari, purporting to give the latter due notice of the sanction of the writ and the time and place of hearing, and the bill of exceptions recites that the attorney for the defendant waived the necessity of an affidavit as to the service of such written notice, it was not erroneous to overrule a motion to dismiss the certiorari upon the ground that ten days written notice of the sanction of. the writ and the time and place of hearing had not been given. 8. As it clearly appears from the record that the verdict in the justice’s court was not demanded under the law and the evidence, this court will not interfere with the first grant of a new trial. Walker v. Hillyer, ante, 225. Judgment affirmed. All the Justices concur.