Dotson v. Hawes

Candler, J. The plaintiff in error excepts to the dismissal by the superior court of his petition for certiorari from the judgment of a justice of the peace. It appears from the record that the sole ground for dismissing the petition was that it sought to review questions of both law and fact, and that, therefore, certiorari was not available as a remedy. Our consideration of the case will therefore not include a decision of the points sought to be raised by the petition, for they have not yet been passed upon by the lower court; but will be confined to a determination of whether, under the petition, disputed issues of fact were brought up for review. The case in the justice’s court arose on an affidavit of illegality filed to arrest the foreclosure of a bill of sale. The defendant in that court was the plaintiff in certiorari, and is the plaintiff in error in this court. In his petition for certiorari he recites the introduction by the plaintiff in fi. fa. of numerous documents to which objection was made for alleged defects apparent on the face of the record, and upon the admission of which in evidence he assigns error. He also recites the introduction of certain documentary evidence in his own behalf, and the rulings of the magistrate as to [370] the probative value thereof, to which he likewise excepted. We are unable to find anything in the petition for certiorari which raises what could properly be termed a disputed issue of fact. The nearest approach to such an issue is the point made as to the effect of certain of the papers introduced in evidence; and as nothing more than a construction of those papers is involved, it can not be said that an issue of fact is raised. The case falls squarely within the test prescribed by Mr. Justice Cobb in Toole v. Edmondson, 104 Ga. 784, to determine whether a case involves a question of law or one of fact: “ If, upon considering the entire evidence, whether it be derived from an agreed statement of facts, oral testimony, documents, or other source, it would'be proper, if the case were on trial in the superior court, for the judge to direct a verdict, a question of. law only would be involved.” Such a case is presented by the record, and it was therefore error for the court below to dismiss the petition for certiorari. Judgment reversed. All the Justices concur.