Southern Railway Co. v. Chestnut Mountain Merchandise Co.

Russell, J. The plaintiff in error filed a petition for certiorari, making assignments of error as to refusal to sustain a demurrer, and as to the admitting in evidence of the receipt of its agent for the freight on certain buggies, and the allowance of an amendment making Oliver & Morrow usees of the Chestnut Mountain Merchandise Company. The petition further alleged that the verdict was erroneous, for lack of evidence. The certiorari was overruled by the judge of the superior court, and exception is taken to his judgment. "We can not reverse the judgment overruling the certiorari. The judge of the superior court must get the truth of the case from the answer j the certiorari would not lie until the final determination of the case in the justice’s court, and the answer of the justice ■did not show, either that the case had been finally decided by verdict, or, if so, what was the finding of the jury. Ordinarily it must appear that there has been a final judgment, and the answer of the justice must verify the judgment alleged as being the judgment which, was rendered. By the terms of the Civil Code, §4149, where a case is appealed to a jury in a justice’s court, the verdict, instead of the judgment, must be excepted to. This is for the rea.son, as stated by Chief Justice Jackson in Boroughs v. White, 733 69 Ga. 844, in discussing that section (then §4157j) of the Code, that “the purpose of this enactment is to provide for a new trial, where the facts and law demand it. No power exists in the justice court to award a new trial in any case. To obtain it, the injured party must go to the superior court by writ of certiorari, or the verdict of the five men who try the appeal in the justice court will stand forever, no matter how unjust *t may be.” But while it was not necessary that the answer of the justice in this case should show a final judgment, which would follow as a matter of course upon the rendition of the verdict, it was necessary that the answer of the justice should verify the fact that the trial before the-jury had resulted in a verdict, or else the certiorari would have been prematurely brought; and that it should show that the verdict-complained of in the petition was in reality the verdict rendered;, or else nothing was presented for the determination of the court. As the justice in this case answered merely that 'the case “was tried before a jury, as set forth in the petition,” there was nothing before the judge of the superior court for determination, and the certiorari was properly overruled; and his decision, under the express ruling, in Manning v. Gainesville, 125 Ga. 239, and cases therein cited, must be affirmed. We do this the more willingly because, under the decisions of this court in Barfield v. G. S. & F. R. Co., Askew v. Southern Ry. Co., and Davis v. Kirkland, ante, 203, 79, 5, there is no merit in the other assignment of error. The opinion in Brown v. Bonds, 125 Ga. 841-2, 844, cited by learned counsel for the defendant in error, as authority for his contention that even where certiorari is taken from the result of a trial on appeal in a justice’s court, a final judgment must appear, is not in conflict with w;hat we have ruled above. Nor was the question now before us involved in the case of Brown v. Bonds. For that reason it is not applicable to-this case. The decision in W. & A. R. R. v. Carson, 70 Ga. 389 (3) is controlling. It distinctly and properly construes section 4149 of the Civil Code, and ■ expressly holds that it is the verdict of the jury, and not the judgment thereon, which is to be corrected by certiorari. Judgment affirmed.