Hicks v. Lindsey

Luke, J. 1. Where a petition for certiorari is sanctioned by the judge of the superior court and duly served upon the trial court, requiring an answer thereto, and the presiding judge of the trial court answers that because of the length of time since trial of the case he can not and does not remember the evidence adduced before him on the trial of the case, and can not and does not by such answer verify the truth of the testimony as set out in the petition for certiorari, the judge of the superior court can do nothing other than overrule the certiorari. The ordinary of Berrien county, whose judgment is complained of in the petition for certiorari, states in' his answer that he can not and does not remember the testimony adduced on the trial of the case. At whatever disadvantage the petitioner may be placed, no exception or traverse, to such an answer can avail him anything. Colbert v. State. 118 Ga. 302 (45 S. E. 403); Gilmore v. Georgian Co., 17 Ga. App. 759 (88 S. E. 416). 2. The only question passed upon in this case, in view of the note of the judge in the matter of taxing costs, is the question raised upon the [675] judgment overruling the certiorari. The court did not err in overruling the certiorari. Decided October 15, 1918. Certiorari; from Berrien superior court—Judge Thomas. April 19, 1918. (See former decision, 21 Ga. App. 319.) B. A. Hendricks, for plaintiff in error. J. P. Knight contra. Judgment affirmed. Wade, O. J., and Jenlcins, J., concur.