Powell v. Fowler & Son

Luke, J. The judgment of the justice of the peace in a mortgage foreclosure being adverse to defendant, she carried her case to the superior court by certiorari. The magistrate’s answer to the writ was as follows: “It is impossible for respondent to answer the allegations in said petition as the same are so indefinite and so far out of line with what really did happen, and so twisted and expressed in such a way that respondent can not answer them in an intelligent or satisfactory manner. All of the copies of proceedings herewith sent up.” The defendant’s affidavit of illegality, a very material portion of the record, was not sent up, either in form or substance. No traverse or exceptions to the magistrate’s answer were filed. The bill of exceptions, duly certified, states that the judgment overruling the certiorari was error, “especially in the light of the fact that it was admitted in open court that the allegations in the petition .for certiorari were true as therein stated.” Counsel for plaintiff in error states in his brief that all the allegations as made in said petition were admitted as being true, in open court, and that “this was done in order to prevent traversing the answer of the justice of the peace, . . who did not remember anything that really happened, save probably in a vague and indefinite manner.” Judgment affirmed. Broyles, G. J., and Bloodworth, J., concur.