Richards v. Harvey

Broyles, C. J. It is well settled that a petition for certiorari which contains no adequate or legal assignment of error is absolutely void and should not be sanctioned; but, if such a petition be sanctioned, it should be dismissed upon the hearing. Partee v. Peters, 33 Ga. App. 694 (137 S. E. 660). The instant case was an action for purchase-money, instituted by attachment, and was tried before a jury. A verdict and judgment were rendered in favor of the plaintiff for $1,135. The defendant obtained the writ of certiorari. In the petition for certiorari the only allegations of error were as follows: “Petitioner avers that said court erred in charging the jury as follows: 1st. Because he failed to charge [220] the law of express warranty, and such a charge was damaging under the evidence. 2d. Because he charged the law of implied warranty, which was not required and foreign to testimony. 3d. And because the said charge was not the. law of the case. And in entering up judgment as aforesaid, all of which rulings and findings of said court the petitioner assigns as error.” It is obvious that the petition for certiorari contained no adequate or legal assignment of error, and the court did not err in dismissing the certiorari proceedings. See Partee v. Peters, supra. This court not being satisfied, however, that the writ of error was prosecuted for the purpose of delay only, the request of the defendant in error that damages be assessed against the plaintiff in error is denied. Judgment affirmed. Luhe and Bloodworih, JJ., concur.