Cone v. Glidden Stores Co.

Bell, J. The bill of exceptions in this case complains of a judgment of the superior court dismissing a certiorari. The Glidden Stores Company brought suit in the municipal court of Atlanta against Charles Cone Bealty Company, a corporation, and Charles Cone individually. Attached as an exhibit to the summons was the following alleged cause of action: “Exhibit *A’. The Glidden Stores Company Jap-a-lac Date — December 12th, 1924. Chas. Cone Bealty Co. & Chas. Cone. June — 1924. For material, $677.47.” The defendants answered the suit by a general appearance made by their attorneys in conformity with sections 36 and 37 of the act creating the municipal court of Atlanta (Ga. L. 1913, p. 145). The trial court overruled the motion of the defendants, in the nature of a general demurrer, to dismiss the action. It appears that the plaintiff sued out a garnishment, which the defendants dissolved by a bond on which B. F. Davis and A. B. Tumlin were sureties. The court rendered the following judgment: “The within case coming on to be heard and due weight having been given the evidence, it is hereby considered, ordered, and adjudged, and is ordered and adjudged that the plaintiff, the Glidden Stores Co* recover from the defendant, Chas. Cone Bealty Co., and Chas. Cone and B. F. Davis and A. B. Tumlin securities on the bond to dissolve garnishment, the principal sum of $677.47 and cost of suit. This the 9th day of March, 1925.” The petition for certiorari alleged that “there was absolutely no legal proof or evidence to support said judgment, there being no proof submitted of the correctness of the alleged claim sued upon — neither as to charges nor as to delivery, nor as to credits for payments made, as your petitioner is advised and believes. And there certainly was no proof submitted to authorize or support a judgment against B. F. Davis and A. B. Tumlin.” These allegations were verified by the trial judge in his answer to the certiorari. The assign [248] ments of error in the record raised the questions decided in the headnotes. Under the rulings made therein, the superior court erred in not sustaining the certiorari. Judgment reversed. Jenkins, P. J., and Stephens, J., concur.