Deep v. Devane

MacIntyre, J. A petition for certiorari, in which no evidence was set out, reciting that a case was tried before a justice of the peace, appealed to a jury in the justice’s court, and dismissed by the justice, to which order petitioner then excepted and now excepts upon the ground that the same [324] was contrary to the'law and evidence, “because the trial justice had demanded $44 cost,” does not sufficiently meet the requirements of the Civil Code (1910), §§ 4740, 5185, and decisions based thereon, to withstand a motion to dismiss upon the ground that there was no sufficient assignment of error. Such insufficiency was not cured by a recital in the petition that petitioner had paid all the costs due on appeal in the the justice’s court when the record brought to the superior court by the writ of certiorari failed to show where an extended cost bill had been paid, the answer of the justice set up that no costs had been paid, and there was only petitioner’s traverse to this answer to support the assignment. Some error by the justice in dismissing the appeal must have been distinctly set out by an allegation in the petition for certiorari; and where it appears that no such distinct assignment was made, this court can not say that the judge erred in dismissing the certiorari. See, in this connection, Gilbert v. King, 1 Ga. App. 572 (57 S. E. 991); Richards v. Little, 88 Ga. 176 (14 S. E. 207); Hicks v. Smith, 28 Ga. App. 594 (112 S. E. 295); Taft Co. v. Smith, 112 Ga. 196 (37 S. E. 424); Lowenstein v. Johnston, 23 Ga. App. 261 (98 S. E. 111). Decided July 11, 1934. William Story, L. J. Gourson, for plaintiff in error. B. B. Smith, contra. Judgment affirmed. Broyles, O. J. and Guerry, J., concur.