Carey v. Crowe

Gardner, P. J. (a) This case presents exceptions to the judgment of the superior court overruling and dismissing a certiorari. The suit was instituted in a justice of the peace court by Ammie Carey, Jr. (whom we shall call the plaintiff), and against W. P. Crowe (whom we shall call the defendant). The justice of the peace returned a verdict for the defendant, whereupon the plaintiff appealed to a jury in the trial court. The jury returned a verdict for the defendant. The plaintiff then obtained a writ of certiorari. On the hearing of the certiorari the trial judge overruled and dismissed the writ. (b) When the case was called for trial in the trial court, the plaintiff moved for a continuance. The substance of the motion was made by the uncle of the plaintiff in a statement that he was unable to go to trial because his counsel was sick. The court denied this motion. The motion in no wise met the requirements of Code § 81-1413. The cases cited, Dalton City Co. v. Dalton Mfg. Co., 33 Ga. 243, Allen v. State, 10 Ga. 85, Fine & Bros. v. Southern Express Co., 10 Ga. App. 161 (2) (73 S. E. 35), and Simmons v. Hawkins, 13 Ga. App. 371 (79 S. E. 179), are not applicable under the facts of this case. (c) The next assignment of error is to the effect that the magistrate did not have a jury box with the names of the jurors therein from which to draw a jury, which he did draw. It is contended that Code § 6-403 was not complied with in the making up of the jury list and in drawing the jury. This record reveals that the provisions of that Code section were substantially complied with. (d) Error is assigned on the ground that the court would not permit the plaintiff to strike two of the nine jurors submitted to the plaintiff. The record reveals that the plaintiff was furnished a list of the nine jurors and refused to participate in the trial of the ease in any way whatsoever. (e) We have written this opinion assuming, but not deciding, that the assignments of error on the judgment of the justice of the peace court were sufficiently specific in the petition for certiorari. The court did not err in overruling and dismissing the certiorari. Judgment affirmed. Townsend and Carlisle, JJ., concur.