87 Ga. 18 | Ga. | 1891
The petition of Baker & Lawrence for injunction and. other relief and the evidence submitted in support thereof made, substantially, the following case: The plaintiffs had leased certain land for the purpose of cutting timber and running a saw-mill thereon. One McDaniel swore out a warrant against them for forcible entry and detainer, and the case made by this warrant was tried before a justice of the peace and a jury, who improperly found for the plaintiff therein. Baker & Lawrence presented their petition for certiorari to the judge, which was sanctioned by him and filed in the clerk’s office of the superior court within the time ¡prescribed by law. No bond was filed with the petition, but the plaintiffs in certiorari had made the bond required by law and filed the same with the justice, who promised to send it to the clerk, but in fact it never reached the clerk’s office. The clerk refused to issue the writ of certiorari, because of the absence of the bond. At the next term of the superior court, counsel for Baker & Lawrence obtained leave to withdraw the certiorari papers “to examine and perfect them,” stating to the court that a bond had been given, and that if the court
We are of the opinion that the judge did right. The verdict and judgment in the forcible entry and detainer ease, however improper, unjust and unsupported by testimony, were valid and binding upon the parties until set aside in the manner prescribed by law. The plaintiff had a plain remedy for the errors complained of, by obtaining the writ of certiorari. He took certain steps in this direction, but failed in one essential particular to comply with the law, viz. to file in the clerk’s office, with the petition for certiorari, the bond required by the statute. Section 4054 of the code declares that the bond must be so filed, and this, of course, must be done within the time prescribed by law, or the clerk cannot legally issue the writ of certiorari. It is doubtless true that at the next term . of the superior court after the forcible entry and detainer trial was had, the
"What then remains? A valid judgment is now of force against Baker & Lawrence in the forcible entry and detainer case, and they have not availed themselves of the proper and legal method of setting the same aside; nor did they state in their petition for injunction etc. any good and sufficient legal reason why they failed so to do. These things being true, this judgment cannot be attacked and set aside collaterally, and therefore the judge below committed no error in refusing to grant, the remedies sought by the petition.
Judgment affirmed.