76 Ga. 696 | Ga. | 1886
The distress warrant issued in this case for rent of the premise for the year 1884, which rent was not then due but was to become due, and the affidavit to obtain the same, in addition to this fact, alleged that the tenant was seeking to remove his goods from the premises rented, and had actually a part of the crop grown thereon, and that affiant had reason to apprehend that the entire crop would be removed therefrom before her debt became due. Upon the levy of the distress, the defendant filed an affidavit to the effect that the sum distrained for was not due at the time of issuing the warrant, and that he was not seeking to remove his property from the premises, but admits that he had taken away and sold one bale of cotton, which he claimed he had the right to do, and having given bond and security for the eventual condemnation money, the issue thus formed was returned for trial to the justice’s court from which the warrant issued, and to which it was made returnable ; and on the appeal trial before a jury in that court, there was a verdict finding the issue in favor of the plaintiff. To reverse and set aside this trial a certiorari was obtained, and the errors alleged in the petition therefor were:
(1.) The refusal of the court to continue the case because of the absence of Boggs, the magistrate who issued the warrant, and who had not filed an answer to a subpoena duces tecum,) or produced in court his commission as tax
(2.) Because the court erred in refusing to dismiss the appeal on defendant’s motion, which insisted that the magistrate, when the case was tried by him, dismissed the same, and that from such a judgment no appeal would lie.
(3.) That the verdict was erroneous, and should be set aside because it was “ against the weight of evidence, contrary to evidence, and without evidence to support it.”
Upon the hearing of the certiorari and the magistrate’s return thereto, the superior court ordered it dismissed, and to this judgment exception was taken.
Judgment affirmed.