37 Ga. App. 621 | Ga. Ct. App. | 1928
Pickens sued Butler in a justice’s court of DeKalb county on a note, for a balance due of $31.71, and garnished Eord Motor Company. The defendant filed a plea setting up a counterclaim of $30, alleging that he had overpaid the plaintiff this amount. Upon conflicting evidence the justice, on August 16,
The answer of the trial magistrate is apparently incomplete, especially as to what he ruled out in regard to Mr. Butler’s-bankruptcy proceedings, but neither party excepted to the answer. It is also inconsistent and contradictory, but no part of it was traversed. Since the answer of the trial magistrate, unexcepted to and untraversed, is controlling as to what occurred on the trial, the record in this case is somewhat confusing. The answer of the magistrate states unqualifiedly that “both sides agreed on a judgment” before the trial by a jury in the justice’s court. It shows also that such agreement was denied and objected to. But it conclusively shows that after such alleged agreement a trial by jury was had and both parties litigant participated therein. However, the record is sufficiently clear to evoke the following rulings, which are controlling:
Under the facts of this case the plaintiff’s counsel could not, by marking the case settled on the justice’s court docket, deprive the defendant of his right of appeal, and preclude the defendant’s recovery on a counterclaim previously filed. Civil Code (1910),
The question whether the defendant received credit for the market price of his cotton was a vital issue of fact, on which there was conflicting evidence; and there being questions of fact involved, the judge of the superior court erred in rendering final judgment in favor of the .plaintiff in certiorari. Mitchell v. Western & Atlantic R. Co., 66 Ga. 242; Smith v. Bragg, 68 Ga. 650 (3), 652; Boroughs v. White, 69 Ga. 841, 844, and cit., Patterson v. Central of Ga. Ry. Co., 117 Ga. 827 (45 S. E. 250); Porterfield v. Thompson, 4 Ga. App. 524 (61 S. E. 1055).
Judgment reversed.