36 Ga. App. 52 | Ga. Ct. App. | 1926
Lead Opinion
Judgment was rendered adversely to the plaintiff in error by the municipal court of Macon on July 14, 1925; she filed a motion for new trial in accordance with the provisions of the act creating that court; the motion was overruled July 22, 1925, and her petition for certiorari was presented to the judge of the superior court and sanctioned by him on August 14, 1925. On August 7, 1925, the act of the General Assembly re-enacting section 26 of the act of 1913 (Ga. L. 1913, p. 252), creating the municipal court of. Macon, was approved by the Governor. This act provides that “from the judgment of said municipal court, city of Macon, refusing to grant a new trial, or making final disposition of any case, in which the principal sum claimed, or the value of the property in controversy, exceeds one hundred dollars, an appeal shall lie to the Court of Appeals of Georgia by writ of error, and a bill of exceptions shall be tendered, certified, and filed, under the same rules as apply to bills of exceptions from the superior courts of this State; provided, however, that the bill of exceptions shall be tendered within ten days from the judgment complained of and served and filed within ten additional days.”
Judgment reversed.
Rehearing
ON MOTION FOR REHEARING.
On motion for rehearing the contention is made that the court overlooked the principle of law enunciated by the Supreme .Court in the ease of Memmler v. State, 75 Ga. 576, in which it was held that “if a certiorari was properly dismissed, the judgment will not be reversed, though the court based it upon an erroneous reason.” The argument of counsel for the defendant in error is that the evidence demanded the finding against the claimant, and that the result effected by the dismissal of the, certiorari'should not be disturbed, although the dismissal was planted upon an erroneous reason. Assuming (without deciding) that in a case such as the instant one, where the judgmént of the court below shows on its face that the case was dismissed .for.alleged lack of jurisdiction, with no decision at all by the judge on the question of evidence, the principle of the Memmler case would have application, we are