Field v. Putman

22 Ga. 93 | Ga. | 1857

By the Court.

Lumpkin J.

delivering the opinion.

The first question to be considered in this case is, ought the certiorari to have been dismissed ?

[1.] It is insisted thát it should have been, because not taken out in conformity with the 54th section of the Judiciary Act of 1799. That section provides that, “when either party in any cause shall take exceptions to any proceedings in any ■case affecting the real merits of such cause, the party making the same shall offer such exceptions in writing, which shall be signed by himself or his attorney; and if the same shall be overruled by the Court, it shall and may be lawful for such party, on giving twenty days’ notice to the opposite party or his attorney, to apply to one of the Judges of the Superior Court, and if such Judge shall deem the said exceptions to be sufficient, he shall forthwith issue a writ of certiorari, directed to the Clerk of such Inferior Court, requiring him to certify and send up to the next Superior Court, to be held in the said county, all the proceedings in the said cause; and at the term of the Superior Court to which said proceedings shall be certified, the said Superior Court shall determine thereon, and order the proceedings to be dismissed, or return the same to the said Inferior Court, with order to proceed in the said cause.” Cobb 523.

It is certainly true, that the mode of suing out this certiorari, was not a strict or even a substantial compliance with the statute. The exceptions in writing have to be signed by the party and overruled by the Court, and not by the individual members, some thirty days or more after the adjournment of the Court; still, irregular as the proceedings may have been, it was worth something to the Judge of the Superior Court, in certifying to him as to what did transpire in the cause; especially as the return was made by the proper officer, admitting the truth of the facts contained in the exceptions. The Courts should look to the substance of things. Suppose a bill was filed praying an injunction, which the complainant had omitted to verify, the defendant however, overlooking the defect, puts in his answer, confessing the facts upon which the equity of the bill rests, would the injunction be dissolved ? But a sufficient, and perhaps a more satisfactoiy answer to the objection is, that the petition for certiorari was sworn to by Mr. George N. Lester, the attorney of Putman. A party in the Inferior Court is not obliged to proceed under the Judiciary Act of 1799. He is entitled under theAct of 1811, (Cobb 523,) to bring his cer- • tiorari upon affidavit as injustices’ Courts. Why not ? And at any time within six months after the case has been determined in the Court below. (Cobb 528.) And in this view of it, there is no difficulty in the case.

[2.] The question has been raised, whether a certiorari will lie from the decision of the Inferior Court, sitting as a habeas corpus Court? We have no doubt upon that subject. The Justices of the Inferior Court are a permanent body of magistracy; and when sitting as a habeas corpus Court, a jurisdiction conferred upon them bylaw,' they are a Court of record, and have a Clerk. Such was not the case of Heard vs. Heard, 17 Ga. Rep. 739.

[3.] Then comes up the question of notice. We hold it was indispensable in this case. This debtor was committed to jail upon a surrender by his security. The. case consequently falls under the Act of 1845, and not the Act of 1847. The second section of the Act of 1845, enacts that, “when any debtor, after giving bail or security, on mesne or final process, shall be surrendered by his bail or security, and committed by the Sheriff to jail; it shall not be lawful for any Court to discharge such debtor from custody, because of the jail fees not being paid or secured, unless the Sheriff or jailer shall give at least ten days prior notice in writing, to the plaintiff or his attorney, who shall be allowed that time within which to pay or give security for the jail fees, and thereby prevent such discharge.” Cobb 391.

It is conceded the notice was not given. It could not be dispensed with. It was to enable the creditor, if in default, to pay the fees, and thus comply with the law. And when the statute says, that it shall not be lawful for the Court to discharge the debtor, unless this notice is given, I hold, as do a majority of this Court, that the judgment is void, if rendered in defiance of this act. It is a nullity, and may be so treated .every where and by any body, and the debtor may be re-arrested, notwithstanding such .discharge. Moreover, I am strongly inclined to the opinion, that the application in such cases, should proceed from the Sheriff or Jailer, and not at the instance of the debtor. The act was passed for the protection of the county and its officers, and not for the benefit of the debtor.

Nor did the casual appearance of Mr. Richard Lester, who was not the attorney of Putman, dispense with the necessity of the notice.

[4.] As the question is fairly presented, we deem it best to settle what are the fees due the jailer.

Under the original fee bill, he was entitled to 37£ cents for the board of a prisoner. (Prince 260.) There were two acts passed in 1818, each adding 50 per cent, to the original fees allowed the jailer; one the 8th and the other the 19th of December, of that year. (Lamar’s Big. 164, 322.) On the 16th of December, 1819, an act was passed increasing the fees of county officers (jailers included,) 25 per cent, on the rate established previous to the 1st of December, 1818; and repealing all laws and parts of laws, militating against the act. (Lamar 323.) And the uniform decision for forty yeais, (saving one,) upon these statutes, has been that the Acts of ISIS, were superseded by the Act of 1819; and that 25 per cent, only was to be added to the original fee bill. The 25 per cent, must be added, for it is the last act upon the subject And if you super add to this the 50 percent, allowed the jailor alone, under one of the Acts of 1818, and his fees will be upwards of 65 cents per day, instead of 56J, claimed in this case; and add the other 50 given to the jailer in common with the other county officers,. under the other Act of 1818, and it will make his fees upwards of 83 cents. We are satisfied that the jailer in common with the other county officers, is entitled to the original fee of 37J with 25 per cent, added, making his pay 46|, and not 56J. Indeed there is no view of these several acts, which would justify this last sum.

Judgment affirmed.