121 Ga. 46 | Ga. | 1904
Fontano filed his application before the ordinary of Richmond county, praying the setting aside of a homestead. Citation issued to the creditors, in the usual form. At the hearing before the ordinary, Mozley & Company, creditors of the applicant, interposed the objection that the applicant did not own a portion of the property embraced in the schedule. The ordinary heard evidence upon the issue thus made, and dismissed the application. An appeal from this judgment was taken l!iy the applicant to the superior court of Richmond county. When the
From the view we take of this case, it is only necessary to pass upon the questions made by the cross-bill of exceptions, because the court erred in overruling the motion to dismiss the appeal. As to the' practice to be followed in such cases, see Monroe v. Lippman, 115 Ga. 164; Alabama Ry. Co. v. Stevens, 116 Ga. 791 (4). An appeal from the ordinary is a matter purely of statutory’ right; and unless provision is made for an appeal, the remedy of the losing party to complain of any error in the judgment of the ordinary in setting apart or in refusing to set apart a homestead, other than as provided for in sections 2836 and 2838 of the Civil Code, is by certiorari. Cunningham v. United States Co., 109 Ga. 616. The sections of the code just •cited (§§2836, 2838) provide for an appeal from the judgment of the ordinary only in cases where objections are filed to the schedule “for want of sufficiency and fullness, or for fraud of any kind, or to dispute the valuation of said personalty, or the propriety of the survey, or the value of the premises so
An appeal is allowed only by- statute. At common law, as-well as by the Civil Code, § 4634, the writ of certiorari lies-to the judgment of any inferior judicatory. The losing party before any inferior judicatory has the right to review its judgment by certiorari, but he has not the privilege of a second trial unless it is expressly given him by statute (Roser v. Marlow, R. M. Charl. 543); and as we have seen that the statute affords-a remedy by appeal only in certain designated cases, and as the objections filed by the creditors before the ordinary did not come within this class of cases, the court below erred in refusing to dismiss the appeal.
Judgment on cross-hill of exceptions reversed; main hill of exceptions dismissed.