Greenwood v. Boyd & Baxter Furniture Factory

86 Ga. 582 | Ga. | 1891

Lumpkin, Justice.

1. Repeated adjudications of this court have settled the-law as to when the judgment of justices’ courts may be reviewed by certiorari. In all cases, where only questions of law are to be determined by the superior court, the remedy may be by that writ. Where facts are in dispute, there should be an appeal, either to a j ury in the justice’s court, or to the superior court. In the case at bar, there was a contest in the j ustice’s court between the plaintiff in attachment and the claimant, as to which was entitled to the proceeds of a fire insurance policy, issued to the defendant in attachment. After all the testimony had been introduced, the plaintiffs admitted as true all that claimant’s witnesses had sworn, and made no issue at all on the facts. Their position taken in the justice’s court, as the record shows, was, that conceding all the claimant proved, they were en- . titled to their money. The justice adjudged otherwise,- and the amount of plaintiffs’ demand being over $50.00, they sued out a writ of certiorari to the superior court. The judge below rightly refused to dismiss the same. There was no office for a jury to perform in this case, there being no controversy whatever as to the facts.

In determining whether or not a certiorari will lie in cases which are to go up from justices’ courts, the test question should be: is there any disputed question of fact to be settled by a jury ? If so, then there should be an appeal, but as Warner, C. J., said in 58 Ga. 570 : ■ “If the only question involved is a question of law, which must necessarily control the case, then the proper remedy is by certiorari.” In the case now under consideration, the only question was : taking all the facts, just as they appear, and without any controversy concerning them, are the plaintiffs, as a matter of law, entitled to have their claim paid out of this fund ? Hence, there was no issue for a jury to try, “which the right of appeal presupposes.” 69 Ga. 745. The ruling of the court below is fully sustained by the case of Cruse v. Express Co,, 72 Ga. 184, where it was held that when “no facts were contested before the justice, and the exception is that, conceding all the facts, the judgment was erroneous, a certiorari may be taken directly from such judgment.” See also 70 Ga. 728, and 79 Ga. 680. A number of other decisions, bearing more or less directly on this question, have been rendered by this court. The rule, we think, to be deduced from them all is that certiorari will lie to review-pure questions of law, that is, in all cases where there is no dispute -as to the facts, or the inferences of fact to he drawn from the testimony; but when there are such disputes, of either kind, there must be an appeal.

2. The only controversy in this case being upon questions of law, and there being but one possible legal end of such controversy, the court did right in making a final judgment.

3. The policy of insurance could not be transferred by mere delivery, or by a written power simply to collect, with oral directions as to the application of its proceeds. 63 Ga. 681. Judgment affirmed.