52 S.E.2d 862 | Ga. | 1949
If a justice of the peace, in the trial of a case before him without a jury, erroneously renders a judgment, finding for neither party but transferring the case to a trial before a jury, his disposition of the case is a final judgment, and the writ of certiorari is an available remedy to correct such a judgment. Accordingly, the trial judge did not err in the instant case in refusing to sanction a petition for mandamus, which sought to compel a justice of the peace to set aside such a judgment and render a different one.
Upon presentation of the petition for mandamus, the judge of the superior court entered the following order: "Petition of plaintiff in above-entitled cause having been read and considered, same is not sanctioned and ordered filed and defendant served." To this judgment the plaintiff excepted.
"All official duties should be faithfully performed; and whenever, from any cause, a defect of legal justice would ensue from a failure or improper performance, the writ of mandamus may issue to compel a due performance, if there shall be no other specific legal remedy for the legal rights." Code, § 64-101. "The right to the extraordinary aid of mandamus does not exist when there is available to the party seeking the *236
writ a specific legal remedy." DeBerry v. Spikes,
In determining whether a writ of certiorari will lie to a decision or judgment of an inferior court, a paramount question for consideration is whether there was exercised a judicial function as distinguished from a ministerial act, for certiorari is an available remedy for the correction of erroneous judgments in the exercise of judicial powers, but ordinarily is not a proper remedy to correct errors relating to ministerial acts.
It is apparent that the complaint in this case concerns a decision of a justice of the peace in the exercise of judicial powers, for if a justice ever exercises those powers — and he does — he exercises them in trying a case without a jury and rendering his judgment thereon. His determination of a cause tried before him is clearly distinguishable from such acts, held to be ministerial, as issuing an execution (Scott v. Bedell,
We need consider but one other question in determining whether the writ of certiorari was available in the present case. Was the decision of the justice such a final judgment as would afford an aggrieved party the right to a writ of certiorari? In Starnes
v. Tanner,
We are of the opinion that when the justice of the peace in the present case entered a judgment, in which he found for neither party but transferred the case to a trial before a jury, the justice exercised a judicial function and rendered a final judgment, in so far as a trial before him was concerned. The judgment clearly purports to be a final disposition of the case before the justice, as much so as if he had rendered a judgment for one party or the other; and if, as a matter of law, his disposition of the case before him was error, the writ of certiorari will lie to correct the error. This case, we think, is clearly distinguishable from the Singer Manufacturing Company case, where a justice, after motion to enter judgment against a garnishee by default, refused to render any judgment at all. In such a case, of course, the justice had not disposed of the matter before him; and, since the case was still pending before him and no judgment had been entered, there was no final judgment from which certiorari would lie. Here, however, the justice had rendered his judgment, whether right or wrong, and had finally disposed of the matter before him by transferring the case to a trial before a jury. If, *238 in rendering his final decision in the case tried before him, he erroneously decided the issues or failed to decide them in his judgment, certiorari is an available remedy to correct such errors. Accordingly, it is our opinion that mandamus is not an available remedy to compel a justice of the peace to set aside a decision or judgment rendered by him in the trial of a case without a jury and to compel him to render a different judgment.
For the foregoing reasons, no error was committed in the refusal to sanction the petition for mandamus.
Judgment affirmed. All the Justices concur. Bell, J., concursin the result only.