18 Ga. 739 | Ga. | 1855
By the Court.
delivering the opinion.
In the case of Marchman vs. Todd, (15 Geo. 37,) this Court suggested that it was questionable whether or not the Legislature had made suitable provision for carrying into effect the grant of power by the Constitution to the Superior Courts for the purpose of correcting errors by certiorari, in some cases where the proceeding by an Inferior Judicatory is of a summary nature — and especially in cases arising under the Act of 1821, for quieting the possession of personal property. Further consideration has satisfied our minds that our legislation on this subject has no application to such .cases.
The 54th section of our Judiciary Act of 1799, in direct terms, refers to the writ of certiorari issuing to the Inferior Court — the county Court so called.
The A ct of December 16th, 1811, regulates the granting , of the writ of certiorari in “ a Magistrate’s Court,” where the case has been “ tried by a Jury in said Court.” An Act of December 29th, 1838, limiting the time in Avhicli a certiorari shall he brought, to the period of six months next after the
An Act of 1831, authorizes “ the prevailing party” to have •execution for the costs “ in all cases carried up from a Justice’s Court,” if “ the writ of certiorari shall be sustained, :and a new trial ordered.” Thus looking to the definite organisation of a Justice’s Court. But who shall grant an execution for costs in such a case as that before us, if it be sent back, especially if both Magistrates shall have gone out of office ?
An act of December 27th, 1842, refers to cases of certiorari granted after a trial on the appeal in a Justice’s Court.
And the Act of February 21, 1850, allowing the Clerk of s£he Superior Court to grant the writ of certiorari, .and rendering the Judge’s sanction unnecessary, applies also to cases of certiorari from a judgment in a “Justice’s Court.”
All of these Acts, and the general Constitutional provision by which the Superior Court is empowered to correct errors in Inferior Judicatories, by writ of certiorari, (and, together, they constitute our legislation on this subject, we believe,) in our opinion, have application to Courts which have something like permanence in their organization, as the Inferior and .Justice’s Courts proper, or the Municipal Courts in some of the cities. When error is committed by such Courts, and is taken up for correction^ the judgment remitting the cause can be sent back to a judicatory having a definite existence, a fixed organization.
But to whom can such a judgment, in a case like this, be .-sent, when the error is committed by a Court called 'together for a temporary purpose, and existing only for the time of the trial ? Suppose the two Justices who tried the case have gone out of office, to whom shall the case be sent ?
It was not the Justice’s' Court for either of the districts in which the Magistrates presided, nor of both, which tried the case, but it was the Justices themselves,.made a Court pro
The view we take of this question is strengthened by the action of our Legislature in the case of a certiorari to be directed to Justices of the Peace or of the Inferior Court, trying slaves or free persons of color for crimes and misdemeanors, under the Act of December 19th, 1816.
An Act of December 29th,. 1829, provides, that in such cases, a certiorari may be addressed to such Justices, directing them to certify and send up their proceedings, and gives to the Superior Court the right to make “ such order, judgment and decision as shall be agreeable to law and justice.” In the second section of the Act, this judgment is termed “ the final order and decision,” &c.
It will be seen that this Act thus obviates all difficulty or embarrassment in sending the case back to a bench of Magistrates temporarily convened by special provision, and especially by making the judgment of the Superior Court final and conclusive.
No such provision has been made for cases like that before us, and we must affirm the judgment of the Court below..
