70 Ga. 523 | Ga. | 1883
The superior court sustained a certiorari to a justice’s court, granted to John Mason against Hendrix & McBurney; whereupon the latter excepted, and assign for error that the superior court erred, first, in not dismissing the writ of certiorari because the bond was executed before a commercial notary public; secondly, in sustaining the certiorari and remanding the case for trial before a jury in the justice’s court; and thirdly, in holding that the appeal bond for jury trial in the justice’s court was amendable.
Afterwards a law was enacted in 1878, which declares that “ in any civil case in a justice court, either party dissatisfied with the judgment of the justice may, as of right, enter an appeal to a jury in said court, under the same rules as now regulate appeals to the superior court.” After that act, the provision in the constitution became operative by the rules and regulations therein adopted, which were the same as those rules which then regulated appeals to the superior court. Code, §4157 (a).
True, by the same act an appeal to the superior court was allowed too, where the debt was more than fifty dollars; but that cannot be construed to annul the former right in the preceding section. Code, §4157 (b). Nor is the effect of the act, as codified, at all altered, if reference be had to the original act, pamph. p. 18, or acts of 1878-9, p. 153-4. The first section is codified in §4157 (a) of the Code; the second, is codified in §4157 (b); both are correctly codified. The ruling in the 65 Ga., 556, on the facts made, is to be found in the head-note. It is simply that, after trying an appeal, it is too late to certiorari. The dictum that “ in cases less than fifty dollars ” the appeal is “to a jury in the justice court; in cases over fifty dollars, to the superior court,” is oliter, and not an adjudica
There can be no doubt that Mason got Adair to enter the appeal in good faith, as-his attorney in fact; that Adair meant to sign as surety and thought he had done so, but leaving it to the magistrate to write everything but his name, “attorney” instead of “security” was affixed to his name with “ B.” before it, meaning, as the magistrate intended by writing it, “ By; ” and in the body of it, by the same error, the magistrate wrote him as attorney at law, instead of attorney in fact. It was clearly a mistake all around, as the affidavit of Adair abundantly shows ; and the bond should have been amended. Mason was sick, providentially hindered from being at court, got his friend to enter his appeal, acted in the utmost good faith throughout, and should, in all justice and good.conscience, as well as in law, have a day in court which sickness prevented his having before.
Judgment affirmed.