23 Ga. App. 656 | Ga. Ct. App. | 1919
The judge of the superior court of Bibb county, at the July term, 1918, sanctioned a certiorari to review the overruling and dismissal of an affidavit of illegality filed by John Jordan in .the municipal court of the city of Macon. When the case came on for a hearing on August 5, 1918, the defendant in certiorari made a motion to dismiss the same, upon the ground • that the answer of the judge of the municipal court of the city of Macon, which was untraversed and unexcepted to, disclosed that “the judgment sought to be reviewed in said petition for certiorari had been fully paid and discharged at a date after the sanction of the petition in said case and before the same was called for a hearing.” This motion was overruled, and the' defendant in certiorari excepted. It appears from the answer of the trial judge, dated July 13, 1918 (which was untraversed and unexeepted to), that the certiorari was issued on June 13, 1918, and served upon him on the same date, and that the money on the fi. fa. in question was paid to the sheriff on June 20, 1918.
Under these facts we think the judge of the superior court erred in overruling the motion to dismiss the certiorari. This ruling is not in conflict with the decisions in Scroggins v. State, 55 Ga. 380, and Cramer v. Truitt, 113 Ga. 967 (39 S. E. 459), cited by counsel for the defendant in er-ror. In the former case it affirmatively appeared from the answer of the magistrate that he based his ruling, complained of in the petition for certiorari, on information which he obtained through a private conversation with an attorney for one of the parties, and the Supreme Court correctly held that statements of that character had no proper place ih a magistrate’s answer and should be disregarded by the judge of the superior court. In the Cramer ease it was held merely that the judge of the superior court, in deciding whether he should sanction the certiorari, erred in receiving and giving heed to a communication from the trial magistrate; the Supreme Court stating that the magistrate could be heard only through his official return, after the granting of the certiorari. In neither case was a moot question involved. In the instant ease the answer of the trial judge on the point in question was as follows: “The money on this fi. fa. was paid over to the sheriff on 20th day of June, 1918, and is now in his possession.” It does not appear in this ease how the magistrate obtained his knowledge of this fact. It certainly can no more be presumed
Judgment reversed.
