Kelly v. Jackson

67 Ga. 274 | Ga. | 1881

Jackson, Chief Justice.

1. There was no error in not dismissing the certiorari, because it was not allowed or presented within twenty-four hours from the rendition of the judgment. The judgment was rendered on Saturday. The next day, Sunday, the judge left Savannah for McIntosh court, where the petition was forwarded, presented and allowed as soon as the judge could be reached. Code, §4965.

2. The court did err in dismissing the certiorari on account of the want of a certificate that bond was given and costs paid under section 4054 of the Code. There was a certificate that costs were paid, and the bond itself, approved by the justice, appears of record, and both bear date before the writ of certiorari was granted. This complies with the Code, section 4054. The act codified in this section is more stringent, requiring a certificate as to the bond, as well as the costs ; but the bond itself, with approval thereof by the justice, is a substantial compliance even with that'old act of 1811. Cobb’s Digest, p. 523. The Code has, however, modified the old act alluded to, and the Code is the law now. This case is not within the principle ruled in Fuller vs. Arnold et ux , 64 Ga., 599, read in the light of the facts therein disclosed, and to understand and apply the principle announced in any case, it must be so read. There no bond and certificate were filed within the time specified in the statute, and no certificate or other evidence thereof appeared.

3. The court which tried this case was not a justice court, and the ruling of this court touching the times and places wherein those courts should be held monthly, is not applicable. It is a special court which may be held by the judge of the city court, or the justice of the peace, or other judicial officer named in the act, and when presided over by the judge of the city court, it is not the city court, nor when presided over by the justice of the peace is it the justice court. In either case it is a special court organized to hear and determine causes affecting seamen which require dis(patch. 16 Ga., 606. For the same reason it does not conflict with the uniformity clause of the constitution. Sup, to Code, §635. That constitutional provision confines the requisition of uniformity to “ the same grade or. class.” This court is not of the same grade or class, either as respects the court or the officer. It is not of the court, because it affects seamen only, and is limited in its jurisdiction; nor is it of the same grade as a justice court as respects the officer, because the judge of the city court may hold it.

It seems quite clear, therefore, that the constitution of 1877 does not have the effect of repealing it, and we are not aware of any law which repeals it. Therefore it is still the law, and the justice had the jurisdiction to try the case.

The superior court dismissed the certiorari' on the ground that there was no certificate of bond and security, as required by law, and that judgment is reversed and the case remanded, that the certiorari may be tried on its merits by that court.

Judgment reversed.