130 Ga. 365 | Ga. | 1908
(After stating the facts). The Civil Code, §4867, provides: “All official duties should be faithfully fulfilled, and whenever, from any cause, a defect of legal justice would ensue from a failure or improper fulfillment, the writ of mandamus may issue to compel a due performance, if there be no other specific legal remedy for 'the legal rights.” Conceding that the People’s Furniture Company had the legal right to have the magistrate enter on his docket a judgment of dismissal of the ease, was mandamus, under the facts stated, the remedy by which to have this done? Mandamus was not the proper remedy unless “there was no other specific legal remedy for the legal rights.” Under the facts of this case, was certiorari a specific legal remedy to effectuate the legal right of having the judgment of dismissal by the magistrate entered upon his docket? In the case of Starnes v. Tanner, 73 Ga. 144, it was held: “If a justice of the peace improperly refused a motion to enter up judgment against a garnishee who was in default, the proper method of correcting such error was by certiorari, and not by mandamus to compel him to enter the judgment.” It was there further held that mandamus never issues unless there is no other specific legal remedy for such rights; which is substantially the same law laid down in the Civil Code, §4867. Napier v. Poe, 12 Ga. 170 ; State v. Georgia Medical Society, 38 Ga. 608 (95 Am. D. 408). But in the case of Singer Mfg. Co. v. McNeal Co., 117 Ga. 1005 (44 S. E. 801), where a writ of certiorari was sued out upon the refusal of the magistrate to enter a default judgment against a garnishee failing to answer, it was held that such writ was prematurely sued out, because the garnishment proceeding was still pending in the magistrate’s court after the refusal to render such judgment against the garnishee. This case overruled the decision in Starnes v. Tanner, supra, in so far as the latter was in conflict therewith; but it does not change the principle announced in the Starnes ease, that if there was a specific remedy by certiorari, ,ja remedy by mandamus did not exist. In this case the company
If it was error to refuse a motion to enter a judgment of .dismissal, this action of the magistrate refusing such motion when the case came on to be heard could not only be reviewed by certiorari, but, upon the hearing of the certiorari, the .judge of the superior court could set aside the verdict and render a final judgment dismissing the ease, or remand it with instructions that the magistrate enter on his docket a judgment dismissing the same— the very thing and the only thing sought by the company in the mandamus proceeding. The docket and papers in the case in the justice’s court do not show that there was not a clear track over which the case traveled from the issuance of the summons to the verdict, unobstructed by any judgment of dismissal. The defend
Judgment reversed.