28 Ga. App. 818 | Ga. Ct. App. | 1922
The only grounds of exception set forth in the defendant’s petition for certiorari are to the effect that the magistrate should have sustained his demurrer setting up that no bill of particulars was attached to the account sued on, and that a mistrial should have been declared on the ground that the jury were not sworn, which omission is alleged to have been discovered after the verdict had been rendered but before the jury had dispersed. The answer of the magistrate shows that the summons was amended by attaching a bill of particulars to the account sued on. It further shows that, while no motion for new trial was made, it was “ suggested ” that the jury had not been sworn, and that it could not be ascertained “ for certain ” whether or not the oath had been administered. Held:
1. “ No ground of error shall be insisted upon, on the hearing, which is not distinctly set forth in the petition ” for certiorari. Civil Code (1910), § 5199; Fouché v. Morris, 112 Ga. 143 (2) (37 S. E. 182); Brown v. Alexander, 112 Ga. 247 (37 S. E. 368); Perry v. Brunswick &c. Ry. Co., 119 Ga. 819 (47 S. E. 172).
2. In civil cases the presumption of law is that the jury were legally sworn. The answer of the magistrate does not rebut this presumption, and the record does not contain any evidence showing such omission.
Judgment affirmed.
