Maddox v. Central of Georgia Railway Co.

1 Ga. App. 46 | Ga. Ct. App. | 1907

Hill, C. J.

1. When a certiorari was called for trial in the superior court, a motion was made by the’ defendant in certiorari to dismiss the same because the acknowledgment of service of the writ was prior to the sanction of the writ, and because the date of the acknowledgment of service of the writ was Sunday. In reply to this motion, the attorney for the plaintiff in certiorari asked the court to allow an amendment of said acknowledgment of service, by substituting, for the date appearing in the said waiver of service, the true date when he, as attorney for the plaintiff in certiorari, had served the attorney for the defendant in certiorari with said writ and secured the waiver of service thereof. This motion to amend was supported by the affidavit of the attorney for the plaintiff in certiorari. The court allowed the amendment, and this judgment is assigned as error. We hold that the court did mot commit error in allowing the amendment. Shearouse v. Morgan, 111 Ga. 858.

2. In this case, the attorney for the defendant in certiorari made the following waiver of the written notice of the sanction of. the writ of certiorari, and of the time and place of hearing: “Written notice of the sanction of the writ of certiorari, as prayed in this petition, and of the time and place of hearing, waived.” Under the terms of this waiver, the court did right in refusing to dismiss the certiorari because of a non-compliance with the requirements of section 4644 of the Civil Code. New v. LeHardy, 46 Ga. 616; Scott v. Patrick, 44 Ga. 188; Asher v. Cape, 95 Ga. 31. “This acknowledgment was sufficient evidence that the defendant in certiorari had not only waived written notice of the time and place of hearing, but had also received due and legal notice of the judge’s sanction.” Asher v. Cape, supra.

3. The defendant in certiorari further moved the court to dismiss the certiorari, on the ground that the answer of the justice of the peace showed that the judgment complained of was rendered by the justice upon the express consent of the plaintiff in certiorari. The consent to the judgment is stated in the answer of the justice as follows: “Mr. Sucker insisted on his judgment. Mr. Sucker, attorney for defendant, said to me, Uf Mr. Maddox wants judgment on those grounds, I have no objection to you giving it.’ ” This language does mot show such “consent” to the judgment as would estop the plaintiff in certiorari from attacking its validity. It was a warning to the justice that if he entered judgment on the ground urged by plaintiff’s attorney, such judgment would be illegal. The judge of the superior court did not err in refusing to dismiss the certiorari on this ground.

4. Judgment rendered in a justice’s court on an unliquidated claim for damages, without other proof than the affidavit of the plaintiff attached thereto, is invalid; and the judge of the superior court committed no error in sustaining the certiorari and remanding the case- to the justice’s court for á new hearing.

Judgment affirmed.