100 Ga. 425 | Ga. | 1897
Merry sued out a distress warrant against Wilds, which was levied upon the- latter’s property. Wilds filed a counter-affidavit. The papers were returned to a justice’s court. The justice rendered judgment in favor of the plaintiff, and^ Wilds appealed to a jury. On the day set for the trial of the case by the jury, before the court was organized by impaneling the jury and before the plaintiff and his counsel appeared, the counsel of Wilds moved to dismiss the levy upon •the distress warrant for some defect in the affidavit upon
1. In this ease it seems to us that counsel for both parties-imposed upon the trial justice, the first in procuring him to' dismiss the warrant before the organization of his court, and the second in procuring the magistrate, after he had reinstated the case, to dismiss the defendant’s appeal. The appeal system in justices’ courts under our code is a peculiar one. The justice first hears and determines the case, but either party who is dissatisfied with his judgment may, under certain restrictions, appeal to a jury in the justice’s court. When this is done the justice’s court is composed of the justice and the jury, the justice having no jurisdiction to* hear or determine the case without the jury. Hnt-il the jury
2. At this stage of the case the plaintiff and his counsel appeared at the court and, after the jury was impaneled, induced the court to reinstate the case and then to dismiss the appeal entered by the defendant. It is contended here that the justice having dismissed the warrant and levy, such judgment was final and the proceedings had thereafter were illegal and void. We have shown that the judgment dismissing the warrant and levy was a void judgment. As it was void it was not necessary to reverse it on a writ of certiorari to the superior court, but the justice, -on his own motion or on the motion of the losing party, could treat it as void. In the case of Fontaine v. Bergen, 55 Ga. 410, it was held by this court: "If a void judgment be rendered by a justice’s court, although that court has no power to set it aside, it, as well as all other courts, may disregard it and treat it as a nullity, whenever and wherever it comes in question.”' See also Chapman v. Floyd, 68 Ga. 455, to the same effect. The justice here treated his first judgment, that dismissing the warrant and levy, as a nullity. It is contended that if that judgment was a nullity, the judgment dismissing the appeal was likewise a nullity. We think that this is not so. At the time the appeal was dismissed, the court had been properly organized and the justice had jurisdiction of the case. His action cannot, therefore, be considered as void but simply as erroneous. There is quite a difference between a void judgment and an erroneous one. The former, as we have seen, may be treated as a nullity “whenever and
An appeal to a jury in a justice’s court is a de novo investigation. Singer Mfg. Co. v. Walker, 77 Ga. 649. The whole case as to the law and the facts is taken from the magistrate and referred to the jury. The magistrate should not, therefore, dismiss an appeal even though the appellant be .absent and not present to prosecute the appeal. In this case, the plaintiff in the distress warrant should have proceeded, made out his case and had a verdict of the jury, thereon. While the dismissal of the appeal was erroneous, it does not follow that the judgment was void. The judgment was founded in error of law, but is binding on the parties until it he set aside. The defendant should have sued out a writ •of certiorari and'had the judgment reversed by the superior ■court. He having failed to do this, and the judgment being valid and binding although erroneous, it follows that an illegality will not lie to the judgment.
3. Inasmuch as an illegality will not lie to such a judgment, the magistrate did not err in dismissing the same, and the judge of the superior court should have affirmed his judgment instead of reversing it.
Judgment reversed.
