2388 | Ga. Ct. App. | Apr 6, 1910
The court did not err in sustaining the certiorari and granting a new trial. Fagan v. Jackson, 1 Ga. App. 24 (57 S.E. 901" date_filed="1907-01-19" court="Ga. Ct. App." case_name="Meadows v. Alexander">57 S. E. 901).
2. Allegations in a party’s pleadings áre not ordinarily evidence in his favor. Although the suit between the plaintiff and the garnishee is described in the garnishment proceedings as being based on a judgment against the main defendant, and although the parties, in a statement of facts, agree that this is so — that is, although they agree that the plaintiff’s claim was a proceeding upon a judgment, rather than a proceeding upon an open indebtedness, this does not dispense with the necessity of the plaintiff’s introducing the judgment in evidence before final judgment can be lawfully entered against the garnishee; it being manifest that the agreement related to what the plaintiff claimed, and not to the truthfulness or untruthfulness of these contentions.
3. The defendant is not usually a proper party to a petition for certiorari brought by the garnishee to review a judgment against him (the garnishee) in favor of the plaintiff, and the joinder of the defendant in 1 the application for certiorari is to be regarded as mere surplusage. While, in such a case, perhaps it is technically irregular for the judge, upon the hearing of the certiorari, to cause the petition to be amended by striking the name of the defendant as a party (as petitions for certiorari áre not amendable), yet it'is a matter in no wise affecting the merits of the ease.
4. Under Toole v. Edmondson, 104 Ga. 776, 783 (31 S.E. 25" date_filed="1898-07-19" court="Ga." case_name="Toole v. Edmondson & Seay Bros.">31 S. E. 25), certiorari lay from the judgment of the magistrate, the evidence being undisputed.
Judgment affirmed.