8 Ga. App. 42 | Ga. Ct. App. | 1910
Mrs. Stephens caused a distress warrant to be issued against McNaughton. He replevied. To an adverse verdict in the justice’s court the defendant brought certiorari. No complaint was made that the verdict was contrary to the evidence. The petition for certiorari contained only two specific, assignments of error: (1) That the court erred in not dismissing the levy for insufficiency of description; and (2) that the justice of the peace, over objection of the defendant, put upon him an illegally impaneled jury and forced him to trial. The judge of the superior court sustained the certiorari and ordered a new trial in the justice’s court, and to this ruling plaintiff excepts. There being in the certiorari no assignment of error that the verdict is contrary to the evidence, the first grant of a new trial by the judge of the superior court is reviewable, and stands without the aid of any presumption dependent upon the breadth of judicial discretion. The case must
When the defendant in distress warrant replevies the property, the levy becomes functus, and the proceeding is converted into an ordinary action for rent, with the bond standing as security in the event of a judgment for the plaintiff. At the trial of the issue thus raised, a motion to dismiss the levy will not lie, for the very plain reason that the levy has already become functus.
There is no suggestion that there was any irregularity so far as the orignal drawing of the jury was concerned. Indeed, it is stated in the record that nine men were regularly drawn and summoned to be present on Februar3r 8, the day on which the court met. Section 4143 -of the Civil Code provides that if there should be a deficiency of jurors at the trial in a justice’s court, “from cause or absence,” the constable, b3f direction of the court, shall complete the jury by talesmen. It is undoubtedly regular that the justice of the