Taylor v. Gay

20 Ga. 77 | Ga. | 1856

By the Court.

Benning, J.

delivering tbe opinion.

These two cases were considered together.

[1.] In the first, that of Taylor vs. Gay, the only question is, whether Taylor’s motion for restoration of possession, was properly over-ruled ?

And we think it was." Every thing done after a certiorari has been delivered to the Magistrate to whom it is directed, is void. Things done before remain as they are. (Com. Dig. “ Certiorari,” (E); Mayor of Macon vs. Shaw, 14 (Ga. Rep. 162.)

Taylor had been dispossessed before the certiorari was delivered to the Justices.

So, we affirm the decision in this case.

In the other case, that of Gay vs. Taylor, Gay moved to dismiss the certiorari on several grounds; and the question is, as to the sufficiency of these grounds to sustain the motion.

The first ground was, that a certiorari does not lie to Justices of the Peace, sitting as a Court, in a forcible entry and detainer case, founded on the 15th section of the 9th division of the Penal Code.

That section gives jurisdiction in such cases, “to'ahy one or more Justices of the Peace.”

The Constitution says, that the Superior Courts “shall have power to correct errors in inferior judicatories, by writ of certiorari.” (Cobb’s Dig. 1121.)

This is a direct grant of power to the Superior Courts to issue the writ of certiorari to Justices of the Peace sitting as a Court in forcible entry and detainer, for Justices thus sitting make an inferior judicatory.

It is assumed," however, that the power of certiorari over such a Court, would be a power that could not be executed; and it is thence concluded, that the power does not exist.

But why is it that power of certiorari over such a Court cannot be executed ? Because, it is answered, such a Court is dissolved forever as soon as it makes its judgment and adjourns. But can this be so ?' If it is so, of what value is the judgment? What is a judgment worth, if there is no Court to superintend its execution ?-■'■'

■There must be left a Court to see that the judgment be executed. And if there must be a Court, then that Court" must be one, consisting of the Justices that rendered the-judgment, if they remain Justices;" or of their successors, if they do not; "or, it must be a Court consisting of “ any one‘ or inore Justices of the Peace.”

And this Court, bo it composed as it may, that is the Court; to see to the execution of the judgment, is the Court to whose members the certiorari is to be directed and delivered. What judgment is it that ought to be executed? a right judgment»: A certiorari is but a part of the means by which a right judgment is secured.

In the present case, the Justices that gave the judgment,, were the Justices to whom the certiorari was directed and-delivered.

' [2.] Wo think that the writ of certiorari lies in such a case-as this. In Marchaman vs. Todd, a similar case, we held that it lay. (14 da.)

■ [8.] Another of the grounds'of-the motion to dismiss the certiorari was, that the affidavit on which the certiorari was. granted, was insufficient. But when the motion was made, the answer was in, and that showed the statements in the petition to be true. Of what consequence was it, therefore, at that time, whether the affidavit was sufficient or not.

[4.] Another ground was, that the certificate, as to the payment of the cost, was not sufficient. We think it was. There can be no such thing as “condemnation money,” in a case of this kind.

[5.] The other grounds of the motion are all founded upon-the Act of 1850, “to amend the several laws Of this State in relation to writs of certiorari.” But it is manifest, from a reading of that Act, that it applies only to the “ Justice’a Courts” of the several districts in t-he State. It, therefore,. does not apply to such a Justice’s Court as that to which •this writ was directed. (Cobb’s Dig. 529.)

We therefore think the Court was right in over-ruling the ■motion.