1. A justice's court has no jurisdiction of a suit brought to foreclose a lien on real estate for work done or for material furnished in the improvement of the same. See McAuliffe v. Baum, 142 Ga. 590 (83 S.E. 239).

2. A void judgment is a nullity. See Code, § 110-709; Hart v. Manson, 119 Ga. 865 (3) (47 S.E. 345).

3. The writ of certiorari will not lie to set aside or review a void judgment. See Levadas v. Beach, 117 Ga. 178 (43 S.E. 418); Simpkins Co. v. Hester, 3 Ga. App. 160 (59 S.E. 322); Thompson v. Allen, 69 Ga. App. 638 (26 S.E.2d, 490); Gilbert v. Northwestern Life Ins. Co. 189 Ga. 766 (8 S.E.2d 43).

DECIDED FEBRUARY 18, 1948. REHEARING DENIED MARCH 29, 1948. *Page 710 Isiah Link brought an action against Henry Frese in the Justice's Court of the 1289 District, G. M, Fulton County. After hearing evidence and argument of counsel, the justice of the peace entered judgment for the plaintiff for $40.

The defendant filed a petition for certiorari in the superior court, alleging that the action was one for the enforcement of a laborer's lien against certain real property of the defendant. This allegation is admitted, so the case is treated as one having been commenced in the justice's court for the foreclosure of a laborer's lien. The petition also alleged, among other things, that the judgment rendered by the justice of the peace is void because a justice of the peace is without jurisdiction to hear and determine proceedings to foreclose a laborer's lien on real property. The cause came on for hearing before the superior court judge, who incorporated in his judgment his opinion that a justice court has no jurisdiction of an action to foreclose a laborer's lien on real estate, and further that a writ of certiorari does not lie to set aside or review a void judgment. He entered a judgment accordingly, and this is assigned as error. 1-3. On the principle that a void judgment is not reviewable by certiorari, this court is bound by the decisions of the Supreme Court cited in the 3rd headnote, as well as McDonald v. Farmers SupplyCo., 143 Ga. 552 (85 S.E. 861); Griggs v. Macon,154 Ga. 519 (114 S.E. 899); Bass v. Milledgeville, 122 Ga. 177 (50 S.E. 59); Allied Mortgage Companies Inc. v. Gilbert,189 Ga. 756 (8 S.E.2d 45); City of Cedartown v. Pickett,193 Ga. 840 (20 S.E.2d 263). The writer, speaking for himself alone, feels that this holding is unsound, and works a hardship on one against whom such a judgment is rendered. It seems to the writer that a void judgment is the worst of all judgments, and that the one against whom it is rendered should be permitted to attack it affirmatively by direct writ of error, which he may now do (McDonald v. Farmers Supply Co., supra), or by certiorari, or wait until some action is taken upon it, and then defend against it. Judge Lumpkin expressed *Page 711 his disapproval of the ruling in McDonald v. Farmers SupplyCo., supra. In Griggs v. Macon, supra, the ruling was obiter, because the court stated that the judgment attacked was not judicial. The court in City of Cedartown v. Pickett, supra, slightly intimated its doubt as to the all-inclusiveness of the holding. There are numerous faults to be found with the rule. The worst is the assumption that any given judgment is or will be held to be void. If a party missed his guess that a judgment was void, and it was merely erroneous, unless he sought a review he would be bound under the doctrine of res judicata. Of course, if certiorari is applied for and denied because of the effort to review a void judgment, the complaining party gets his question adjudicated if the judgment can be held to be void without the proof of extraneous facts, but what of the cases where no review is sought or extraneous facts must be called on to show that the judgment is void? Here the petition alleges facts which, if true, show the judgment to be void. These facts are admitted by the answer of the justice of the peace. In such a situation it seems that the plaintiff in error will get the relief sought, which in this case, is a decision that the judgment is void.

The judgment of the superior court dismissing the certiorari is without error.

Judgment affirmed. MacIntyre, P. J., and Gardner, J.,concur.