The judge of the superior court did not err in sustaining the certiorari, but erred in rendering a final judgment, since the only question involved was the sufficiency of the evidence to support the finding in the justice's court.

DECIDED MAY 31, 1940. G. D. Gowder swore out an attachment in a justice's court against Sidney Smith, on the ground that the defendant was a non-resident. On the trial of the issue formed by a traverse of the ground of the attachment, the court overruled the traverse. The defendant filed a petition for certiorari, assigning error on the *Page 648 order overruling the traverse, on the ground that the evidence demanded a finding that the defendant was a resident of Georgia. The judge of the superior court sustained the certiorari, and ordered that "the judgment of the justice's court overruling the traverse of the attachment be and it is hereby vacated and set aside as being null and void and illegal." His order further directed that the levy of the attachment be dismissed, and that the property levied on be surrendered instanter to the defendant. To this judgment the plaintiff excepted.

Under the evidence there was an issue of fact as to the defendant's residence, and therefore not an issue of law the decision upon which would necessarily control the case. On another trial of the issue involved the evidence may be different, in which event the judgment of the superior court would not necessarily determine the case. Code, § 19-501 and annotations under headings "Evidence" and "Fact." The judgment sustaining the certiorari is affirmed. There was no abuse of discretion in sustaining it, because the evidence was conflicting. So much of the judgment as is designed to make the ruling a final judgment is reversed, with direction that the case be remanded to the justice's court for another trial, with appropriate instructions.

Judgment affirmed in part and reversed in part. Stephens, P.J., and Sutton, J., concur.