Abrams v. Ryan

61 Ga. 597

• Court: Supreme Court of Georgia
• Decided: August 15, 1878
• Status: Published

Opinion

Bleckley, Justice.

As in appeal, so in certiora/ri, the costs in a justice court are to be paid, not merely deposited. Code, §4054. It is a mistake to analogize the ordinary judgment for costs, in a civil case betwéen party and party, to an illegal judgment for costs in a criminal case. In the formfer, the justice court has power to render judgment for costs, as incidental to a disposition of the suit. The presiding justice earns his cost by rendering the service required of him, and pronouncing the judgment which he deems correct between the litigants. He does not insure the correctness of his judgment, but discharges his whole duty when he adjudges the matter in controversy to the best of his ability. If the judgment rendered for costs were a usurpation of power, such as adjudging the costs against either party whilst the main case was left still pending in the justice court, then, a correction of it by certiorari could be followed by a rule to refund ; but the difference between error and usurpation is clear; and that difference will generally serve as a dividing thread to separate those instances in which the justice of the peace can or cannot be required to refund. Where he is working within the sphere of his powers, though he may-work erroneously, he is to be paid; but wliere he transcends his powers, he exacts payment of costs at' his peril, in the event of subsequent reversal on certiorari. The distinction in nature between appeal and certiorari, 'which we pointed out in 60 Ga., 218, is sound; but the line of argument which we pursued was unnecessary to the purpose then in hand. We might have said then, as we do now, that the general rule that costs cannot be recovered back from the officers of court, after being legally exacted and paid, is applicable both to appeal and certiorari.

Judgment reversed.