Ansley v. Farley

55 S.E. 180, 126 Ga. 425, 1906 Ga. LEXIS 394

Opinion

Xtoipkin, J.

1. Under tlie decision in Toole v. Edmondson, 104 Ga. 776, 783, if tlie amount in controversy in a suit in a justice’s court exceeds fifty dollars, and only a question of law is involved, and the nature of the ruling complained of is such as not to dismiss the case, the losing party may select one of three remedies: an appeal to a jury in the justice’s court, an appeal to the superior court, or a certiorari. If at the trial questions both of law and fact are raised, but the petition for certiorari only complains of the rulings which involve the questions of law, thus waiving the right to complain of rulings upon disputed questions of fact, certiorari is available as a remedy.

:2. In the present ease there was no conflict of evidence upon any material question; there was none at all on the subject of the plea to the juris diction; and while, among other assignments of error, it was said that each of the magistrate’s rulings was contrary to law and evidence and the weight of evidence, yet, when taken in connection with the above-mentioned fact, and the statement immediately following, that the “evidence as undisputed” demanded a finding in favor of the defendant, and that under the plaintiff’s own evidence such a judgment should have resulted, and the other assignments of error, the use of such expression did not authorize a dismissal of the petition for certiorari.

Argued May 28, Decided August 9, 1906.

Certiorari. Before Judge Pendleton. Fulton superior court. November 10, 1905.

A. W. Stephens, for plaintiff in error. B. B. Blackburn, contra.

3. In Western & Atlantic R. v. Dyar, 70 Ga. 723, the case involved less than fifty dollars, and also apparently involved contested questions of fact.

Judgment reversed.

All the Justices concur, except Fish, O. J., absent.