Bostick v. Palmer & Deppish

4 S.E. 319, 79 Ga. 680, 1887 Ga. LEXIS 285

Opinion

Simmons, Justice.

It appears from the record in this case that Palmer & Deppish brought suit against E. O. Bostick, administrator of D. W. Holt, in a justice’s court, in March, 1882, on an open account made by the intestate in July, 1875. The defendant filed a plea of the statute of limitations, and the magistrate gave judgment for the plaintiff. The defendant sued out a writ of certiorari to the superior court, which was answered by the magistrate, admitting in his answer that the account was dated in July, 1875, that the suit was brought in March, 1882, and that he had entered up judgment against the defendant as administrator. When the case was called in the superior court for trial, a motion was made to dismiss the certiorari because the amount sued on was under $50, and there being a question of fact in the case, an appeal and not certiorari was the remedy. The court granted the motion and dismissed the certiorari.

* The defendant sued out his bill of exceptions to the judgment of the court dismissing the certiorari, and assigned the same as error. The only question in the case, therefore, is whether it was a question of law or fact made in the certiorari.

The plaintiff sued on an account which on its face was barred by the statute of limitations, and the defendant filed his plea of the statute of limitations. We think that when that plea was filed, it appearing on the face of the pleadings that the account was barred, it was incumbent on the plaintiff to show facts taking it out of that plea. He ought to have shown, if he could, that Holt, the intestate, who had contracted the account, had died at a certain time, and that there was no administration on his estate until a certain time, so that the plaintiff could not have brought suit within the statutory period. This he failed to do, and as the account showed on its face that it was barred, and no facts being proved to show that the statute had not run, it was a question of law and not a question of fact as to whether it was barred or hot; and the court erred in dismissing the certiorari for the reason that a question of fact was involved.

Judgment reversed.

The bill of exceptions contains the following statement, added by the presiding judge: “It was represented to the court by counsel for both sides that the case involved issues of fact, and relying on these statements, the court did not examine the record, but based its decision on the statements made and conceded by counsel on both sides.” (Rep.)