Clark v. Harper

Court of Appeals of Georgia

Clark v. Harper

93 S.E. 539, 20 Ga. App. 817, 1917 Ga. App. LEXIS 1100

CourtCourt of Appeals of Georgia

DecidedSeptember 13, 1917

Docket8822

StatusPublished

Cited by2 cases

This text of 93 S.E. 539 (Clark v. Harper) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Clark v. Harper, 93 S.E. 539, 20 Ga. App. 817, 1917 Ga. App. LEXIS 1100 (Ga. Ct. App. 1917).

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Opinion

Geoege, J.

1. Under the provisions of subdivision b of section 42 of the act creating the municipal court of Atlanta (Acts 1913, p. 168), the appellate division of that court is without power to review assignments of error based upon the grounds (1) “that the verdict found or the judgment rendered is .contrary to the evidence and the principles of equity; and (2) that said verdict'or judgment is decidedly and strongly against the weight of the evidence.”

2. “Where a party obtains a writ of certiorari directed to the trial judge in the municipal court of Atlanta, he can have reviewed the question of whether the finding is contrary to law; but if, instead of suing out the writ of certiorari, he takes an appeal to the appellate division, he can not have such finding reviewed by certiorari.” Johnston v. Brenau College-Conservatory, 146 Ga. 182 (91 S. E. 85).

3. The plaintiff in error obtained a writ of certiorari to review a judgment of the appellate division of the municipal court, denying an appeal from the judgment of the trial judge overruling a motion for new trial. By the petition for certiorari it was sought to review the judg- - ment of the appellaie division, and not the judgment of the trial judge. The petition was presented to the judge of the superior court more than thirty days after the trial of the case in the municipal court. Therefore assignments of error upon the grounds that the judgment is contrary to evidence and the principles of equity, and is decidedly and strongly against the weight of the evidence, can not be considered by the Court of Appeals.

4. Where the pleadings are imperfect and defective, but no point is made on them at the trial, and there is sufficient legal evidence, admitted without objection, to support the judgment entered, this court is without authority to set aside the judgment. Furr v. Fddleman, 80 Ga. 660 (7 S. E. 167). In such circumstances, whatever might have been remedied by amendment will be considered as cured by the judgment, no objections to the sufficiency of the pleadings being urged.

5. The assignments of error not covered by the foregoing rulings are without substantial merit. The judge of the superior court did not err in overruling the certiorari.

Judgment affirmed.

Wade, O. J., and Luke, J., concur.

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Geoege, J.

1. Under the provisions of subdivision b of section 42 of the act creating the municipal court of Atlanta (Acts 1913, p. 168), the appellate division of that court is without power to review assignments of error based upon the grounds (1) “that the verdict found or the judgment rendered is .contrary to the evidence and the principles of equity; and (2) that said verdict'or judgment is decidedly and strongly against the weight of the evidence.”

2. “Where a party obtains a writ of certiorari directed to the trial judge in the municipal court of Atlanta, he can have reviewed the question of whether the finding is contrary to law; but if, instead of suing out the writ of certiorari, he takes an appeal to the appellate division, he can not have such finding reviewed by certiorari.” Johnston v. Brenau College-Conservatory, 146 Ga. 182 (91 S. E. 85).

3. The plaintiff in error obtained a writ of certiorari to review a judgment of the appellate division of the municipal court, denying an appeal from the judgment of the trial judge overruling a motion for new trial. By the petition for certiorari it was sought to review the judg- - ment of the appellaie division, and not the judgment of the trial judge. The petition was presented to the judge of the superior court more than thirty days after the trial of the case in the municipal court. Therefore assignments of error upon the grounds that the judgment is contrary to evidence and the principles of equity, and is decidedly and strongly against the weight of the evidence, can not be considered by the Court of Appeals.

4. Where the pleadings are imperfect and defective, but no point is made on them at the trial, and there is sufficient legal evidence, admitted without objection, to support the judgment entered, this court is without authority to set aside the judgment. Furr v. Fddleman, 80 Ga. 660 (7 S. E. 167). In such circumstances, whatever might have been remedied by amendment will be considered as cured by the judgment, no objections to the sufficiency of the pleadings being urged.

5. The assignments of error not covered by the foregoing rulings are without substantial merit. The judge of the superior court did not err in overruling the certiorari.

Judgment affirmed.

Wade, O. J., and Luke, J., concur.

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93 S.E. 539, 20 Ga. App. 817, 1917 Ga. App. LEXIS 1100, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clark-v-harper-gactapp-1917.

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