Cohen v. Troy Laundry & Mfg. Co.

25 S.E. 689, 99 Ga. 289

• Court: Supreme Court of Georgia
• Decided: August 3, 1896
• Status: Published

Opinion

Simmons, C. J.

1. The writ of certiorari does not lie to reverse or set aside a judgment whic-h the defendant therein has voluntarily paid and satisfied in full, and such payment cannot be treated as having been made under duress simply because it was made to prevent a levy upon the defendant’s property of the execution issued from such judgment. See Teem v. Ellijay, 89 Ga. 154.

2. The defendant’s remedy in such case'is to apply for the writ of certiorari and obtain a supersedeas.

August 3, 1896.

'Certiorari. Before Judge Balligaut. Chatham superior eourt. June term, 1895.

Edward S. Elliott, for plaintiff. A. L. Alexander, for defendant.

3. It appearing in the present case from the petition for certiorari that before suing out the same the plaintiff therein, -which was ithe defendant in the judgment, in order to prevent the levy of the execution on its property, had “paid the costs .in cash and given a note at thirty days for the balance,” meaning thereby the principal and interest, and the magistrate’s answer, which as to these matters was not traversed, showing that the execution had been marked satisfied in full and returned to office, it was error, upon the facts thus appearing, to overrule the motion to dismiss the writ of certiorari. Judgment reversed.