Davis v. Lee

Court of Appeals of Georgia

Davis v. Lee

145 S.E. 110, 38 Ga. App. 667, 1928 Ga. App. LEXIS 383

CourtCourt of Appeals of Georgia

DecidedOctober 12, 1928

Docket18744

StatusPublished

Cited by1 cases

This text of 145 S.E. 110 (Davis v. Lee) 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.

Bluebook

Davis v. Lee, 145 S.E. 110, 38 Ga. App. 667, 1928 Ga. App. LEXIS 383 (Ga. Ct. App. 1928).

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Opinion

Bell, J.

Under the provisions of section 5183 of the Civil Code, requiring that a petition for certiorari “shall plainly and distinctly set forth the errors complained of,” a mere general averment of error, in connection [668]*668with which there is no statement or assignment whatever as to how or wherein the rulings complained of were erroneous, presents no case or question for decision by the judge of the superior court. Edgeman v. Stewart, 141 Ga. 686 (81 S. E. 1036); Citizens Banking Co. v. Parris, 119 Ga. 517 (46 S. E. 638); Smith v. Marshall, 127 Ga. 374 (56 S. E. 416); Harrell v. Quitman, 17 Ga. App. 299 (86 S. E. 662); Chan v. Judge, 36 Ga. App. 13 (134 S. E. 925).

Decided October 12, 1928. Parker & Parker, Walter Thomas, for plaintiff. Robert G. Mitchell, for defendant.

2. Accordingly, the petition for certiorari in the instant case, which contained only the following assignments of error: “Petitioner avers that said court erred in refusing him the right to present his evidence in support of his plea, and in not allowing him to present his side of the case and considering same, and in entering up judgment against him in one or all five of said suits, all of which judgments, rulings, and findings of said court the petitioner assigns as error,” did not meet the requirements of the statute referred to above; and the judge of the superior court should have dismissed the petition for certiorari, instead of sustaining the same and remanding the case for a new trial. Especially is this true where, as here, the magistrate in his answer denied having refused the petitioner “the right to present his evidence in support of his plea, and in not allowing him to present his side of the case,” thereby leaving nothing for consideration by the judge of the superior court in the hearing on the certiorari, except the mere statement in the petition that the magistrate committed error in entering up final judgment against the petitioner.

Judgment reversed.

Jenhins, P. J., and Stephens, J., concur.

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Bell, J.

Under the provisions of section 5183 of the Civil Code, requiring that a petition for certiorari “shall plainly and distinctly set forth the errors complained of,” a mere general averment of error, in connection [668]*668with which there is no statement or assignment whatever as to how or wherein the rulings complained of were erroneous, presents no case or question for decision by the judge of the superior court. Edgeman v. Stewart, 141 Ga. 686 (81 S. E. 1036); Citizens Banking Co. v. Parris, 119 Ga. 517 (46 S. E. 638); Smith v. Marshall, 127 Ga. 374 (56 S. E. 416); Harrell v. Quitman, 17 Ga. App. 299 (86 S. E. 662); Chan v. Judge, 36 Ga. App. 13 (134 S. E. 925).

Decided October 12, 1928. Parker & Parker, Walter Thomas, for plaintiff. Robert G. Mitchell, for defendant.

2. Accordingly, the petition for certiorari in the instant case, which contained only the following assignments of error: “Petitioner avers that said court erred in refusing him the right to present his evidence in support of his plea, and in not allowing him to present his side of the case and considering same, and in entering up judgment against him in one or all five of said suits, all of which judgments, rulings, and findings of said court the petitioner assigns as error,” did not meet the requirements of the statute referred to above; and the judge of the superior court should have dismissed the petition for certiorari, instead of sustaining the same and remanding the case for a new trial. Especially is this true where, as here, the magistrate in his answer denied having refused the petitioner “the right to present his evidence in support of his plea, and in not allowing him to present his side of the case,” thereby leaving nothing for consideration by the judge of the superior court in the hearing on the certiorari, except the mere statement in the petition that the magistrate committed error in entering up final judgment against the petitioner.

Judgment reversed.

Jenhins, P. J., and Stephens, J., concur.

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145 S.E. 110, 38 Ga. App. 667, 1928 Ga. App. LEXIS 383, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-lee-gactapp-1928.

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