Davis v. Moore

171 S.E. 166, 47 Ga. App. 579, 1933 Ga. App. LEXIS 566

• Court: Court of Appeals of Georgia
• Decided: September 6, 1933
• Docket: 22740
• Status: Published

Opinion

MacIntyre, J.

The State superintendent of banks brought suit in the municipal court of Atlanta, Eulton section, against N. A. Moore for the balance due on certain shares of stock alleged to have been purchased by the defendant in the City Savings Bank and Trust Company, taken over for liquidation by the superintendent. On the trial there was conflict in the evidence as to whether the purchase transaction was real, bona fide, or fraudulent. The judge directed a verdict for the plaintiff. The defendant moved for a new trial, the motion was overruled, and he appealed to the appellate division of said court upon the general ground that the judgment of the trial judge was contrary to the evidence. The judgment was affirmed. The defendant thereupon sued out a writ of certiorari, which carried to the superior court the entire record and proceedings in said case. After hearing argument the. judge of the superior court passed an order sustaining the eertorari and also rendering final judgment upon said case in favor of the plaintiff in certiorari and against the plaintiff in the court below. To this judgment the defendant in certiorari excepted, upon the ground that the same was contrary to law.

The evidence having raised issues of fact, the jury should have passed upon the case without direction; and it was therefore error not to grant a new trial in the municipal court.

The judge of the superior court properly sustained the certorari, but erred in not remanding the case for retrial. Final judgment could not be rendered upon a review on certiorari, unless the determination turned solely upon a question of law. Williams v. Bradfield, 116 Ga. 705 (43 S. E. 57); Porterfield v. Thompson, 4 Ga. App. 524 (61 S. E. 1055).

Judgment reversed.

Broyles, G. J. and Guerry, J., concur.