Evans v. Williams

106 S.E. 321, 26 Ga. App. 412, 1921 Ga. App. LEXIS 185

• Court: Court of Appeals of Georgia
• Decided: March 8, 1921
• Docket: 11937
• Status: Published

Opinion

Broyles, C. J.

It is well settled that an untr aver sed answer of the magistrate to a petition for certiorari, and not the petition, is controlling upon the superior court and this court, and that points made in the petition for certiorari, but not verified by the answer of the magistrate, cannot be considered by either court. In the instant case the only point that the petition for certiorari raises which was insisted upon before this court is that the justice who tried the case was without jurisdiction of the subject-matter, for the reason that the damage sued for was to growing crops that had never been severed from the realty; but the allegations as to these facts, and the evidence in support thereof, set out in the petition, were not verified by the answer of the magistrate. Moreover, it is stated by the magistrate, in his answer to the petition, “that all the allegations [in the petition for certiorari] are not true, ” and it is not directly or clearly specified in the answer what allegations in the petition are untrue and what are true, and the answer was neither traversed nor excepted to. Under such circumstances this court is unable to say that the judge of the superior court erred in overruling the certiorari.

Judgment affirmed.

Lulee and Bloodworth, JJ., concur.