Grimsley v. Alexander

32 S.E. 24, 106 Ga. 165, 1898 Ga. LEXIS 43

• Court: Supreme Court of Georgia
• Decided: December 14, 1898
• Status: Published

Opinion

Fish, J.

The undisputed facts'in this case, as we gather them from the record, are, that Grimsley, constable, sold a horse as the property of the defendant, under an execution in favor of Smith & James against Wyatt Alexander. The horse brought •'$31.00. After the sale and while the constable held the pirn needs, W. H. Alexander, as guardian, placed in the hands of .the constable a distress warrant in favor of W. H. Alexander, ■guardian, against Wyatt Alexander, for $28.00, with notice to hold up such proceeds to be applied to the payment of the distress warrant. At the time of the sale, there was pending an ..affidavit of illegality, filed by Wyatt Alexander, to the execution against him in favor of Smith & James, under which the horse was sold. After the sale and after the placing of the distress warrant in the constable’s hands, upon the trial of the illegality proceedings in the superior court, the execution in favor ■of Smith & James against Wyatt Alexander was declared to be void. Subsequently to this, Smith & James,, in a suit against Wyatt Alexander, and Grimsley as garnishee, obtained a judgment against the garnishee for $24.50, on account of his having 'in his hands, as the property of Wyatt Alexander, the proceeds of , such sale. ■. W. H. Alexander, as guardian, then demanded of Grimsley, the constable, that he pay to him out of the proceeds of the sale a sufficiency to satisfy his distress warrant. The constable refused to comply with this demand, and Alexander ruled him in the justice’s court for failure and refusal to pay over the money as demanded. Upon the hearing of the rule the facts above stated appeared. The record shows further that a witness for the constable testified that the witness had examined ■the records of the office.of the ordinary of Early county (the county in which the case arose), and that no order had been granted to W. H, Alexander, as guardian, authorizing him to rent any land for minors. The magistrate discharged the rule against the constable, and Alexander carried the case,by certiorari to the superior court. Complaint was made in the petition for certiorari, that the magistrate erred in admitting the testimony of the witness, that he had examined the records in the ordinary’s office, and that no order had been granted to Alexander, guardian, to rent any land of minors; and that the magistrate also erred in admitting the evidence as to the j udgment in favor of Smith & James against Grimsley as garnishee. The petition specified the objections over which all such evidence was admitted; but the answer of the magistrate, which was neither excepted to nor traversed, failed to disclose the grounds upon which such evidence was objected to, or for what reason the same was admitted. Upon the hearing of the certiorari, counsel for Grimsley moved to dismiss it, “because the records showed there were disputed facts involved, and the same had been brought to the superior court on a certiorari without having first been appealed to a jury in the justice’s court, the amount involved being less than fifty dollars.” This motion was overruled, and the court rendered the following judgment: “ Ordered and adjudged, that certiorari be sustained, and that defendant pay to plaintiff out of said fund a sufficient sum to pay off his distress warrant, and the cost of-dollars and-cents paid out by plaintiff in certioraring said case,- and the sum of-dollars cost of this court.” Grimsley excepted and assigned as error “the refusal to sustain said motion as aforesaid, and in rendering said judgment as aforesaid : (1) Because, there being facts involved in the justice’s decision complained of, there should first have been an appeal to a jury in the justice’s court before certioraring the case to the superior court, the amount involved being less than fifty dollars; (2) Because the court erred in rendering final j udgment in said case instead of remanding the same for a new trial in the justice’s court, there being conclusions of fact in said case to be ascertained from testimony; (3y Because the court erred in rendering judgment as aforesaid, because the amount is either greater than the amount of money in defendant’s- hands, or else is not definitely ascertained.”

1. The record shows that upon the trial of the rule in the justice’s court there were no contested issues of fact, and therefore the judgment of the magistrate was reviewable by certiorari, although the amount involved was less than fifty dollars. This court has so ruled several times. See Toole v. Edmondson, 104 Ga. 776, where Mr. Justice Cobb cited the previous decisions.

2. There were no issues of fact involved upon the hearing of the certiorari in the superior court. The determination of the case depended entirely upon the question of law, whether the rule should be made absolute against the constable upon the undisputed facts as they appeared in the certiorari proceedings, and it was proper for the court to l’ender judgment finally disposing of the case. Civil Code, § 4652; Greenwood v. Boyd & Baxter Furniture Factory, 86 Ga. 582, and numerous cases cited under the above section of the code.

3. This being a rule against a constable heard in the superior court upon certiorari, the judgment rendered in that court, ordering the constable to pay, out of the fund in his hands, to the petitioner in the rule and in the certiorari a sufficient sum to satisfy the claim of such petitioner and the cost incurred in taking the case up by certiorari, as well as the cost of the case in the superior court, made the rule absolute against the constable, not only for the amount of the claim of the plaintiff in the rule, but also for all of the costs required by the judgment to be paid by the constable, and subjected him to all the pains and penalties imposed by statute upon an officer failing to pay the amount required by a rule absolute rendered against him. The amount in the constable’s hands was $31.00. The. amount of the distress warrant of the plaintiff in the rule was $28.00. The cost of taking the case to the superior court by certiorari and the cost of the trial in that court necessarily amounted to more than $3.00, as will appear by reference to the fee-bills in the code, which added to the sum called for by the distress warrant made the amount for which the rule was made absolute larger than the sum in the constable’s hands. We therefore think the judgment was erroneous. It may have been erroneous for other reasons; but we must decide the case as made by the bill of exceptions, and can not go outside of that in search of error.

Judgment reversed.

All the Justices concurring, except Lumpkin, P.J., and Little, J., absent.