Guthrie v. Hendley

66 S.E. 630, 7 Ga. App. 206, 1909 Ga. App. LEXIS 593

Opinion

Russell, J.

1. The judge refused to sanction the writ of certiorari brought to review a judgment upon a possessory warrant on January 16, and signed the certificate to the bill of exceptions on Eebruary 5 following: Held, that the writ of error can not be dismissed, because it affirmatively appears that the bill of exceptions was presented within twenty days from the judgment complained of. The fact that the judgment upon the issue formed upon the possessory warrant antedated the certificate to the bill of exceptions twenty-eight days is immaterial. The office of the writ of error is -to review the judgment of the superior court in refusing, to sanction the certiorari, and has no reference whatever to the original judgment upon the possessory warrant, rendered by an inferior judicatory, except in so far as the action of the judge of the superior court thereupon was proper or erroneous.

Petition for certiorari; from Berrien superior court — Judge Mitcliell. January 16, 1909.

Submitted April 13, Decided December 24, 1909. Buie & Knight, for plaintiff in error. Hendrichs & Christian, contra.

2. The statements of fact contained in the petition for certiorari, until the coming in of the answer, are to be presumed to be true; and where error is properly assigned in the petition, it should be sanctioned, and the writ of certiorari ordered to issue, to the end that there may be an investigation into the merits of the petitioner’s claim; but as the assignments of error set forth in the petition for certiorari in this ease are without merit, the judge of the superior court did not err in refusing to sanction the petition and order the issuance of the writ of certiorari.

Judgment affirmed.