Jordan v. Owens

67 Ga. 616

Opinion

Jackson, Chief Justice.

1. In this case the error is assigned that the judge should have granted the writ of certiorari. The petition therefore is based on two grounds. The first' is that an application for a possessory warrant is a suit, and can be brought only in the county of defendant’s residence.

Such ruling would destroy the entire policy of the act, and annihilate almost all its usefulness by confining its operation to a single county. It would be in the teeth of the act itself. Code, §4032 et seq. We cannot think that it conflicts with the constitutional provision that “ all other civil cases shall be tried in the county where the defendant resides.” Sup. to Code, §651. The same provision is in the constitution of 1868 and preceding constitutions, yet wherever the defendant was caught in possession" of another’s personal chattels, under the provisions of this old act, codified in section 4032, there the right of possession has been tried, no matter where he lived. It is not a civil case in the meaning of this clause of the constitution, but a mere summary mode of transferring possession to await the main trial of the case. Code, §4035.

2. The other ground is that the party had been released. But the release was under duress and fraud,and this ground seems to have been virtually abandoned. At all events we cannot say that the judge of the superior court erred in refusing to open for further discussion the judgment on that release by the lower court.

Judgment affirmed.