Love v. Bush

94 S.E. 626, 21 Ga. App. 436, 1917 Ga. App. LEXIS 625

• Court: Court of Appeals of Georgia
• Decided: December 14, 1917
• Docket: 8613
• Status: Published

Opinion

Wade, C. J.

1. No exception to the answer of the magistrate having been filed in writing-before the case was called in its order (Civil Code, § 5196; Ford v. Toomer, 116 Ga. 795 (43 S. E. 45), upon oral objection that the answer was not verified the court did- not err in ordering it to be returned to the magistrate, who made it after he had retired from office, tó be verified by his affidavit and again returned to the court. Civil Code, § 5197.

(a) This ruling is not in conflict with Pitts v. Simpson Grocery Co., 15 Ga. App. 617 (2) (83 S. E. 1102), as by the verification of the answer no additional statement of fact was incorporated in it, as to which the defendant in fi. fa. was deprived' of an opportunity to except, because of the statutory requirement that exceptions to an answer must be filed before the call of the case.

2. The filing of an answer to the petition for certiorari by the former magistrate raised the presumption that service of the petition had been duly effected, and dispensed with the necessity for legal proof of such service. All that could have been accomplished by formal service was in fact attained when the answer of the proper party was duly filed.

3. It is conceded in the brief of counsel for the plaintiff in error that if the trial judge was authorized to order the verification of the answer and pass upon the certiorari, the grant of a new trial is not subject to review.

Judgment affirmed.

Jenkins and Luke, JJ., concur.