Marble v. Laney

41 Ga. 624

• Court: Supreme Court of Georgia
• Decided: January 15, 1871
• Status: Published

Opinion

McCAY, J.

This record shows a most flagrant abuse of his power by the magistrate. He not only had no jurisdiction of the case ■originally, it being clearly a claim for more than one hundred dollars, but after he had dismissed the attachment, There was nothing to give judgment upon. That was the foundation of the whole oroceeding. It was said in argument, that the Judge of the Chattahoochee Circuit will sanction no certiorari from a Justice’s Court without an affidavit that the debt is not due, if the judgment is for the plaintiff-—or that it is due, if for the defendant. We agree that the judgment of a magistrate is not to be scanned with the eye of a legal critic, but when his action is clearly illegal upon a vital point, certiorari lies to reverse it. There is a limit even to the charity with which a higher tribunal must deal with the proceedings of a Justice of the Peace.

In this case we think that limit is reached, and the Judge ought to have sanctioned the petition and ordered the writ to issue. This writ is provided bv the Constitution- The Judge of the Superior Court is charged with the dutv of correcting errors in inferior tribunals. If it appears affirmatively that the error is only pro forma and that no wrong has been done, it may be that a wise discretion will refuse to interfere. But that, as we think, must affirmatively appear. At any rate, on a question of jurisdiction, it seems to us, that the duty to review, if the usurpation in fact exists, is imperative.

Judgment reversed.