Maxwell v. Collier

41 S.E. 620, 115 Ga. 304, 1902 Ga. LEXIS 393

Opinion

Little, J.

1. On an affidavit containing proper averments, made by C. as the agent of F., to secure the issuance of a distress warrant, that process should be issued in favor of the principal F.; if it issue in favor of “ C. as the agent of F.,” it is one in favor of C. individually, because the words, “ as agent of F.,” are descriptio personas. The warrant so issued does not follow the affidavit ; and on the trial of an issue, raised by the interposition of a claim, to a levy of the warrant, it is error to overrule the motion of the claimant to dismiss the levy. Wynn v. Irvine, 109 Ga. 287, and cases cited ; Jones v. Newman, 110 Ga. 259.

2. On the bearing of a writ of certiorari sued out to review the action of a justice of the peace in overruling such motion, a final judgment should have been rendered in the case by the judge of the superior court. The error assigned was one in law, which must have finally governed the case in favor of the claimant; and as no question of fact was involved, it was error on the part of the judge to send the case back to-the justice’s court for a new hearing.

Judgment reversed.

All the Justices concurring, except Lewis, J., absent.