Peeples v. Tygart

65 S.E. 167, 6 Ga. App. 409, 1909 Ga. App. LEXIS 320

• Court: Court of Appeals of Georgia
• Decided: July 6, 1909
• Docket: 1698
• Status: Published

Opinion

Hill, C. J.

1. The answer of the magistrate to the writ of certiorari was as follows: “After reading over the evidence and the rulings as set forth in the within petition for certiorari, answer that, to the best of my recollection, the evidence and rulings of the court as set forth in said petition are correct.” Held: (a) This was a substantial verification of all the statements of fact set out in the petition for certiorari. (6) If the defendant in certiorari was dissatisfied with the answer of the magistrate, he should have filed exceptions thereto as provided by the Civil Code, §4647; Davis v. Rhodes, 112 Ga. 107 (37 S. E. 169); Harris v. Daly, 121 Ga. 511 (49 S. E. 609).

2. If the magistrate whose judgment is to- be reviewed on certiorari fails to certify and send up to the superior court all the proceedings in the cause, the proper procedure, where the questions made in the petition for certiorari can not be determined without such proceedings, is to ask for an order from the superior court, directing the magistrate to certify and send up such proceedings before the cause is reached for a hearing. If the questions made in the petition for certiorari and verified1 by the answer can be determined without the proceedings in the court below, the failure to certify and send up such proceedings will not be ground for dismissing the certiorari. Judgment reversed.

Certiorari, from Berrien superior court — Judge Mitchell. January 15, 1909.

Submitted. March 11, Decided July 6, 1909. Hendricks & Christian, for plaintiff in error. Alexander & Gary, contra.