Smith v. Whitaker

Court of Appeals of Georgia

Smith v. Whitaker

148 S.E. 746, 40 Ga. App. 73, 1929 Ga. App. LEXIS 20

CourtCourt of Appeals of Georgia

DecidedJune 17, 1929

Docket19528

StatusPublished

This text of 148 S.E. 746 (Smith v. Whitaker) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Smith v. Whitaker, 148 S.E. 746, 40 Ga. App. 73, 1929 Ga. App. LEXIS 20 (Ga. Ct. App. 1929).

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Opinion

Bell, J.

1. “Even if it is necessary that a petition for certiorari should be signed by the petitioner or his counsel, it is sufficient if the petitioner sign the affidavit to the petition.” Neal v. Fox, 114 Ga. 164 (39 S. E. 860) ; McTyer v. Stearns, 142 Ga. 850 (1 a) (83 S. E. 955) ; Austin v. Ferst’s Sons Co., 2 Ga. App. 91 (58 S. E. 318).

2. Under the provisions of section 5375 of the Civil Code of 1910, the losing party in a possessory-warrant case may obtain a supersedeas for ten days by giving notice of “his intention to certiorari the decision of the court;” but where certiorari is applied for within the time otherwise prescribed by law the proceeding is not rendered moot and subject to dismissal merely because the petitioner failed to give such notice of his intention to certiorari the ease and did not obtain the certiorari until the opposite party had given bond for the property. Civil Code (1910), §§ 5378, 5188; Johnson v. Yoemans, 41 Ga. 368; Johns v. McBride, 28 Ga. App. 686 (2) (112 S. E. 831); Spooner v. Coachman, 18 Ga. App. 705 (90 S. E. 373).

3. This was a possessory-warrant proceeding to recover possession of a cow which the plaintiff had acquired in a trade with the defendant, but had left in his possession until called for, and which the defendant refused to surrender on demand. Assuming that the testimony of the plaintiff made a proper case for such a proceeding (Meredith v. Knott, 34 Ga. 222), the judgment in his favor was not demanded as a matter of law, in view of the defendant’s evidence as to fraud and rescission. Trotti v. Wyly, 77 Ga. 684.

4. Since the judgment of the magistrate in favor of the plaintiff was not absolutely demanded by the evidence, the judgment of the superior court sustaining the defendant’s certiorari and granting a first new trial must be affirmed, and this, without any adjudication as to the correctness of the ground upon which it was predicated. Shirley v. Swafford, 119 Ga. 43 (2) (45 S. E. 722) ; National Union Fire Ins. Co. v. Ozburn, 38 Ga. App. 276 (143 S. E. 623) ; Whitworth v. Carter, 39 Ga. App. 625 (3) (147 S. E. 904).

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.

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Bell, J.

1. “Even if it is necessary that a petition for certiorari should be signed by the petitioner or his counsel, it is sufficient if the petitioner sign the affidavit to the petition.” Neal v. Fox, 114 Ga. 164 (39 S. E. 860) ; McTyer v. Stearns, 142 Ga. 850 (1 a) (83 S. E. 955) ; Austin v. Ferst’s Sons Co., 2 Ga. App. 91 (58 S. E. 318).

2. Under the provisions of section 5375 of the Civil Code of 1910, the losing party in a possessory-warrant case may obtain a supersedeas for ten days by giving notice of “his intention to certiorari the decision of the court;” but where certiorari is applied for within the time otherwise prescribed by law the proceeding is not rendered moot and subject to dismissal merely because the petitioner failed to give such notice of his intention to certiorari the ease and did not obtain the certiorari until the opposite party had given bond for the property. Civil Code (1910), §§ 5378, 5188; Johnson v. Yoemans, 41 Ga. 368; Johns v. McBride, 28 Ga. App. 686 (2) (112 S. E. 831); Spooner v. Coachman, 18 Ga. App. 705 (90 S. E. 373).

3. This was a possessory-warrant proceeding to recover possession of a cow which the plaintiff had acquired in a trade with the defendant, but had left in his possession until called for, and which the defendant refused to surrender on demand. Assuming that the testimony of the plaintiff made a proper case for such a proceeding (Meredith v. Knott, 34 Ga. 222), the judgment in his favor was not demanded as a matter of law, in view of the defendant’s evidence as to fraud and rescission. Trotti v. Wyly, 77 Ga. 684.

4. Since the judgment of the magistrate in favor of the plaintiff was not absolutely demanded by the evidence, the judgment of the superior court sustaining the defendant’s certiorari and granting a first new trial must be affirmed, and this, without any adjudication as to the correctness of the ground upon which it was predicated. Shirley v. Swafford, 119 Ga. 43 (2) (45 S. E. 722) ; National Union Fire Ins. Co. v. Ozburn, 38 Ga. App. 276 (143 S. E. 623) ; Whitworth v. Carter, 39 Ga. App. 625 (3) (147 S. E. 904).

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.

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148 S.E. 746, 40 Ga. App. 73, 1929 Ga. App. LEXIS 20, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-whitaker-gactapp-1929.

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