Weathersby v. Jordan

52 S.E. 83, 124 Ga. 68, 1905 Ga. LEXIS 646

• Court: Supreme Court of Georgia
• Decided: November 8, 1905
• Status: Published

Opinion

Candler, J.

1. A judge of the superior court, in passing on a certiorari, where questions of fact are involved and the evidence is conflicting, has a discretion to sustain the certiorari, similar to the discretion allowed him in granting a first new trial; and that discretion will not he eon-trolled, unless it lias been manifestly abused. Savannah Ry. v. Fennell, 100 Ga. 474; Buice v. Buice, 111 Ga. 887; Ferry v. Mattox, 118 Ga. 146.

Submitted November 6, Decided November 8, 1905.

Certiorari. Before Judge Lewis. Jasper superior court. September 26, 1905.

Doyle Campbell and Greene F. Johnson, for plaintiff in error,

•cited, on habeas corpus: Ga. B. 59/555; 68/650; 76/491; 1 Ga. Dec. 93. On certiorari: Civil Code, §4652; Ga. B. 60/100; ■68/652; 107/784; 116/705.

Fleming Jordan & Son, contra,

cited Ga. B. 76/484; 116/108.

2. In passing upon the questions raised by the petition and answer in a liabeas-eorpus ease for the possession of minor children, the discretion given by the law is to the trial judge, who sees and hears the parties, the •witnesses, and the children, and who necessarily has superior opportunities for determining correctly the issues involved, chief of which is the material interest of the children. Smith v. Bragg, 68 Ga. 650.

3. While, in accordance with the ruling announced in the first headnote, the discretion of the judge of the superior court in reversing the ordinary’s finding on the facts presented by the petition for certiorari will not be controlled, it was error for him to render final judgment, and for this reason the ease must go back for another hearing.

Judgment reversed.

All the Justices concur.