Dexter v. Glover

• Decision Date: 28 February 1879
• Citation: 62 Ga. 312
• Parties: Dexter. v. Glover.
• Court: Georgia Supreme Court

62 Ga. 312

Dexter. v. Glover.

Supreme Court of the State of Georgia

(February Term, 1879.)

Certiorari. Jurisdiction. Liens. Laws. Before Judge Harris. Wayne Superior Court. September Term, 1878.

Glover foreclosed a laborer's lien against Colquitt; fi. fa, issued, and was levied on a sawmill. Dexter, who had bought the mill from Colquitt, filed a counter-affidavit, and issue was thus formed. The affidavit of foreclosure alleged that Colquitt, as owner of the mill, was "indebted to deponent in the sum of $50.00 for work and labor done by him for the said W. W. Colquitt at and about said steam saw-mill, in the capacity of inspector of lumber at said steam saw-mill, for the month of February, 1878, at the price of $50.00; but it did not affirmatively appear that the contract of hire had been completed. The counter-affidavit, among other things, set up want of jurisdiction in the justice who took the affidavit and issued execution thereon, to perform such acts.

The justice found for plaintiff. Dexter carried the case to the superior court by certiorari. Plaintiff moved to dismiss the certiorari because the amount involved, principal *and interest, was more than $50.00; the motion was overruled. The court then overruled the certiorari. Defendant excepted; plaintiff also joined in the bill of exceptions because of the refusal to dismiss the certiorari.

Goodyear & Harris, for plaintiff in error, cited, on jurisdiction, acts 1868, p. 135; acts 1873, pp. 12, 43; Code, secs. 5056, 5066. Contract must be completed, 60 Ga., 439.

Jno. D. Rumph, for defendant, cited as follows: On motion to dismiss, Code, sec. 4157; 53 Ga., 568; 58 Ib. 77; Code, sees. 2054, 2055, 1976; acts 1877, pp. 83-84. On jurisdiction of justice, Code, secs. 1974, 1975, 1984; acts 1877, pp. 83, 84.

JACKSON, Justice.

1. A legal question unmixed with any disputed fact necessary to its adjudication being made in the certiorari, the party was entitled to that remedy, though the debt, principal and interest, counted together exceeded fifty dollars. 58 Ga., 77; 46 Ga., 41; 51 Ga., 194.

2. The certiorari should have been sustained because there was no allegation that the laborer had completed his contract in the affidavit to foreclose. 60 Ga., 439; 61 Ib., 211; McDonald v. Knight, this term. 3. The justice of the peace, under the act of 1873, and the Code, sees. 1974-5-6, 1984, 1991, had the power to take the affidavit and issue execution in this case, it being the foreclosure of a laborer\'s lien. The...