Everidge v. Berrys

• Decision Date: 25 June 1894
• Citation: 20 S.E. 644,93 Ga. 760
• Parties: EVERIDGE v. BERRYS et al.
• Court: Georgia Supreme Court

20 S.E. 644

93 Ga. 760

EVERIDGE v. BERRYS et al.

Supreme Court of Georgia

June 25, 1894

Syllabus by the Court.

The writ of certiorari does not lie from a decision of the county judge in a case pending in the county court until after the final determination of the case in which the decision was made, even though the decision involved the question of jurisdiction to entertain the case, and would, had it been rendered as claimed by the plaintiff in certiorari, have been a final disposition of the case.

Error from superior court, Bartow county; W. M. Henry, Judge.

Action on an account by Berrys & Co. against William Everidge in the county court. Defendant's motion to dismiss for want of jurisdiction was overruled, as was his demurrer, for the same reason. The assignment of the errors by certiorari was dismissed in the superior court, and defendant brings error. Affirmed.

J. B Conyers and A. S. Johnson, for plaintiff in error.

Akin & Harris, for defendant in error.

LUMPKIN J.

In addition to the brief report of the facts contained in the reporter's statement it is only necessary to add that the record does not show the case had been finally disposed of in the county court when the certiorari was sued out. In the argument here counsel did not so claim, but contended that the plaintiff in certiorari had the right to take the case up to the superior court before its final disposition in the county court, because, if the decision of which he complained (being one involving the jurisdiction of the court) had been otherwise, it would have been a final disposition of the case. In this view we do not concur. The rule contended for is applicable, under section 4250 of the Code, to the suing out of bills of exceptions from the superior court to this court; but, as we understand the law of certiorari, the writ does not lie from an inferior judicatory while the case is still pending therein. We think the words, "the decision or judgment in such cause," as used in section 4052 of the Code, refer to the final decision or judgment rendered in the case. Section 317a of the Code provides that "in civil cases the right of certiorari from the county court shall be as provided in section 287." The section last cited, while in terms it provides for the suing out of a certiorari to a judgment of the county judge in cases where the principal sum or damage claimed does not exceed $50 declares that in the petition for...