Georgia Ry. & Power Co. v. J.M. High Co.

• Decision Date: 23 September 1914
• Docket Number: 5393.
• Citation: 82 S.E. 932,15 Ga.App. 243
• Parties: GEORGIA RY. & POWER CO. v. J. M. HIGH CO.
• Court: Georgia Court of Appeals

82 S.E. 932

15 Ga.App. 243

GEORGIA RY. & POWER CO. v. J. M. HIGH CO.

No. 5393.

Court of Appeals of Georgia

September 23, 1914

Syllabus by the Court.

A petition for certiorari is a "case," within the ordinary signification of that term, and under Civ. Code 1910, § 4381, the case may be renewed within six months after dismissal.

The plaintiff in certiorari having taken an order requiring an answer to be filed, in accordance with the decision of this court in this case (High v. Georgia Ry. & Power Co., 12 Ga.App. 505, 77 S.E. 588), and the magistrate having thereupon filed an answer which the judge of the superior court held to be sufficient, and there being no exception to this holding, his ruling as to this matter became the law of the case.

The allegations of the petition for certiorari were sufficiently verified by an answer which referred to and adopted the answer of the magistrate to a former petition for certiorari between the same parties, complaining of the same rulings and containing statements practically identical with those of the pending petition, the superior court having granted an order allowing this irregular answer, and there being no exception to that order.

The question as to whether an employé is a laborer in such a sense as to exempt his daily, weekly, or monthly wages from the process of garnishment is determined by whether the major portion of the services to be rendered as a whole by him under the contract consist of the performance of physical labor, or whether his employment principally depends upon the exercise of mental faculties; and, in the application of this rule to a particular case, examination is to be directed to the time embraced in the duration of the contract as a whole and not to segregated portions of it, examined apart from each other after a separation. In ascertaining whether the duties performed by an employé are mainly mental in their character, or physical, a contractual period of employment embracing a month cannot be so divided that a minority of the days on which the particular duties were mainly mental can be separated from other days on which the duties to be performed were wholly physical, so as to adjudge that the wages earned on the days in which the employé was engaged in duties mainly mental were subject to the process of garnishment.

Under the ruling of this court in High v. Georgia Ry. & Power Co. supra, and in view of the order of the judge of the superior court, approving and accepting the irregular answer of the magistrate, the court erred in overruling the certiorari. The evidence demanded that the certiorari be sustained; and direction is given that the court pass an order sustaining the certiorari and entering a final judgment in favor of the garnishee.

Error from Superior Court, Fulton, County; Jno. T. Pendleton Judge.

Certiorari by the Georgia Railway & Power Company against the J. M. High Company. Judgment for defendant, and plaintiff brings error. Reversed, with direction.

The petition for certiorari was by the Georgia Railway & Power Company. According to the allegations of the petition, the J M. High Company obtained a judgment against one Ramey, and sued out process of garnishment, which was served upon the Georgia Railway & Power Company. Upon a traverse of the answer of the garnishee, only one witness testified. The only point at issue was whether the monthly wages of Ramey were exempt from garnishment, as was insisted by the garnishee. The justice of the peace held that a portion of the defendant's wages (sufficiently large to discharge the plaintiffs judgment) was subject to garnishment, and entered judgment against the garnishee for the amount of the judgment against the defendant. In the petition for certiorari exception is taken to the judgment against the garnishee, as being contrary to law and to the evidence. It appears, from the certiorari, that the same exception had been presented by the garnishee in a previous petition for certiorari, which, under a judgment of this court, was dismissed by the superior court because of the failure of the plaintiff in certiorari to take timely action in calling the court's attention to the magistrate's failure to answer at the first term. J. M. High Co. v. Georgia Railway & Power Co., 12 Ga.App. 505, 77 S.E. 588. The judgment of the Court of Appeals, upon remittitur, was made the judgment of the superior court on March 31, 1913, and on April 29, 1913, the present petition for certiorari, brought in renewal of the former petition, was sanctioned; and on the same day the writ of certiorari issued, returnable to the July term, 1913, of Fulton superior court. At the July term, the magistrate having failed to answer, an order was passed by Hon. W. D. Ellis, one of the judges of the Fulton superior court, extending the time within which the magistrate could file his answer, and allowing him until the September term, 1913, to file it, "subject to legal objection." At the September term, no answer having yet been filed, Hon. Geo. L. Bell, one of the judges of the Fulton superior court, on motion of counsel for the plaintiff in certiorari, issued a rule nisi, which was served on the magistrate, requiring him to show why he was not in contempt of court. On September 15, 1913, the magistrate filed an answer, stating that "the trial resulted in the disposition of the cause as alleged," and that he had previously answered a certiorari in the same cause, sanctioned on July 17, 1912, by Hon. John T. Pendleton, judge of the Fulton superior court, and that the answer to that certiorari was a true answer to the present certiorari, and he asked that his previous answer be allowed as his answer in this case. When the case was reached in its order at the September term, 1913 (September 19), Judge Bell passed an order allowing this answer, counsel for both parties being present and no objection being made. On November 6, 1913, a motion to dismiss the certiorari, made by counsel for J. M. High Company, was overruled by Judge Pendleton,...