Kesler v. Groover

• Decision Date: 24 October 1938
• Docket Number: No. 27129.,27129.
• Citation: 199 S.E. 332,58 Ga.App. 548
• Parties: KESLER. v. GROOVER.
• Court: Georgia Court of Appeals

58 Ga.App. 548

199 S.E. 332

KESLER.

v.GROOVER.

No. 27129.

Court of Appeals of Georgia, Division No. 2.

Oct. 24, 1938.

Syllabus by the Court.

1. "The writ of certiorari does not lie from a decision of a justice of the peace, in a case pending in the justice's court, until after the final determination of the case in which the decision was made, even though the decision would, had it been rendered as •claimed by the plaintiff In certiorari, have been a final disposition of the case." Therefore, no final judgment having been rendered in the case in the justice's court in which the decision appealed from was made, the judge of the superior court properly overruled and dismiss the certiorari in the present case.

2. Furthermore, on consideration of the case on its merits, the judge did not err in overruling and dismissing the certiorari.

Error from Superior Court, Stephens County; B. P. Gaillard, Jr., Judge.

Garnishment proceeding by Claud Groover against Otis Kesler, to review a judgment overruling and dismissing certiorari. To review an order overruling a motion to dismiss the garnishment on the ground that the plaintiff had not given bond as required by law, the defendant brings error.

Affirmed.

Edwin G. Barham, of Toccoa, for plaintiff in error.

Ben F. Cheek, Jr., of Toccoa, for defendant in error.

SUTTON, Judge.

On March 7, 1938, Claud Groover instituted a garnishment proceeding against Otis Kesler in a justice court in Stephens County, the same being based on a judgment rendered in the same court on August 19, 1936, in favor of the former against the latter. Kesler made a motion to dismiss the garnishment on the ground that the plaintiff had not given bond as required by law. The bond was for $21.30, double the amount of the judgment and costs, and was signed by Claud Groover, principal, and Tom Simpson, surety, and was approved by the justice of the peace. The only evidence in support of the motion to dismiss was by the justice of the peace, that he did not know Tom Simpson personally, and did not know whether he owned any property in Stephens County. The motion to dismiss the garnishment was denied. The plaintiff then made a motion to have the garnishment bond strengthened, which motion was granted, and accordingly the bond was strengthened by the plaintiff and approved by the justice of the peace. To the order overruling the motion to dismiss, and while the garnishment case was still pending in the justice court, the defendant sued out a certiorari to the superior court, the only point therein being whether the justice of the peace erred in denying the motion to dismiss the garnishment. The judge of the superior court overruled and dismissed the certiorari, and the exception here is to that judgment.

1. "The writ of certiorari does not lie from a decision of a justice of the peace in a case pending in the justice's court until after the final determination of the case in which the decision was made, even though the decision would had it been rendered as claimed by the plaintiff in certiorari, have been a final disposition of the case." Singer Mfg. Co. v. McNeal Paint Co., 117 Ga. 1005(1), 44 S.E. 801; Everidge v. Berrys & Co., 93 Ga. 760, 20 S.E. 644; Sullivan v. Levy Bro. & Co., 26 Ga.App. 319, 106 S.E. 19; Reed v. Krieg-shaber & Son, 44 Ga.App. 64, 160 S.E. 560; Felker v. Freeman, 46 Ga.App. 767, 169 S. E. 247. The garnishment case was...