Loudermilk v. Stephens

• Decision Date: 14 November 1906
• Citation: 126 Ga. 782,55 S.E. 956
• Parties: LOUDERMILK et al. v. STEPHENS.
• Court: Georgia Supreme Court

55 S.E. 956

126 Ga. 782

LOUDERMILK et al.

v.STEPHENS.

Supreme Court of Georgia.

Nov. 14, 1906.

1. Appeal — Presumptions —Certiorari—Issue or Writ.

When, in the transcript of a record duly certified and transmitted to this court, there appear copies of the usual certiorari bond and certificate as to the payment of costs, but with no entry of filing thereon, each bearing a given date, and there also appears a copy of a writ of certiorari in the usual form, bearing a date subsequent to that of the papers first referred to, there will be a presumption that the clerk has performed his duty in accordance with the law, and that the writ was not issued until after the papers first referred to had been filed, and that such papers were filed in due time.

2. Same—Grant op New Trial.

The second grant of a new trial, in a case on certiorari from a justice's court, will not be reversed, when the evidence in support of the verdict is weak and unsatisfactory, and the overwhelming preponderance of the evidence is against the verdict, and it is manifest that the interests of justice require another hearing.

[Ed. Note.—For cases in point, see Ceut. Dig. vols. 9, Certiorari, § 206.]

(Syllabus by the Court.)

Error from Superior Court, Habersham County; J. J. Kimsey, Judge.

Action by T. A. Loudermilk and others against R. D. Stephens. Judgment for plaintiffs before a justice, and defendant brought certiorari. From an order refusing to dismiss the writ and granting a new trial, plaintiffs bring error. Affirmed.

J. C. Edwards, for plaintiffs in error.

J. B. Jones and Robt. McMillan, for defendant in error.

COBB, P. J. The case was tried in a justice's court before a jury on July 25, 1903, and resulted in a verdict for the plaintiffs. The defendant applied for a writ of certiorari on August 21, 1903. The petition was sanctioned by the judge on August 29, 1903. The petition was filed in the office of the clerk of the superior court on September 16, 1903. There appear in the record immediately following the affidavit to the petition, and preceding the entry of filing by the clerk, a certiorari bond and a certificate as to the payment of costs; each dated October 13, 1903. The writ of certiorari was issued February 17, 1904. A motion was made to dismiss the certiorari upon the ground that it did not appear that either the certiorari bond or the certificate as to the payment of costs had been filed in the clerk's office. The date of each being subsequent to the date of filing entered upon the petition, it is apparent that they could not have been filed with the petition, if...