Toole v. Edmondson

• Decision Date: 19 July 1898
• Citation: 31 S.E. 25,104 Ga. 776
• Parties: TOOLE v. EDMONDSON et al.
• Court: Georgia Supreme Court

31 S.E. 25

104 Ga. 776

TOOLE v. EDMONDSON et al.

Supreme Court of Georgia

July 19, 1898

Syllabus by the Court.

This being a case tried in a justice's court, and there being no contested issue of fact,--the determination of the case depending entirely upon the question whether or not conceding as true all of the evidence introduced by the claimant, his wages were exempt from the process of garnishment,--a judgment rendered by the justice in the case was reviewable by certiorari, and it was error to dismiss a certiorari sued out by the losing party.

Error from superior court, Fulton county; J. H. Lumpkin, Judge.

Action by Edmondson & Seay Bros., against J. E. Toole. The Atlanta Consolidated Street-Railway Company was garnished. From a judgment against the garnishee, Toole brings error. Reversed.

Maddox & Terrell, for plaintiff in error.

O. E. & M. C. Horton and E. T. Moon, for defendants in error.

COBB J.

A claim to a fund sought to be reached by the process of garnishment was tried in a justice's court; it being set up that the sum of $34.60 held up by the garnishment was exempt because earned by the defendant as a laborer in the capacity of a conductor for the garnishee, a Street-Railway company. On the trial the sole witness introduced was the conductor, who testified as follows: "I am the claimant. I work for the Atlanta Consolidated Street-Railway Company. I am a conductor. A conductor, before he becomes such, goes through a course of training in the shops of the company in order to understand the working of the machinery and motive power of the cars, so as that he may be able to assist in repairing cars in case of an accident. This I did. Among my duties required by the rules of the company are the following: To assist passengers on and off the cars; put on and off brakes on the rear of the car; to change the trolley at the end of each run; turn the seats on open cars; and hold the trolley around curves. To do these last-named things requires a man of some weight and strength, and it is really very hard work. I collect the fares, and give the signal to start and to stop. However, it is as much the duty of the motorman to see that the schedule is made as it is mine; and, if we fail to make the schedule, we would both be suspended. The character of the work which I do is very laborious,--so much so that the insides of my hands are rougher and harder than they were when I worked on a farm, years ago. The work which I do is very tiresome. I work about twelve to fifteen hours per day. If the car should run off the track, it is my duty to assist in putting it back, as any laborer would. It is my duty to repair or assist in repairing the car when an accident happens, if the injury is of such a character that I can do so. I am paid monthly at the rate of 12 cents per hour for my work." Upon this state of facts the magistrate rendered a judgment dismissing the claim and finding the fund subject and the claimant took the case to the superior court by certiorari, assigning error upon this judgment. The judge of that court dismissed the petition for certiorari on the ground that the case involved questions of fact, and should have been appealed to a jury in the justice's court. The plaintiff in certiorari excepted.

The question whether or not the claimant is a laborer, within the meaning of section 4732 of the Civil Code, is not before us; the sole question which we are called upon to decide being whether, under the facts of this case, certiorari would lie to review the judgment of the magistrate holding the fund subject to the process of garnishment. It is thoroughly well settled that, where only a question of law is involved in the judgment of the magistrate, certiorari is a proper mode of having his decision reviewed by the superior court, and, where there is a dispute as to the facts, the remedy is by appeal to a jury in the justice's court, or direct to the superior court, as the case may be. Some slight confusion has arisen in the application of this doctrine, and some of the decisions of this court are not entirely in harmony. As will have been observed, the exact question to be determined in the present case is whether, where all the facts are conceded, either in an agreed statement, or by a failure of one party to contest the truth of the evidence of the other, and the justice is left to determine the law of the case on the facts thus conceded, certiorari or appeal is the remedy of the losing party. We can readily conceive of cases tried on an agreed statement of facts, or on the testimony of a single witness, where disputed questions of fact might be involved. In all cases where issues of fact are raised, whether by contradictory testimony of different witnesses, or by inconsistent testimony of a single witness, and the amount involved is less than $50, the losing party must appeal to a jury in the justice's court, if he desires to test the correctness of the judgment of the magistrate. If, however, the amount involved be more than $50, then the right of appeal to the superior court exists in all cases, without regard to whether questions of law or of fact, or both, are to be determined. As stated above, the decisions of this court are conflicting as to the application of the general rule as to when certiorari and when appeal is proper. It is our purpose to consider all of those decisions, and endeavor to formulate some rules that will be applicable to all cases. Such of those cases as are not inconsistent with the ruling announced in this case will be but briefly referred to, while those that seem to be in conflict will be treated more at length.

In Witkowski v. Skalowski, 46 Ga. 41, the general rule is stated. In Wright v. Rutledge, 51 Ga. 194, it was held that, where the amount claimed in the justice's court did not exceed $50, certiorari was the proper remedy. In Wynn v. Knight, 53 Ga. 568, there were issues of fact, and appeal was held to be the remedy. So, also, in McDonald v. Dickens, 58 Ga. 77. In the case of Dexter v. Glover, 62 Ga. 312, the ruling was that in a case where the suit was for an amount exceeding $50, but only

questions of law were involved, certiorari could be resorted to. In Small v. Sparks, 69 Ga. 745, exception to the judgment of the county court sustaining a demurrer was held to be properly taken by certiorari. This was, of course, purely a question of law. In Boroughs v. White, 69 Ga. 841, the case was tried in the justice's court on an agreed statement of facts. From the decision of the magistrate, certiorari was sued out to the superior court, where it was dismissed on the ground that appeal was the proper remedy. While it does not appear in the statement of the case, Chief Justice Jackson says in his opinion that the parties did not rest on the statement of facts, but introduced evidence "aliunde that agreement." The opinion of the chief justice rather seems to indicate that, but for this fact, certiorari would have been proper. In Railroad Co. v. Dyar, 70 Ga. 723, a ruling was invoked on a petition for certiorari upon the sufficiency of the evidence introduced in the primary court, and the court held that this could only be done by an appeal to a jury in the justice's court, where the amount in litigation was less than $50. We see no conflict between the case of Cruse v. Express Co., 72 Ga. 184, and the cases previously referred to. In that case the answer of the garnishee was not traversed, and the facts on which the case was tried were conceded. The issue raised was purely one of law, and so the court held that certiorari was proper.

The case of Miller v. Dugas, 77 Ga. 386, involved the question whether or not the wages of a conductor on passenger and freight trains were exempt from process of garnishment. But one witness (the conductor) testified. The justice held the fund subject. The case was taken to the superior court by certiorari, and there a motion was made to dismiss the petition because the case was not one for certiorari, but for appeal. This motion was refused. This court reversed the judgment of the court below in sustaining the certiorari, on the ground that the justice properly held the fund subject to the payment of the debt, but no ruling was made on the motion in the superior court to dismiss the certiorari. In Shirley v. Rounsaville, 78 Ga. 708, 3 S.E. 660 there was a contest as to the facts, and appeal was properly held to be the remedy. In the case of Railroad Co. v. Pitts, 79 Ga. 532, 4 S.E. 921, it was held that certiorari was the remedy because no question as to the facts was made; it being urged simply that the verdict was contrary to law for several named reasons. The questions involved were all purely legal questions. True, in the opinion of the court this language is used: "Had it been desired to re-examine the facts in the light of the evidence, this should have been done, not by certiorari, but by appeal." But this can only mean that where there are disputed questions of fact they could only be re-examined by appeal. Where the facts are not contested, no necessity will arise for a review of the evidence. But even if the language quoted is susceptible of a construction which means that appeal must be had in all cases where facts are involved, whether they be contested or not, it is obiter, as no such question was made in that case. In Bostick v. Palmer, 79 Ga. 680, 4 S.E. 319, the court expressly adjudicated that the question involved was one of law, and hence that certiorari alone would lie in that case. The case of Wynne v. Darden, 80 Ga. 730, 6 S.E. 470, states the general rule, and is not in conflict with anything ruled in the present case. In the case of Thompson v. Dodd, 84 Ga. 264, 10 S.E. 739, issues of fact were raised on the trial; and it...