Son v. Shearer

• Decision Date: 31 July 1871
• Citation: 44 Ga. 16
• Parties: L. J. GLENN AND SON, plaintiffs in error v. WILLIAM SHEARER,defendant in error
• Court: Georgia Supreme Court

44 Ga. 16

L. J. GLENN AND SON, plaintiffs in error v. WILLIAM SHEARER, defendant in error

Supreme Court of the State of Georgia

(Atlanta, July Term, 1871.)

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Certiorari. Practice in Supreme Court. Before Judge Hopkins. Fulton Superior Court. October Term, 1870.

At October Term, 1867, of the Justices Court of the 1026 District, Georgia Militia, L. J. Glenn & Son obtained a judgment against Charles Shearer. In February, 1869, they garnisheed Wm. Shearer on said judgment. He answered that he owed Charles Shearer nothing, etc., and his answer was traversed. This issue came on for trial before B. D. Smith, Notary Public and ex officio Justice of the Peace for the same district, who had issued the garnishment. He dismissed it upon the ground that he had no jurisdiction over it, inasmuch as the judgment was not obtained before him. L. J. Glenn & Son sued out a certiorari, but gave no notice of its sanction to the other party. "After argument had, the court dismissed the certiorari and gave judgment for defendant for costs of suit; to which action, decision and judgment of the Court plaintiff excepts and assigns the same as error."

The bill of exceptions specified no error except as aforesaid. When it was called here a motion was made to disniss it because it did not sufficiently specify the error complained of. The motion was overruled.

Sidney Dell, for plaintiffs in error. The Justice's Court and the Notary Public's Court is the same Court: Constitution of 1868, Article V., 51, section 6; Article XI, section 8.

If not so jurisdiction is concurrent: Constitution 1868, Article XL, section 8

Henry Jackson & Brother, for defendant.

*WARNER, Judge.

This was a certiorari from a Justice's Court, and on the hearing thereof in the Superior Court the certiorari was dismissed, but on what special ground the Court dismissed it does not appear. On looking into the record it appears that the certiorari was sanctioned by the presiding Judge on the 5th day of March, 1869. There is no evidence in the record of any written notice having been given of the sanction of the writ of certiorari as required by the 3987th section of the Code, and therefore the certiorari was properly dismissed by the Court below on that ground. In Turner v. Collins, 8th Georgia Reports, 252, this Court held, that it was the uniform determination of the Court not to look out of the papers to inquire into any fact, but whatever fact there appears will be taken to be true, and if it does not appear in...