Humphries v. Blalock , 100 Ga. 404 ( 1897 )

Little, Justice.

It will be seen from an inspection of the record in this • case, that the only question to be considered is, whether or not an appeal entered by a plaintiff to a jury in a justice’s • court from a judgment of dismissal of the case by the justice as against two of three defendants can be maintained as •against the two defendants as to whom the case was dismissed. The two defendants making this question demurred .in the justice’s court, when the case came on to be heard before the magistrate, on the ground that the note sued on was, as against them, barred by the statute of limitations. 'The magistrate took this view of the case, sustained the demurrer and dismissed the case as to these two defendants. Plaintiff then entered an appeal to a jury in the magistrate’s court. When this appeal came on to be tried, these two defendants moved to dismiss the appeal, because the case, as to •them, never having been tried by the justice, had improperly gone to the appeal; that after said cause was dismissed, there was no case in court as against them, and consequently no judgment of the justice from which an appeal to a jury would lie. The motion to dismiss the appeal was overruled by the magistrate; and the jury having rendered a verdict for the plaintiff, the case was brought to the superior court by certiorari, and by the latter court the certiorari was overruled and the verdict of the jury in the justice’s court , affirmed.

Appeals are allowed in justice’s courts from judgments of the justices, and from such judgments appeals may be •taken to a jury in such courts. Civil Code, §4140. There nan be an appeal in no other way, unless by consent as provided by the statute. These judgments from which an appeal may be taken are such as in fee -rendition -of which, issues', of fact are involved. W. & A. R. Co. v. Dyar, 70 Ga. 723; Shirley v. Rounsaville, 78 Ga. 708; Samuels v. Briscoe, 94 Ga. 425. Otherwise, there is no issue for the jury to try. In Small v. Sparks, 69 Ga. 745, this court held that the right of appeal presupposes an issue to be tried by the jury; that if the case involved questions of fact, appeal was the proper remedy, but that if it rested solely on questions of law, certiorari was the remedy; and it was held in that case that where the judge of the county court dismissed the case on demurrer, there was no question of fact involved and certiorari was the proper remedy, and consequently an -appeal which was taken to the superior court on that state of facts was properly dismissed. In the case of Rogers v. Bennett, 78 Ga. 707, where a case was dismissed by the magistrate, it was held that certiorari, and not appeal, was the proper method of reviewing -the judgment of the justice in dismissing the case; and this ruling was placed on the ground, that -after such dismissal there was no case in court from which the appeal could be taken. In the case of Maddox v. Witte, 100 Ga. 316, where the justice dismissed a claim which had been interposed, for irregularity as to the time of filing the same, this court held that appeal was not fee remedy for -fee claimant, but feat certiorari to-the superior court to review the judgment, of the justice-in dismissing such claim was the proper remedy.

The cases cited govern the question made here; and inasmuch as the plaintiffs in error by a motion at the proper time appeared in the justice’s court and moved to dismiss-fee appeal which had been entered in the case, the court' below should haim sustained the certiorari afterwards sued! out; and the judgment is therefore

Reversed.

All the Justices concurring..