Hudgins v. Lampkin ( 1903 )

Turner, J.

W. W. Lampkin sued out an attachment, returnable before a justice of peace, against Will Hudgins, based on an affidavit in which he deposed that Hudgins was indebted to him in the sum of $37.50, and that said Hudgins was “removing or about to remove himself and his property beyond the limits of Bibb county, Georgia.” A traverse to the ground of the attachment having been filed by the defendant, he, before pleading to the merits, moved to strike from the plaintiff’s affidavit for attachment the words, “himself and his property,” so said affidavit should read: “ Will Hudgins is removing or about to remove beyond the limits of Bibb county, Georgia.” For some reason not apparent to us, thfe plaintiff resisted the motion to strike, and it was overruled by- the court. It seems that the case on the traverse was, by consent, appealed to a jury in the justice court, and that the jury found against the traverse and rendered a verdict for the sum claimed by the plaintiff, with interest. The defendant sued out a certiorari to the superior court, which was sanctioned by the judge of that court, and the magistrate before whom the case was tried filed his answer to the writ. At the hearing of the certiorari and answer of the magistrate, the court overruled the certiorari, and the defendant in the court below excepted to the judgment of the court overruling the certiorari.

After a careful review of the evidence submitted before the jury on the trial in the justice court, we are satisfied that not even a prima facie case was made for the attachment. We therefore sustain'the exception of the plaintiff in error to'the effect that the verdict was without evidence to support it, and order a new trial of said traverse in the justice court. As the exceptions based on rulings of the magistrate as to the admission and exclusion.of evidence may not arise on the next trial, they are not passed on by this court. If the plaintiff in error desired to object in any way to the ground of the attachment, he should have done so by demurrer. Judgment reversed.

All the Justices concur.