Stafford v. Wilson , 122 Ga. 32 ( 1905 )

Simmons, C. J.

1. Where a case is appealed to a jury in a justice’s court, the payment of the costs which accrued on the first trial is a matter between the magistrate and the appellant, and does not concern the opposite party. Where the magistrate refuses to dismiss the appeal because such costs have not been paid, this amounts to a waiver of his right to have the costs paid in advance, and the appellee has no right to complain of the refusal to dismiss the appeal. Gibson v. Cook, 116 Ga. 817.

2. Where in a suit in a justice’s court, upon an open account which was proved by the affidavit of the plaintiff, the defendant’s answer had not been verified by affidavit, the judge of the superior court properly held, upon certiorari, that it was error for the magistrate, over the objection of the plaintiff, to allow the defendant to introduce evidence in support of such unsworn plea. Civil Code. §4130.

3. Inasmuch, however, as such plea may be amended by swearing to it (Barnes v. Coker, 112 Ga. 137), it was error for the judge of the superior court, upon certiorari, to enter up final judgment for the plaintiff. The case should have been remanded for retrial in the justice’s court.

Judgment reversed.

All the Justices concur.