Georgia Coast & Piedmont Railroad v. Herrington , 1914 Ga. App. LEXIS 368 ( 1914 )

Russell, C. J.

1. There is no allegation in the petition for certiorari that the admissibility of the copies of the documentary evidence was questioned in the justice’s court, nor is it alleged that any ruling was invoked upon the admission of this testimony; and for this reason the judge of the superior court was without jurisdiction to consider these objections, raised for the first time in the petition and upon review. Southern Railway Co. v. Davis, 99 Ga. 613 (25 S. E. 880).

2. A verdict which is entirely without any evidence to support it is contrary to law, but a verdict based on secondary evidence introduced without any objection may be valid, and the same is true where the verdict rests upon sufficient testimony possessing probative value, even though such testimony would not have been competent if a timely and appropriate objection had been made at the trial.

3. “A certiorari may be used to test the sufficiency of the evidence to warrant a verdict, but where appeal would lie it can not be used to test the sufficiency of the evidence to warrant a judgment by the magistrate.” Western & Atlantic R. Co. v. Pitts, 79 Ga. 533 (4 S. E. 922); Burroughs v. White, 69 Ga. 841; Western & Atlantic R. Co. v. Carson, 70 Ga. 388; Western & Atlantic R. Co. v. Dyer, 70 Ga. 723; Shirley v. Rounsaville, 78 Ga. 708 (3 S. E. 660). For this reason the judge of the superior court did not err in dismissing the petition for certiorari.

4. If the point as to the admissibility of the testimony of which complaint is made for the first time in the certiorari had been raised upon the trial in the justice’s court, the losing party could have elected to appeal to a jury or to pursue the remedy of a certiorari under the third rule stated in Toole v. Edmondson, 104 Ga. 783 (31 S. E. 25) ; or, as the admissibility of this evidence presented only a question of law, a certiorari could have been maintained under the fourth rule stated in that ease.' But the reviewing court could not undertake to' pass upon questions and objections which had not been raised in the trial court.

Judgment affirmed.

Roan, J., absent.