Holloman v. Southland Loan & Investment Co. , 37 Ga. App. 10 ( 1927 )

Jenkins, P. J.

1. Under'tlxe ruling of this court in Crider v. Hughes, 36 Ga. App. 82 (135 S. E. 491), based upon the decision of the Supreme Court in Orr v. Southern Acceptance Co., 162 Ga. 400 (134 S. E. 80), an original judgment by one of the judges of the municipal court of Atlanta can not be reviewed by certiorari, hut an appeal from such a judgment must be taken under the provisions of the act approved July 31, 1925 (Ga. L. 1925, pp. 370, 386, § 2). Accordingly, the second count of the petition for certiorari in the instant case, to review the original judgment of the trial judge in the municipal court, was properly overruled.

2. Assuming, but not deciding, that an order of the trial judge of the municipal court of Atlanta, dismissing an appeal to the appellate division of that court, is not such a verdict, judgment, order, or ruling of the trial judge as that the writ of certiorari will not lie thereto unless such judgment is reviewed by the appellate division of the municipal court (Ga. L. 1925, pp. 370, 386, § 2; Orr v. Southern Acceptance Co., supra; Crider v. Hughes, supra), yet where it appears that the order of the trial judge was based upon the failure of the appellant to comply with a rule of the court, and the rule is not set out in the petition for certiorari, or otherwise made a part of the record, it will be presumed that the court was within the rule in dismissing the appeal, and that the rule was in conformity with and not inconsistent with the terms of the act. Beacham v. Kea, 118 Ga. 406 (45 S. E. 398). Moreover, in any event, since it appears from the petition for certiorari that the trial judge refused to approve the brief of evidence as tendered, and since under the facts of the particular case the appeal to the appellate division without an approved brief of the evidence would have been of no effect, the petitioner appears not to have been harmed by the dismissal, even if it was erroneous. It follows, therefore, that this court will not reverse the judgment of the superior court overruling the first count of the petition for certiorari, which seeks to review the alleged error of the trial judge in the municipal court in dismissing the appeal to the appellate division of that court.

Judgment affirmed.

Stephens and Bell, JJ., concur.