White v. Homecraft Spread Co. , 64 Ga. App. 715 ( 1941 )

The overruling of the certiorari was not error.

DECIDED FEBRUARY 12, 1941. REHEARING DENIED APRIL 2, 1941. Homecraft Spread Company, through its president, A. R. McDaniel Jr., on March 17, 1940, made an affidavit before a justice of the peace that, "J. W. White is indebted to Homecraft Spread Company in the sum of one hundred dollars, and that the said J. W. White absconds." The company made bond and obtained an attachment which was levied on certain personal property as the property of White. Thereafter, the company at the next term of the said justice's court filed a copy of its open account against White, together with the invoices for the goods alleged to have been sold to him; and on the trial the president and manager of the company, and its treasurer, testified that the amount sued for was correct, due, and unpaid, and that for a year or longer they had been unable to locate White and that he had absconded. White demurred to the affidavit and attachment, and the demurrer was overruled. He then filed the following sworn plea: "Defendant says that more than four years have elapsed since the amount alleged to be due plaintiff by defendant became due and payable; that the said indebtedness is upon an open account and that the same has been due and payable for more than four years; that the defendant has been a resident of Bibb County, Georgia, for more than ten years, and was a resident of said Bibb County, Georgia, up to and until January 12, 1940, and for this reason the said account is barred by the statute of limitations." The justice, sitting without a jury, rendered a judgment in favor of the plaintiff company. Thereafter, White's certiorari, upon a hearing thereof, was overruled by the judge of the superior court, and that judgment is assigned as error.

Under the simple and non-technical rules of pleading permissible in a justice's court, the affidavit and attachment were not subject to the demurrer interposed. See Smith v. Wilson, 58 Ga. 322 (2). The evidence contained in the petition for certiorari, together with the additional evidence set forth in the answer of the trial magistrate, disclosed an issue of fact, to wit, whether the defendant in the attachment proceedings had committed the act of absconding. This was a very material issue; for if he had absconded, the statute of limitations (Code, § 3-706), which he pleaded as his sole defense to the suit against him, would have been arrested so long as he remained concealed. Tift v. Bankof Tifton, 60 Ga. App. 563, 564 (4 S.E.2d 495). And the following ruling is well established: "Where, in the trial of a case pending in a justice's court, issues of fact are involved, certiorari will not lie to review the judgment rendered by the magistrate, but there must be an appeal either to a jury in that court or to the superior court. Benton v. Hynes, 100 Ga. 95 (26 S.E. 469);Toole v. Edmondson, 104 Ga. 776, 780 (31 S.E. 25). In this case there were disputed questions of fact, and there having been no appeal, the judge of the superior court did not err in overruling the petition for certiorari." Ocilla Oil c. Co. v. Durant,17 Ga. App. 547 (2, 3) (87 S.E. 814). It follows that in the instant case the overruling of the certiorari was not error.

Judgment affirmed. MacIntyre and Gardner, JJ., concur.

ON MOTION FOR REHEARING.