Wadsworth v. Olive , 53 Ga. App. 539 ( 1936 )

Sutton, J.

This was a possessory-warrant proceeding instituted by Wadsworth against Olive and Dr. Tolliver. Wadsworth assigns error on the judgment sustaining Olive’s certiorari complaining of the judgment of the justice of the peace awarding to the plaintiff the possession of the property involved.

On certiorari in possessor-warrant cases the superior court in its discretion may remand the case and order a new trial or rehearing, or in some instances may make a final disposition of the case, unless the judgment of the magistrate is demanded under the evidence adduced on the hearing. Code, § 82-303; Marchman v. Todd, 15 Ga. 25; Cone v. Bodiford, 31 Ga. App. 573 (121 S. E. 523); Butler v. Lazenby, 8 Ga. App. 88 (68 S. E. 521).

The sole issue in a possessory-warrant case is, in whose lawfully acquired, quiet, and peaceable possession the property last was, and whether possession thereof has been obtained from such party in any of the several modes prohibited by the statute. Mann v. Waters, 30 Ga. 207; Cicero v. Scaife, 129 Ga. 333 (58 S. E. 850). In a possessory-warrant proceeding the plaintiff carries the burden of proof, and establishes a prima facie case by showing that he was in prior quiet and peaceable possession of the property, and that it was later found in possession of the defendant. Marchman v. Todd, supra; Copeland v. Lucas, 6 Ga. App. 6 (64 S. E. 113). The plaintiff's evidence on the hearing of this case before the justice of the peace tended to show that the property involved, a hound dog, belonged to the plaintiff and was in his possession, that the dog was stolen from the possession of the plaintiff while he was hunting, and that the dog, which was in the physical possession of the defendant veterinarian, Dr. Tolliver, had been turned over to him for treatment by the defendant Olive, and was the same dog that had been stolen from plaintiff. There was no evidence in defendant's behalf tending to r.ebut the plaintiff's evidence, or to show that the defendant had had the possession of the dog for four years. In these circumstances the finding of the magistrate awarding the dog to the plaintiff was demanded, and the judge of the superior court erred in granting a certiorari and in remanding the case.

There is no merit in the contention of Olive that he did not know of the pendency of these proceedings. The answer of the magistrate states that this defendant came to the other defendant, Dr. Tolliver, and was notified by him that the possessory warrant had been sued out, and that the dog could not be turned over to him until after the hearing thereof. In the absence of exception or traverse to the answer of the trial magistrate, properly and duly made, the allegations thereof are conclusive. Code, §§ 19-302, 19-403; Tyner v. Leake, 117 Ga. 990 (44 S. E. 812); 3 Cum. Dig. 492.

There is a motion to dismiss the writ of error, because Dr. Tolliver, one of the defendants in the possessory-warrant proceeding before the justice of the peace, was not made a party to the bill of exceptions to review the judgment sustaining the certiorari of the other defendant, Olive. This motion is without merit. One of the parties in the justice’s court against whom judgment was therein rendered not having joined in the certiorari to the superior court, from the judgment of which exception is now taken, his rights became fixed and determined by the judgment of the justice’s court, and he is but a silent spectator in the present appeal. He having no interest in the appeal, no reason appears why he should be made a party. No party can be a necessary party in the Court of Appeals unless he was a party to the case in the court whose judgment is subject to review. Chason v. Anderson, 119 Ga. 495 (46 S. E. 629). Dr. Tolliver was not a party to the certiorari proceeding before the superior court. Although a party may have been a party to -a case in a judicatory inferior to the superior court, if he was not a party in the proceeding on certiorari, he can not be a necessary party to a bill of exceptions in the Court of Appeals. Dillin v. United Roofing &c. Co., 34 Ga. App. 316 (129 S. E. 573). Therefore the motion to dismiss the writ of error for lack of a necessary party defendant in error is denied.

The motion to dismiss the writ of error because the dog, the subject-matter of the possessory-warrant proceeding, has died since the trial, and the question is now moot, is without merit, as the plaintiff in certiorari gave an eventual-condemnation bond, which stands in lieu of the property where judgment is rendered in favor of the defendant in certiorari.

Judgment reversed.

Jenkins, P. J., and Stephens, J., concur. Sutton, J., dissents from division J of the opinion.