Smith v. Joiner , 27 Ga. 65 ( 1859 )

By the Court.

McDonald, J.

delivering the opinion.

[1.] It is objected that' a certiorari will not lie in this case. The Inferior Court is a judicatory inferior to the Superior Court. The Constitution of 1798 confers express power on the Superior Courts to correct errors in inferior judicatories, by writ of certiorari. The doctrines of the common law, in regard to writs of certiorari, have nothing to do with, or control over, proceedings on th§ writ, under the Constitution. The Constitution is so explicit, though very short, as not to require the aid of legislation to give it effect. The writ of certiorari is a process which carries the whole cause, and the proceedings under it, to the higher Court; and that Court can have no higher commission than the Constitution, to examine the record and correct the errors therein, if any.

This Court has decided that there are cases which are not embraced in the-section of the Judiciary Act of 1799,which relates to certioraris. That Act was, no doubt, designed to carry into effect the provision of the Constitution in regard to the correction of errors in inferior judicatories, but it cannot abridge the constitutional rights of litigant parties. I have no doubt that the framers of the Judiciary Act intended that a party, to entitle himself to a writ of certiorari, should make his exceptions to the proceedings in writing, while the case is in progress, and sign them, or have his counsel to sign them. If the Court overrule them, he would then be entitled to a writ of certiorari, provided the Judge of the Superior Court should deem them sufficient; and such I believe'to be the construction of the Act. Bui it is not necessary to consider that subject further.

[2.] When the cause was taken up in the Superior Court, it appeared that the exceptions taken to the decision of the Inferior Court had been interlined and materially changed since they were signed and certified by the Justices, and plaintiff in error offered to make proof thereof. The Court refused to admit the proof. This was a grave charge, and if true, avoided the proceedings, and the Couit ought to have heard the evidence. The alterations, if material, may have changed the rights of the parties. This Court cannot lay down a rule, or sustain one, if laid down in the Court below, which would preclude it from enquiring into the state of its records, and protecting them from corruption by interested parties. The judgment of the Court below mustbe reversed, on theground that said Court refused to hear the evidence, with instructions to hear the proof, and after hearing it, to reconsider the case.

[3.] The Court below, after considering the writ of certiorari. and the return made thereto, reversed the decision of the Inferior Court dismissing the attachment, and exception was made thereto. It is not necessary that the bond for an attachment should be given in the presence of, or be approved by, the magistrate who issues the attachment. Sec. 5 of Attachment Act of 1856, pamph, 26. If defective, it may be amended. Sec. 53, same Act.

Judgment reversed.