Bowden v. Taylor , 81 Ga. 199 ( 1888 )

Simmons, Justice.

1. It will be seen, by reference to the report of this case, that four points were insisted on in the certiorari in the court below, for a reversal of the judgment of the magistrate. An execution had been issued and illegality filed by the plaintiffs in certiorari (the plaintiffs in error here), and a forthcoming bond for the amount of $300 given. The illegality, as claimed, having been dismissed, suit was brought in the justice’s court on the forthcoming bond. The first point made is, that the magistrate had no jurisdiction, because the bond was for $300 in amount. A motion was made to dismiss it on that ground. The magistrate overruled the motion, and the court below sustained the ruling of the magistrate. We think the court did right. While the suit was brought on the bond for $300, the amount sued for in the justice’s court was less than $100, and not for $300, the full amount of the bond. This being true, of course it was not over the jurisdiction of the justice’s court.

2. Pending the trial in the magistrate’s court, the bond and the original fi. fa., to which the illegality had been filed, were offered in evidence and objected to by the defendants on the ground of variance between the .■levy recited in the bond and the date thereof, and the levy as entered on th.efi.fa. and the date thereof. We do not think there is any merit in this objection. The property was levied on by the constable, and the defendants replevied it and took it into their possession by giving the bond sued on; and if there was a misdescription of the date of the levy and of the articles levied on in the bond, we do not think they ought to be allowed to take advantage of it, as it was their act and not the plaintiff’s. We therefore hold that the court committed no error in overruling these points.

3. The plaintiff in the justice’s court offered in eviclence an original order of the judge of the superior court to prove the fact that the illegality to this fi. fa. had been dismissed by the judge of the superior court. This was objected to by the defendant on the ground that if there was such an order, there should be a certified copy thereof taken from the minutes of the court, and not the original paper itself. We think this ground was well-taken, and that the court below should have remanded the case for a new trial on this ground. The only legal way to prove the proceedings in the superior court is by an extract from the minutes of that court, duly certified by the clerk thereof. While it is doubtless true that the order offered in evidence bore the genuine signature of the judge who granted it, yet it was not sufficient to show that it was passed during the .term of the count and made the judgment of the court. It may have been signed by the judge and yet may not have been the judgment of the court; and as said before, the only legal way to prove that it was a judgment of the court was an extract from the minutes of that court duly certified by the clerk. Code, §§3816 and 3817; Bigham vs. Coleman, 71 Ga. 176. There being, therefore, no legal proof that the affidavit of illegality had been disposed of in the superior court, the plaintiff’ was not entitled to recover in a suit on this bond. He could only recover when the affidavit had been disposed of in the superior court against the defendant, and the defendant had failed to produce the property at the time of the sale. So far as the legal proof in this case shows, the illegality may still be pending in the superior court. '

4. The next point in the certiorari was an objection to the evidence of the constable to the effect that the property levied on had been advertised, and that the fi, fa. had never been paid by the defendants. We think this evidence was admissible. It was incumbent on the plaintiff to show to the court, before he was entitled to recover on his bond, that there had been a breach of the bond. In order to show that, it was necessary to prove that the property described in the bond had been advertised for sale, and had not been produced in accordance with the forthcoming bond. The evidence of the attorney •in the case ivas irrelevant, but did no harm to the defendants. There was no error, therefore, in admitting this testimony.

5., The 4th ground insisted on in the certiorari was, that the judgment was not for the proper amount, and was not rendered at the proper place. The plaintiff' in error insists that the judgment for the interest and costs was for too much. As the case is to go back for a new trial, we deem it unnecessary to enter into a close calculation as to the amount of interest and costs. If the amount is too large, we presume the magistrate will correct it at the next trial. As to the attorneys’ fees, we see no evidence in the record of this case to authorize a judgment for the attorneys’ fees.

6. As to the judgment being rendered at the wrong place, we say that we think that the better and proper practice is for the justice not only to render but to write out his judgment at.the court-ground before he adjourns his court.

Judgment reversed.