Roach v. Sulter

1. The constitution gives a writ of error to this court from the decisions of the city court, and there is, also, by the constitution, a certiorari allowed to issue by the judge of the superior court to correct the errors of all inferior judicatures. On the writ of error filed to this court the plaintiff’s case was dismissed. Until that dismissal was had the case was not finally disposed of by the city court. Its judgment was suspended, superseded by the writ of error. Under the decision of this court, in 22 Georgia, 359, the party had his three months from the dismissal to apply for his new proceeding.

2. Biit we think the court was right in refusing the certiorari on the merits. It is true that the weight of evidence was in favor of the idea that this was a mortgage and not a sale. But the papers and the evidence of the plaintiff were on the side óf a sale, and it was competent for the jury, under the evidence, so to find. Under this view of it, is not the verdict sustainable by the evidence ? The wagons and the harness seem to be still intact, and even the defendant below admits that it was the interest of both parties that the horses bought should take the place of the mules. This would leave in the possession of the defendant in the action in the city court a plenty of property to justify the verdict. A money verdict was competent, in the election of the plaintiff, under section 3564 of the Code. On the whole, as substantial justice is done, as the certiorari turns upon a purely technical idea, and the verdict is for about what the defendant himself admits he is due the other, we think the verdict ought to stand.

Judgment affirmed.