Summary
interpreting this statutory language to mean that a "writ of certiorari will lie only after the rendition of a final judgment" (citing Singer Mfg. Co. v. McNeal Paint & Glass Co. , 117 Ga. 1005, 1006-1007, 44 S.E. 801 (1903) )
Summary of this case from Phillips v. JacksonOpinion
16585.
APRIL 14, 1949.
Petition for mandamus. Before Judge Humphrey. Washington Superior Court. January 6, 1949.
Casey Thigpen, for plaintiff.
If a justice of the peace, in the trial of a case before him without a jury, erroneously renders a judgment, finding for neither party but transferring the case to a trial before a jury, his disposition of the case is a final judgment, and the writ of certiorari is an available remedy to correct such a judgment. Accordingly, the trial judge did not err in the instant case in refusing to sanction a petition for mandamus, which sought to compel a justice of the peace to set aside such a judgment and render a different one.
No. 16585. APRIL 14, 1949.
Joe Hayes brought a petition for mandamus against Lamar Brown, a justice of the peace, in which he alleged: that on December 11, 1948, there came on for trial in the justice's court, before the justice of the peace without the intervention of a jury, a claim filed by Hayes in an attachment proceeding instituted by Mrs. Venice Sparks; that the evidence upon the trial demanded a judgment finding in favor of Hayes, the claimant, and finding the property not subject to levy and sale; that, after the justice had heard the evidence for all parties, he declared a "mistrial," and entered the following order: "It is the ruling of this court that for lack of evidence this case be brought before a jury, January term, 1949"; that this ruling had the intended effect of declaring a mistrial, which the justice had no legal authority to do, when he was trying a case without the intervention of a jury; that it was the legal duty of the justice to render a judgment either for or against the claimant; that the justice is without authority to summons a jury and try the case before a jury, the claimant not having demanded a jury trial, and the case must first be tried by a justice and a decision rendered thereon before there can be a demand for a jury trial; that the plaintiff "will suffer irreparable loss and injury unless said defendant Brown is compelled by law to perform his duties imposed upon him by law and decide said case one way or the other, without intervention of a jury."
Upon presentation of the petition for mandamus, the judge of the superior court entered the following order: "Petition of plaintiff in above-entitled cause having been read and considered, same is not sanctioned and ordered filed and defendant served." To this judgment the plaintiff excepted.
"All official duties should be faithfully performed; and whenever, from any cause, a defect of legal justice would ensue from a failure or improper performance, the writ of mandamus may issue to compel a due performance, if there shall be no other specific legal remedy for the legal rights." Code, § 64-101. "The right to the extraordinary aid of mandamus does not exist when there is available to the party seeking the writ a specific legal remedy." DeBerry v. Spikes, 188 Ga. 222 ( 3 S.E.2d 719), and cit. Ordinarily, errors of law committed by a justice of the peace in the rendition of a judgment may be corrected by certiorari. It is provided by the Code, § 19-101, that "the writ of certiorari shall lie for the correction of errors committed by justices of the peace, corporation courts or councils, or any inferior judicatory, or any person exercising judicial powers." The Code, § 19-203, further provides: "When either party in any cause in a justice's court, municipal corporation or police court, council, or any inferior judicatory, or before any person exercising judicial powers, shall be dissatisfied with the decision or judgment in such cause, such party may apply for and obtain a writ of certiorari by petition to the superior court, in which petition he shall plainly and distinctly set forth the errors complained of."
In determining whether a writ of certiorari will lie to a decision or judgment of an inferior court, a paramount question for consideration is whether there was exercised a judicial function as distinguished from a ministerial act, for certiorari is an available remedy for the correction of erroneous judgments in the exercise of judicial powers, but ordinarily is not a proper remedy to correct errors relating to ministerial acts.
It is apparent that the complaint in this case concerns a decision of a justice of the peace in the exercise of judicial powers, for if a justice ever exercises those powers — and he does — he exercises them in trying a case without a jury and rendering his judgment thereon. His determination of a cause tried before him is clearly distinguishable from such acts, held to be ministerial, as issuing an execution ( Scott v. Bedell, 108 Ga. 205, 33 S.E. 903), and a refusal by him to accept and file an appeal to a jury in the superior court ( Wade v. Combined Mutual Casualty Co., 201 Ga. 318, 39 S.E.2d 681).
We need consider but one other question in determining whether the writ of certiorari was available in the present case. Was the decision of the justice such a final judgment as would afford an aggrieved party the right to a writ of certiorari? In Starnes v. Tanner, 73 Ga. 144, where mandamus was sought in order to compel a justice of the peace to enter judgment against a garnishee who was in default, it was held: "If a justice of the peace improperly refused a motion to enter up judgment against a garnishee who was in default, the proper method of correcting such error was by certiorari, and not by mandamus to compel him to enter the judgment. A mandamus will issue to compel a performance of duty only in cases where a defect of legal justice would arise from a failure or improper fulfillment of such duty; but it never issues unless there is no other specific legal remedy for such rights." The decision in the Starnes case was overruled in part in Singer Manufacturing Co. v. McNeal Paint Glass Co., 117 Ga. 1005 ( 44 S.E. 801), where it was held that such a judgment was not a final judgment; and that, in view of the provisions of the Code, § 19-209, the writ of certiorari will lie only after the rendition of a final judgment, and was prematurely sued out to such a refusal to enter judgment, if it could "be at all treated as a decision of the court." While the latter decision overruled the Starnes case in part, it did not overrule that case "to the extent of changing the principle announced therein that, if there was a specific remedy by certiorari, the remedy of mandamus did not exist." Cheek v. Eve, 182 Ga. 30 ( 184 S.E. 700).
We are of the opinion that when the justice of the peace in the present case entered a judgment, in which he found for neither party but transferred the case to a trial before a jury, the justice exercised a judicial function and rendered a final judgment, in so far as a trial before him was concerned. The judgment clearly purports to be a final disposition of the case before the justice, as much so as if he had rendered a judgment for one party or the other; and if, as a matter of law, his disposition of the case before him was error, the writ of certiorari will lie to correct the error. This case, we think, is clearly distinguishable from the Singer Manufacturing Company case, where a justice, after motion to enter judgment against a garnishee by default, refused to render any judgment at all. In such a case, of course, the justice had not disposed of the matter before him; and, since the case was still pending before him and no judgment had been entered, there was no final judgment from which certiorari would lie. Here, however, the justice had rendered his judgment, whether right or wrong, and had finally disposed of the matter before him by transferring the case to a trial before a jury. If, in rendering his final decision in the case tried before him, he erroneously decided the issues or failed to decide them in his judgment, certiorari is an available remedy to correct such errors. Accordingly, it is our opinion that mandamus is not an available remedy to compel a justice of the peace to set aside a decision or judgment rendered by him in the trial of a case without a jury and to compel him to render a different judgment.
For the foregoing reasons, no error was committed in the refusal to sanction the petition for mandamus.
Judgment affirmed. All the Justices concur. Bell, J., concurs in the result only.