
    BROWN v. BROWN.
    June 12, 1896. By two Justices. Argued at the last term.
    
      Certiorari. Before Judge Fish. Stewart superior court. April term, 1895.
    
      E. J. Wynn, for plaintiff.
    
      E. T. Hickey and Leonidas McLester, for defendant.
   Lumpkin, J.

1. A distress warrant in resistance to which no written defense of any kind has been interposed, by <the defendant presents nothing for trial 'by any court, the warrant alone forming no issue for adjudication.

'2. Where such a warrant was issued and the question of the plaintiffs right to proceed with the same was, notwithstanding the defendant’s failure to file the counter-affidavit and bond required by section 4083 of the code, tried before a magistrate in a justice’s court, it was still the plaintiff’s right, upon the trial of an appeal to a jury in that court, entered by the defendant, to raise the question that there was no issue to be tried, although this had not been done at the original hearing.

3. The whole proceeding being coram non judice, the verdict rendered on the appeal in the plaintiff’s favor could not be reviewed by certiorari. Judgment reversed.  