
    9158.
    Gaines v. Continental Aid Association.
    Decided April 10, 1918.
    Petition for certiorari; from Bibb superior court—.Judge Mathews. August 3, 1917.
    Gaines sued the Continental Aid Association, in the municipal court of Macon. On the first trial of the case the judge directed a verdict for the defendant. The plaintiff made a motion for a new trial, which was overruled; a certiorari was sustained; and on the second trial the jury found for the plaintiff. The defendant then made a motion for a new trial, which the judge of the municipal court granted, and a petition for certiorari, assigning error thereon, was presented by the plaintiff to the judge of the superior court, he refused to sanction the certiorari, and the plaintiff excepted.
   Harwell, J.

1. The contention of the plaintiff in error in his brief, that this was virtually the second grant of a new trial by the judge of the municipal court, and was unauthorized, under the provisions of the act of the General Assembly creating the municipal court of Macon (Ga. L. 1913, p. 252), was not made in the petition for certiorari, and can not be considered by this court. Civil Code (1910), § 5199; Perry v. Brunswick & Western Ry. Co., 119 Ga. 819 (47 S. E. 172); Richards v. Little, 88 Ga. 176 (14 S. E. 207); Western & Atlantic R. Co. v. Jackson, 81 Ga. 478 (8 S. E. 209); Callaway v. Atlanta, 6 Ga. App. 355 (64 S. E. 1105).

2. The evidence being in conflict, it was within the discretion of the judge of the municipal court to grant a new trial, and the judge of the superior court did not err in refusing to sanction a certiorari, under the facts of the case.

Judgment affirmed.

Broyles, P. J. and Bloodworth, J., concur.

S. L. Wisenberg, H. F. Bawls, for plaintiff.

Napier & Maynard, G. M. Nottingham, for defendant.  