
    MADDOX v. WITTE.
    Submitted January 6,
    Decided January 21, 1896.
    Certiorari. Before Judge Lumpkin. Fulton superior ■court. September term, 1895.
    On September 14, 1894, Witte obtained judgment against Hardee in a justice’s court, and thereupon an execution was issued October 1, 1894, which, on October 9, 1894, was levied by a constable upon a horse and wagon, and the same was advertised to be sold on October 22, 1894. On October 10th a forthcoming bond was executed and delivered to the ■constable by Hardee and J. J. & J. E. Maddox as principals; whereupon the property under levy was delivered into their possession. Ho claim affidavit or claim bond was delivered to the constable by any one until after October 22, 1894, nor was any claim filed by the Maddoxes until December 6, 1894, when they filed a claim affidavit and bond. On February 8, 1895, this claim came on to be heard before the justice, and on motion the claim was dismissed on the ground that it was filed too late. At this hearing a suit commenced on Hovember 5, 1894, upon the forthcoming bond already mentioned, and the bond itself, were offered in evidence. 'On February 11, 1895, the Maddoxes appealed the case to .a jury in the justice’s court, and on the 26th of that month the case was called for trial on appeal. A motion was made for the justice to dismiss the levy for want of prosecution, which motion was sustained, and the case not allowed to go to the jury. Whereupon Witte’s certiorari was sustained on the ground, that the claim having been dismissed because-filed too late, certiorari and not appeal was the remedy for-the claimants.
   Simmons, C. J.

Where a claim case in a justice’s court was dismissed by the justice because the claim was not filed in time, it appearing without contradiction tha/t the claim was filed ■after the time t'he property was to have been sold according to ithe advertisement of the constable, certiorari and not appeal was the remedy for the claimant. Small v. Sparks, 69 Ga. 745; Rogers v. Bennett, 78 Ga. 707; Hall v. Carlisle, 92 Ga. 318.

Judgment affirmed.

All the Justices concurring.

Maddox & Terrell, for plaintiffs in error.

G. B. Reynolds, contra.  