
    Brooks v. Baker.
    
      Certiorari from the decision of a justice of the peace in a case brought in his court to recover a sum under fifty dollars, involving questions of law and fact, will not lie until after an appeal to a jury in that court.
    May 9, 1890.
    
      Certiorari. Appeal. Practice. Justices’ courts. Before Judge Boynton. Pike superior court. April term, .1889.
    Brooks presented Ills petition for certiorari, alleging as follows : In a certain magistrate’s court there came on to he heard the case of Baker, plaintiff in attachment, against petitioner, as claimant of certain property on-which the attachment had been levied. The plaintiff introduced four witnesses, each of whom testified that a sou of the defendant in attachment had offered to sell the property claimed, as the property of his father; and closed. Petitioner moved to dismiss the levy, on the ground that the plaintiff had not made out his ease, had not shown any indebtedness by the defendant in attachment to him (plaintiff), nor that the defendant in attachment had placed himself in any of the conditions provided by law for suing out an attachment. Plaintiff' tendered no written issue, nor any issue at all, and did not offer to petitioner or his attorney, for inspection, the affidavit nor the attachment; nor were they read or offered to the court, nor referred to in the progress of plaintiff’s making out his case in any way. The motion to dismiss was overruled; the magistrate holding that it was not necessary to tender a written issue in a justice’s court, and that the attachment papers were court papers and it was not plaintiff’s duty to offer them. Petitioner introduced no evidence; and the magistrate entered judgment finding the property subject. This finding and the overruling of the motion to dismiss are assigned as error.
    
      The judge refused the writ of certiorari, holding that the matters at issue and errors complained of involved questions of fact as well as of law, and that appeal was the remedy. Brooks excepted.
    W. J. Iverson, by brief, for plaintiff in error.
    E. F. DuPree and A. A. Murphey, contra.
    
   Blandford, Justice.

It has been frequently held by this- court, where a case is brought in a justice’s court to recover a sum under fifty dollars, and the same is tried by the justice of. the peace, and involves questions of law and fact, that a certiorari will not lie to the decision of said justice until after appeal to a jury in the justice’s court The following cases abundantly sustain this position: Witkowski v. Skalowski, 46 Ga. 41; Buroughs v. White & Stone, 69 Id. 841; W. & A. R. R. v. Carson, 70 Id. 388; Same v. Dyar, Id. 723; Shirley v. Rounsaville & Bro., 78 Ga. 708; W. & A. R. R. v. Pitts, 79 Id. 532; Wynne v. Darden,80 Id. 730; Thompsons. Dodd Bros., 84 Id. 264. We think there was no error in dismissing the certiorari; and the judgment is Affirmed.  