
    Miller vs. Hensley.
    Where upon a suit in a justice court, judgment was rendered for $31.00, andan appeal entered to a jury in the same court, which was dismissed on the trial of the same, the appellant was precluded from the remedy by certiorari on the original judgment, even though applied for within three months from its rendition.
    Appeal. Certiorari. Justice Court. Before Judge CRAWFORD. Muscogee Superior Court. November Term, 1879.
    Reported in the opinion.
    Thomas J. Chappell, by brief, for plaintiff in error.
    Thorkton & Grimes, for defendant.
   Hawkins, Justice.

This was a certiorari from a justice court tried before Judge Crawford, in Muscogee superior court.

Hensley had sued Miller in a justice court and obtained a judgment for thirty-one dollars ; from this judgment of the justice, Miller appealed to a jury in a justice court, and on the trial of the same, the appeal was dismissed— when, and within ninety days, the said Miller filed the petition for certiorari, after its dismissal, but upon grounds that existed at the entering of the appeal.

The judge dismissed the certiorari, and this is the sole complaint.

By the constitution of 1868, and the laws made thereunder, there was no appeal allowed in justice courts from the justice to a jury in that court, but an appeal was allowed from a justice court to the superior court in all cases involving amounts of fifty dollars or over; where a judgment was rendered in a justice court under fifty dollars, certiorari was the remedy, and there could be no appeal.

This court held in the case in the 46 Ga., p. 41, that the right of appeal from a justice court to the superior court in cases involving over fifty dollars was the remedy, and no right to certiorari existed.

By the constitution of 1877, an appeal is provided in all cases tried in a justice court. In cases less than fifty dollars, to a jury in the justice court; in cases over fifty dollars, to the superior court, as was provided under the constitution of 1868. The acts of 1878—see pamph. pp. 142-153—pro-vides for certiorari in cases under fifty dollars after and from the judgment on appeal.

“ It is hardly to be supposed that it was intended to give the right of certiorari and of appeal in the same class of cases.” The plaintiff in error had the right to enter an appeal to a jury from the judgment of the justice, but he did not have the right to a certiorari, the constitution of 1877 and the acts of 1879 having established trial by jury on appeal in lieu of the right of certiorari, and allowing a certiorari from the result on the appeal. Litigants in controversies of fifty dollars and under ought to be content with the right of trial before the justice in the first place, appeal to a jury in the second, and certiorari in the third place, and finally writ of error to this court.

Out of one of the four trials they ought to be able to obtain justice.

Judgment affirmed.  