
    *Humphrey Grimes, plaintiff in error, vs. P. B. & J. F. Jones, defendants in error.
    (Atlanta,
    January Term, 1873.)
    1. Certiorari — Second Application — Statute of Limitations.— Where a writ of certiorari has been granted, and the Court dismisses the same on the ground of non-compliance by the petitioner with some requisition of the statute, and plaintiff in certiorari makes application within three months from said dismissal for another writ, lie is not barred by lapse of time, from having his second application heard: 32 Ga. R., 487.
    2. Same — Same.—The facts set forth in the application for the writ of certiorari in this case entitles the plaintiff to the granting of the writ.
    
      Certiorari. Statute of limitations. Before Judge Harreee. Early County. At Chambers. July 1st, 1872.
    Humphrey Grimes petitioned for the writ of certiorari in the case of P. B. & J. F. Jones, against petitioner, tried in the Justice Court of the eight hundred and sixty-sixth district. The petition was sanctioned and the writ issued. On the 6th day of April, 187k, during the regular term of the Superior Court of the county of Early, said writ was dismissed upon the ground that no affidavit in forma pauperis had been filed.
    On July 1st, 1872, a second pet’tion for the writ of certiorari was presented to the Judge of the Pataula Circuit, which was a copy of that which had been dismissed.
    The petition made the following case:
    P. B. & J. F. Jones brought suit against petitioner on an account for $32 31, headed as follows:
    “Humphrey Grimes,
    1870. With Buchannon & Flemming.”
    Petitioner demurred to the suit on the ground that P. B. & J. F. Jones were not proper parties to the suit. The demurrer was overruled and petitioner excepted. Petitioner pleaded the general issue and a set-off. Plaintiffs tendered in evidence the books of account of Buchannon & Flemming. Petitioner objected to their introduction. The objection was overruled and petitioner excepted.
    .... Flemming was introduced to prove the correctness of *the items charged in the account. Upon his stating that he kept a clerk who was within the jurisdiction of the Court, petitioner objected to his testifying as to the correctness of the account. The objection was overruled and petitioner excepted. “Flemming stated that he made the entries on his day book, which was a transcript from other books,” which were not produced. Petitioner again objected to the testimony. The objection was overruled and petitioner excepted. Witness then testified then he did not know that any of the goods charged to P. B. & J. F. Jones were sold or delivered to petitioner. That his clerk, Frank Jones, reported the amount through his books; that witness had never had any understanding with •petitioner about P. B. & J. F. Jones paying his account; that P. B. Jones settled the account of petitioner made at the store of Buchannon & Flemming, and witness wrote a receipt to Jones for three hundred and eighty-one pounds of cotton, received of Bill and Plenry Grimes, minor children of petitioner, of the value of $53 57.
    
      The receipt above referred to was introduced.
    Frank Jones testified that he was the clerk of Buchannon & Flemming, and sold goods to petitioner in the year 1870; that he could not say whether the items charged on the books before him were the same or not, as he did not make the entries; that he. could not say what goods were sold to petitioner unless he had his books on which he made his original entries; that the goods sold to petitioner were charged to P. B. & J. F. Jones, by agreement between P. B. Jones and witness; that petitioner did not authorize it; that he had had no conversation with petitioner about it.*
    Plaintiffs closed.
    The defendant moved for a non-suit. The motion was overruled, and the defendant excepted.
    Humphrey Grimes, the petitioner, testified, that at the commencement of the year 1870 he made a verbal contract with P. B. Jones to let him have two of his minor’children, Henry and Bill, to work for P. B. & J. F. Jones; that they were to furnish two mules, find the children, and half they made was *to be paid to petitioner; that they made a crop amounting to three hundred and eighty-one pounds of cotton, of the value of $53 57, one hundred and seventy7five bushels of oats, of the value of $5 00; that instead of complying with his' contract and turning over the crop to petitioner, he carried the cotton to Buchannon & Flemming and sold it to them without petitioner’s knowledge or consent, and that he has never been accounted with for the same; that petitioner never authorized P. B. Jones to settle any accounts of his with Buchannon & Flemming, or with any one else; that when he learned that Jones had paid his account, he told Frank Jones, the clerk, that P. B. Jones had no right to interfere with his business.
    P. B. Jones, in rebuttal, testified that he received the cotton, and that he had given the children of petitioner an order to the store for oats.
    The Justice rendered a judgment for the plaintiffs for the amount of the account sued on, and defendant excepted.
    The trial was had on December 8th, 1871.
    The Judge refused to sanction the petition and petitioner excepted.
    Thomas K. Appling, by Jackson & Clarke, foi plaintiff in error.
    No appearance for defendants.
    
      
      Certiorari — Second Application — Statute of Limitations. — The ruling of the principal case is reiterated in Mercer v. Davidson, 80 Ga. 496, 6 S. E. Rep. 175. See Ency. Dig. Ga. Rep., vol. 3, pp. 33, 34.
      In Smith v. Bryan, 60 Ga. 631, citing principal case, it is said that a certiorari is a suit which if dismissed may be renewed within six months.
      The principal case is cited in Hill v. State, 115 Ga. 834, 43 S. E. Rep. 386, for its holding that a renewal within three months from the time at which a former certiorari has been dismissed was within the statute.
      In Rountree v. Key, 71 Ga. 218, citing principal case, the court says, great lengths have been gone to in permitting the renewal of suits within six months so as not to be barred if the original suit was not barred, so as to extend the provisions to almost any case where the suit was dismissed not on its merits.
      See the principal case distinguished in Railway Co. v. Goodrum, 115 Ga. 690, 42 S. E. Rep. 49; Hill v. State, 115 Ga. 835, 42 S. E. Rep. 286.
    
   TrippE, Judge.

The second application for the writ of certiorari was made within three months from the time the first writ was dismissed, but not within three months from the decision of the Justice complained of. By the law in force in 1861, the writ of certiorari could be sued out within six months from the time of the decision complained of. Under that law, this Court held in Hendrix vs. Kellogg, 32 Georgia, 436, that where such a writ is dismissed or non-suited, etc., the plaintiff may renew his application within six months from such dismissal, *non-suit, etc. This decision was made by virtue of the construction given to the 23d section of the statute of limitations of 6th March, 1856, allowing suits which had been dismissed to be renewed within six months where they would otherwise be barred by the statute. Section 2881 of the Code preserves the same right to the plaintiff in this case which was held to be his under the Act of 1856.

From the facts set forth in the application for the certiorari we 'think the petitioner was entitled to a hearing on the merits and to a decision by the Judge as to whether he should have a new trial in the Justice Court, or to such a judgment as from the answer of the Justice and the facts of the case the Judge should be authorized to render.

Judgment reversed.  