
    8846.
    State of Georgia, for use, etc., v. Johnson.
   Wade, C. J.

1. Leaving out of consideration all extraneous recitals ap- ' r-pearing in the answer of 'the magistrate and in the briefs of counsel for both parties, the sole issue at the trial of this case in the justice’s court was whether or not the title to the property levied upon by the plaintiff in fi. fa. was vested in the defendant in fi. fa. or in the claimant. The fact that the claimant himself had directed another fl. fa. ■ in his favor to be levied upon the same property, as the property of the same defendant, would not preclude him from interposing his claim ■ to- said property, .as against the plaintiff in fi. fa., or furnish a sufficient legal ground for the dismissal of his claim on the trial of the • issue raised by the levy of the fi. fa. in favor of such other plaintiff and the interposition of his said claim to the property, though such fact be evidence, if properly presented to the court at the trial, which might be considered in the light of an admission by the claimant against his title, subject to explanation.

2. Though at the trial in the justice’s court questions of both law and fact were raised, there was no conflict in the evidence and no issue of fact was presented by the record in the superior court for determination, and from a reasonable interpretation of the petition for certiorari only rulings involving questions of Ihw were complained of; and therefore the judge of the superior court did not err in declining to dismiss the certiorari because there had been no antecedent trial before a jury in the justice’s court, notwithstanding less than $50 was involved. Toole v. Edmondson, 104 Ga. 776, 783 (5) (31 S. E. 25).

3. The court properly sustained 'the certiorari, and did not err in not fail- ' ing to render final judgment therein, and in remanding the case to the justice’s court for a retrial. 'Though there was no conflict in the evidence at the trial under review, and hence no issue of fact was involved in the consideration of the certiorari, the case must finally be determined upon the evidence, and the judge of the superior court could .not know with certainty that the evidence on another trial would be the same. “When the only error alleged in a petition for certiorari is that the verdict therein complained of is contrary to law and to the evidence, and it appears that the evidence demanded a verdict for the plaintiff in certiorari, the superior court should, of course, sustain the : certiorari; .but it is erroneous in such a case, though there be no eon- . flict in-the evidence, to render a final judgment in his favor. This is so for the reason that in such a case the error complained of is not an error in law which must finally govern the ease,’ and further, because it could not be known with certainty that the evidence on another trial would be the same.” Holmes v. Pye, 107 Ga. 784 (33 S. E. 816). See also Atlantic Coast Line R.'Co. v. Shuman, 121 Ga. 113 (48 S. E. 680). Although it may clearly appear from the facts disclosed by the record that the verdict rendered in the lower court was without evidence to support it, if the final 'determination of a ease tried in a justice’s court and carried by certiorari to the superior court, does not depend upon any controlling question of law, but issues of fact are involved, the superior court has no authority to render a final judgment therein. Patterson v. Central Ry. Co., 117 Ga. 827 (45 S. E. 250).

Decided November 16, 1917.

Certiorari; from Fayette superior court — Judge Searcy. March 22, 1917.

J. W. Culpepper, for plaintiff.

E. J. Reagan, W. B. Hollingsworth, for defendant.

Judgment affirmed.

.Jenhins and Luke, JJ., concur.  