
    Western and Atlantic Railroad Company v. Poe.
    Argued October 2,
    Decided October 30, 1900.
    Certiorari. Before Judge Fite. Catoosa superior court. August term, 1900.
    
      Payne & Tye and R. J. & J. McCamy, for plaintiff in error.
   Lewis, J.

1. Since under the law exceptions to a magistrate’s answer to a writ of certiorari must be filed, “ and notice thereof given to the opposite party be-i fore the case is called in its order for a hearing,” it was, in the present case, erroneous, after the same had been actually argued, and while the court was holding up its decision, to allow the defendant in certiorari to except to the answer and require the magistrate to answer further; and the more especially is this true when it appears that the court, after the argument was concluded, had granted counsel for the plaintiff in certiorari leave of absence for the term, and he had actually absented himself from the court. The case should have been disposed of by the court upon the record as it stood when the argument was concluded.

2. Upon the evidence properly before the court for consideration, the certiorari ought to have been sustained, for the reason that the plaintiff failed to prove that the animal, for the alleged destruction of which he sued, was in fact killed by the railroad company. The case should have been remanded to the magistrate’s court for a new trial.

Judgment reversed.

All the Justices concurring, except Little, J., absent.  