Everidge v. Berrys & Co.

Lumpkin, Justice.

In addition to the brief report of the facts contained in the reporter’s statement, it is only necessary to add that the record does not show the ease had been finally disposed of in the county court when the certiorari was sued out. In the argument here, counsel did not so claim, but contended that the plaintiff' in certiorari had the right to take the case up to the superior court before its final disposition in the county court, because if the decision of which he complained (being one involving the jurisdiction of the court) had been otherwise, it would have been a final disposition of the case. In this view we do not concur. The rule contended for is applicable, under section 4250 of the code, to the suing out of bills of exceptions from the superior court to this court; but as we understand the law of certiorari, the writ does not lie from an inferior judicatory while the case is still pending therein. We think the words — “the decision or judgment in such cause,” — as used in section 4052 of the code, refer to th& final decision or judgment rendered in the case. Section 317(a) of code provides that, “In civil eases, the right of certiorari from the county court shall be as provided in section 287.” The section last cited, while in terms it provides for the suing out of a certiorari to a judgment of the county judge in eases where the principal sum or damage claimed does not exceed fifty dollars, declares that in the petition for cer *762 tiorari the party applying for the same “ may state all the decisions and judgments complained of as erroneous, from the beginning to the end of the case.” The words quoted very strongly imply that there can be no certiorari till the case is ended in the county court. Conceding the right to sue out a certiorari where the amount claimed exceeds fifty dollars, there is nothing in the statute suggesting that the rule with reference to such cases is, or should be, in any sense different from that pertaining to cases where the amount involved is fifty dollars or less.

The court, therefore, was right in dismissing the certiorari on the ground that it did not appear that the case in which the errors complained of were alleged to have been committed had been finally disposed of in the county court. Judgment affirmed.