Simons & Co. v. Burt

Hill, C. J.

Simons & Company, plaintiffs in error, instituted suit by attachment against McGhee, which was levied by serving summons of garnishment on Pou & Company. The answer of the garnishees admitted an indebtedness of $127.70. Burt dissolved said garnishment, claimed the fund, and traversed the answer of the garnishee, and issue was joined thereon by plaintiffs in attachment. On the trial of the claim ease in the justice court, to which the attachment was made returnable, a verdict was rendered finding the fund subject to the attachment. The claimant carried the case to the superior court by certiorari. On the hearing the certiorari was sustained by the judge pro hac vice, and a final judgment entered in behalf of the claimant. Exceptions were taken to this judgment, .because contrary to law and without evidence to support it and for the reason that such final judgment depended upon an issue of fact, there being no question of law which must finally govern the ease.

The claimant, by his evidence, showed that before the attachment was levied by service of the summons of garnishment, he had bought from the defendant in attachment 110 cords of wood which had been shipped by his (claimant’s) direction to the garnishee, to whom claimant had sold said wood. It was contended by the plaintiffs in attachment, that the sale of the wood was not complete; that there had been no separation and delivery of the 110 cords of wood by the defendant in attachment to the claimant, but that said 110 cords was a part of 175 or 200 cords which were shipped by the defendant in attachment to the garnishee. There was much conflict in the evidence as to whether the sale of the 110 cords was a *473 •completed sale, or only an executory contract. There was also conflict in the -evidence as to the amount of wood shipped to the garnishees. If the judge of the superior court was of the opinion that the evidence preponderated in favor of the claimant or plaintiff in certiorari, he had the right, in the exercise of his discretion, to sustain the certiorari and remand the case for another trial; but he erred in rendering a final judgment. This would be so .even where there was no conflict in the evidence, if there was no controlling question of law, “because it could not be known with certainty that the evidence on another trial would be the same.” Williams v. Bradfield, 116 Ga. 705 , 43 S. E. 57 ; Bass Dry Goods Co. v. Electric Co., 123 Ga. 640 , 51 S. E. 579 . We think, therefore, that the court erred in rendering a final judgment for the claimant; and we reverse this judgment and direct that the case be remanded to the justice court for a new trial. Judgment reversed.