#### Wynne *et al. vs.*Darden.

Where the amount sued for in a justice’s court is under fifty dollars, and the error complained of in the judgment of the magistrate involves no question of fact, the party complaining may go directly to the superior court by *certiorari,*and the judge of said court should make a final disposition of the case on the questions of law involved; but where facts are involved, there must first be an appeal to a jury in the justice’s court, and then the party dissatisfied with their finding may carry the case up by certiorari, and I the case may be reviewed on both law and facts.

May 4, 1888.

Justices’ courts. *Certiorari.*Appeal. Remedies. Before Judge Lumpkin. Warren superior court. October adjourned term, 1887.

*731This case was begun in a justice’s court by suit on an account for $16.51 in favor of A. H. Darden against Wynne and Atchispn, administrators of Atchison. The plaintiff recovered judgment; and the defendant sued out a *certiorari,*on the hearing of which in the superior court, the plaintiff moved to dismiss it because the amount involved was less than $50, and there had been no appeal to a jury in the justice’s court. This motion was sustained, and the defendants excepted.

E. P. Davis, by brief, for plaintiffs in error.

Jas. Whitehead, by J. H. Lumpkin, *contra.*

Blandford, Justice.

This was a *certiorari;*and the question here is whether, the amount sued for in the justice’s court being under fifty dollars, and the justice having determined the case by his judgment both upon the law and the facts, and there being no appeal to a jury in the justice’s court by the party complaining, a writ of *certiorari*would lie. The court below held that it would not; that inasmuch as facts were involved in the determination of the case, there must first be an appeal to a jury in the justice’s court, the amount sued for being under fifty dollars. The *certiorari*was dismissed, and this is excepted to.

We think the decision of the court below in this case was right. It is in accordance with other decisions of this court, and we know of no decision contravening them. Where the amount sued for in a justice’s court is under fifty dollars, and the error complained of in the judgment of the magistrate therein is one of law only, and no question of fact is involved in the error sought to be corrected, the party complaining may apply for the writ of *certiorari,*and the judge of the superior court should then make a final disposition of the case, upon the question of law involved therein. But where facts are involved in the judg*732ment rendered by the justice sought to be reviewed, there must first be an appeal to a jury in the magistrate’s court; and after the jury have passed upon-the case, the party dissatisfied with their finding may carry the case to the superior court by certiorari, and the case may be reviewed there both upon the law and the facts. Among the cases sustaining this view are *The Western c& Atlantic R. R. Co. vs Pitts,*decided by this court, October term, 1887, (79 *Ga.*532,) and *Shirley vs. Rounsaville et al.,*March term, 1887, (78 *Ga.*70S,) and cases cited in the decisions rendered therein.

Judgment affirmed.