McClain v. Cherokee Iron Co.

Bleckley, Judge.

1. When an affidavit to obtain a possessory warrant is made by an individual describing himself as “ one of the firm of the Cherokee Iron Company,” and does not allege that the property belongs to, or was ever in possession of the firm, or ever went out of its possession; but on the contrary, alleges that he, the deponent, was in possession of the property, and that it was taken from his possession, or disappeared without his consent, etc., and the warrant issues accordingly, the proceeding is in favor of the affiant, and the firm to which he belongs is no party thereto. What is said of his connection with the firm is mere description.

2. But this fact is no ground for dismissing the warrant.

3. Nor can the defendant obtain a reversal, in the superior court, of a judgment rendered in the case by the justice of the peace, without making the plaintiff in the warrant a party to the petition for certiorari. A certiorari issued at the defendant’s instance, on a petition treating the Cherokee Iron Company as plaintiff in the warrant, and not bringing the real plaintiff before the superior court, will not enable the latter court to reach any error committed by the justice of the peace.

4. On the hearing of such certiorcvri, it was error for the superior court to order that McClain, one of the defendants in the warrant and one of the petitioners for certiorari, deliver the property in question “ to the Cherokee Iron Company, and in default thereof, that the sheriff arrest him and commit him to the county jail, there to be closely confined without bail or mainprise, until the property-is produced.” This order makes no requisition upon the Cherokee Iron Company for bond and security, as a condition precedent to receiving the property. Eor this reason, if for no other, it is illegal. Neither the primary court, nor the superior court, on certiorari, should ever pass an order requiring one party in a possessory -warrant to deliver to the other. The order, when proper to be made, should be for delivery to the officer, and then by the officer to the party entitled. Generally, no final order should be passed disposing of the property, by the primary court, until after the property is produced and placed within the power of the court or its officer. See 31 Ga., 126. Under section 4038 of the Code, the proceeding to compel production ought to take place upon the return of the warrant, and before going into any question except that of the defendant’s ability and liability to produce. The scheme of the statute is, that the property shall be under the control of the magistrate at the time the final order is made. Imprisonment is a means of preparing the main case for trial and judgment, not a means of carrying the judgment into effect. This seems to be the sound construction of those provisions of the Code relating to the whole subject. Sections 4033 to 4040. The case in 24 Ga., 379, is no adjudication by this court to the contrary.

5. Inasmuch as the Cherokee Iron Company was not a party to the possessory warrant, and the plaintiff in that warrant was not a pai*ty to the certiorcuri, the superior court did not err in overruling the certiorcuri as to McClain. But it did err in requiring him to deliver the property to the Cherokee Iron Company.

Judgment reversed.