Th,e superior court can not properly render a final judgment in a certiorari case, unless “the error complained of is an error in law which must finally govern the case, and the court shall be satisfied there is no question of fact involved which makes it necessary to send the case back for a new hearing before the tribunal below.” Civil Code, § 4652. And see Rogers v. Georgia Railroad Co., 100 Ga. 699, and Pinkston v. White, 102 Ga. (post). Applying the law laid down in this section of the code and the cases above cited to the facts of the present case, the presiding judge erred in rendering a final judgment in favor of the defendant. The case, as it stood, before him, was one depending mainly, if not entirely, upon the sufficiency of the evidence to warrant - the verdict rendered in the justice’s court; but it could not, of course, be known with certainty that at another trial in that court the evidence would be the same. If in a given case the juries in the magistrate’s court continue to render verdicts which, in the opinion of the judge of the superior court, are contrary to law and the evidence, he may, in remanding the -case for another trial, give appropriate instructions for observance when yet another hearing takes place. For instance, he may direct, if in his judgment it is right and proper so to do, that if at the next trial the evidence is the same, or substantially the same, as at the last preceding trial, the verdict should be so and so.
Without declaring what the trial judge should do when the present certiorari is again heard, we simply set aside the judgment now under review, with direction that the court deal with the case in the light of the entire record and of the law as here announced. Our purpose in so doing is to leave the trial judge free to sustain the certiorari, if he sees proper; and, if he does so, to also. leave him free to determine whether, in remanding the' case to the magistrate’s court, he will or will not return the same with instructions.
Judgment reversed, with direction.
All the Justices concurring, except Fish, J., disqualified.