It appears that a rule nisi was brought against Story, acting as constable, to show cause why he should not pay certain sums claimed to be due certain persons under a distress-warrant proceeding by reason of his alleged failure to sell certain property levied on by him. In his answer to the rule Story alleged, among other things, that he was not a constable, and denied that he was acting as constable at the time in question, but alleged that he was acting as deputy sheriff. He therefore contended that he was not subject to the rule. On the hearing there was conflicting evidence upon this issue. The justice rendered judgment in favor of the plaintiffs, and Story obtained writ of certiorari. “Where in the trial of a case pending in a justice’s court, there are disputed issues of fact, the judgment rendered by the magistrate can not be directly reviewed by the writ of certiorari, but there must be an appeal, either to a jury in that court, or to the superior court.” Benton v. Hynes, 100 Ga. 95 (26 S. E. 469). The defendant’s remedy therefore was by appeal, and the judge of the superior court did not err in dismissing the certiorari. Toole v. Edmondson, 104 Ga. 776 (31 S. E. 25).
Judgment affirmed.
Broyles, G. J., and Guerry, J., concur.