Justices of the Inferior Court v. Felder , 23 Ga. 212 ( 1857 )

By the Court. —

Benning, J.

delivering the opinion.

Was the judgment of the Court below' overruling the demurrer, right?

The counsel for the plaintiffs in error insists, that that judgment was not right. His argumentas, 1st, that this is a case in which, the amount demanded, is a quantum meruit; that a quantum meruit is an uncertain., amount; and that mandamus does not lie for an uncertain amount; 3d, that this is a case against the Inferior Court,as a Court; that the question involved in the case, viz: how much the petitioner deserved to have for his services, is a question which was decided by the Inferior Court as a Court; and that mandamus lies to a Court, not to correct the judgment of the Court, but only to compel the Court to give a judgment; which, if wrong, is to be corrected by writ of error, or by certiorari.

We do not think that as the case stands, this argument is supported by the facts.

The case stands upon a demurrer to the petition. The demurrer to the petition admits the statements of the petitioner to be true. It is to the petition, then, that we must look for the facts.

One statement in the petition, is, that the petitioner was justly entitled to the sum of f1,500 for his services.

This statement, the demurrer admits to be true, and, therefore, the statement, so far as the decision of the'demurrer is concerned, is to be taken as true.

Taking this statement as true, then, it is not according to the fact, that the case is one in which, the amount demanded is “uncertain.”

Again, the petition merely says this, that the Justices refused to give the petitioner an order for $1,500, but gave him an order for $600. It does not say, that the reason why the Justices acted thus, was, that they, sitting as a Court, had considered of the demand, and had determined, that the amount of it, was too much by $900.

The petition does not pretend to state what was the reason that made the Justices act thus.1 It may be, therefore, that the reason was, a want of money, or was some other thing not inconsistent with a recognition by the Justices, of the validity of the demand in its whole amount.

This being so, the counsel foi; the plaintiffs was not justified in assuming, that the question involved in the case, had been decided by the Justices sitting as a Court.

We think the Court below was right.

Judgment affirmed.