Bowers v. Williams
| Decision Date | 17 April 1916 |
| Docket Number | (No. 6732.) |
| Citation | 17 Ga.App. 779,88 S.E. 703 |
| Parties | BOWERS et al. v. WILLIAMS. |
| Court | Georgia Court of Appeals |
(Syllabus by the Court.)
Error from Superior Court, Franklin County; D. W. Meadow, Judge.
Action by C. E. Williams against B. Bowers and another. Judgment for plaintiff, and defendants bring error. Reversed.
Adams & Johnston, of Royston, for plaintiffs in error.
J. H. & Parke Skelton, of Hartwell, for defendant in error.
WADE, J. Williams brought suit in a justice's court against Bowers and Fowler, as joint makers on a promissory note for $5. The defendants interposed a plea under oath, in which they set up that the note sued upon represented the balance of the purchase money of a certain horse traded by the plaintiff to them, "guaranteed and warranted by the plaintiff to be sound, " and that the plaintiff in said trade "promised and expressly agreed" that the horse could be returned if found to be otherwise; "that plaintiff knew at the time of taking the note in question, and the other consideration for the horse, and on delivering same to them, that the horse was an unsound horse, and knew that defendants had no knowledge whatever of the same, except that imparted to them by the plaintiff;" that after keeping the horse a few days the defendants discovered that it was an unsound horse, and immediately made a bona fide offer to rescind the trade with the plaintiff, but this offer the plaintiff refused; that the consideration for the horse, represented in part by the note sued upon, was the sum of $105, and that soon after the trade was made the horse died as a result of its diseased condition, existing and known to the plaintiff, but unknown to the defendants at the time of the trade; that by virtue of this trade, and the failure of the plaintiff "to make good his legal obligation of warranty, they [the defendants] have been injured in the sum of $105, which they recoup against plaintiff, and ask that they have judgment against the plaintiff for the sum of $100 and costs of suit."
On the trial of the case in the justice's court judgment was rendered in favor of the defendants and against Williams, the plaintiff, for the sum of $100. Execution issued thereon and was duly levied upon certain personal property of the plaintiff, and the plaintiff filed an affidavit of illegality, setting up that the execution issued illegally and was proceeding illegally for the following reasons:
"First, deponent has never had his day in court, was never served with any process or oth-er notice of the pendency of the said suit whereon said execution is based, nor did he waive service, nor did he appear in or defend said suit; second, that the pleadings in the case in behalf of the plaintiffs show that they sued for $105 in an action of deceit, and that the justice's court did not have jurisdiction of the amount sued for nor of the cause of action; third, that the superior court of Hart county did have jurisdiction of said complaint."
It appears from the bill of exceptions that judgment was rendered by the magistrate in favor of the plaintiffs in execution (the defendants in the original suit), and from this judgment an appeal was taken by the defendant in execution to the superior court. In the superior court the original summons and the plea in recoupment filed by the defendants, together with the judgment in behalf of Bowers and Fowler, the execution and all entries thereon, and the affidavit of illegality above set forth, were introduced in evidence, and upon motion the judge of the superior court directed a verdict for the plaintiff in the original suit, the defendant in execution. A motion for a new trial was made by the plaintiffs in execution upon the usual general grounds and the ground that the court erred in directing a verdict for defendant in execution. The trial judge overruled the motion, and the plaintiffs in execution excepted.
1. The contention made in the affidavit of illegality that the defendants in the justice's court sought a recovery for an amount beyond the jurisdiction of that court is not well founded. The plea expressly asked for a judgment for $100 principal only, and the court rendered a judgment for this amount in excess of the plaintiff's demand. So far as the amount in controversy is concerned, the jurisdiction of a justice's court is dependent upon the amount of principal claimed. This is so well settled that it is unnecessary to cite authority on this question. Even where suit is brought for the breach of a forthcoming bond, it has been held that the amount claimed as damages, and not the penal sum named in the bond, fixes the jurisdiction. See Bowden v. Taylor, 81 Ga. 199, 16 S. E. 277; Hanjaras v. Kilpatrick, 7 Ga. App. 464, 67 S. E. 120. The plea in this case clearly and unmistakably seeks a recovery against the plaintiff for the sum of $100 only.
Civil Code, § 4665, subd. 1, declares that:
The justices of the peace have jurisdiction "in all civil cases arising ex contractu, and in cases of injuries or damages to personal property, when the principal sum claimed does not exceed one hundred dollars, " etc.
See, also, section 6524.
Section 4353 of the Civil Code is as follows:
Section 4759 provides that, when the defendant in a justice's court pleads and establishes a cross-demand greater than the demand of the plaintiff, the court shall render judgment in favor of the defendant and against the plaintiff for the excess over and above the demand of the plaintiff, unless such balance exceeds the sum of $100 principal, in which event the set-off claimed by the defendant shall, by the judgment of the court, be credited with the amount of the demand established and proved by the plaintiff. Here the defendants claimed only $100 in excess of the plaintiff's demand, and the court awarded them this amount only.
2. It was insisted that the justice's court was without jurisdiction to render the original judgment for the further reason that the court had no jurisdiction to entertain the cross-demand, since the plea of the defendants amounted in effect to an action for deceit, and that the plea attempted to set up by way of defense to a suit on a contract damages arising from a tort committed by the plaintiff. It may be said first that the demand of the defendants in the original suit grew out of the identical transaction in which the note sued upon was given. Section 4136 of the Civil Code provides that a breach of warranty, either express or implied, does not annul an executed sale, but gives to the purchaser a right to damages which may be pleaded in abatement of the purchase money. Section 4350 declares that:
"Recoupment is the right of the defendant to have a deduction from the amount of the plaintiff's damages, for the reason that the plaintiff has not complied with the cross-obligations or independent covenants arising under the same contract."
Section 4353 provides that:
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