Lewallen v. Dalton Auto & Mach. Co

• Decision Date: 15 February 1938
• Docket Number: No. 26595.,26595.
• Citation: 119 W.Va. 573,195 S.E. 205
• Court: Georgia Court of Appeals
• Parties: LEWALLEN. v. DALTON AUTO & MACHINERY CO.

119 W.Va. 573

195 S.E. 205

LEWALLEN.

v.DALTON AUTO & MACHINERY CO.

No. 26595.

Court of Appeals of Georgia,

Division No. 1.

Feb. 15, 1938.

[195 S.E. 306]

Syllabus by the Court.

1. A claim arising ex delicto cannot be set off in a justice court against a claim arising ex contractu.

2. The judge of the superior court was fully authorized to sustain the certiorari and reverse the judgment of the justice court finding for the defendant in a named sum, but he committed error in rendering final judgment in favor of the plaintiff in the amount sued for.

3. Judge of the superior court may hear and determine certiorari in vacation as well as term time. Code, § 24-2618. And in a county other than where the case was pending. Avery v. State, 4 Ga.App. 460(1), 61 S.E. 839.

Error from Superior Court, Whitfield County; C. C. Pittman, Judge.

Action on an open account for money lent and for services rendered by Dalton Auto & Machinery Company against A. J. Lewallen, wherein a cross-action was filed. To review a judgment for plaintiff, defendant brings error.

Reversed, with a direction.

W. G. Mann and W. E. Mann, both of Dalton, for plaintiff in error.

I. C. Adams and R. Carter Pittman, both of Dalton, for defendant in error.

GUERRY, Judge.

The Dalton Auto & Machinery Company sued A. J. Lewallen in justice court on an open account for $39.70. An itemized statement of the account was attached to the summons, as follows: "8-5-36, money lent debtor by creditor to meet his GMAC note, $7.96; 8-25-36, same, $8.37; 10-3-36, same $8.37. Wrecker and pulling bill on 11-2-36, $15." Defendant filed a plea and answer denying that he was indebted to the plaintiff in the sum sued for or in any other sum whatever, and further alleged as follows: "Defendant by cross action and suit says that the Dalton Auto & Machinery Company is indebted to him in the sum of $100 the value of the car taken by the plaintiff same being the reasonable market value of the salvage thereof. Defendant says that he purchased a certain car and executed his notes therefor to G.M.A.C, and that said car was covered by insurance and defendant was entitled to the salvage thereof and the salvage was worth $100 for which amount defendant sues and prays judgment." At the trial plaintiff moved to strike the above-quoted portion of the defendant's answer, which motion was overruled. The jury returned a verdict in favor of the defendant for $60. The plaintiff thereupon sued out certiorari to the superior court assigning as error the ruling of the justice of the peace in refusing to strike the above-quoted portion of the defendant's answer, and also the overruling of objections to evidence introduced thereunder; and further assigned error on the verdict and judgment on the ground that they were contrary to the law and evidence. On the hearing of the certiorari the judge of the superior court passed the following order: "Upon hearing the issues in the above matter it is ordered and adjudged by the Court that the petition for certiorari is hereby sustained and the judgment of the lower court is hereby reversed, and a final judgment is hereby rendered in favor of Dalton Auto & Machinery Company plaintiff in certiorari and against A. J. Lewallen, defendant in certiorari for $39.70 principal. It is further ordered that the plaintiff in certiorari recover of the defendant in certiorari the amount of $----costs." Defendant...