Parks v. Oskamp

• Decision Date: 29 February 1896
• Citation: 25 S.E. 369,97 Ga. 802
• Parties: PARKS v. OSKAMP et al.
• Court: Georgia Supreme Court

25 S.E. 369

97 Ga. 802

PARKS v. OSKAMP et al.

Supreme Court of Georgia

February 29, 1896

Syllabus by the Court.

1. Where one sold to another, on credit, two bills of merchandise on different days, in two consecutive months of the same year, the presumption, in the absence of any proof to the contrary, was that the demand arising upon the two sales constituted one entire and indivisible account in favor of the seller against the purchaser; and, this being so, the former could not divide the same into two separate accounts predicated, respectively, upon the two sales, so as to bring actions thereon within the jurisdiction of a justice's court.

2. Where two such actions were brought, and a plea in abatement for want of jurisdiction was filed, the burden of proof was upon the plaintiff to show that the two alleged accounts were not one and the same account, but that they arose upon distinct and separate transactions.

Error from superior court, Richmond county; E. H. Callaway, Judge.

Separate actions by Oskamp, Nolting & Co. against Eugene H. Parks, in magistrate's court. There were judgments for plaintiffs and defendant sued out a writ of certiorari to the superior court, where it was overruled, and he brings error. Reversed.

S. F Garlington, for plaintiff in error.

F. W. Capers, for defendants in error.

SIMMONS C.J.

Two suits were brought by Oskamp, Nolting & Co. against Parks, in a magistrate's court,--one upon an open account for merchandise sold to the defendant on April 28, 1893; and the other for $40.39, for merchandise sold to him on May 1, 1893. The defendant entered in each case a plea to the jurisdiction, averring that the two actions were on one and the same account; that the plaintiffs had unlawfully divided the same that the sum exceeded $100, and was beyond the jurisdiction of the magistrate's court; and that the superior court of Richmond county had jurisdiction. In support of the pleas, the defendant put in evidence the two statements of account. The pleas were overruled, and judgments rendered in favor of the plaintiffs, upon testimony that the defendant had admitted his indebtedness to them in the amount sued for in each action. The defendant took the case by certiorari to the superior court, alleging that the magistrate erred in "dismissing" the pleas to the jurisdiction, and giving judgment in favor of the plaintiffs. The certiorari was overruled, and the defendant exce...