Rhodes v. Cont'l Furniture Co

• Decision Date: 28 May 1907
• Docket Number: (No. 339.)
• Citation: Rhodes v. Cont'l Furniture Co, 58 S.E. 293, 2 Ga.App. 116 (Ga. App. 1907)
• Court: Georgia Court of Appeals
• Parties: RHODES, DOLVIN & CO. v. CONTINENTAL FURNITURE CO.

58 S.E. 293

(2 Ga.App. 116)

RHODES, DOLVIN & CO.

v.CONTINENTAL FURNITURE CO.

(No. 339.)

Court of Appeals of Georgia.

May 28, 1907.

1. Justices of the Peace — Jurisdiction— Transfer of Causes.

Where an attachment is returned to a court which the papers show on their face does not have jurisdiction thereof, that court should refuse to entertain jurisdiction, and may order the proceedings transferred and returned to the proper court.

2. SALES—Delivery.

Where a contract of sale contemplates transportation to the purchaser through the medium of a common carrier, ordinarily delivery of the goods to the carrier and acceptance from it of its, standard bill of lading is delivery to the purchaser.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 43, Sales, § 377.]

(Syllabus by the Court.)

Error from Superior Court, Greene County; H. G. Lewis. Judge.

Action by the Continental Furniture Company against Rhodes. Dolvin & Co. Judgment for plaintiff, and defendant brings error. Affirmed.

Samuel H. Sibley, for plaintiff In error.

T. P. Brown, for defendant in error.

POWELL. J. This action commenced by attachment issued by the justice of the peace of the 123d district, G. M., Greene county. The affidavit recited the residence of the defendant as being in the 141st district of that county. The bond in describing the case recited that the attachment was returnable to the justice's court of the 143d district, and the attachment itself was, by the justice, made so returnable. Thereafter the plaintiff by leave of that court amended the attachment and bond by striking the words "143d district'' and inserting the words "141st district."' It does not appear that the security to the bond consented to this amendment. After ordering the amendment, the justice of the 143d district directed that the case be withdrawn from that court and transferred to the justice's court of the 141st district, "to which it is returnable." The statutory notice of the pendency of the attachment in the justice's court of the 141st district was given to the defendant for the purpose of recovering a personal judgment. Without objection, the parties went to trial in that court, the defendant obtained judgment, and the plaintiff appealed to the superior court. In that court the defendant assailed the pleadings by moving to dismiss the case, "up-on the ground that the papers showed upon their face that the case was one regularly sued out and returned to the justice's court of the 143d district, G. M., and that the at-tempted amendment and transfer thereof from said named court to that of the 141st district was without authority of law and void, and said court of the 141st district was without jurisdiction to enter a confession of judgment by the plaintiff therein, and the superior court was without jurisdiction to entertain an appeal from such a confession, and further moved that the ease be remanded to said court of the 143d district, as a case pending therein and undisposed of therein." The court overruled the motion and the trial resulted in favor of the plaintiff. The de-fendant renewed his attack by motion in ar-rest of judgment, on the following grounds: "Because it appears on the face of the record that said case was an attachment regularly sued out to the justices court of the 143d dis-trict, G. M., and that the bond given was for an attachment returnable to said court, and the attachment was actually returned to said court, and the papers made a case law-fully pending therein. It appears further j that said court, without consent of the de-i fendants or of the security in the attach-ment bond, undertook to transfer said case to the justice's court of the 141st district, and that confession of judgment was there entered by the plaintiffs without a trial. Movants show, therefore, that said court of the 143d district was without lawful authority to enter the orders it did and to transfer said case to said court of the 141st district, and that said latter court acquired no jurisdiction thereof, and that an appeal from a judgment in said latter court invests this court with no greater jurisdiction than said justice's court had, and that there is no regular or lawful basis in the record for a judgment in this court." The court overruled the motion in arrest of judgment and also a motion for a new trial. The defendant brings error.

1. We think that neither the motion to dismiss the action nor the motion in arrest of judgment was well taken. The law fixed the jurisdiction to hear the case in the district of the defendant's residence. While an attach-ment should give directions for its return, still "it is not this written direction to the sheriff or constable which gives the court jurisdiction, but the law." Blake v. Camp, 45 Ga. 298. Lack of jurisdiction in the justice's court of the 143d district appeared on the face of the record, since the affidavit recited that the defendant resided in the 141st district. The justice's court of the 143d district, therefore, properly declined to assume jurisdiction of the same. Every court has jurisdiction to entertain cognizance of a matter presented to it to the...