Smith v. Atlanta Mut. Ins. Co

• Decision Date: 15 October 1930
• Docket Number: No. 20535.,20535.
• Citation: 42 Ga.App. 254,155 S.E. 535
• Parties: SMITH. v. ATLANTA MUT. INS. CO.
• Court: Georgia Court of Appeals

42 Ga.App. 254

155 S.E. 535

SMITH.

v.ATLANTA MUT. INS. CO.

No. 20535.

Court of Appeals of Georgia, Division No. 2.

Oct. 15, 1930.

Syllabus by Editorial Staff.

Error from Superior Court, Dougherty County; B. C. Gardner, Judge.

Suit by E. B. Smith against the Atlanta Mutual Insurance Company. Judgment for defendant, and plaintiff brings error.

Affirmed.

Cruger Westbrook, of Albany, for plaintiff in error.

Geo. L. Sabados, of Albany, for defendant in error.

Syllabus Opinion by the Court.

STEPHENS, J.

1. Where an insured in a life insurance policy, in a suit against the insurer to recover for an alleged breach of the contract, alleges his damage as being in the amount of the premiums which have been paid on the policy, the amount of the damage is fixed and certain, and constitutes a liquidated demand which, in a suit in a justice's court, the insured cannot, without the consent of the insurer, reduce in order to bring the case within the monetary jurisdiction of the justice's court. Jennings v. Stripling, 127 Ga. 77S, 50 S. E. 1026; Brantley-Groover Co. v. Ivey, 149 Ga. 263(2a), 99 S. E. 855; Edwards v. Edwards, 163 Ga. 825(1 & 2), 137 S. E. 244.

2. In a case pending in the superior court on appeal from a judgment of a justice of the peace, the defendant may plead any defense, including a plea to the jurisdiction of the justice's court, which he could have pleaded in that court, irrespective of whether, upon the trial of the case therein, this defense was pleaded.

3. Upon the trial in the superior court of a case appealed thereto by the defendant in the justice's court from a judgment for the plaintiff, although the judgment was in an amount within the jurisdiction of that court, where it appeared from the evidence adduced on the trial in the superior court that the plaintiff's claim of damages was in an amount fixed and certain, and therefore liquidated, and in an amount in excess of the jurisdiction of the justice's court, the judge of the superior court did not err in refusing to permit the plaintiff to amend by reducing his claim for damages to a sum within the jurisdiction of the justice's court, and did not err, as against the plaintiff, in sustaining a motion of the defendant to dismiss the case for want of jurisdiction.

4. Although the jurisdiction of the justice's court is fixed by the Constitution of this state, a determination by the judge of the superior court as. to whether a particular case is within the jurisdiction of the justice court is not a...