Cornett v. Ault , 124 Ga. 944 ( 1906 )

ATKINSON, J.

(After making the foregoing statement.)

1. The justice of the peace was clearly without jurisdiction to render a judgment for the defendant for any sum on his set-off. This is true for two reasons. In the first place, the defendant so pleaded his cause as to show that he contends for the alleged damages, not upon the breach of the contract of warranty, but on account of deceit. By electing to go upon the theory of deceit, his cause is one sounding in tort, and his remedy is by action on the case. In this connection see Peel v. Bryson, 72 Ga. 335, and cit. The damages, not being for injury to personal property, do not fall within the comprehension of the Civil Code, §4068, which defines the subject-matters with which justices’ courts may deal. In the second place, being an action sounding in tort, it could not be pleaded as a set-off to an action on the contract (note), except upon equitable reasons, as for insolvency of the plaintiff, or other similar grounds. Civil Code, §4944; Hecht v. Snook & Austin Co., 114 Ga. 923, and cit. And no court, except a court of equity, could entertain such a plea for the purpose of granting such affirmative relief. Ragan v. Standard Oil Co., 123 Ga. 14, and cit. The plea in question was of that character. So when the justice of the peace rendered the judgment for the full amount of the defendant’s set-off, he was without jurisdiction to do so, and his judgment to that effect was absolutely void and without any force whatever. That express finding, being without effect, could not sup-, port by implication any conclusion not expressed, nor a resultant finding for court costs. There was no other express finding, and it follows that the judgment as a whole was void. Being so, it should be treated as a nullity everywhere and in any court. Civil Code, §5369.

2. The ruling expressed by the second headnote requires no further elaboration in the opinion.

3. IJpon the submission of the ease in the superior court, this void judgment could avail the defendant nothing, but it was his right to again plead to both notes the defense as originally made in the justice’s court. However, upon examination of the uncon-tradicted evidence upon the trial, it appears that the defect in the plaintiff’s title to the bargained land, of which the defendant complained, and on account of which he sought to avoid the notes, had been cured before the institution of the suit. This leaves the defense unsupported by evidence. It follows, that, the execution of both notes being admitted, and there being no valid defense to either, and the justice’s court judgment appearing, by the facts presented by the defendant, to be void, the court did not err either in directing the verdict or granting the decree.

Judgment affirmed.

All the Justices concur.