Jennings v. Stripling

Atkinson, J.,

concurring specially. I concur in the judgment of reversal and in all the rulings made, except that stated in the first headnote. I dissent from the proposition -therein stated, for the reason that I do not think that the justice’s court had jurisdiction of this case. The Civil Code, §4068, declares that justices’ courts shall have jurisdiction “in all civil cases arising ex contractu, and in cases of injuries or damages to personal property, where the principal sum claimed does not exceed one hundred dollars, and in eases where the debt has been larger and the balance due is not more than said amount.” While the section of the code just quoted was in effect, a plaintiff sued for the recovery of a certain amount upon a promissory note.. The amount exceeded $100, and the plaintiff attempted to confer jurisdiction upon the justice’s court by voluntarily writing off so much of the principal debt due upon the promissory note as would reduce the claim to the justice’s court jurisdiction, without consent of the defendant, and thereupon filed his suit against the defendant, claiming only $100 and interest. That case finally came to the Supreme Court and was here reviewed. Cox v. Stanton, 58 Ga. 406. Upon review, this court held that “a creditor can not bring his claim within the jurisdiction of a justice’s court by entering a credit thereon without the consent of the debtor.” In the case now under consideration, it affirmatively appears, from the allegations made by the plaintiff, that the demand is entire; that there was but one contract; that there was but one breach of that contract; that all of the damages claimed are alleged to flow from that breach. There had been no payment or satisfaction of any part of the debt so as to create a bona-fide reduction of the demand to an amount within the jurisdiction of the court. In the plaintiff’s bill of particulars he wrote off a part of his demand (all of which he alleged was really *786clue) only for the purpose of giving jurisdiction. For the purpose of determining whether the amount involved exceeds the jurisdiction of the court, the allegations of the plaintiff as to amount of damage resulting from the several elements of damage claimed in the suit are to be treated as solemn admissions made in judicio, and are binding upon the plaintiff. His pleadings are to be construed most strongly against him. Under these conditions the plaintiff- has so presented his case as to eliminate all substantial distinction between this and the case cited, wherein this court held that it was not permissible to write off a part of his demand in order to confer jurisdiction. . Under these conditions we may safely rest this case upon the ruling made in Cox v. Stanton, supra. The attempt by the plaintiff to reduce the amount by disclaiming a part is no more than an attempt to make a gift to the defendant of a part. There can be no gift without gm acceptance; and if the plaintiff himself had been insolvent he could not, even with acceptance by the defendant, make a gift of a part which would bind his creditors. Under the pleadings in this case, there was never an acceptance by the defendant of that part of the debt which the plaintiff attempted to give by reducing his claim. The offer to give was not made until the suit was filed, which was met at the threshold by the refusal of the defendant to accept, which is expressed by his objection to the jurisdiction. Had the defendant made such payments to the plaintiff as would have reduced the demand to a sum not exceeding $100, of course the question would be altogether different, and this under authority of the statute already quoted.