Fuller v. Coker

Luke, J.,

dissenting. I do not agree with the conclusion and judgment reached by a majority of the court in this case. A city court has jurisdiction to entertain an equitable plea which is purely defensive in its nature and which would reduce the 'amount of plaintiff’s recovery or would result in a verdict finding generally for the defendant, unless in order to obtain the result of such plea it would be necessary for the court to exercise the extraordinary powers of affirmative relief, such as reformation or cancellation, etc. See Butler v. Holmes, 128 Ga. 333, 336 (57 S. E. 715), and cases cited; Hanesley v. National Park Bank, 147 Ga. 96 (92 S. E. 879); Park v. Carmichael, 20 Ga. App. 36 (92 S. E. 397), and cases cited. The equitable plea of the defendant in this case, wherein there is pleaded a right arising ex delicto against the plaintiff’s demand arising ex contractu, conforms to the exception pointed *422out in the opinion of Swift v. Oglesby, 8 Ga. App. 540, 541, 542 (70 S. E. 97), and eases cited.

I think the plea of the defendant was good as against the oral demurrer of the plaintiff.