123 Ga. 727 | Ga. | 1905
J. G. Bates filed an affidavit of illegality to an execution issued by Ormond, N. P. and ex-officio J. P. of the 1234th district, G. M., Eulton county, in favor of Mrs. E. K. Bigby against “ Southern Dye and Cleaning Works, J. G. Bates, pro., George B. Beck, security,” claiming .that the execution issued against him. and was proceeding illegally. Plaintiff moved to strike the illegality, upon various grounds, which motion was overruled by the magistrate and the illegality sustained. Upon certiorari, this ruling was reversed, and the case remanded with direction. Bates sued out a writ of error, which brings in review the judgment rendered in the superior court. One ground of the illegality was that “ The account sued upon in the case in which said fi. fa. was issued was in substance as follows: Southern Dye and Cleaning Works (J. George Bates, Pro.), to Mrs. E. K. Bigby, to value of one pair double blankets, turned over to the Southern
If the court did not have jurisdiction of the subject-matter of the suit, the judgment was void, and illegality would lie to the execution issued thereon. Planters Bank v. Berry, 91 Ga. 264. The constitution of this State provides that “Justices of the'peace shall have jurisdiction in all civil cases arising ex contractu, and in cases of injuries or damages to personal property, when the principal sum does not exceed one hundred dollars.” Civil Code, § 5856. Clearly the action was not for injuries or damages to personal property. Did the cause of action arise ex contractu ? From the affidavit of illegality it appears that the suit purported to be on account for twenty dollars, the value of one pair of double blankets turned over to the defendant to be cleaned, and which were not returned although demand for the same hád- been made. Technical rules of pleading are not required in justice’s courts, and a fair construction of the whole statement in reference to the account, especially after judgment, is, that the plaintiff delivered to the defendant a pair "of double blankets to be cleaned by him, which, after being cleaned, were to be redelivered by defendant to plaintiff; that defendant had failed, after demand, to redeliver them; and that they were of the value of twenty dollars, for which amount plaintiff sued. A delivery of personalty for some particular purpose, upon a contract, express or implied, that after the purpose has been fulfilled the property shall be redelivered to the person who delivered it, constitutes a bailment. 5 Cyc. 161. Therefore, after the blankets had been cleaned, it was the duty of the defendant, in accordance with his contract, implied at least, to return them to the plaintiff, and for his failure or refusal so to do, without legal excuse, a right of action accrued to the plaintiff. When a tort has been committed with respect to the subject-matter of the bailment, the bailor may either sue for the tort or waive the tort and sue in assumpsit for5®“breach of
2. Another ground of illegality was, that the judgment upon which the execution issued was based upon a verdict rendered on an appeal to a jury in the justice’s court from a judgment rendered, on August 25, 1903, by W. L. Tenable, who had, on August, 22, 1903, “ in writing and unconditionally,” resigned the • officejof^notarv public and ex-officio justice of the peace of the militia district in the justice’s court of which the case was
3. Other grounds of illegality were, that no judgment had ever been entered on the docket in the justice’s court against the defendant in fi. fa.; and if one had been entered, the execution did not follow it. The basis of these grounds is, that the case was entered upon such docket as follows: “ Elizabeth K. Bigby v. Sou. Dye and Cleaning Co., Geo. B. Beck, Prop.;” that the original judgment appealed from, as well as the judgment entered on the ^verdict rendered on the appeal, was entered on the docket as be
We have dealt with all of the assignments of error referred to, in the brief of counsel for the plaintiff in error, and our conclusion is that the certiorari was properly sustained.
Judgment affirmed.