24 Ga. App. 418 | Ga. Ct. App. | 1919
Lead Opinion
1. “The right of one sued at law in an action ex contractu to set off damages arising out of a tort committed by the plaintiff, on the ground that the latter is insolvent or is a non-resident, is a right in
(а) “A plea of set-off is not good unless it alleges facts showing that the demand against the plaintiff which the defendant therein seeks to set up was in existence and due to the latter by the former at the time his action was begun.” Walters v. Eaves, 105 Ga. 584 (3), 587 (32 S. E. 609).
(б) “If a plaintiff resides without this State, or is insolvent, the defendant may set off against him a debt not due, under such equitable terms as may be prescribed by the court.” Civil Code (1910), § 4349. In such a case, however, equitable relief is clearly involved, and where the defendant therein pleads the non-residence or the insolvency of the plaintiff, and further asks a judgment in excess of the plaintiff’s demand, affirmative equitable relief is involved, and a city court has no jurisdiction to entertain the plea.
3. In the instant case the defendant’s claim for rent, which largely formed the basis of the damages arising ex contractu, pleaded as a set-off, was not due at the time of the commencement of the suit, and under the above ruling the city court of Americus was without jurisdiction to entertain this part of the plea. This ruling is not in conflict with the decision in Bibb Land-Lumber Co. v. Lima Machine Works, 104 Ga. 116 (30 S. E. 676, 31 S. E. 401), since in that case, as was pointed out in the case of Hecht v. Snook & Austin Co., supra, the question of the jurisdiction of the city court of Macon to entertain the plea was not raiseS.
4. The point argued in the brief of counsel for the plaintiff in error, that the oral demurrer of the plaintiff was made too late, was not raised in the trial court, and therefore will not be considered.
5. The court did not err in sustaining the oral demurrer to the defendant’s plea as amended, or in thereafter overruling the motion for a new trial.
Judgment affirmed.
Dissenting Opinion
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
I think the plea of the defendant was good as against the oral demurrer of the plaintiff.