7 Ga. App. 464 | Ga. Ct. App. | 1910
This was a suit in a justice’s court, to recover damages for a breach of a forthcoming bond. The case was appealed to the superior court, and a motion was made there to dismiss the suit, upon the ground that the original summons and the bond showed that the justice’s court had no jurisdiction. The judge of the superior court overruled this motion, and a direct bill of exceptions was sued out. It does not appear whether the case has been finally disposed of in the superior court.
1. The motion to dismiss the writ of error is not well taken. By the terms of the Civil Code, §5526, a special exception is made as to those rulings of the trial court upon motions which would have effected a final disposition of the cause if the judge had ruled as it is insisted by the complaining party he should have ruled. In the present case a final disposition of the case would have been effected if the court had sustained the motion of the plaintiffs in error to dismiss the action for want of jurisdiction; and for this reason they are entitled to prosecute a writ of error. This rule is so well settled that citation of the numerous cases in the Supreme Court, and of several in this court, in which it has been stated is deemed unnecessary.
2. The judge of the superior court ruled correctly in refusing to sustain the defendant’s motion to dismiss the suit upon the ground that the justice’s court was without jurisdiction. The motion was predicated upon the fact that the forthcoming bond, attached to the summons, was in the penal sum of $140. If the summons and the bond had constituted the whole of the plaintiff’s pleadings, the motion to dismiss should have been sustained. But such is not the case. It is true that the bond is attached to the summons, but it follows an exhibited statement of the plaintiff’s demand, which shows that the amount claimed is less than $100; and the bond is set out merely for the purpose of showing the basis of the defendant’s claim for damages. In other words, the action is not one to recover the penalty of the bond, but is for the recovery of damages alleged to have been suffered by reason of the breach of the bond; and the damages claimed as the result of the breach