147 Ga. 464 | Ga. | 1917
A contractor instituted an action against the owners of certain real estate, to set up a lien, and to recover a general judgment for a specific amount as balance due under a contract for building a house on the premises. The defendants filed a plea denying any indebtedness to the plaintiff, and, by way of answer in the nature of a cross-petition, alleged that the plaintiff had cut timber and wood from certain lands of the defendants under a contract whereby the plaintiff had agreed to cut the timber and wood upon a percentage basis, and that he had breached the contract by failing to account and pay for the wood and timber cut, thereby damaging the defendant in a stated aggregate amount. Thereafter the plaintiff voluntarily dismissed his original petition, and filed an answer to the cross-petition; and the case proceeded to trial on the cross-petition and answer. This answer admitted the contract and the cutting of timber thereunder, but set up
1. The pleadings upon which the case was tried amounted merely to an action at law upon a contract for cutting timber, in which the issue was as to the amount due and whether paid. Owing to the nature of the ease, the judgment allowing the amendment to -the former judgment, as complained, was not a judgment in an equity case, so as to confer on the Supreme Court jurisdiction of the writ of error. Accordingly the case will be transferred to the Court of Appeals, which has jurisdiction undef the constitution. Acts 1916, p. 19.
2. If the cross-demand set up in the answer, considered with the original petition, would have made an equitable case (which does not seem possible, both demands being ex-eontraetu: Civil Code, § 5521; Cornett v. Ault, 124 Ga. 944, 53 S. E. 460), the character of the case was entirely changed upon dismissal of the original petition by the plaintiff.