Bell & Brother v. Rich

Hall, Justice. Both parties excepted to the decision of the lower court in this case, — the claimant, because the justice’s court had no jurisdiction to enforce a lien upon real estate, where the claim secured by the lien had been divided into a number of notes, so as to bring the amount of each note-within the jurisdiction of that court; and the plaintiff, because three of his justice’s courffi.fas. levied on the land claimed were found to be void. In these three cases, suits-were instituted upon notes' for one hundred dollars each, with interest and the cost of collection, and ten per cent attorney’s fees. The summons in each case at the time it was issued had attached a copy of the note sued on, as required by the statute. Code, §4139. Each of these notes, adding attorney’s fees and cost of collection to the principal, exceeded the sum of one hundred dollars. At the-trial term, by consent of the parties, a judgment was rendered on each for the sum of oné hundred dollars and interest. 1. We will consider the last point first. The jurisdiction of this court is limited to one hundred dollars and interest, and where the amount sued for exceeds that sum, the judgment rendered thereon, whatever its amount, is void for want of jurisdiction. Where jurisdiction depends upon the amount sued for, it seems pretty well settled that the-fact is determined by the sum claimed in the pleadings,, and not upon the amount which may be finally recovered. Taylor vs. Blassingame, ante page 111. As jurisdiction, where it has once rightfully attached, cannot be divested by subsequent occurrences, so where it was wanting at the inception of the suit, it cannot be conferred by any after arrangement between the parties. The case of Cox et al. vs. Stanton, 59 Ga., 406, so confidently relied', on by the able counsel for plaintiff, does not support the position that the remission of a sufficient amount of the claim, after the commencement of the suit, to bring it with [244] in the jurisdiction, will render it cognizable by that court, even though the defendant may give his consent to the reduction. In that case, the claim was reduced without the consent of the opposite party, before the commencement of the action, and it was held that for the want of this consent the court had no jurisdiction; that a judgment rendered by a justice’s court on a claim which exceeds its jurisdiction is a mere nullity, and binds nobody. See Hill vs. Haas, ante page 122 and cases there cited. It follows that there is nothing in the writ of error and the bill of exceptions prosecuted by the plaintiff; and the judgment thereby complained of, must be affirmed. 2. Can an entire lien claimed by a material man, and .•recorded in pursuance of the statute be enforced by numerous suits, where the amount it was taken (o secure "has been divided into sundry, smaller sums, and notes •taken for each of such sum, in order to hasten its collection by resorting to a justice’s court ? The statute creating "lien in favor of a party furnishing material for the improvement of real estates, and providing a remedy for its •enforcement, evidently contemplates but a single lien as to ■ each transaction, to be claimed and recorded on the real ■estate thus improved within thirty days after, ihe material :is furnished, and but a single suit for its enforcement. Code, §§1979, 1980, sub. sec. 1, 2, 3. These statutes are to be strictly construed.' It has been repeatedly decided that it is admissible to divide a large debt into several smaller sums, in order to hasten its collection by bringing suits in a justice’s court on each of these separate amounts. 18 Ga., 668; 22 Id., 466; 23 Id., 616. But it has not yet been held by a full bench, that such, an arrangement could be entered into to facilitate the procurement of judgments, and thereby to defeat a lien which had attached by the levy of an attachment upon the defendant’s property. Two of the judges held that this might be done, but the other, the present Chief Justice, dissented from that view. 60 Ga., 669, 673. Judge Crawford, whose judgment was [245] reversed by the majority decision in this case, was a member of this court with the Chief Justice and Mr. Justice Speer, when the question was next presented. The Chief Justice adhered to his former views, in which Justice Crawford concurred. The remaining justice expressed no opinion, for sufficient reasons there given, and as it was not desirable to overrule the judgment of the majority in the former case, except by the concurrence of a full bench, the point was left for future determination. 69 Ga., 133. The precise point discussed in these cases is not necessarily involved here, nor does it rest upon a principle essential to a solution of the question which this record presents, and we therefore leave it as we find. it. The controversy in those cases related to the light to defeat or displace a lien that had attached, by this resort to a division of larger demands into several smaller ones. In this case it is whether a lien, set up in accordance with the statute which confers the right, can be enforced by any other method than that prescribed by the statute. Since the passage of the act allowing a large debt to be divided into smaller sums, and a separate note taken for each of such sums in order to confer jurisdiction upon the justice’s court, the right or propriety of such a course has not been questioned. It took a statute, however, to confer the jurisdiction. But here is a lien that is to be enforced by a suit, and not by sundry suits, according to the statute creating it. If it had been for one hundred dollars, or less, it is doubtful whether it could have been enforced by a suit brought in the justice’s court, it being upon land; but being'for an amount beyond that jurisdiction, there is no express enactment authorizing it to be divided in order to bring it within the cognizance of that court. An express enactment is necessary for the purpose of conferring authority to act upon courts of limited jurisdiction; they take nothing by intendment. It is insisted, not that the title of the claimant is encumbered by the independent lien created by these judgments, but by the recorded lien which it was their [246] purpose to ■ enforce. -This lien not being enforced, however, in the manner and within the time required by law? does not bind the property claimed, and it follows that the claim should have prevailed, not onlyas to a part, but as to all of these executions. The claimant’s bill of exceptions must be sustained, and the judgment complained of thereby is to be set aside. Judgment reversed.