Stewart v. Thompson & Co.

Bleckley, Chief Justice. Where no statutory provision regulates the matter, whether a creditor whose demand is created by express contract, such as a promissory note, can voluntarily abandon a part of his claim, or enter a credit upon it, for the express purpose of reducing it within the jurisdiction of a given court, is a question upon which authorities differ. It is probable that the weight of decision is with the affirmative. Wells on Jur. §102; King v. Dougherty, 2 Stew. (Ala.) 487; Raymond v. 831 Strobell, 34 Ill. 113; Culbertson v. Tomlinson, 1 Morris (Ia.), 404; Stone v. Murphy, 2 Clarke (Ia.), 35; Bates v. Bulkley, 2 Gilm. 389; Ellis v. Snyder, Breese (Ill.), 263; Herren v. Campbell, 19 Vt. 23; Simpson v. Updegraft, 1 Scam. 594; Fuller v. Sparks, 39 Tes. 136; Hempler v. Scheider, 17 Mo. 258; Litchfield v. Daniels, 1 Col. 268. And see Matlock v. Lare, 32 Mo. 262; Alexander v. Thompson, 38 Tex. 533; Danforth v. Streeter, 28 Vt. 490; Denny v. Eckelkamp, 30 Mo. 140; Koroski v. Foster, 20 Ill. 32; Evans v. Hall, 45 Penn. St. 235; Bowditch v. Salisbury, 9 Johns. 366; Bennett v. Ingersoll, 24 Wend. 113; Wharton v. King, 69 Ala. 365. Authorities upholding the negative are, however, not wanting. Com. Dig. County, (C) 8; Ramsay v. Court, 2 Bay, 180; Simpsom v. McMillion, 1 Nott & McC. 192; Sands v. Delap, 1 Scam. 168. And see Clark v. Cornelius, Breese (Ill.), 21; Blue v. Weir, Id. 293; Simpson v. Rawlings, 1 Scam. 28; Hugunin v. Nicholson, Id. 575; Stroh v. Urich, 1 W. & S. 57; Collins v. Collins, 37 Penn. St. 387; Bower v. McCormick, 73 Id. 427; Peter v. Schlosser, 81 Id. 439. Our books furnish one case (Cox et al. v. Stanton, 58 Ga. 406) squarely on the negative line, and several dicta looking in the same direction may be found. See ex parte Gale, R. M. Charlton’s Rep. 214; Commissioners v. Lowe, Id. 298; Tyler Cotton Press Co. v. Chevalier, 56 Ga. 494. Upon the special question as to the use of such means for bringing a ease'within the jurisdiction of the county court, we have one express ruling on the affirmative side, in Wilhelms v. Noble Bros., 36 Ga. 599, a decision which was made upon the first act establishing county courts, that of 1866, which, in addition to certain enumerated cases, conferred jurisdiction in “all other civil cases in which not more than one hundred dollars is claimed as damages, or principal sum due.” Acts 1865-6, p. 66. It would seem that this language is so nearly 832 identical with that dealt with in Goxet al.v. Stanton, 58 Ga. 406, supra, touching the jurisdiction of justices’ courts, as to make the same rule of decision applicable to both. But in the latter case, Judge Warner says the two cases are unlike, without indicating in what respect they are unlike. Looking to these two cases alone, the result appears to be that for the county court one rule prevails, and for the justice’s court another. The act of 1866 was repealed, and was succeeded by the act of 1872 (pamph. acts 1871-2, p. 289) the terms of which are found in the code of 1873, sections 279 et seq. This act expressly allowed a creditor to reduce his demand to an amount within the jurisdiction of the county judge, its language being, “ Any person desiring to bring his claims within the jurisdiction of the county judge may do so, by remitting or releasing so much of his claim as will bring it within the jurisdiction aforesaid of the county judge.” After the adoption of the constitution of 1877, the act of 1879 (pamph. acts 1878-9, p. 182) was passed, the declared object being to comply with the terms of the constitution in respect to making the jurisdiction and practice of the county courts uniform. The language of this last act upon the subject of jurisdiction as to amounts is as follows : “The jurisdiction of the county courts shall extend in the county town district, or districts, to all civil cases of contract or tort (save when exclusive jurisdiction is vested in the superior court), where the principal sum claimed, in cases of contract, or damages in cases of tort, does not exceed three hundred dollars, and over the remainder of the county when the principal sum as aforesaid does not exceed three hundred dollars, nor is less than fifty dollars. At the monthly session said court may entertain jurisdiction . . of suits in which the amount of principal or damages claimed does not exceed one hundred dollars, and at the quarterly sessions it shall 833 have jurisdiction of suits wherein such amount is not more than three hundred dollars.” Code 1882, §282, par. 1; §283(f). It omits the provision above recited from the act of 1872, but it also deviates slightly from the terms of that act in defining the jurisdiction, the terms of the act of 1872 being as follows : “That the said county judges shall have jurisdiction in all civil cases, matters of contract and of tort (except where by the constitution an exclusive jurisdiction is given to the superior courts of this State), where the principal sum in cases of contract, and where the damage claimed in cases of tort, does not exceed one hundred dollars, but in eases where said principal sum so claimed, or damage, is more than fifty dollars, there may be an appeal to the superior court,” etc. It will be seen that the words substituted for this language, in the act of 1879, correspond very closely with the terms employed in the act of 1866, and which in Wilhelms v. Noble Bros., supra, were construed as allowing the plaintiff to reduce his demand, though the same consisted of a sum fixed by a promissory note. In view of that decision, the legislature of 1878 may have thought that it was unnecessary to keep in force the express provision in the act of 1872 allowing such reduction to be made. This is one way of accounting for the omission of that provision from the act of 1879. Another way of accounting for it is, that the legislature may not have thought it to come within the object or scope of the act which they were then passing, as that act dealt with the power and jurisdiction of the county courts, and not directly with the power and rights of a creditor to abandon or release a portion of his demand. Thus, the legislature may have supposed that not to mention that provision of the act of 1872, which formed a part of section 282 of the code of 1873, was simply to leave it in force. This particular section of the code of 1873 was passed over in silence. 834 True, the last section of the act of 1879 has a very broad and comprehensive repealing clause, the same being in these terms : “ That all laws, general or local, except as in this act provided, by which jurisdiction or power is conferred on any county court or judge; or whereby its proceedings or practice, or the force or efleet of the process, judgment or decree of any such court is defined, and all laws in conflict with this act, are hereby repealed.” Pamph. acts 1878-9, p. IS6. But, as we have suggested, a mere grant of power to creditors to reduce their claims, is not necessarily embraced within the language of this repealing clause, for such grant of power relates, not to what the county courts can or may do, but what suitors may do preliminary to invoking the jurisdiction of these courts. The provision in question was carried forward from the code of 1873 into that of 1882, section 282, par. 6. This indicates that the compilers of the code considered it still in force. There has certainly been no express repeal of it, and we discover no conclusive reason for holding that it has been repealed by implication. Moreover, even if it has been so repealed, why should not the act of 1879 be construed as was that of 1866 ? If the words “ civil cases in which not more than one hundred dollars is claimed as damages, or principal sum due,” used in the act of 1866, would, by their own force, warrant a creditor in reducing his demand on a promissory note, why should not also the words “ suits in which the amount of principal or damages claimed does not exceed one hundred dollars,” employed by the act of 1879 ? It'might be that such a provision would be necessary in connection with the words of jurisdiction employed by the act of 1872 ; but as we have seen, those words have been slightly departed from by the act of 1879, and words equivalent to those embraced in the act of 1866 adopted. Our conclusion is, that with or without the aid of this express 835 provision, the county courts 'should now measure their jurisdiction by the principal amount “claimed,” aud not by the promissory note or other evidence of debt upon which -the action is based. In the present case, the amount of principal “ claimed ” was only $100.00, all excess being remitted by a credit entered on the note before suit. Originally the note was for $136.05, besides 10 per cent, attorney’s fees, and interest from maturity at the rate of 10 per cent, per annum. The suit fell within the letter of the statute conferring jurisdiction on the county court at its monthly session, aud we think it fell, also, within the spirit and meaning of the statute. Judgment affirmed,.