Simmons v. Allen

106 S.E. 811, 26 Ga. App. 725, 1921 Ga. App. LEXIS 614

Opinion

Hill, J.

Suit in a justice’s court was brought upon a promissory note for the principal sum of $55, and during the trial in that court the defendant’s attorney entered a credit of $10 on the note, and judgment was thereupon rendered for the plaintiff for $45 principal, besides interest; and within the time allowed by law the defendant filed an appeal to the superior court. When the case was called in the superior court counsel for the plaintiff moved to dismiss the appeal, on the ground that the court was without jurisdiction, as the amount in controversy was less than $50; and this motion was sustained and the appeal dismissed. Held: Error. The right to appeal is fixed by the pleadings, and not by reductions which may be made at the trial in the justice’s court, nor by the amount of the final judgment. Hart v. Gordon, 8 Ga. App. 825 (70 S. E. 193); Bell v. Davis, 93 Ga. 233 (18 S. E. 647); Dyar v. Scott, 99 Ga. 96 (24 S. E. 855); Barnes v. Vandiver, 5 Ga. App. 162 (62 S. E. 994); Civil Code (1910), § 4738.

Decided April 14, 1921.

Appeal from Bibb superior court — Judge Malcolm D. Jones. September 17, 1920.

J. P. Burnett, for plaintiff in error. Hunter & Daly, contra.

Judgment reversed.

Jenkins, P. J., and Stephens, J., conowr.