Antognoli v. Miller

• Decision Date: 09 December 1902
• Citation: 42 S.E. 1006,116 Ga. 621
• Parties: ANTOGNOLI et al. v. MILLER. MILLER. v. ANTOGNOLI et al.
• Court: Georgia Supreme Court

42 S.E. 1006

116 Ga. 621

ANTOGNOLI et al.

v.MILLER.

MILLER.

v.ANTOGNOLI et al.

Supreme Court of Georgia.

Dec. 9, 1902.

PLEADING—ANSWER—SUFFICIENCY—NEW TRIAL—ACTION ON NOTE.

1. In testing the relevancy and sufficiency of matters of defense set forth in one of several paragraphs of a defendant's answer, the facts alleged in such paragraph are to be considered, not alone, but in the light of the allegations embraced in the other paragraphs of the answer relating to the same defense.

2. There was in the present case no abuse of discretion in ordering another trial, notwithstanding the verdict set aside was the second finding by a jury in favor of the prevailing party.

(Syllabus by the Court.)

Error from superior court, Floyd county; W. M. Henry, Judge.

Action by Clarence L. Miller against Antognoli & Co. Verdict for defendants. From an order granting a new trial, both parties bring error. Affirmed.

Denny & Harris, for plaintiff in error.

Henry Walker, for defendants in error.

SIMMONS, C. J. A petition was filed by Clarence L. Miller, in which the firm of A. M. Antognoli & Co. was named as defendant, and in which a promissory note for $188, and a duebill for $45, both signed in the name of that firm and payable to the plaintiff, were declared upon. An answer was filed by the defendant partnership, in which it set up two defenses: (1) That payment of the note had been made to H. R. Miller, who was the authorized agent of the plaintiff to collect it; and (2) that the plaintiff was only the nominal holder of the note and duebill, H. R. Miller being the real owner thereof, and, as such, having received payment in full of the indebtedness thereby evidenced. In support of this latter contention the defendant alleged that H. R. Miller had been the proprietor of certain bottling works which were destroyed by fire; that, in order to conceal from his creditors the fact of his ownership thereof, he had conducted business in the name of the plaintiff, and, on receipt of the proceeds arising from a policy of insurance covering the property destroyed by the fire, had loaned a portion of the money so received to defendant, taking from defendant the note and due-bill payable to the plaintiff, with a view to giving fresh color to the tradition that he had been the owner of the bottling establishment. The allegations of fact relied on as supporting this line of defense were set forth in the answer in divers paragraphs, each separately numbered. To the answer a demurrer was interposed by the plaintiff, several grounds of which were sustained by the trial judge, and others of which were overruled by him. In those grounds of the demurrer which his honor declined to sustain, separate attacks were directed against designated paragraphs of the answer which were assailed as containing matter which was wholly irrelevant, and which constituted no defense to the action. The case proceeded to a trial on the merits, and resulted in a verdict in favor of the defendant. This was, it appears, the second verdict returned in the case; the...