Baldwin v. Walden

• Decision Date: 30 June 1860
• Citation: 30 Ga. 829
• Parties: BALDWIN. v. WALDEN.
• Court: Georgia Supreme Court

30 Ga. 829

BALDWIN. v. WALDEN.

Supreme Court of the State of Georgia

JUNE TERM, 1860.

Complaint, from Terrell Superior Court. Tried before Judge Perkins, at May Term, 1860.

This was an action brought by defendant in error against Moses H. Baldwin, to recover an amount claimed to be due on a promissory note.

When the case was called for trial, defendant moved to continue the same, on a showing in writing, in substance as follows:

The note sued on was given by defendant to Walden, and payable to him only; that at a former term of the Inferior Court, James W. Devereaux had brought suit against Walden, and garnisheed defendant; defendant answered the garnishment, setting out all the items of indebtedness existing between defendant and Walden, including the note sued on; upon which answer the Court gave judgment against defendant for the balance due, being about $166.00; defendant settled said judgment, and surrendered all the items of indebtedness in Court to Walden; that defendant has applied for the garnishment and answer, and all the papers connected therewith, to the Clerk of the Inferior Court, and they can not be found after diligent search; that he can not go to trial without them, etc.

Plaintiff's counsel agred to admit the amount claimed to have been paid on the garnishment, and the Court thereupon refused the motion to continue, to which defendant excepted.

Plaintiff then put in evidence the note sued 011, which was payable to him only, in the sum of $1,000.00, having a credit thereon for $497.56, dated April 1st, 1856, and closed his case.

Francis M. Harper, introduced by defendant, testified that plaintiff admitted that there was a credit of about $166.00, paid by Baldwin on garnishment process, which Baldwin was entitled to on said note. There was other proof by defendant, going to show money paid out by him for Walden at different times—a horse sold to him, etc., which defendant claimed as part payment of said note beyond the credit of $497-56.

The defendant having closed, his' counsel requested the Court to charge the jury: "That the mere fact of the • receipt on the back of the note was no evidence of a settlement, "—which charge the Court refused to give, and defendant excepted. The Court charged: "That if theybelieved the parties had a settlement at the time of making said receipt, then all the accounts of the parties up to the time of that settlement are presumed to be included in the settlement; and it is on defendant to show they...