Bank of Norwood v. Chapman

• Decision Date: 05 April 1917
• Docket Number: 8057.
• Citation: 92 S.E. 225,19 Ga.App. 709
• Parties: BANK OF NORWOOD v. CHAPMAN.
• Court: Georgia Court of Appeals

92 S.E. 225

19 Ga.App. 709

BANK OF NORWOOD v. CHAPMAN.

No. 8057.

Court of Appeals of Georgia, Second Division

April 5, 1917

On Motion for Rehearing, April 24, 1917.

Syllabus by the Court.

The answer was not subject to general demurrer. The special demurrer interposed, not having been filed at the first term could not legally be considered. By failing to object at the time fixed by law for that purpose, the plaintiff waived any defect in the form of the answer, and the court did not err in overruling the demurrer and in refusing to strike the answer. Civil Code 1910, § 5628; Calhoun v. Mosley, 114 Ga. 641, 40 S.E. 714(2); Green v. Hambrick, 118 Ga. 569, 45 S.E. 420(5); Brown v. Georgia, Carolina & Northern Ry. Co., 119 Ga. 88, 91, 46 S.E. 71; Ford v. Fargason, 120 Ga. 708, 48 S.E. 180(1); Potts-Thompson v. Capital City Tobacco Co., 137 Ga 648, 74 S.E. 279(1); Watson v. Parian Paint Co., 138 Ga. 621, 75 S.E. 608(1); Smith v. Ice Delivery Co., 8 Ga.App. 767, 70 S.E. 195(1). It matters not that the trial judge may have (as contended in the brief of counsel for plaintiff in error, but not disclosed by the record) overruled the special demurrer and the motion to strike the answer on their merits. His ruling being correct, it is immaterial for what reason it was made.

There was no error in the admission of the evidence set out in the first and ninth grounds, respectively, of the amendment to the motion for a new trial. Such evidence was admissible for what it was worth, and it was for the jury to say whether it in conjunction with the other evidence in the case, was sufficient to bind the plaintiff bank.

A ground of a motion for a new trial must be complete within itself. The second, third, fourth, fifth, sixth, seventh, and eighth grounds of the amendment to the motion for a new trial complain of the admission of certain documentary evidence; but, such evidence not being set forth therein, either literally or in substance, under repeated rulings of the Supreme Court and of this court these assignments of error cannot be considered.

The tenth ground of the amendment to the motion for a new trial is in substance a recapitulation or omnibus complaint, covering practically all of the objections made to the evidence which was admitted, and to the rulings of the court thereon, which had been separately assigned as error in the preceding grounds of the motion. In the state in which this ground of the motion is presented, it presents no question for consideration.

Under the facts of the case it was not error for the court to refuse to give the requested instructions set forth in the eleventh, twelfth, and thirteenth grounds of the amendment to the motion for a new trial.

This was a suit brought by the Bank of Norwood upon a note signed by J. W. Chapman and made payable to "myself or order," and apparently indorsed by the maker. The defendant, Chapman, having filed a verified plea of non est factum as to the indorsement of the note, the court did not err in "repeatedly" instructing the jury that "the burden was upon the Bank of Norwood to show, by a preponderance of the evidence, that J. W. Chapman indorsed the note on the back." While it was held in Emory v. Smith, 54 Ga. 273(2), that "slight evidence is sufficient to carry the issue of non est factum to the jury," yet, under repeated rulings of the Supreme Court and of this court, the effect of the plea of non est factum is to put the burden upon the plaintiff to prove by a preponderance of the evidence the execution of the contract sought to be enforced.

There is no merit in the fifteenth ground of the amendment to the motion for a new trial, which excepts to the charge as a whole.

The verdict for the defendant was authorized by the evidence, and the court did not err in overruling the motion for a new trial.

Error from Superior Court, Warren County; B. F. Walker, Judge.

Action by the Bank of Norwood against J. W. Chapman. Verdict and judgment for defendant, motion for new trial overruled, and plaintiff brings error. Affirmed.

L. D. McGregor, of Warrenton, for plaintiff in error.

M. L. Felts, of Warrenton, for defendant in error.

BROYLES, P.J.

Judgment affirmed.

JENKINS and BLOODWORTH, JJ., concur.

On Motion for Rehearing.

BROYLES P.J.

It is strongly contended by the able counsel for the plaintiff in error, in his motion for a rehearing, that under the ruling of the Supreme Court in Emory v. Smith, 54 Ga. 273, and Jewell v. Walker, 109 Ga. 241, 34 S.E. 337, the trial judge erred in this case in instructing the jury that "the burden was upon the Bank of Norwood to show, by a preponderance of the evidence, that J. W. Chapman indorsed the note on the back." In the Emory Case, supra, it was held that:

"On the trial of an issue of non est factum, very slight evidence of the execution of the paper is sufficient to justify the judge in submitting the whole question to the jury."

And in the opinion by McCay, J., it was said:

"We think there was no error in the judge's permitting the paper to be read. He did not by this decide it was proven; the issue was for the jury, and but very slight evidence was necessary to put the paper before them. Indeed, when the plea of non est factum is the issue, we are not prepared to say that the judge has anything to do with even a prima facie case."

In the Jewell Case, supra, the third headnote is as follows:

"In answer to a plea of non est factum it is only necessary for the plaintiff to make out a prima facie case of the execution of the instrument sued on, in

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