Chamblee v. Pirkle

• Decision Date: 14 July 1897
• Citation: 29 S.E. 20,101 Ga. 790
• Parties: CHAMBLEE . v. PIRKLE et al.
• Court: Georgia Supreme Court

29 S.E. 20

101 Ga. 790

CHAMBLEE .

v.PIRKLE et al.

Supreme Court of Georgia.

July 14, 1897.

Witness—Competency—Transactions with Decedent.

Where one, intending to bind himself only as surety for another, in fact signs a promissory note as a joint maker, knowing at the time that other persons are to be requested by the principal to sign such note as sureties, which is thereafter done, and the note is signed by a third person as a surety, there having been no direct communication between the latter and the party first herein referred to, and a judgment is afterwards rendered against the person last signing, in his capacity as surety, and also against the other two parties to the note, but as principals, and where, after the death of the party who signed as surety, the person first intending to become such undertakes, under the provisions of section 2985 et seq. of the Civil Code, to have himself declared to be a surety only, both as against the maker and as against the representatives of the estate of the deceased surety, upon the trial cf the issues thus made the movant is not, by reason of anything contained in section 52G9 of the Civil Code, rendered incompetent as a witness in his own favor to show his true relation to the paper. The effect of such proof, when made, is not now decided.

(Syllabus by the Court.)

Error from superior court, Hall county; J. J. Kimsey, Judge.

Suit by George L. Chamblee against J. M. Chamblee, and R. n. Pirkle and W. H. Cooper, as administrators of A. R. Cooper, deceased, to have himself declared a surety on a note. Prom a judgment of nonsuit, plaintiff brings error. Reversed.

H. H. Perry, M. L. Smith, J. B. Estes, and H. H. Dean, for plaintiff in error.

S. C. Dun-lap, G. H. Prior, and P. M. Johnson, for defendants in error.

SIMMONS, C. J. It appears from the record that J. M. Chamblee and George L. Chamblee, as principals, and A. R. Cooper, as security, made a not; to P. T. Davie. When the note became due it was not paid, and Davie brought suit against the Chamblees as principals and Cooper as surety, and obtained a judgment against them. After judgment, George L. Chamblee paid a large portion of the money due thereon, and then commenced proceedings, under section 2985 et seq. of the Civil Code, to have himself declared to be a surety only as against both J. M. Chamblee and Cooper. Before the trial of this case Cooper died, and Pirkle and W. H. Cooper were appointed as his administrators. They denied that George L. Chamblee was only surety on the note, and insisted that he was one of the principals. At the trial of the issue thus formed, George L. Chamblee offered himself as a witness, and testified, in substance, that his brother, J. M. Chamblee, was behind as tax collector of Hall county, and brought him the note, telling him that if he would sign it as security he (J. M. Chamblee) could get the money fro: n Mr. Davie to pay off the indebtedness, and that others would sign with him. He did sign it, intending thereby to become a security only. There was no one present when he did so except his brother. He had no conversation with Cooper about signing the note before he signed it. He had no transaction whatever with Cooper in regard to the note. Cooper signed it after the witness had signed, and witness did not see Cooper sign. After hearing this testimony, the court, on motion, excluded it on the ground that It related to a...