Chance v. Summerford

• Decision Date: 30 June 1858
• Citation: 25 Ga. 662
• Parties: James Chance, plaintiff in error. vs. Henry Summerford,defendant in error.
• Court: Georgia Supreme Court

25 Ga. 662

James Chance, plaintiff in error. vs. Henry Summerford, defendant in error.

Supreme Court of the State of Georgia

JUNE TERM, 1858.

Assumpsit, from Baker county. Tried before Judge Allen, May Term, 1858.

Chance made his note, which B. N. Scott and Henry Summerford endorsed to the Central Bank of Georgia. After the maturity of the note, the same was sued to judgment in Houston county, and execution issued thereon.

Henry Summerford paid off the fi. fa. It appears, from the record, that Chance having removed from the county of Houston, was not served with the writ.

Summerford sued Chance on the debt after he obtained control of the fi.. fa. and tendered in evidence on the trial the transcript of the record of the suit and execution against him from the county of Houston, and therein the evidence of payment of the fi. fa. by him; and defendant's counsel objected to its admission. Which objection the Court overruled, and defendant excepted.

Plaintiff proposed to read the answers of Warren and Summerford to interrogatories, proving the transfer, after the payment of the execution, to Summerford, the plaintiff. Defendant's counsel objected to their answers being read, which objection the Court overruled, and defendant again excepted. The answers were read.

Plaintiff here closed his case, and the defendant moved the Court for a nonsuit on the grounds taken in the rule nisi for a new trial; which motion was refused.

The jury found in favor of the plaintiff.

And defendant moved the Court for a new trial on all the points taken by defendant, as above stated and overruled, and also on the grounds that the verdict of the jury was contrary to law, and that the verdict of the jury was contrary to the evidence; which the Court overruled.

Whereupon defendant excepted, and assigns the same as error.

P. J. Strozier for plaintiff in error.

R. F. Lyon, for defendant in error.

By the Court.—McDonald, J., delivering the opinion.

The exemplification of the case in favor of the Central Bank against the endorsers of the plaintiff in error was admissible for the purpose of proving the recovery of the debt against them by the bank, and the evidence of Warren and Summerford was admissible to prove the payment of the money by the defendant in error, I Greenleaf's Ev., secs. 538, 539.

The counsel for plaintiff in error moved for a nonsuit on the grounds taken above, and overruled by the Court, and to the refusal of the Court to award it he excepted. Having sustained the...