Cone v. Hunter
| Decision Date | 16 March 1928 |
| Docket Number | 18386. |
| Citation | 142 S.E. 468,38 Ga.App. 45 |
| Parties | CONE v. HUNTER. |
| Court | Georgia Court of Appeals |
Syllabus by Editorial Staff.
Judgment sustaining demurrer to plea to jurisdiction is not a final judgment as regards right of review.
Where general demurrer to petition is overruled, and defendant takes case to Court of Appeals by bill of exceptions assigning error on such ruling, he cannot also assign error on interlocutory judgment sustaining demurrer to plea to jurisdiction, and hence assignment of error to such judgment cannot be considered.
Under Civ. Code 1910, § 4268, subd. 8, parties to series of promissory notes maturing monthly through several years may provide that, in case of default in payment of any two of notes and continuation of such default for specified period the entire series shall, at option of holder, become due and collectible.
Provision for accelerating maturity of notes at option of holder may be contained in deed executed contemporaneously with notes as security for their payment, and such provision is enforceable, though notes may be silent as to it.
Where payee of series of notes, who was also grantee in deed securing their payment, indorsed notes to third person, to whom he transferred his title and interest under security deed, transferee, on default in payment of notes, could exercise option in deed of declaring entire series of notes due, and could proceed to enforce collection as against payee and grantee in security deed, and such suit, under petition alleging part of notes were past due, and alleging exercise of option to accelerate maturity, was not demurrable as prematurely brought.
Error from City Court of Decatur; Frank Guess, Judge.
Action by Joel Hunter against C. H. Cone. Judgment for plaintiff and defendant brings error. Affirmed.
Horton Bros. & Peck, and Morris Macks, all of Atlanta, for plaintiff in error.
Madison Richardson, of Atlanta, for defendant in error.
Syllabus OPINION.
1. A judgment sustaining a demurrer to a plea to the jurisdiction is not a final judgment. Baldwin v. Lowe, 129 Ga. 711, 59 S.E. 772. Where a general demurrer to a petition is overruled, and the defendant takes the case to the Court of Appeals by bill of exceptions, assigning error upon such ruling, he cannot also properly assign error upon an interlocutory judgment sustaining a demurrer to his plea to the jurisdiction. Turner v. Camp, 110 Ga. 631 (2), 632, 36 S.E. 76; Cox v. Hardee, 135 Ga. 80 (5), 90, 68 S.E. 932; Armor v. Stubbs, 150 Ga. 520, 104 S.E. 500; Thomas v. Berry, 151 Ga. 7 (4), 105 S.E. 478. See, also, Douglas v. Hardin, 163 Ga. 643, 136 S.E. 793. Accordingly the assignment of error as to the judgment sustaining the demurrer to the plea to the jurisdiction cannot be considered.
2. While time is not generally of the essence of a contract, it may become so by express stipulation or reasonable construction (...
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