Cone v. Hunter, (No. 18386.)

• Decision Date: 16 March 1928
• Docket Number: (No. 18386.)
• Citation: 38 Ga.App. 45,142 S.E. 468
• Parties: CONE. v. HUNTER.
• Court: Georgia Court of Appeals

38 Ga.App. 45

142 S.E. 468

CONE.

v.HUNTER.

(No. 18386.)

Court of Appeals of Georgia,

Division No. 2.

March 16, 1928.

(Syllabus by Editorial Staff.)

Error from City Court of Decatur; Prank 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 by the Court.

JENKINS, P. J. [1, 2] 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. Accord-ingly 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 (Civil Code 1910, § 4268, subd. 8), and It is competent for the parties to a series of promissory notes, " maturing monthly through several years, to provide that in case of default in the payment of any two of them, and a continuation of such default for a specified period, the entire series shall, at the option of the holder thereof, become due and collectible. Kilcrease v. Johnson, 85 Ga. 600, 11 S. E. 870; Stocking v. Moury, 128 Ga. 414 (1), 57 S. E. 704. Such a provision may be contained in a deed executed contemporaneously with the notes as security for their payment, and the stipulation is enforceable though the notes be silent as to it. Jones v. Norton, 9 Ga. App. 333, 71 S. E. 687. Accordingly, where the payee of such a series of notes, who was also the grantee in a deed executed to secure their payment indorsed them to a third person, to whom he transferred his title and interest under the deed, the transferee, on default in payment of the notes as provided for by the deed, and on his exercise of the option to declare all the remaining unpaid...