Dye v. Hirsch
| Decision Date | 30 September 1955 |
| Docket Number | No. 2,No. 35846,35846,2 |
| Citation | 92 Ga.App. 803,90 S.E.2d 332 |
| Parties | Beatrice F. DYE v. T. F. HIRSCH |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. It is not error to overrule a motion for a continuance based on a plea of stay by reason of pending bankruptcy proceedings where such plea is not supported by proper evidence.
2. The defendant having admitted a prima facie case and having then pleaded affirmative matter which she contended would entitle her to prevail, which affirmative matter was not supported by evidence, a judgment against her on the admission was demanded. Accordingly, it was not error for the trial court to direct a verdict against her, and all irregularities complained of in the procedure constituted harmless error as to her.
3. The plaintiff in error in a bill of exceptions cannot complain on behalf of others who are not parties thereto and who will not be bound by the decision therein.
T. F. Hirsch as assignee of a note filed an action thereon in the City Court of Carrollton against Beatrice F. Dye, alleging that she was the maker and he was security thereon and that upon her default he paid the amount due thereon, and received the assignment thereof. This suit was filed for the plaintiff in December, 1950, by an attorney since deceased in and at the same time a companion suit was filed by one Roy Richards alleging that Beatrice Dye was principal and he was security on another note to the same payee. The petitions were in all particulars similar, except for the identity of the instrument and the plaintiff. This case was not tried, but the companion case, Richards v. Dye, 89 Ga.App. 376, 79 S.E.2d 548 and Dye v. Richards, 210 Ga. 601, 81 S.E.2d 820 was finally decided on May 11, 1954, after a trial which had resulted in the direction of a verdict for the plaintiff and which judgment was affirmed in both courts.
The present case came on for trial on March 14, 1955, the attorney representing the plaintiff not being the one who had filed the petitions, but being the same attorney who had prosecuted the appeals in the companion case. Plaintiff's attorney introduced in evidence the certiorari bond in the case of Richards v. Dye, signed by Beatrice F. Dye, principal and M. L. Fisher, security, in the sum of $2,250, and stating, 'I am introducing the bond on which I predicate my judgment.' The bond was admitted over objection. Counsel then stated that
Counsel for the defendant also moved for a continuance based on a plea for stay on account of bankruptcy filed in the case July 3, 1954, verified by the defendant and signed by he attorney in the bankruptcy court, reciting that on July 2 she filed her voluntary petition in bankruptcy in the District Court for the Northern District of Georgia, in which matter the present debt is scheduled as an unsecured claim, and that, when discharged, she will be released from all liability thereon.
No further evidence was introduced. The trial court directed a verdict in favor of the plaintiff against Beatrice F. Dye and M. L. Fisher, Sr., surety, for principal, interest, and court costs. A motion for a new trial was made and subsequently amended by the addition of certain special grounds. This motion was denied, which judgment is here assigned as error.
Boykin & Boykin, Shirley C. Boykin, Carrollton, for plaintiff in error.
O. W. Roberts, Jr., Carrollton, for defendant in error.
1. Special ground 1 of the amended motion for a new trial contends that the court error in refusing to grant a continuance and in refusing to recognize the plea for stay filed on account of bankruptcy by the defendant; in overruling said plea for stay and motion made by counsel for the defendant for stay and continuance pending application for discharge in bankruptcy. The plea of stay is itself sufficient as a pleading, under Hunter v Lissner, 1 Ga.App. 1(1), 58 S.E. 54. However, under the same authority in order to be entitled to the continuance or stay in accordance with the motion of counsel for the defendant, it is incumbent upon him to offer in evidence the copies properly authenticated of the proceedings referred to therein. There being nothing in the present record to indicate that counsel for the defendant offered any proof of this nature, it was not error for the trial court to overrule the motion. This assignment of error is without merit.
2. Special ground 2 contends that the trial court erred in admitting in evidence over objection the certiorari bond in the case of Richards v. Dye, referred to in the statement of facts herein. Special ground 3 contends that the trial court erred in directing a verdict because the jury was not sworn, there was evidence to support a verdict presented to the jury, and movant was given no opportunity to strike a jury. Special ground 4 contends that the trial court erred in directing the verdict. These grounds will be considered in connection with the general grounds.
While there was no evidence whatever on behalf of the plaintiff to support the verdict for him, nevertheless, the plea and answer admits in plaintiff a prima facie case, and the admission was never withdrawn. Defendant then proceeded to plead affirmative matter which she contended would entitle her to prevail, this defensive matter being the same as that set out in the statement of facts in the case of Richards v. Dye, supra. The affirmative matter thus pleaded was not supported by any evidence, and it does not appear that any evidence was offered by the defendant in support thereof and rejected by the court. In Alexander Hamilton Institute v. Van Landingham, 44 Ga.App. 606(1), 162 S.E. 304, 305 it was held as follows: "A party to a suit will not be allowed to disprove an admission made in his pleadings, without withdrawing it from the record.' Florida Yellow Pine Co. v. Flint River Naval Stores Co., 140 Ga. 321(2), 78 S.E. 900. The defendant in this case having, by a solemn admission in judicio, established the right of the plaintiff to recover unless the affirmative defense pleaded should entitle the defendant to prevail, which admission it was impossible in law for the defendant to contradict by any evidence whatsoever (New Zealand Fire Ins. Co. v. Brewer, 29 Ga.App. 773, 774(6), 116 S.E. 922), and there being no proof in support of the defendant's plea of rescission * * * the verdict directed in favor of the plaintiff was demanded as a matter of law'.
The admission over objection of the certiorari bond in the case of Richards v. Dye, on which error is assigned in special...
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