Farmers' & Merchants' Bank of Brewton v. Brantley

• Decision Date: 03 August 1917
• Docket Number: 8864.
• Citation: 93 S.E. 237,20 Ga.App. 774
• Parties: FARMERS' & MERCHANTS' BANK OF BREWTON v. BRANTLEY ET AL.
• Court: Georgia Court of Appeals

93 S.E. 237

20 Ga.App. 774

FARMERS' & MERCHANTS' BANK OF BREWTON v. BRANTLEY ET AL.

No. 8864.

Court of Appeals of Georgia, Second Division

August 3, 1917

Syllabus by the Court.

To entitle the defendant to the valuable and substantive right of opening and concluding the argument in a case, he must before the introduction of any evidence, clearly and unequivocally in his written plea admit such a prima facie case in favor of the plaintiff as will entitle the latter to recover without the introduction of any evidence whatsoever. The admission must be unequivocal, and not merely inferential. Crankshaw v. Schweizer Mfg. Co., 1 Ga.App. 363, 58 S.E. 222; Wall v. Wall, 15 Ga.App. 156, 82 S.E. 791; Central of Georgia Ry. Co. v Morgan, 110 Ga. 168, 35 S.E. 345; Culver v Wood, 138 Ga. 60, 74 S.E. 790(2); Hendricks & Christian v. Lott, 143 Ga. 647, 85 S.E. 843; Roberson v. Weaver, 145 Ga. 626, 631, 89 S.E. 769.

In an action upon a promissory note, to entitle the defendant to the opening and conclusion, he must, before the plaintiff has introduced any evidence, admit in his written plea the execution of the note sued upon and that the plaintiff is the legal holder thereof. Montgomery v. Hunt, 93 Ga 438, 21 S.E. 59; Levins v. Smith, 102 Ga. 480, 31 S.E. 104; Southern Mutual Association v. Perry, 103 Ga. 800, 30 S.E. 658; Swanson v. Cravens, 105 Ga 471, 30 S.E. 642; Whitaker v. Arnold, 110 Ga. 857, 36 S.E. 231; Walker v. Bryant, 112 Ga. 412, 414, 37 S.E. 749. In the instant case, which was a suit upon a promissory note, the defendant, before the introduction of any evidence, admitted in his written plea the execution of the note sued upon; but he did not therein directly or unequivocally admit that the plaintiff was the owner or legal holder of the note, or that he had title thereto. It is true that the plea admitted that the plaintiff was the payee of the note and had obtained possession of it; but, for all that, the plea shows the plaintiff may have, before the bringing of the suit, sold and indorsed the note to some other person. The plea fails to admit that at the time of the bringing of the suit the title to the note was in the plaintiff. It follows that the court erred in allowing the defendant the opening and conclusion of the argument. This error rendered the further proceedings in the case nugatory.

Error from City Court of Dublin; R. D. Flynt, Judge.

Action between the Farmers' & Merchants' Bank of...