Field v. Mcelroy

• Decision Date: 14 October 1933
• Docket Number: NO. 23179.,23179.
• Citation: 47 Ga.App. 735,171 S.E. 300
• Parties: field . v. Mcelroy.
• Court: Georgia Court of Appeals

47 Ga.App. 735

171 S.E. 300

field .

v.Mcelroy.

NO. 23179.

Court of Appeals of Georgia,

Division No. 2.

Oct. 14, 1933.

Syllabus by Editorial Staff.

Error from Superior Court, Whitfield County; C. C. Pittman, Judge.

Suit by W. M. McElroy against J. P. Field, administrator. Judgment for plaintiff, defendant's motion for a new trial was overruled, and defendant brings error.

Reversed.

Paul H. Field, of Dalton, for plaintiff in error.

D. K. Johnston, of Atlanta, for defendant in error.

Syllabus Opinion by the Court.

SUTTON, Judge.

This was a suit on a promissory note, secured by a loan deed to certain lands. The note matured on October 15, 1934. To it were attached certain semiannual interest notes. The principal note provided that if the maker should fail to pay any of the interest notes when due, the holder would have the right to declare the principal note due. The petition alleged that the maker had defaulted in the payment of two of the interest notes and that the plaintiff had declared the principal note due. The defendant, as administrator of the maker, filed his answer in which he admitted the execution of the notes, but alleged that there was no default in the payment of the interest notes, in that in the loan deed it was provided that the plaintiff had the right, upon default of any interest payment, to collect the rents from the lands conveyed by the loan deed and apply the same to the payment of the interest notes, that the plaintiff had done this, that the interest notes were therefore not in default, and that by reason thereof the principal note was not due. This plea and answer was filed at the appearance term and was not verified. At the trial term the plaintiff demurred to the answer generally as setting forth no defense in law, and specially on the ground that the allegations therein as to payment of the interest notes was not sufficiently definite. The court sustained the demurrer and struck the answer, and thereupon directed a verdict for the plaintiff. The defendant moved for a new trial, the motion was overruled, and the case is in this court on exception to that judgment, and in the bill of exceptions error is assigned upon exceptions pendente lite complaining of the judgment sustaining the demurrer and striking the answer of the defendant. Held:

1. That part of the plea and answer of the defendant which alleged that the interest notes were not in default but had been paid,, and that the principal note was not yet due, set up a defense good as against a general demurrer. Register v. Southern States Phosphate Co., 157 Ga. 561 (4), 122 S. E. 323; ...