Gartrell v. Linn

• Decision Date: 27 January 1888
• Citation: 4 S.E. 918,79 Ga. 700
• Parties: GARTRELL v. LINN.
• Court: Georgia Supreme Court

4 S.E. 918

79 Ga. 700

GARTRELL v. LINN.

Supreme Court of Georgia

January 27, 1888

Syllabus by the Court.

When in a petition for certiorari, complaint is made that the magistrate erred in admitting testimony over certain specified objections, but the answer of the magistrate, which is neither excepted to nor traversed, fails to disclose upon what ground the testimony was objected to, or for what reason the same was ruled in, the alleged error of the magistrate cannot be considered by the superior court.

In order to revive a note, which, on its face, is barred by the statute of limitations, by a new promise, such new promise must so plainly and clearly refer to or describe the very note in question as to identify it with a reasonable certainty.^[1]

Error from superior court, Bibb county; SIMMONS, Judge.

C. B Linn sued T. B. Gartrell on a promissory note.Judgment for plaintiff, and defendant brings error.

H. F Strohecker, for plaintiff in error.

A. Proudfit, for defendant in error.

LUMPKIN J.^[2]

Linn brought suit in the justice's court against Gartrell, January 18, 1886, on a promissory note, dated November 28, 1878, and due 30 days after its date.The defendant pleaded the statute of limitations, and, to avoid this plea, plaintiff introduced a letter from the defendant, which he claimed was, under section 2935 of the Code, such a written acknowledgment of the defendant's liability as was equivalent to a new promise to pay the note.The following is a copy of the letter:

"MACON, August 5, '85.

" Friend Charlie: Yours of third inst. received.You remember while here I told you that I was building, and consequently 'hard up,' but soon as last payment on my house is made, would pay you some if not all.My note for last payment on house is in bank, payable October 1st, and it will be all I can do to meet it; but after I do, will surely pay you all I can.Should you draw at sight it would not be honored, for the simple reason that I have not the money now, and it would result only in detriment to me, without profit to you, and I know you would not cause me any embarassment.So, exercise a little faith, my old friend, and you shall be paid the 'uttermost farthing.'Please write and state amount of indebtedness, as I have forgotten how much it is.With kindest regards to self and family, I remain, as ever,

"Your friend, F. B. GARTRELL.

" Mr. C. B. Linn, Hampton, Ga."

The introduction of this letter was objected to by defendant in the justice's court, and, as alleged in the petition, on certain specified grounds, concerning which the magistrate's answer is silent, but the objection was overruled.The plaintiff's case rested entirely upon the note and the letter, and upon this testimony judgment was rendered in his favor.The defendant sued out a writ of certiorari, alleging as error the admission of the letter in testimony, and the judgment aforesaid.The superior court overruled the certiorari, and this is assigned as error.

1.The first ground of error complained of in the magistrate's rulings cannot be considered, because his answer to the writ of certiorari does not state upon what ground the letter was objected to, or for what reason it was allowed to go in testimony.The answer was neither excepted to for want of fullness, nor traversed as untrue.The case was therefore tried upon the answer as it stood; and, as it does not disclose error on this point, the ruling of the magistrate admitting the letter in evidence must stand as correct, and the superior court could not have overruled the certiorari for this reason.

2.But taking the plaintiff's case upon the note and letter, was the judgment in his favor, which the superior court refused to reverse, right?We are of the opinion...