Hartridge v. Wesson

• Decision Date: 31 January 1848
• Docket Number: No. 9.,9.
• Citation: 4 Ga. 101
• Parties: Charles Hartridge, plaintiff in error. vs. D. and A. Wesson, defendants.
• Court: Georgia Supreme Court

4 Ga. 101

Charles Hartridge, plaintiff in error. vs. D. and A. Wesson, defendants.

No. 9.

Supreme Court of the State of Georgia

JANUARY TERM, 1848.

Motion for a new trial and in arrest of judgment, from Chatham Superior Court, May term, 1847.

This action was founded on a bill of exchange, dated Savannah, May 18th, 1842, drawn by C. F. and J. L. Smith, on Messrs. Henry Coit & Co., New York, in favor of Charles Hartridge, or order, for $941⁶²/₁₀₀ and indorsed by Charles Hartridge, who was the defendant in the suit below. The Bill was noted for non-acceptance at New York, 24th May, 1842.

On the trial of the cause, there was a verdict for the plaintiffs, and a motion made for a new trial on various grounds, all of which were overruled by the court below; which need not be stated here, as there was no brief of the testimony filed, and that was one of the grounds for refusing the new trial in the court below, and sustained in this court.

There was also a motion in arrest of judgment, which was overruled by the court below. For a full settlement of the facts of the case, see the judgment of the court.

Mulford Marsh, for plaintiff in error.

S. Cohen, for defendant in error.

By the Court.—Warner, J. delivering the opinion.

It appears from the record in this case, that suit was instituted against the defendant below, as the indorser of a bill of exchange drawn in the City of Savannah, by C. F. and J. L. Smith, on Messrs. Henry Coit & Co., New York, for the sum of $941⁶²/₁₀₀ On the trial of the cause, there was a verdict for the plaintiffs, and a motion for a new trial on several grounds, and also a motion in arrest of judgment, both of which were overruled by the court below; whereupon the defendant excepted and now assigns the same for error in this court.

The court below, very properly, in our judgment, ruled that it would not entertain a motion for new trial when the party, moving for the same, had omitted to file a brief of the testimony had on the trial of the cause, in accordance with the sixty-first rule of practice, adopted by the judges in convention. Such was our judgment in Grady VS. Hightower et al., 1 Kelly, 254, and which we have since affirmed in a case not yet reported. We do not therefore consider it an open question.

It also appears from the record, that when the application for a new trial was made, the court on the 11th day of Feb. 1847, ordered the application to be filed, and that the same operate as a supersedeas until the further order of the court. Afterwards, on the 19th day of Feb., and before there was any further order of the court, the plaintiff's attorney entered up a judgment against the defendant, for the amount specified in the verdict.

A preliminary question was raised by the counsel for the defendants in error, as to whether the motion in arrest of judgment could be heard, after the judgment had been entered. By the judiciary Act of 1799, the party in whose favor a verdict is rendered, may at any time within four days after the adjournment of the court, sign judgment thereon at the Clerk's Office. Prince's Dig. 426.

This Act contemplates that the proceedings in the cause are at an end when the court adjourns. The plaintiff cannot, by entering up his judgment during the term, prevent the defendant from exercising his right to move the court to arrest the judgment at any time before its adjournment. Strictly speaking, the plaintiff has no right to enter up his judgment, until after the adjournment of the court, and if he does so enter it, the defendant will not lose any of his rights thereby. In this case there was a supersedeas ordered by the Court—the trial of the cause had not terminated. When the judgment was entered. We do not intend to say the judgment was void, but we mean to say that the entering up of the judgment before the motion for new trial was disposed of, andwhile the order granting a supersedeas in the cause was in force, did not deprive the defendant of the right to move the court to arrest the judgment, during the term of the court, at which the motion for a new trial was refused. At any time during the term of the court at which the motion for a new trial was refused, the defendant had the right to make his motion in arrest of judgment, notwithstanding the plaintiff\'s attorneys had entered up a judgment before the motion for new trial had been disposed of.

The grounds of the defendant's motion in arrest of judgment, must therefore be considered, which are as follows. First, because, from the plaintiff's own showing, they are not entitled to recover, not having set forth any legal cause of action. Second, because, from the plaintiff's own showing, the bill of exchange, sued upon in this case, is a foreign bill, and payable sixty days after sight, and not accepted by the drawers; and the plaintiffs have not alleged any protest for non-acceptance or any due notice of nonacceptance and protest for non-acceptance, to the defendant.

There are three other specifications of error in the record, based on the same grounds substantially as above stated. The objection to the declaration is, that there is no averment of any protest for non-acceptance of the bill, or any notice of non-acceptance and protest for non-acceptance.

It is admitted, that if the Act of 1826 applies to foreign bills of exchange, then the declaration is good; but it is insisted that Act does not apply to them. The Act of 26th Dec, 1826, is entitled "An Act to define the liability of indorsers of promissory notes, and other instruments, and to place them upon the same footing with securities. The Act then declares: "From and after the passage of this Act, that the practice heretofore required of making a demand of the makers of promissory notes, and other instruments, for the payment and performance of the same, and their giving notice of such demand within a reasonable time, to the indorsers of said promissory note and other instruments, shall cease and become entirely unnecessary to bind said indorsers; and whenever any person whatever indorses a promissory note, or other instrument. he shall be held, taken, and considered as security to the same, and be in all respects bound as security, until said promissory note or other instrument, is paid off and discharged; and shall be liable to be sued in the same manner and in the same action with the principal or maker of said...