Hatcher & Co. v. The Nat'l Bank Of Chambersburg

• Decision Date: 31 October 1887
• Citation: 79 Ga. 542
• Court: Georgia Supreme Court
• Parties: Hatcher & Company. vs. The National Bank of Chambersburg.

79 Ga. 542

Hatcher & Company. vs. The National Bank of Chambersburg.

Supreme Court of the State of Georgia

OCTOBER TERM, 1887.

Promissory Notes. Consolidation. Practice in Superior Court. Costs. Practice in Supreme Court. Evidence. Witness. Endorsement. Negotiable Instruments. Before Judge Harris. City Court of Macon. March Term, 1887.

Reported in the decision.

Hill & Harris; Lyon & Estes, for plaintiffs in error.

Lanier & Anderson, for defendant.

Blandford, Justice.

The National Bank of Chambersburg, Pennsylvania, brought ten actions in the city court of Macon against M. J. Hatcher & Co., upon certain promissory notes. The plaintiff in the court below moved to consolidate these cases, and showed to the court that but one and the same defence existed as to each and all of these actions. The court thereupon ordered the cases consolidated, without more, over objection of the defendants, the plaintiffs in error here.

1. We think it was in the discretion of the court, under the circumstances of the case, to order this consolidation, at the instance either of the plaintiff or the defendant. But, as the plaintiff made the motion to consolidate, we think the court should have put the plaintiff on terms to pay the costs in all cases, except one. That should have been a condition precedent to the granting of the order of consolidation. So we direct that the court below enter a judgment against the plaintiff (the defendant in error here), should the plaintiff elect to stand by the consolidation, for the costs accrued up to the time of the consolidation, in all the cases except one; if, however, the plaintiff should elect to withdraw from the consolidation, the plaintiff is at liberty to do so. 1 Chitty Pl. 221, and note (o); Powell vs. Gray, 1 Ala. 77; Booth vs. Payne, 1 D., N. S.; 5 Jur. 1087; 7 Jacob's Fisher's Dig. 10588.

There was a motion to continue this case, on divers grounds, which, under the view we take of the case, it is unnecessary at this time to consider.

2. At the trial, one of the defendants was introduced as a witness in behalf of himself, and among other questions propounded to him by his counsel was the question whether an agent of Taylor Manufacturing Company, since the maturity of these notes, had not been in Georgia exercising acts of ownership and control over the notes. The notes were payable to the Taylor Manufacturing Company, and were endorsed by the Taylor Manufacturing Company to the plaintiff, the National Bank of Chambersburg. Thecourt refused to allow the witness to answer this question, unless the defendants would state, or their counsel in their place, that they expected to connect the plaintiff with it in some way; the meaning of which, we take it, was simply this: That unless they expected to show possession in the Taylor Manufacturing Company since the maturity of the notes, the question would not be allowed. This the counsel declined to state, and the court declined to admit the testimony. We think the court was right. The simple question whether or not an agent of the Taylor Manufacturing Company had possession of these notes after the maturity of the notes, if directed to this witness, would have elicited the answer desired, or an answer the witness could have given, bearing upon the issues in this case.

3. A lengthy defence, as between the defendants and the Taylor Manufacturing Company, was set up in this case; but the notes having been endorsed to the plaintiff, and being payable some time after their date, the presumption of law is that the plaintiff became the owner of the notes before due 'and would not be affected by any defence which the defendants might have to the notes in the hands of the Taylor Manufacturing Company.

4. Some of these notes were guaranteed by the defendants, as follows: " For value received, I hereby guarantee the payment of the within note, " etc., signed "M. J. Hatcher & Co." They...