Heard v. Kennedy

• Decision Date: 23 July 1902
• Parties: HEARD et al. v. KENNEDY.
• Court: Georgia Supreme Court

42 S.E. 509

116 Ga. 36

HEARD et al.

v.KENNEDY.

Supreme Court of Georgia.

July 23, 1902.

TRIAL BY JURY—DEMAND—NOTE—ASSIGNMENT.

1. In order for a defendant in a civil action, brought in the city court of Washington, to obtain, as matter of right, a trial by jury, it is essential that he make demand therefor "on or before the call of the docket at the term to which the cause is returnable."

¶ 1. See Jury, vol. 31, Cent. Dig. §§ 166, 169-162.

2. Where a promissory note embracing no words of negotiability is payable to several named persons jointly, and one of them, without authority from his co-payees so to do, undertakes to assign such note to a third person, the latter acquires no title to the interests of these co-payees therein, and. if he collects the note, is liable to any one of them for his proportion of the amount so collected.

(Syllabus by the Court.)

Error from city court of Washington; W. H. Toombs, Judge.

Action by Clinton A. Kennedy against Heard & Sutton. Judgment for plaintiff, and defendants bring error. Affirmed.

S. H. Hardeman and J. T. Irwin, Jr., for plaintiffs in error.

F. W. Gilbert and Wm. Wynne, for defendant in error.

FISH, J. Clinton A. Kennedy brought an action for $43.40 against Heard & Sutton, returnable to a monthly term of the city court of Washington. The court tried the case without a Jury, and rendered judgment against the defendants. They moved for a new trial, which motion being overruled, they excepted.

1. The only special ground of the motion for a new trial was stated in this language: "Because the court erred as follows: This case was filed to May term, 1901. of said court, and was at that term continued, and was tried at the June term, 1901. When the case was called for trial at said June term, defendants objected to going to trial without a jury, upon the ground that so much of the act establishing the city court of Washington as failed to provide for a trial by jury in said court in cases where the amount involved was under fifty dollars was unconstitutional, and defendants then and there exhibited a demand in writing for a jury in said case. The court overruled the objection, and proceeded to try said case without a jury, and, after hearing evidence and argument, rendered a judgment for the plaintiff against the defendants; the court ruling that while, in its opinion, so much of the act establishing said court as failed to provide for trial before the court without a Jury in cases under fifty dollars was against the constitution of Georgia, in tills case the demand for trial came too late, because not made at the term of court to which the case was made returnable." The question presented is, did the court err in refusing defendants a trial by jury on the demand made therefor, and in trying the case without a jury?

So much of the act establishing the city court of Washington (Acts 1899, p. 413) as Is material to the consideration of this question is as follows:

"Sec. 17. * * * Suits for not over one hundred dollars principal, and all issues and proceedings, when not over one hundred dollars in value is involved, shall be returnable to the monthly sessions of said court, and stand for trial at the first term by the judge without the intervention of a jury; provided, that in any such case where more than fifty dollars principal is involved, and an issuable defense is filed on oath, and a jury is demanded, such case shall be transferred to the next quarterly term of said court, and shall there stand for trial by a jury."

"Sec. 25. Be it further...