Holliday & Co. v. Poole

• Decision Date: 12 October 1886
• Citation: 77 Ga. 159
• Court: Georgia Supreme Court
• Parties: HOLLIDAY & COMPANY v. POOLE et al.

77 Ga. 159

HOLLIDAY & COMPANY v. POOLE et al.

Supreme Court of Georgia.

October 12, 1886

October Term, 1886.

[Blandford, J., did not preside in this case, because of indisposition.]

1. If the points made in a certiorari are pure questions of law, unmixed with facts, the court should make a final judgment in the case; but if questions of fact are involved as well as issues of law, the court should send the case back for a rehearing on the issue of mixed law and fact.

( a. ) In this case, it being pleaded that the surety sued was induced to sign the note and did sign it on account of the false representation of the payee, that his brother had requested him to sign as surety and then he would sign notes of his, this made a case of fraud with damage; he and the evidence being conflicting as to the issue so made, it was proper, on certiorari, not to finally dispose of the case, but upon sustaining the certiorari, to remand the case for another trial.

2. Payment of a part of the debt due is no consideration for a promise to delay the collection of the balance. Such a promise would be nudum pactum, and would not release a surety.

3. Where two suits were brought in a justice's court on two notes separately, and it was agreed that one trial should control both, and where the justice thereupon consolidated the judgment and rendered judgment on both cases for less than $100, and an appeal was taken, and from the finding of the jury a certiorari was taken, this court will not hold that the appeal was null and void on the ground that, if a close calculation be made, the amount will appear to be beyond the jurisdiction of the justice's court; nor will this court direct a judgment to be entered beyond that jurisdiction.

4. While it is the better practice, upon the sustaining of a certiorari, to return the case with proper instructions to the justice, the omission to do so will not cause a reversal.

Practice in Superior Court. Fraud. Contracts. Principal and Surety. Justice Courts. Appeal. Certiorari. Before Judge MARSHALL J. CLARKE. Fulton Superior Court. March Term, 1886.

This case arose on a certiorari. The petition and answer showed, in brief, the following facts: On January 28, 1885 two suits were brought in a justice's court bye G. H Holliday against T. A. Poole and A. S. Poole on two promissory notes, both dated May 12, 1881, and due on November 15, after date, each bearing eight per cent interest and providing for ten per cent. attorneys' fees for collection. One was for $100 and had a credit on it of $80, dated April 17, 1883; the other was for $64.54. Each stated that it was for provisions and family supplies.

To the first suit the defendant, A. S. Poole, filed two pleas, of which the first was as follows:

" He is surety only in said case, and was deceived by the said plaintiffs in signing said note, by stating that T. A. Poole, defendant, said for him to sign for him and he would sign his, and the same is not true; and of this he puts himself upon the country. February 21, 1885."

The second alleged that A. S. Poole was a security on the note and was so known to be by the plaintiffs; that the plaintiffs had received from the principal a payment of $80 with the understanding that they would wait for the balance and not press the same.

The answer of the justice stated that it was agreed that the suit on the smaller note should abide the result of the other; that judgment was accordingly rendered for the plaintiff on each note; that before the judgments had been entered on the docket, on motion of the defendant's counsel the two cases were consolidated into one, and the justice entered up judgment for both cases, viz., $84.64, principal, $33.34 interest, $12.64 attorneys' fees, and $4 costs, believing that the aggregate judgments were within the jurisdiction of the justice's court.

An appeal was taken to a jury, and on the trial, a verdict was found for the defendants.

It is unnecessary to set out the evidence further than to state that it was conflicting as to whether the representations set out in the first plea were true or not. The plaintiffs, in...