Howard v. Johnson

• Decision Date: 03 March 1893
• Parties: HOWARD. v. JOHNSON.
• Court: Georgia Supreme Court

18 S.E. 132

91 Ga. 319

HOWARD.

v.JOHNSON.

Supreme Court of Georgia.

March 3, 1893.

Negotiable Instruments — Usury — Release of Surety — Judgment Entry — Leading Questions.

1. Where in an action against principal and surety the latter defends, but the former does not, and the verdict is against the principal, only, for the amount of the debt sued for, the legal effect is a finding in favor of the surety, and a judgment accordingly is not erroneous. Though a judgment declaring him to be discharged may be irregular in form, it is good, in substance, as a judicial announcement of the legal effect of the verdict, as between the plaintiff and the surety.

2. The legal effect of usury in a promissory note, in preventing a surety from whom the usury is concealed from being bound by his undertaking, cannot be evaded by afterwards purging the note of usury by an arrangement between the creditor and the principal debtor, in which the surety takes no part, and to which he does not assent.

3. The allowance of a leading question in the examination of a witness is generally matter of discretion, and no cause for a new trial.

(Syllabus by the Court.)

Error from city court of Cartersville; Shelby Attaway, Judge.

Action on a promissory note by W. H. Howard against Lindsey Johnson, as surety, and another, as principal. Prom a judgment against the principal, only, plaintiff brings error. Affirmed.

John W. Akin, for plaintiff in error.

Albert S. Johnson, for defendant in error.

BLECKLEY, C. J. 1. The trial took place on a defense presented alone by the surety, the principal not defending; and the verdict rendered was in favor of the plaintiff against the principal, only, and was silent as to the surety. This was in accordance with the form of verdict which the court instructed the jury to bring in if they found the surety was discharged or not bound. No doubt superadding an express finding in favor of the surety would have made the verdict better in form, but in substantial legal effect the verdict was the same without this addition as it would have been with it. No one reading the whole record together, and intelligently construing it, would fail to understand that the jury considered the debt sued for as the several debt of the principal, and not as the joint debt of both defendants. The plaintiff claimed as against both. One defended; the other did not. The jury found for the plaintiff as against the latter, only. This was equivalent to finding against the plaintiff as to...