Jester v. H. B. Smith Mach. Co

• Decision Date: 30 March 1908
• Docket Number: (No. 1,002.)
• Citation: 4 Ga.App. 151,60 S.E. 1035
• Parties: MOORE & JESTER . v. H. B. SMITH MACH. CO.
• Court: Georgia Court of Appeals

60 S.E. 1035

4 Ga.App. 151

MOORE & JESTER .

v.H. B. SMITH MACH. CO.

(No. 1, 002.)

Court of Appeals of Georgia.

March 30, 1908.

1. Writ of Error—Pauper Affidavit—Sufficiency.

Where a partnership is sued and judgment is rendered against it and against one or more of the partners individually, and it is sought to review that judgment by writ of error to this court, a pauper affidavit made by one of the partners alleging only the firm's inability to pay the costs is not sufficient. Not only must the partnership's inability appear, but also the inability of each partner who has been served, and who is therefore bound by the judgment.

2. Jury—Right to Jury Trial.

Where the action is upon an unconditional contract in writing, and all the defenses set up are stricken, judgment is properly rendered by the court without the intervention of a jury.

3. Bills and Notes—Actions—Pleas.

Although in defense to an action upon promissory notes the defendant makes a categorical denial of each paragraph of the plaintiff's petition, yet, if in amplification he sets up a state of facts utterly inconsistent with his denial and disclosing that he has no real defense, the court properly strikes the entire plea on demurrer.

4. Sales—Action on Notes—Defenses.

Under the contract in this case and the facts pleaded in connection therewith, the court did not err in striking the defenses sought to be set up.

5. Writ of Error—Appeal for Delay—Affirmance—Damages.

The liberal right of appeal given by Constitution and statute in this state should not be abused. In case this court is satisfied that the writ of error has been sued out for delay only, it will not hesitate to affirm the judgment with damages. Upon a suggestion that the writ of error has been sued out for the purpose of delay only the court will look to the entire history of the case as presented in the record, and will determine the question upon the facts of each particular case. The filing of a pauper affidavit to escape the payment of costs, while not conclusive, nor even prima facie evidence that the writ of error is sued out for delay only, is nevertheless, in an unmeritorious case, a circumstance of some evidentiary value tending to establish that fact.

(Syllabus by the Court.)

Error from City Court of Bainbridge; W. M. Harrell, Judge.

Action by the H. B. Smith Machine Company against Moore & Jester. Judgment for plaintiff. Defendant brings error. Affirmed.

G. G. Bower and R. G. Hartsfield, for plaintiff in error.

John R. Wilson, for defendant in error.

POWELL, J. 1. This suit was against the firm of Moore & Jester, alleged to be composed of T. W. Jester and George B. Moore. Judgment was rendered against the partnership, and also against the individual members thereof. To avoid the payment of costs, a pauper affidavit has been filed, executed by Jester, in which he alleges that, on account of poverty, the partnership is unable to pay the costs. There is no affidavit as to the poverty of the individual members of the partnership, or as to their inability to pay the costs. Of course, the pauper affidavit must be broad enough to cover all the plaintiffs in error in all their relations to the case. See Taylor v. New England Mfg. Co., 95 Ga. 571, 20 S. E. 636. A member of the partnership may in such a case swear as to the poverty of the partnership, but not as to the poverty of any of the individual members other than himself. Compare Standard Carbonating Co. v. Capital City Guards, 99 Ga. 265, 25 S. E. 670. The law for this purpose recognizes the partnership as a legal entity, somewhat, but not wholly, distinct from the persons composing it. See Drucker v. Wellhouse, 82 Ga. 129, 8 S. E. 40, 2 L. R. A. 328. It follows, therefore, that, to make a pauper affidavit effectual, one or more of the partners should make an affidavit for the firm, and, in addition thereto, each partner who has been served or who is personally bound by the judgment should make an affidavit for himself. Counsel for the plaintiff in error having deposited the costs with the clerk subject to a ruling upon this question, the case, will be heard, but the amount deposited will be retained.

2—4. Under the Constitution of this state in suits upon unconditional contracts in writing where no issuable defense is filed under oath, the judge renders judgment without the intervention of a jury. If a plea insufficient in law is filed, the status is the same. Although the defendant may categorically deny each allegation of the plaintiff's petition and thereby present a defense prima facie issuable, yet, if he goes further and by amplification discloses that he has in fact no legal defense, his entire plea is properly stricken. Bedingfield v. Bates Advertising Co., 2 Ga. App. 107, 58 S. E. 320. The plea in this case was palpably insufficient. The defendants, according to their allegations, ordered certain machinery from the plaintiffs on October 25, 1906. It was agreed that 30 days after the date of shipment there should be a final settlement either in cash or by the giving of notes, andthat the retention of the property more than 30 days...