Lee v. Holman

• Decision Date: 15 September 1937
• Docket Number: 11881.
• Citation: 193 S.E. 68,184 Ga. 694
• Parties: LEE et al. v. HOLMAN et al.
• Court: Georgia Supreme Court

193 S.E. 68

184 Ga. 694

LEE et al. v. HOLMAN et al.

No. 11881.

Supreme Court of Georgia

September 15, 1937

Error from Superior Court, Wilcox County; A. J. McDonald, Judge.

Suit by Mrs. S. B. Holman and others against Mrs. W. H. Lee administratrix, and others. Judgment for plaintiffs defendants' motion for a new trial was overruled, and defendants bring error.

Affirmed.

J. H Dorsey, of Abbeville, for plaintiffs in error.

McDonald & McDonald and Jay & Garden, all of Fitzgerald, for defendants in error.

Syllabus OPINION

JENKINS Justice.

1. Where the record discloses that the plaintiff in the trial court failed to object to the allowance of an amendment to an original plea or answer, setting up new facts without attaching the affidavit required by the Code, § 81-1310, on the ground that such affidavit was omitted, he will be deemed to have waived any objection on that ground, and cannot raise it on a writ of error. Edwards v. Boyd, 136 Ga. 733, 738, 72 S.E. 34; Jackson v. Jackson, 150 Ga. 544, 556, 104 S.E. 236; Terrell County v. Dawson, 172 Ga. 403(2), 158 S.E. 47. But where, as in this case, 'the record shows merely that there was some undisclosed objection to or attack upon an amendment to a plea, a judgment of disallowance for an undisclosed reason will be affirmed, since it is the duty of a plaintiff in error to show error, and this court will assume that the judge properly refused the allowance for a good reason, including the absence of the accompanying affidavit required by law.' Campbell v. Gormley, 184 Ga. 647, 192 S.E. 430, 432, where, under the affirmative showing of the record, the rule as to waiver was applied.

2. In this equitable suit to establish the plaintiff's claim of subrogation and enforce thereunder the original creditor's note and security deed, it was held on a former writ of error that the petition 'set forth a cause of action for conventional subrogation,' and that 'the court did not err in overruling the general demurrer' to the petition. Lee v. Holman, 182 Ga. 559, 186 S.E. 189. The original answer was in effect only a general denial. During the trial the judge refused to allow the amendment referred to in the preceding paragraph, which amendment specifically pleaded the statute of limitations, laches, fraud, and other defenses, but failed to attach the statutory affidavit. The testimony for the plaintiff fully supported the essential averments of the petition, and showed that she paid the original debt under an agreement of subrogation with the two joint makers, who were her brothers, that she would have all the rights of the original creditor. This evidence was a sufficient basis for the admission of the note and deeds, over the objection that no right to subrogation or to enforce such instruments had been shown. The testimony of the defendant administratrix, wife of one of the joint makers, who died before the suit, merely tended to dispute the existence of the alleged subrogation agreement, by stating a conversation with the plaintiff wherein she failed to mention any subrogation claim or indebtedness thereunder, and by stating that about a year before the suit the witness saw the note and deeds in the possession of the mother of the two makers and of the plaintiff, at the home where the mother and the deceased maker, but not the plaintiff, resided at the time of the alleged subrogation agreement and subsequently. Under all of the evidence, the verdict for the plaintiff was fully authorized.

3. The ground in the motion for new trial, referring to the direction of a verdict for the plaintiff, does not assign error thereon or on any judgment or ruling, but states merely: 'Because the court, over the objections of movant, directed the jury to return a verdict for the plaintiff, and in consequence of such directions, the jury returned the following verdict in favor of the plaintiff,' and quotes the verdict. This ground is insufficient, not only in failing to assign error specifically as required by the settled rule (Bosworth v. Nelson, 172 Ga. 612, 158 S.E. 306; Hall v. Eufaula Brick Co., 50 Ga.App. 466, 178 S.E. 403, and cit.), but because it fails to assign error or to except even generally.

4. 'Where on their face the pleadings show that a suit is barred by the statute of limitations, the defendant can take advantage of the statute by demurrer. But a demurrer, in order to raise the defense of the statute of limitations, must expressly set out a reliance on the statute. Its aid cannot be invoked by general demurrer that no cause of action is set out,' as is stated in this case. Smith v. Central of Ga. Ry. Co., 146 Ga. 59, 90 S.E. 474. Irrespective of whether or not, in an equity suit, a defense only of 'laches,' under the Code, § 3-712, providing that 'courts of equity may interpose an equitable bar, whenever, from the lapse of time and laches of the complainant, it would be inequitable to allow a party to enforce his legal rights,' could be interposed, as in the instant case, by a mere general demurrer that the petition 'fails to set forth any cause of action either in law or in equity,' any such defense raised by the general demurrer was determined adversely to the defendant by the previous decision of this court that there was no error 'in overruling the general demurrer.' Since neither the defense of the statute of limitations nor the defense of laches was raised in the answer or in any plea except the rejected amendment, such defenses cannot be considered under the general grounds of the motion for new trial. See Small v. Cohen, 102 Ga. 248, 253(3), 29 S.E. 430; Powell v. McKinney, 151 Ga. 803(3), 108 S.W. 231.

5. Where the...