Levens v. Smith

Citation102 Ga. 480,31 S.E. 104
PartiesLEVENS. v. SMITH.
Decision Date05 August 1897
CourtSupreme Court of Georgia

Trial—Opening and Closing —Objections to Evidence—Recoupment.

1. Under the decision of this court in Montgomery v. Hunt, 21 S. E. 59, 93 Ga. 438, the defendant in an action upon a promissory note payable to the plaintiff or bearer is entitled to open and conclude when by his plea he admits the execution of the note sued on, and that the plaintiff is the legal holder of the same.

2. There was no error in overruling an objection to the admissibility of evidence on the ground that "there was better evidence"; it not being stated, at the time of making the objection, of what the "better evidence" consisted.

3. The verdict for the defendant upon his plea of recoupment being palpably wrong, in that the sum found was totally unwarranted by the evidence, the certiorari ought to have been sustained, and a new trial ordered.

(Syllabus by the Court.)

Error from superior court, Heard county; S. W. Harris, Judge.

Action by J. E. Levens against P. B. Smith. Judgment for defendant Plaintiff brings error. Reversed.

Cobb & Bro. and D. B. Whitaker, for plaintiff in error.

P. S. Loftin and T. B. Davis, for defendant in error.

FISH, J. 1. It appears from the record that at the trial of this case, on appeal to a jury in the justice's court, the defendantamended his pleading by admitting that he executed the note, and that the plaintiff was the legal owner and holder of it. In his petition for certiorari the plaintiff complains that thereupon the defendant was allowed, over objection, to open and conclude the argument before the jury. We do not think there is any merit in this complaint. In Montgomery v. Hunt, 93 Ga. 438, 21 S. E. 59, this court held that: "Where suit was brought by the holder of a promissory note payable to the order of a named person, and indorsed by the payee in blank, and the defendant in his plea admits the execution of the note, and the ownership of it by the plaintiff, a prima facie case for the latter is made out. The burden of proof to establish his defense is upon the defendant, and consequently he is entitled to open and conclude." If, as we confidently believe, the decision therein rendered correctly lays down the law applicable under the state of facts there presented, it is to be regarded as controlling upon the question raised in the case at bar.

2. Further complaint is made that the defendant was permitted to testify that the consideration of the note in suit was a...

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7 cases
  • Adair v. Bank of Hickory Flat
    • United States
    • Mississippi Supreme Court
    • June 25, 1917
    ... ... good faith." Bank v. Bank, 106 Miss. 487; ... Kendrick v. Kyle, 78 Miss. 278; Levens v. Smith, 102 ... That ... the bank did not surrender the note is of no moment, as ... counsel seem to think. It even took a subsequent ... ...
  • E. Van Winnle Gin & Mach. Works v. Pittman
    • United States
    • Georgia Court of Appeals
    • July 4, 1907
    ... ... to open and conclude, when by his plea he admits the execution of the note sued on and that the plaintiff is the legal holder of the same." Levens v. Smith, 102 Ga. 480, 31 S. E. 104.3. It is insisted that the admission in[58 S.E. 380]the answer as to the execution of the note sued on was not ... ...
  • O'Brien v. Spalding
    • United States
    • Georgia Supreme Court
    • August 10, 1897
  • Mobley. Superintendent Of Banks v. Christian, (No. 19047.)
    • United States
    • Georgia Court of Appeals
    • October 2, 1928
    ... ... Brantley, 20 Ga. App. 774, 93 S. E. 237; citing Montgomery v. Hunt, 93 Ga. 438, 21 S. E. 59; Levens v. Smith, 102 Ga. 480, 31 S. E. 104; So. Mutual Ass'n v. Perry, 103 Ga. 800, 30 S. E. 658; Swanson v. Cravens, 105 Ga. 471, 30 S. E. 642; ... ...
  • Request a trial to view additional results

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