Marks v. Maxwell Bros. Furniture Co.

• Decision Date: 07 January 1935
• Docket Number: 24076.
• Citation: 177 S.E. 920,50 Ga.App. 325
• Parties: MARKS v. MAXWELL BROS. FURNITURE CO.
• Court: Georgia Court of Appeals

177 S.E. 920

50 Ga.App. 325

MARKS v. MAXWELL BROS. FURNITURE CO.

No. 24076.

Court of Appeals of Georgia, Second Division

January 7, 1935

Syllabus by Editorial Staff.

Failure to approve brief of evidence cannot affect review, where trial judge passed on merits of motion for new trial without objection with regard to brief (Laws 1911, p. 150, § 3).

Limitation on action on mutual account starts running on date of last item of account, where there has been no accounting or liquidation of indebtedness or similar act to create new starting point (Civ. Code 1910, §§ 4362, 4363).

Limitation on action on mutual account based on course of dealing wherein each party had given credit to other on faith of indebtedness to him did not start running until date of last item (Civ. Code 1910, §§ 4362, 4363).

Where testimony was conflicting as to whether plaintiff's indebtedness offset amount due by defendant on mutual account, finding thereon of trial judge, sitting without jury, was binding on reviewing court.

Error from Municipal Court of Augusta; J. E. Bryson, Judge.

Suit by the Maxwell Brothers Furniture Company against Pierce Marks. Judgment for plaintiff, defendant's motion for a new trial was overruled, and defendant brings error.

Affirmed on condition.

Pierce Bros., of Augusta, for plaintiff in error.

W. D Lanier, of Augusta, for defendant in error.

Syllabus OPINION.

JENKINS Presiding Judge.

1. Under the act of 1911 (Ga. Laws 1911, pp. 149, 150, § 3; Park's Code, § 6090 (a); Michie's Code, § 6092 (1) "where the judge has finally passed on the merits of a motion for a new trial and the parties have raised no question as to the * * * approval of the brief of evidence * * * no question as to these matters shall be entertained by the reviewing courts unless first raised and insisted on before the trial judge."

Where counsel and the judge so deal with a motion for new trial and brief of evidence, and the judge denies the motion on the merits without any question being raised as to his approval of the brief, this court will not consider the question as to whether the brief has been approved. The motion to dismiss the bill of exceptions on the ground that the brief of evidence was not approved must therefore be denied, and this court will consider the brief of evidence, specified in the bill of exceptions as the brief of evidence in the case, certified by the clerk of the trial court, and referred to and quoted from in the briefs of counsel on both sides. Price v. State, 170 Ga. 294 (1), 295, 296, 152 S.E. 572; Heath v. Philpot, 165 Ga. 844 (1), 846, 847, 142 S.E. 283; Id., 38 Ga.App. 74 (1), 142 S.E. 750; Friedman v. Martin, 43 Ga.App. 678 (1), 160 S.E. 126; Donalson v. Bank of Jakin, 33 Ga.App. 428 (2), 127 S.E. 229; Adams v. Overland-Madison Co., 27 Ga.App. 531 (3), 109 S.E. 413; Hartman v. Citizens' Bank & Trust Co., 47 Ga.App. 562, 171 S.E. 195. Cases relied upon as holding to the contrary did not involve a motion for new trial, or were determined prior to the amendatory act of 1911. See Silvey & Co. v. Brown, 137 Ga. 104 (3), 72 S.E. 907.

2. Actions on open accounts are barred by the statute of limitations after four years from the accrual of the right of action. Civil Code 1910, § 4362. But in a mutual account where there has been no accounting or liquidation of the indebtedness or similar act to create a new point from which the statute could begin to run, the statute does not run except from the date of the last item of the account. Madden v. Blain, 66 Ga. 52; Gunn v. Gunn, 74 Ga. 568, 58 Am.Rep. 447; Walker v. Mercer, 41 Ga. 44; Youmans v. Moore, 11 Ga.App. 66, 74 S.E. 710; Civil Code, § 4363. In the instant case there were not merely entries of credits of partial payments by the defendant, but, according to his answer and testimony, there was a mutual account based on a course of dealing wherein each party had given credit to the other on the faith of indebtedness to him, within the rule applied in such cases. Wagener v. Steele, 117 Ga. 145, 43...