Mcginnes v. Mcginnes

• Decision Date: 30 November 1857
• Citation: 23 Ga. 613
• Parties: Stephen McGinnes, plaintiff in error. vs. John B. McGinnes, defendant in error.
• Court: Georgia Supreme Court

23 Ga. 613

Stephen McGinnes, plaintiff in error. vs. John B. McGinnes, defendant in error.

Supreme Court of the State of Georgia

NOVEMBER TERM, 1857.

Certiorari, from Gwinnett Superior Court. Decision by Judge Hammond, at September adjourned Term, 1857.

Certiorari was sued out by Stephen McGinnes, to have reviewed and corrected the judgments rendered by the Justices of the 404th district, in certain cases wherein John B. McGinnes was plaintiff and the said Stephen was defendant.

The answer of the Justices stated, that John B. McGinnes commenced his several actions, returnable to February Term of their Court, against Stephen McGinnes, on promissorynotes, of thirty dollars each. At which Term of the Court defendant appeared and plead that he was only security on said notes, and that Newton McDill was principal, and that he had given notice to plaintiff to sue, which he had failed to do within the period prescribed by statute, and defendant was discharged and released. He also pleaded usury, and indulgence granted to the principal by plaintiff, without his consent, whereby he was discharged. The cases were continued at March Term, at the instance of defendant. At April Term, judgments were given against him in all the cases; from which he appealed and at the May Term, being the trial term of the case on the appeal, both parties appeared and defendant moved for a continuance, on the ground of the absence of a material witness, residing in Forsyth county. He stated what he expected to prove by the witness, and that he had failed to take his depositions, because he expected the witness to be present at the trial.

The Justices refused to continue and ordered the cases on to trial.

After the plaintiff had closed the defendant proposed to read the answers of Newton McDill, the principal in the notes, to interrogatories, to prove that defendant was only security to the notes; that they were usurious, and that by subsequent agreement plaintiff had granted indulgence to him and extended the time of payment. To which answers being read, plaintiff objected on the ground that McDill was one of the makers of said notes, and his testimony was incompetent, and on the further ground of want of proper service of the interrogatories, and the due and legal execution of the commission.

The Justices sustained the objection and ruled out the answers.

Upon the hearing before the Superior Court, the counsel for defendant insisted upon the following grounds of error:

1st. Because the Justices...