Mobley. Superintendent Of Banks v. Christian, (No. 19047.)

• Decision Date: 02 October 1928
• Docket Number: (No. 19047.)
• Citation: 145 S.E. 103,38 Ga.App. 655
• Parties: MOBLEY. Superintendent of Banks. v. CHRISTIAN et al.
• Court: Georgia Court of Appeals

38 Ga.App. 655

145 S.E. 103

MOBLEY. Superintendent of Banks.

v.CHRISTIAN et al.

(No. 19047.)

Court of Appeals of Georgia.

Division No. 1.

Oct. 2, 1928.

(Syllabus by the Court.)

Error from City Court of Danielsville; J. T. Murray, Judge.

Action by A. B. Mobley, Superintendent of Banks, for the use of the Madison Bank, against C. W. Christian and others. From the judgment plaintiff brings error. Affirmed.

Clarence E. Adams, of Danielsville, for plaintiff in error.

R. Howard Gordon, of Danielsville, for defendants in error.

LUKE, J. A. B. Mobley, superintendent of banks, for the use of Madison County Bank, sued C. W. Christian, W. L. Hardman, J. W. Jones, L. A. Childers, and W. G. Threlkeld on a promissory note for the principal sum of $408. dated December 28, 1925, providing for 15 per cent. attorney's fees, and due September 15, 1926. C. W. Christian signed the note where a principal would ordinarily sign, and the names of the other defendants appeared on the back of the note.

All the defendants admitted the execution of the note, that the plaintiff was the lawful holder thereof, and that each defendant had received the notice required for the recovery of attorney's fees, a copy of which, in proper legal form, was attached to the petition as an exhibit. C. W. Christian pleaded usury. Each of the other defendants filed a plea of usury, and in addition thereto pleaded substantially as follows: There was an original note dated March 17, 1923, due October 1, 1923, signed by C. W. Christian as maker, indorsed by J. W. Jones, W. G. Threlkeld, J. D. Drake, L. A. Childers, and W. L. Hard-man, and payable to Madison County Bank. Said note was renewed by the bank's taking a second note, dated October 1, 1923, and signed and indorsed as was the original note. The note sued on was a renewal of said note of October 1, 1923, and was indorsed upon the distinct agreement between the defendant and the bank that the defendant was not to be bound by said note until the bank procured the indorsements of all the indorsers on the two preceding notes. The indorsement of J. D. Drake, one of the indorsers on the first two notes, was never procured on the note sued on. Therefore the note never became a completed contract, and the defendant was not liable thereon as indorser.

The jury rendered the following verdict:

"We, the jury, find for the plaintiff against C. W. Christian the sum of $313, and attorney's fees, and that all indorsers be relieved, to wit: W. L. Hardman, J. W. Jones, L. A. Childers, W. G. Threlkeld."

The plaintiff in error duly excepted pendente lite to the ruling that the defendants should have the opening and conclusion of the argument. The plaintiff in error also excepted to the judgment overruling the motion for a new trial.

1. The first question for consideration is whether the court erred in holding that each of the defendants admitted a prima facie case and was entitled to the opening and conclusion of the argument to the jury. "In an action upon a promissory note, to entitle the defendant to the opening and conclusion, he must, before the plaintiff has introduced any evidence, admit in his written plea the execution of the note sued upon and that the plaintiff is the legal holder thereof." Farmers' & Merchants' Bank of Brewton v. 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; Whitaker v. Arnold, 110 Ga. 857, 36 S. E. 231; Walker v. Bryant, 112 Ga. 412, 414, 37 S. E. 749. See, also, Coker v. Citizens' Bank of Gainesville, 35 Ga. App. 595 (2), 134 S. E. 355. Applying the law to the pleadings, the court was correct in denying the plaintiff in error the right to open and conclude the argument.

2. Special ground 1 of the motion for a new trial is that the court erred in refusing to permit the defendant Hardman to testify as to the solvency of J. D. Drake at the time Hardman indorsed the note, counsel stating that he expected to show that Drake was insolvent, and that his insolvency "would show that these parties would not have been careful about Drake's signing if he was insolvent." Since Hardman testified that all the indorsers on the old note were to indorse the note sued on before it should become a binding contract, and Drake was one of them, and since the testimony of the defendants who indorsed the note tended to support Hardman's testimony in this regard, it is not at all likely that the evidence sought to be adduced would have discredited Hard-man's testimony in the minds of the jury, or would have led the jury to reach a different verdict from the one...