Montgomery v. Padgett, (No. 18969.)

• Citation: 38 Ga.App. 389,144 S.E. 41
• Decision Date: 11 July 1928
• Docket Number: (No. 18969.)
• Parties: MONTGOMERY. v. PADGETT.
• Court: United States Court of Appeals (Georgia)

38 Ga.App. 389

144 S.E. 41

MONTGOMERY.

v.PADGETT.

(No. 18969.)

Court of Appeals of Georgia,

Division No. 1.

July 11, 1928.

(Syllabus by the Court.)

Error from City Court of Reidsville; C. L. Cowart, Judge pro hac vice.

Suit by C. C. Padgett against Charity Montgomery. Judgment for plaintiff defendant's motion for new trial was overruled, and defendant brings error. Affirmed.

H. H. Elders, of Eeidsville, for plaintiff in error.

J. T. Grice, of Glennville, for defendant in error.

LUKE, J. C. C. Padgett sued Charity Montgomery on a promissory note alleged to have been signed by her, and the jury rendered a verdict for the full amount sought to be recovered.

The defendant denied indebtedness, and further pleaded (1) non est factum; (2) that she never received an attorney's fee notice; and (3) that after the death of her first husband, E. Wells, in February, 1910, she paid the plaintiff the full amount due him by Wells on a promissory note for $89.61, which was due November 1, 1908, and that was all Wells owed him. The plea was amended by adding the following defense:

"Now comes the defendant and says that the note sued on is for the debt of her husband— former husband of this defendant—and she is not liable for the same, as she was a married woman at the time the note is alleged to have been signed."

The note sued on was introduced in evidence. It was for the principal sum of $212.19, with certain credits thereon, dated August 9, 1911, due December 1, 1911, signed by Charity Montgomery by her mark, and witnessed by Frank Montgomery and J. A. Stanfield, a notary public and ex officio justice of the peace. The names of both witnesses were in Stanfield's handwriting. There were four credits on the note which were not sued for. The mortgage given to secure the note was also put in evidence. It bore the same date as the note, was signed and witnessed in the same way, and covered 103 acres of land. There was also in evidence a warranty deed from E. Wells to defendant, dated December 14, 1908, and covering the tract of land described in the said mortgage.

C. C. Padgett testified positively that Charity Montgomery signed the said note and the mortgage at her home, and that the papers were witnessed by her husband and by J. A. Stanfield; that he accepted the note as full payment of his claim against the estate of E. Wells; that Wells, while Charity was his lawful wife, contracted the debt of $212.19 for which the note in suit was given; that all the payments made on the note by Charity were paid after the death of E. Wells; and that the note and the mortgage were given to take up the said debt of Wells. Charity Montgomery testified that she did not sign the note and the mortgage that Padgett said were signed by her; that E. Wells, her first husband, died in February, 1910, and that she married Frank Montgomery in April, 1911; that after Wells died Mr. Padgett told her Wells owed him about $80, andthat she paid him that amount; that she never heard of the note sued on until Mr. Padgett's lawyer wrote her about it in the first of 1926; and that her former husband, B. Wells, left no estate. Prank Montgomery testified that he did not witness either the said note or the said mortgage, and that neither Mr. Padgett nor Mr. Stanfield came to his home in August, 1911, and got the note signed, as Mr. Padgett testified.

The motion for a new trial, which was overruled, contained the usual general grounds, and one special ground assigning error upon the charge of the court. The note was in evidence, the defendant admitted receiving the attorney's fee notice, and there was evidence that the defendant signed the note. Clearly the case hinges upon the special ground.

Plaintiff in error contends that the following excerpt from the charge of the court is not a correct statement of law, and was injurious to her case:

"Though the defendant was a married woman at the time it is alleged that she signed the note and mortgage, I charge you that she could, even though she was married, assume the debt of a former husband."

If this is a correct statement of law, the...