Moore v. Todd
| Decision Date | 05 October 1967 |
| Docket Number | No. 24309,24309 |
| Citation | 223 Ga. 702,157 S.E.2d 587 |
| Parties | R. A. MOORE v. Jessie Lee TODD et al. |
| Court | Georgia Supreme Court |
George R. Jordan, Sumner & Boatright, J. Laddie Boatright, Douglas, for appellant.
McDonald & Mills, Ben B. Mills, Jr., Fitzgerald, for appellees.
Syllabus Opinion by the Court
Jessie L. Todd brought this action in 1959 against R. A. Moore to recover the principal, interest and attorney's fees allegedly due on two notes and a security deed, and to have the debt declared a special lien on the land described therein. The petition alleged that on April 5, 1938 the defendant gave 'The Somerset Company' a note and security deed in the amount of $1,600 due November 1, 1938; that on January 6, 1939, 'The Somerset Company' transferred the note and security deed to W. C. Todd; that on March 15, 1939, the defendant gave W. C. Todd a demand note in the amount of $2,200 with the following agreement thereon, 'It is agreed by the parties hereto this note and loan that this is an addition to a part of one security deed of vendor dated April 5, 1939, to vendee. / s/ R. A. Moore, /s/ W. C. Todd'; said notes and security deed were transferred to plaintiff on November 1, 1948. By amendment the plaintiff struck her claim on the $1,600 note dated April 5 1938. Upon motion W. C. Todd was made a party plaintiff. The defendant's answer as amended avers in substance that on March 15, 1939, W. C. Todd was indebted to him for legal services in an amount in excess of $2,200; that W. C. Todd agreed to purchase defendant's $1,600 note dated April 5, 1938, from 'The Somerset Company,' and that it would be satisfied by the amounts due defendant for legal services; that at that time it was estimated that the amount due on said note was $2200 and the defendant gave Todd the note dated March 15, 1939, in that amount; that the two notes represent the same indebtedness; that the Georgia Intangible Tax Statute (Ga.L.1937-38, Ex. Sess., pp. 156, 161; Code Ann. § 92-125) has not been complied with and that the tax due on said instruments has not been paid. The defendant prayed that said cause should abate because the Georgia Intangible Tax Statute has not been complied with and that the notes and security deed be canceled and set aside.
Both parties demurred generally and specially to each other's pleadings. On August 26, 1966 the court overruled the defendant's general demurrer and sustained certain special demurrers of each allowing them 60 days in which to amend. The plaintiff filed an amendment to her petition on October 25, 1966, which was allowed by the court on May 12, 1967. The defendant has not filed any amendment. Thereafter the plaintiff moved that the defendant's answer be stricken and she have judgment, and the defendant moved to dismiss the petition. On July 14, 1967, the court struck the defendant's answer, overruled the motion to dismiss the petition, and awarded judgment to the plaintiff.
The defendant appeals to this court enumerating as error: (1) the overruling of his general demurrer to the petition; (2) the order of July 14, 1967 overruling his motion to dismiss the petition for the reasons that the plaintiff's petition was not properly amended within the 60 days allowed, and, if amended in time, did not satisfy the objections raised and accordingly failed to set out a cause of action; (3) striking his answer and awarding judgment to plaintiff without evidence; and (4) sustaining certain special demurrers to his answer and limiting him to 60 days in which to amend. Held:
1. The defendant's complaint that the plaintiffs' amendment to their petition should not be considered because not allowed within the 60 days specified in the court's order for amendment, although filed within that time, is without merit.
'It was held in Zipperer v. Helmnly, 148 Ga. 480, 97 S.E. 74: 'Under proper construction of the order allowing the plaintiff thirty days in which to present to the court an amendment of his petition, it was within the power of the court, * * * to allow an amendment which had been filed, within the thirty days so allowed, in the office of the clerk of the court where the case was pending, but had not been presented to the judge within the thirty days.' In that case the amendment was filed...
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American City Bank of Tullahoma v. Western Auto Supply Co.
...Inc., 148 Ga.App. 139, 250 S.E.2d 830 (1978); Greer v. Kooiker, 312 Minn. 499, 253 N.W.2d 133 (1977); Moore v. Todd, 223 Ga. 702, 705, 157 S.E.2d 587, 589 (1967); Greenwood v. Price, 166 Okl. 292, 27 P.2d 822 (1933); Kerschensteiner v. Northern Michigan Land Co., 244 Mich. 403, 221 N.W. 322......
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Heimanson v. Meade
...or to pay the taxes, penalties and interest as required by the Georgia Intangible Tax Statute, Code Ann. §§ 92-118, 125; Moore v. Todd, 223 Ga. 702, 157 S.E.2d 587 (sixth defense), and that the consideration for the note, which was the sale of a residence, did not fail. For all that appears......
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Henderson Few & Co. v. Rollins Communications, Inc., 56669
...was wilful. G. E. C. Corp. v. Southern Fabricators, 122 Ga.App. 452, 177 S.E.2d 497 (1970). Defendant's reliance upon Moore v. Todd, 223 Ga. 702, 157 S.E.2d 587 (1967), is misplaced. In that case, the affirmative defense was 3. It was not error for the trial court to deny defendant's motion......
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