Obear v. First Nat. Bank
| Decision Date | 02 December 1895 |
| Parties | OBEAR v. FIRST NAT. BANK OF BIRMINGHAM. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Where a suit upon a written contract executed and to be performed in another state is brought in a court of this state, the question whether or not the plaintiff's right of action is barred, being one relating exclusively to the remedy, must be determined with reference to the limitation laws of Georgia.
2. Although in Alabama the promise arising by implication from the mere making by the debtor of a partial payment upon a promissory note may be sufficient to constitute a new point from which the limitation will begin to run, the law of Georgia distinctly provides that a new promise, in order to constitute such a point, "must be in writing, either in the party's own handwriting, or subscribed by him or some one authorized by him." Code, § 2934.
3. It follows that the right of action upon such a promissory note not under seal is barred in Georgia after the lapse of more than six years from the maturity of the note, notwithstanding the making of a partial payment thereon, as first above stated; and this is true although such right of action would not be barred in Alabama. Whether the defense made by demurrer to the declaration in such a case be treated as arising under the statute of limitations or the statute of frauds is immaterial, as both relate to questions of remedy only.
Error from city court of Atlanta; T. P. Westmoreland, Judge.
Action by the First National Bank of Birmingham against George S Obear. There was a judgment for plaintiff, and defendant brings error. Reversed.
Hines & Hale, for plaintiff in error.
J. H Gilbert, for defendant in error.
This was an action upon a promissory note, not under seal, which was executed and by its terms made payable in the state of Alabama. The note was dated February 9, 1888, and was payable on demand. The suit was filed April 17, 1894. Upon the note were unsigned entries reciting the payment of certain amounts thereon, on August 7 and August 23, 1888. By an amendment to the declaration, the plaintiff alleged that these amounts were paid on the dates mentioned, and that, by the law of Alabama, partial payments upon a note not barred by the statute of limitations operate as a recognition of the debt and establish a new date for the commencement of the period of limitation. It did not appear by whom the entries on the note were made. The defendant demurred generally to the declaration as amended, and demurred to the amendment, on the ground that the facts therein stated do not take the note out of the statute of limitations, and that the case is governed by the statute of limitations of Georgia, and not that of Alabama. The defendant also moved to dismiss the suit, because it appeared to be barred by the statute of limitations of this state. The demurrer and the motion to dismiss were both overruled, and to these rulings the defendant excepted.
In this state all actions upon promissory notes not under seal must be brought within six years after the same become due and payable. Code, § 2917. The note sued upon was payable on demand, and therefore was due immediately. Id. § 2791. In order for a partial payments upon a note to constitute a new point from which the period of limitation will begin to run, the payment must be entered upon the note, and the entry must be made in the debtor's own handwriting, or subscribed by him or some one authorized by him (Code, §§ 1934, 1935); and the holder of the note cannot be the agent of the debtor to make such an entry ( Shumate v. Williams, 34 Ga. 245; Wright v. Bessman, 55 Ga. 187). If, therefore, the case is controlled entirely by the law of this state, the action was barred, it appearing that more than six years had elapsed from the time the right of action accrued until the suit was filed, and it not appearing that either of the alleged payments on the note was entered thereon by the debtor, or by any person authorized by him.
It is well settled that the limitation of actions is controlled by the lex fori, and not by the law of the place where the contract was made or is to be performed. This was conceded but it was contended that the rule is different as to the statute of frauds and laws of that nature, and that, while the period of limitation in this case is that fixed by the law of Georgia, the law of Alabama governs with regard to the effect of partial payments in constituting a new point for the commencement of that period, and, such payments being of themselves sufficient for this purpose under the law of Alabama, it was not necessary that they should be entered on the note in the manner prescribed by the law of Georgia. In support of this contention, counsel relied upon section 8 of the Code of this state, which declares that "the validity, form and effect of all writings or contracts are determined by the laws of the place where executed." We do not agree with counsel in this contention. This provision of the Code is declaratory of a rule which prevails universally among civilized nations, and which is applied in determining as to the nature, validity, and interpretation of...
To continue reading
Request your trial