Powell v. Alford

Decision Date20 July 1901
Citation113 Ga. 979,39 S.E. 449
PartiesPOWELL . v. ALFORD.
CourtGeorgia Supreme Court

ACTION BEFORE JUSTICE—PLEADING.

Under section 4116 of the Civil Code, which prescribes how suits in a justice's court shall be brought, "such justice or notary public shall attach a copy of the note, account or cause of action sued on to [the] summons at the time the same is issued." The above-quoted language was taken from the act of September 21, 1881 (Acts 1880-81, p. 66). Since the passage of that act, the plaintiff in an action in a justice's court must set forth, with some degree of certainty, his cause of action, and, having done so, must recover, if at all, upon the cause as laid, and cannot recover upon a different and distinct ground of liability.

(Syllabus by the Court.)

Error from superior court, Fulton county; J. H. Lumpkin, Judge.

Action by G. W. Powell against G. W. Al-ford. Judgment for plaintiff before a justice, and defendant brought certiorari. From an order setting the judgment aside, plaintiff brings error. Affirmed.

Ben J. Conyers, for plaintiff in error.

Albert & Hughes, for defendant in error.

FISH, J. Powell brought suit in a justice's court against Wood as principal, and Alford as guarantor, on an open account. The summons issued by the justice and the copy of the account thereto attached both showed that Alford was sued as guarantor. Upon the trial, after the introduction of the evidence the magistrate dismissed the case as to Alford, and rendered judgment in favor of the plaintiff against Wood. The plaintiff appealed the case to a jury, who rendered a verdict in favor of the plaintiff against Alford alone, and the magistrate entered judgment accordingly. Alford took the case by certiorari to the superior court, alleging, in his petition, among other things, that the verdict was contrary to law and the evidence. The court sustained the certiorari, set the verdict and judgment against Alford aside, and dismissed the case as to him, stating that the case was controlled by a question of law. In an opinion accompanying this judgment, our learned brother of the trial bench says: "The suit was against J. F. Wood and G. W. Alford, guarantor. No amendment was made either to the summons or the account sued on, both of which stated Alford to be guarantor. I cannot surmise a possible amendment or send the case back on such a surmise. The plaintiff, having so sued Alford, must so recover against him, if at all. He could not, in such a suit, recover against him as sole principal debtor. He clearly cannot recover against him as guarantor under the evidence, because, if there was any guaranty, it was in parol." "Plaintiff in error, however, insists that the evidence made out a case of original undertaking, not guaranty, against Alford, and that a verdict against him as principal debtor can stand, even if the summons and account be construed as alleging a cause of action against him in the character of 'guarantor, ' because there is practically no pleading in a justice court, and there should, of course, be none." We agree with his honor that no recovery could be had against Alford as guarantor, because the evidence did not show any guaranty in writing, and that the plaintiff, having sued him as guarantor, could not...

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5 cases
  • Mayer v. Southern Express Co
    • United States
    • Georgia Court of Appeals
    • March 24, 1916
    ...Ga. App. 301 (2), 58 S. E. 495. See, also, Georgia So. Ry. Co. v. Barfield, 1 Ga. App. 208, 58 S. E. 236. Nevertheless in Powell v. Alford, 113 Ga. 979, 39 S. E. 449, the Supreme Court held as follows: "Under section 4116 of the Civil Code, which prescribes how suits in a justice's court sh......
  • Mayer v. Southern Exp. Co.
    • United States
    • Georgia Court of Appeals
    • March 24, 1916
    ... ... Elliott, 2 Ga.App. 301 (2), 58 S.E. 495 ... See, also, Georgia So. Ry. Co. v. Barfield, 1 ... Ga.App. 203, 58 S.E. 236. Nevertheless in Powell v ... Alford, 113 Ga. 979, 39 S.E. 449, the Supreme Court held ... as follows: ... "Under section 4116 of the Civil Code, which prescribes ... ...
  • Hendrix v. Elliott
    • United States
    • Georgia Court of Appeals
    • July 10, 1907
    ...Code 1895, § 5098. The plaintiff in error cites us to the cases of Thomas v. Forsyth Chair Co., 119 Ga. 693, 46 S.E. 869, Powell v. Alford, 113 Ga. 979, 39 S.E. 449, M. & B. R. Co. v. Walton, 121 Ga. 275, 48 S.E. 940, to establish the proposition that the cause of action is not set forth wi......
  • Powell v. Alford
    • United States
    • Georgia Supreme Court
    • July 20, 1901
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