Shealy v. Toole

• Decision Date: 31 January 1876
• Citation: 56 Ga. 210
• Parties: Martin L. Shealy, plaintiff in error. v. William L. Toole,defendant in error.
• Court: Georgia Supreme Court

56 Ga. 210

Martin L. Shealy, plaintiff in error. v. William L. Toole, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1876.)

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Pleadings. Evidence. Garnishment. Usury. Contracts. Consideration. New trial. Before Judge Clark. Sumter Superior Court. October Adjourned Term, 1874.

Report unnecessary.

John R. Worrill, for plaintiff in error.

Fort & McClesky, for defendant.

Bleckley, Judge.

This was-complaint in the short statutory form, on two notes dated in December, 1872, and due on February 1st, 1873. A copy of each note was annexed to the declaration, including the words "due interest at two per cent. per month." Upon each note was an undertaking signed by the maker, under date of March 26th, 1873, substantially in the terms set out in. the 6th head-note to this opinion. A copy of each of these undertakings was. with the copy notes, annexed to the declaration.

There was a plea of the general issue, and one of partial payment, but none of usury or of want of consideration. The defendant filed a special plea that he was famished, and that the garnishment was still pending; but failed to allege who the plaintiff in garnishment was or what amount he claimed. This plea was demurred to generally, and was stricken by the court.

At the trial, the defendant offered in evidence the record of the garnishment proceeding, and it was rejected. The judge charged the jury that if there was evidence of a contract to pay interest at two per cent. per month, they might find interest at that rate; and the jury so found. There was no evidence of consideration for the agreements dated in March, other than that expressed therein.

*After verdict, the defendant moved for a new trial on various grounds; among them, one called newly discovered evidence, in support of which he filed an affidavit to the effect that he did not authorize the insertion in the notes of the words "due interest at two per cent. per month, " and did not know they were in the notes until after the trial and verdict. The court refused a new trial, overruling all the grounds.

With this statement of facts, and the head-notes, the views of the court on the law of the case can be understood.

In reference to the plea of garnishment as a defense, the prior decisions of this court should be cited: They are 5 Georgia Reports, 425; 6 Ibid., 550; 8 Ibid., 549; 20 Ibid., 477; and Hamilton v. Morris, decided at the present term.

While we rule that such a plea...