Sherman v. Stephens
| Decision Date | 27 June 1923 |
| Docket Number | 13841. |
| Parties | SHERMAN ET AL. v. STEPHENS. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
The court did not abuse its discretion in setting aside the default judgment and in allowing the defendant to plead, upon the showing made.
In a suit by the executors of a deceased payee of a joint and several note signed by three persons, one of whom only is sued, another of the signers was competent to testify in favor of the defendant that the witness was the principal and that the person sued was only a surety, and had been discharged by reason of transactions between the witness and the deceased payee. The testimony could not in any view or event be in favor of the witness so as to disqualify him under the evidence. Act of 1889 (Civil Code of 1910, § 5858).
Although a secret agreement between the principal and the payee that in consideration of services to be performed by the former for the latter at a stipulated price, the payee will extend the maturity of the note for a definite period, would not be enforceable under the statute of frauds, where the services (not as an overseer), are not to be performed within one year from the making thereof, and would therefore, without more afford no reason for releasing a surety from liability upon the note, the rule would be different if performance of the services has been fully executed and if the note was in fact extended as was contemplated by the agreement of the parties.
While it is true that "when a witness testifies to facts incoherently or inconsistently, that circumstance goes to his credit, and if his testimony be very incoherent or inconsistent, it should be considered with great caution" by the jury (Evans v. Lipscomb, 31 Ga. 71 [2]), this court is not authorized to hold as a matter of law that testimony of one not a party has no probative value merely because it is self-contradictory; nor was the evidence admitted on behalf of the alleged surety, in support of his plea that he was discharged by reason of a secret agreement between the principal and the payee to extend the maturity of the note, so indefinite or uncertain as to preclude an instruction by the court submitting to the jury the issue raised by the plea.
A ground of a motion for a new trial must be complete in itself, and when a particular ground is under consideration reference to other grounds should not be required in order to understand the assignment of error. Bowen v. Smith-Hall Grocery Co., 146 Ga. 157 (4), 91 S.E. 32; City of Jackson v. Wilson, 146 Ga. 250 (4), 91 S.E. 63; May Bros. v. Srochi, 23 Ga.App. 33 (7), 97 S.E. 277.
Killian v. State, 19 Ga.App. 750 (2), 92 S.E. 227.
While the "failure to record a contemporaneous mortgage, given to secure an indebtedness evidenced by a promissory note, for the payment of which one is surety, discharges the surety" (Cloud v. Scarborough, 3 Ga.App. 7 [3], 59 S.E. 202; Toomer v. Dickerson, 37 Ga. 428 [1]; Atlanta National Bank v. Douglass, 51 Ga. 206 [1], 21 Am.Rep. 234; Nance v. Winship Machine Co., 94 Ga. 649 [4], 21 S.E. 901; Phillips v. Bridges, 144 Ga. 703, 87 S.E. 1059), a release would not result from such failure to record where the mortgage, though tendered by the principal simultaneously with the note, is rejected, and the credit is extended solely upon the note. The payee of the note, never having accepted the mortgage, assumed no duty in regard to its record.
" 'The release of or compounding with one surety discharges a cosurety;' but an attempt to release one of the sureties does not have this effect, where the attempted release is unenforceable for lack of consideration." Williams-Thompson Co. v. Williams, 10 Ga.App. 251 (3), 73 S.E. 409; Pearce v. Swift, 21 Ga.App. 622 (2), 94 S.E. 916.
A surety, asserting his own discharge by reason of the release by the payee of an alleged cosurety, has the burden of proving such defense, including the fact of consideration. Duckett v. Martin, 23 Ga.App. 630 (2), 99 S.E. 151. Such a defense is not sustained where the evidence tends only to show that, because of some unfulfilled condition, the surety with whom it is alleged the payee compounded never in fact became bound. There was no evidence in the case at bar sustaining the plea of the defendant that he had been discharged by reason of the release of a cosurety by the payee.
"Where instructions are given that are not warranted by the evidence and are calculated to mislead and confuse the jury, the error requires a new trial." Central Georgia Power Co. v. Cornwell, 139 Ga. 1 (2), 76 S.E. 387, Ann.Cas. 1914A. 880; Bird v. Benton, 127 Ga. 371 (4), 56 S.E. 450; Culberson v. Alabama Construction Co., 127 Ga. 599 (1), 56 S.E. 765, 9 L.R.A. (N. S.) 411, 9 Ann.Cas. 507. Applying this principle, the court erred in giving the charges complained of in grounds 8 and 9 of the motion for a new trial, and the error was such as to require a reversal. Nation v. Jones, 3 Ga.App. 83 (3), 59 S.E. 330.
There was some evidence in support of the verdict, and a new trial is ordered only for the error referred to in the preceding headnote.
Additional Syllabus by Editorial Staff.
Under Act Aug. 21, 1906 (Laws 1906, p. 164) § 9, authorizing city court in its discretion to open default judgments during the same term, such discretion is to be exercised upon general legal principles, and the judge cannot act arbitrarily.
Before opening of default judgment can be ordered, the movant must allege and prove some good reason in law why he failed to make his defense at the time required.
Under Act Aug. 21, 1906 (Laws 1906, p. 164) § 9, authorizing city court in its discretion to open default judgments during the same term, filing of motion at same term with order nisi thereon assigning the matter for hearing reserved the authority which the court then had until the motion was finally disposed of at a subsequent term.
On writ of error, the presumption is that trial judge did not abuse discretion in opening default, and this presumption must prevail, unless contrary ruling was demanded as matter of law.
Motion to open default judgment alleging that defendant was seriously ill when served, and that, as soon as he was able, he went to B. to arrange with "his attorney" to file a defense, held, in view of other allegations, not to show conclusively that movant had employed attorney before judgment was rendered.
Error from City Court of Blakely; A. H. Gray, Judge.
Action by J. S. Sherman and another, as executors of E. Hilton, against J. A. Stephens. Judgment for defendant, and plaintiffs bring error. Reversed.
In suit by payee's executors against one of three signers of joint and several note, another signer held competent, under Civ.Code 1910, § 5858, to testify that he was the principal and defendant only a surety and to transactions claimed to discharge the surety, whether the witness had been discharged in bankruptcy or not.
J. S. Sherman and H. E. Hightower, as executors of E. Hilton, filed suit in the city court of Blakely, returnable to the August term, 1921, against J. A. Stephens, upon a promissory note, payable to Hilton, dated May 1, 1912, maturing May 1, 1913. While the note appears to have been signed by J. C. McCullers, J. A. Stephens, and Eugene Martin, it was a joint and several paper, and Stephens only was sued. The deputy sheriff made an entry of having served the defendant personally on July 29. On August 15 a default judgment was entered against the defendant for the principal, interest, and attorney's fees sued for. On September 16, during the same term, the defendant filed a motion to vacate the judgment, along with a traverse of the entry of service. The sheriff, his deputy, and the plaintiff were made parties, and a rule nisi was granted by the presiding judge, requiring the plaintiff to show cause at the next November term why the motion should not be granted. In the meantime the entry of service was amended by the officer so as to show that, instead of the service being personal, as originally stated, it was by leaving a copy of the petition and process at the defendant's "residence and most notorious place of abode."
At the time set for the hearing both the plaintiff and the officer responded. Their responses related solely to the question of service. Although it is averred by the plaintiff:
"That the defendant, on or about the 30th day of July, 1921, actually got said copy and at once employed legal counsel to represent him in defending said suit; and that there was no valid reason or excuse for the defendant failing to file such answer to said suit as he may have desired to interpose, on or before the return day of said case, to wit, the third Monday in August, 1921, the date on which judgment was duly rendered against him by default."
This document was not sworn to. Though no order of continuance appears in the record, the motion was not heard until the January term, 1922. At this term, before any action had been taken by the court upon the original motion, the defendant by leave of the court amended by alleging substantially the following: That movant resides 18 miles from the courthouse at Blakely, Ga.; that on July 28, 1921, the defendant was taken seriously ill while absent from home and at once returned to his house, becoming much worse, and that he was forced to be confined to his bed with throat and lung trouble for nearly three weeks, suffering severe pains during that time and being unable to leave his home to transact any business...
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