Stainback v. Dunn

• Decision Date: 09 June 1936
• Docket Number: 25445.
• Citation: 186 S.E. 220,53 Ga.App. 464
• Parties: STAINBACK v. DUNN
• Court: Georgia Court of Appeals

186 S.E. 220

53 Ga.App. 464

STAINBACK v. DUNN

No. 25445.

Court of Appeals of Georgia, Second Division

June 9, 1936

Error from Municipal Court of Atlanta; Ralph McClelland, Judge.

Suit by T.C. Dunn against J.F. Stainback and others. Judgment for plaintiff, defendants' motion for a new trial was overruled, and defendants bring error.

Affirmed.

Spence & Spence, of Atlanta, for plaintiffs in error.

Francis Y. Fife and G.B. Tidwell, both of Atlanta, for defendant in error.

Syllabus OPINION.

JENKINS Presiding Judge.

1. No question is raised in the pleadings as to the failure of the movant to present a brief of the evidence. It is not shown in the bill of exceptions or judge's certificate that such a question was raised in the court below. For this reason, the failure to file such a brief with the motion for new trial in this case will not affect the movant's right to a review by this court. Adams v. Overland-Madison Co., 27 Ga.App. 531(3), 109 S.E. 413; Donalson v. Bank of Jakin, 33 Ga.App. 428(2), 127 S.E. 229; Marks v Maxwell Bros. Furniture Co., 50 Ga.App. 325, 177 S.E 920; Code 1933, § 6-805. The result of the absence of a brief of the evidence, where its absence has not been questioned in the trial court, and of the absence of the complete evidence from the bill of exceptions, is not the dismissal of the case, but the affirmance of a judgment refusing a new trial on the general grounds or on any special ground requiring reference to the entire evidence. Therefore the instant motion to dismiss the writ of error because of the absence of a brief of the evidence must be denied; but any exception which requires a consideration of all the evidence must be determined adversely to the plaintiff in error, unless such evidence, properly authenticated, appears in the record.

2. The petition, suing a maker and the plaintiffs in error as indorsers, on a promissory note, stated a cause of action. It was not subject to the general demurrer of the indorsers on the grounds that it showed payments of interest in advance by the maker; that such payments constituted a renewal of the note; and that the petition did not show any consent by the indorsers to a renewal. The mere fact that the note bore the entry, "Int. paid to Jany. 1, 1934," a date more than a year before the suit, did not indicate any "prepayment and acceptance of interest to a given time, on a note past due," so as to raise by implication a presumption "of a contract for indulgence until the time * * * expired," in the absence of any proved stipulation to the contrary, within the rule stated in Randolph v. Fleming, 59 Ga. 776(2), 778. A mere payment and acceptance of past-due interest, or mere indulgence, will not discharge from liability the surety on a note. See Bunn v. Commercial Bank of Cedartown, 98 Ga. 647, 650, 26 S.E. 63; Crawford v. Gaulden, 33 Ga. 173 (3-5); Ver Nooy v. Pitner, 17 Ga.App. 229(3), 86 S.E. 456; Matthews & Son v. Richards, 13 Ga.App. 412(2), 79 S.E. 227.

3. Where a party submits to a ruling sustaining a demurrer to his pleading, by filing an amendment to meet the grounds of demurrer, he cannot afterwards insist upon an assignment of error on exceptions pendente lite to the ruling on the demurrer. Sherling v. Continental Trust Co., 175 Ga 672(1), 165 S.E. 560; McConnell v. Frank E. Block Co., 26 Ga.App. 550(1), 106 S.E. 617; Smith v. Bugg, 35 Ga.App. 317(1), 133 S.E. 49. The plaintiffs in error, having filed an amendment to their answer in...