Summerour v. Felker

• Decision Date: 10 August 1897
• Citation: 29 S.E. 448,102 Ga. 254
• Parties: SUMMEROUR v. FELKER.
• Court: Georgia Supreme Court

29 S.E. 448

102 Ga. 254

SUMMEROUR v. FELKER.

Supreme Court of Georgia

August 10, 1897

Syllabus by the Court.

1. A promissory note given for the purchase money of land, payable in installments, but stipulating that, in a certain event, at the option of the payee, the contract should be rescinded and the maker be due a certain amount as rent, is, on the trial of an issue formed on a distress warrant for rent of the land, not a paper collaterally material to the case so as to be admissible as evidence without proof of execution; and where the instrument has been attested by a witness, it is error to admit the same, over the objection of the defendant without proof of its execution by the subscribing witness, or legally accounting for his nonproduction, or else proving its execution by the testimony of the maker.

2. Where an affidavit, made to obtain a distress warrant, alleged that the land for which the rent was due was situated in one county, it was error at the trial to allow an amendment striking out the county first alleged, and inserting another county; it not appearing, from the pleadings or otherwise, that the land described in the amendment was the same land referred to in the original affidavit.

Error from superior court, Gwinnett county; N. L. Hutchins, Judge.

Action by J. H. Felker against George Summerour. Plaintiff had judgment. The petition for certiorari sued out by defendant was overruled, and he brings error. Reversed.

Juhan & McDonald, for plaintiff in error.

E. S. V. Briant, for defendant in error.

LITTLE J.

The defendant in error sued out a distress warrant in Gwinnett county against the plaintiff in error, alleging that "George Summerour, col., tenant of said Felker, and of said county, is justly indebted to the said J. H. Felker one hundred dollars, for rent of one farm in said Gwinnett county near Windsor, for the year 1895." This warrant, having been levied on certain personal property of the defendant therein, was met by a counter affidavit, averring that the sum distrained for was not due at the time of issuing the warrant, that he never rented any land from Felker, and did not owe him any rent for any land in said county for the year 1895, or any other year. The issue so raised came before the city court for trial. An amendment to the distress warrant was allowed by the court, and the case went to a jury, and resulted in a verdict for the plaintiff. A petition for certiorari was sued out and sanctioned, and on the hearing in the superior court the certiorari was overruled, and the plaintiff in error excepted. During the trial of the case in the city court the plaintiff offered in evidence an original promissory note, a copy of which is as follows: "Monroe, Ga., April 14, 1894. As purchase money for the Sec Carter place, near Windsor, in Walton County, Ga., containing two hundred and eighty acres, more or less, I promise to pay J. H. Felker or bearer twelve hundred dollars ($1,200), payable in installments, as follows: $300 November 1st, 1895, $300 November 1, 1896, $300 November 1, 1897, and $300 November 1, 1898, respectively, with interest from date at eight per cent. per annum, and ten per cent. on principal and interest, if collected by law. And I hereby waive any and all homestead exemptions against the payment of this note. If I should fail or refuse to pay the first payment, then, at the option of said Felker, the relation of landlord and tenant shall exist for the year 1895 at a rental of $100. These installment can be paid in middling cotton, delivered in Monroe, at seven cents per pound, if I should desire to so pay them. Witness my hand and seal. George Summerour. [Seal.] J. A. Austin. [Seal.] Witnessed by F. F. Nowell." Objection was made to the introduction of the note in evidence, on certain grounds, one principally ruled on being that the execution of the note had not been proven by the subscribing witness, nor had the party executing it testified to such execution. The objection was overruled, and the note admitted in evidence, and it was contended that this ruling of the judge of the city court was error.

1. It must be conceded that this note was not the foundation of the action instituted by the plaintiff below; it was not declared on. The plaintiff's case rested on the averment in his affidavit that the defendant was indebted to him in a given amount for rent of land for the year 1895, which was due. This was the cause of action, and, on his affidavit being made to that effect, the process issued as a matter of law without regard to whether the evidence of the fact of such indebtedness was in writing or not,--whether, if it was in writing, it was in the shape of a promissory note or other contract. It was not sought to recover rent due on a written contract, but to recover rent which was due and unpaid. The writing offered in evidence contained a promise to pay a certain sum of money as rent, by construction, at a given time, on the happening of a certain event, and contained a stipulation which, under certain circumstances, would create the relation of landlord and tenant between the parties. It was witnessed by F. F. Nowell. To be good, it was not essential that its execution should have been attested by a subscribing witness. But the parties chose to have it so, and such was their right. Was it legally admitted, in the absence of proof of its execution by the subscribing witness to the instrument? Mr. Greenleaf in his Law of Evidence (volume 1, § 569) lays down the rule to be that "the instrument, being produced and freed from suspicion, must be proved by the subscribing witnesses, if there be any, or at least one of them." The witness is a witness to the execution. The instrument in question was executed, not by the plaintiff below, but by the defendant there, and "the party to whose execution he is a witness is considered as invoking him as the person to whom he refers to prove what passed at the time of the attestation." Id., citing 11 Mees. & W. 168; Hollenback v. Fleming, 6 Hill, 303. Mr. Greenleaf further says, on this subject, "that the best reason on which this rule seems to be founded is that a fact may be known to the subscribing witness not within the knowledge or recollection of the obligor, and that he is entitled to avail himself of all the knowledge of the subscribing witness relative to the transaction"; for which he cites a number of authorities. See 1 Greenl. p. 622, note 2. Our Civ. Code, § 5244, lays down as a rule that "the subscribing witness must be produced in all cases except the following: (1) Ancient writings; (2) when witness cannot be produced; (3) office bonds; (4) if the paper is only incidentally or collaterally material to the case;...