Thomas & McCafferty v. Siesel
| Citation | 58 S.E. 1131,2 Ga.App. 663 |
| Decision Date | 22 October 1907 |
| Docket Number | 304. |
| Parties | THOMAS & McCAFFERTY v. SIESEL. |
| Court | United States Court of Appeals (Georgia) |
Syllabus by the Court.
Under the decision of the Supreme Court in the certified case of Lyndon v. Georgia Railway & Electric Company (Ga.) 58 S.E. 1047, wherein former contrary rulings are modified and overruled, the writ of error in the present case is not subject to dismissal.
Where exception is taken to the refusal of the court to allow an amendment to pleadings, the proffered amendment should be set out, literally or in substance, in the bill of exceptions, or attached as a duly authenticated exhibit thereto. This court cannot consider it, if it be brought up in the transcript of record. Walker v. Equitable Mortgage Company, 114 Ga. 862 (7), 40 S.E. 10.
[Ed Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 2347.]
It is not error for the court to strike on demurrer an ambiguous and evasive answer to a suit on promissorry notes. Brinson v. Birge, 102 Ga. 802, 30 S.E. 261.
A plea of non est factum is subject to be stricken on demurrer which does not unequivocally deny that the notes sued on are the act and deed of the defendant. Lester v. McIntosh, 101 Ga. 675, 29 S.E. 7.
[Ed Note.-For cases in point, see Cent. Dig. vol. 7, Bills and Notes, §§ 1514-1518.]
A plea of payment, which fails to allege when, how, and to whom the payment was made, is properly stricken on demurrer. Wortham v. Sinclair, 98 Ga. 173, 25 S.E. 414; O'Neal v. Phillips, 83 Ga. 556, 10 S.E. 352; Atlantic Coast Line R. Co. v. Hart Lumber Co., 2 Ga.App. 88, 58 S.E. 316 (3).
[Ed Note.-For cases in point, see Cent. Dig. vol. 39, Payment, §§ 144-149; vol. 7, Bills and Notes, § 1535.]
The title of the holder of a note cannot be inquired into, unless it is necessary for the protection of the defendant, or to let in a defense which he seeks to make. Civ. Code 1895, § 3698.
Where in an answer by paragraphs to a petition bringing suit on promissory notes, the defendant makes, in answer to one of the paragraphs, a general denial of the indebtedness, but such answer nowhere sets up any legal defense, the answer is properly stricken on demurrer. Johnson v. Cobb. 100 Ga. 139 (2), 28 S.E. 72.
Error from City Court of Macon; Robt. Hodges, Judge.
Action by Thomas & McCafferty against S. Siesel, as survivor, etc. From a judgment for defendant, plaintiff brings error. Affirmed.
Roland Ellis, Richard...
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