Turner v. Pearson

• Decision Date: 27 January 1894
• Parties: TURNER et al. v. PEARSON.
• Court: Georgia Supreme Court

21 S.E. 104

93 Ga. 515

TURNER et al. v. PEARSON.

Supreme Court of Georgia

January 27, 1894

Syllabus by the Court.

1. Upon the hearing of the motion for a new trial, the court had no authority to consider exceptions pendente lite filed by the defendant, assigning as error the striking of certain pleas there being in the motion no complaint that the court erred in striking the pleas.

2. The only ground of the motion for a new trial being that the verdict was contrary to law and evidence, and it appearing that the evidence demanded the verdict, the court erred in granting a new trial.

3. On consideration of the exceptions pendente lite filed by the defendant, upon which error was assigned here, it is ruled that where the defendant gave a promissory note to the plaintiff's testator in his lifetime, and after his death, upon an accounting and settlement between the defendant and the executor, a new note was given in renewal of the former one, the defendant, when sued upon the last note, could not set up in a plea of payment alleged credits which ought to have been upon the first note, and of which the defendant necessarily must have had knowledge; the pleas alleging no conduct or representations on the part of the executor, in procuring the new note, amounting to fraud, nor setting up any facts showing that in giving the new note anything was said or done by which the defendant should have been deceived or misled.

Error from superior court, Hancock county; H. McWhorter, Judge.

Action by D. L. Turner and others, executors, against Stephen E Pearson. A verdict was returned for plaintiffs, a new trial granted, and plaintiffs bring error. Reversed. Judgment on exceptions pendente lite affirmed.

J. T. Jordan, for plaintiffs in error.

Reese & Little, for defendant in error.

SIMMONS J.

1. The executors of T. M. Turner sued Pearson upon a promissory note dated February 10, 1886, due January 1st next after date signed by the defendant and payable to De Lamar Turner, executor. The defendant filed an equitable plea, the allegations of which will be found in the official report. On demurrer, this plea was stricken by the court, and the defendant filed exceptions pendente lite. The plaintiffs introduced the note in evidence, and closed. The defendant introduced no evidence, and the jury returned a verdict for the plaintiffs. The defendant moved for a new trial, upon the ground that the verdict was contrary to law and evidence; and a new trial was granted. The plaintiffs thereupon filed their bill of exceptions, in which they a...