Whitaker v. Pope

• Decision Date: 31 January 1873
• Citation: 48 Ga. 13
• Parties: Jared I. Whitaker, for the use, etc., plaintiff in error. vs. John D. Pope, defendant in error.
• Court: Georgia Supreme Court

48 Ga. 13

Jared I. Whitaker, for the use, etc., plaintiff in error. vs. John D. Pope, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1873.)

Notice. Service. Set-off. Before Judge Hopkins. Fulton Superior Court. April Term, 1872.

Whitaker, for the use of Emmett D. Dodge, brought complaint against Pope, on an account for $6,962 25. The defendant pleaded several items of set-off, amongst others, a note dated April 30th, 1867, due January 1st, 1869, payable to James R. Brown, administrator upon the estate of John W. Lewis, deceased, or bearer, for the sum of $2;000 00, signed by Jared I. Whitaker, as principal, and by John I. Whitaker and William Watkins, securities.

The evidence made the following case: Plaintiff established his account to the amount of $2,245 41. Early one morning the defendant called upon plaintiff's attorney and acknowledged service upon the declaration in this case. He immediately thereafter purchased the above stated note from the payee, for the sum of $500 00. To assure himself that he was in time to avail himself of said note as a set-off, he called at the clerk's office and found that the declaration had not then been filed. He had no knowledge, notice or information that the account had been transferred to Dodge. The declaration was filed on the day of, but after, the purchase.

The jury allowed the amount of the aforesaid note as a set-off, and found a verdict for the plaintiff for the balance. Whereupon the plaintiff moved for a new trial upon the following grounds, to-wit:

1st. Because the court refused to charge the jury, "that if the defendant acquired a note for the very purpose of using it as a set-off in this action, and his purchase was after he *acknowledged service on the declaration, and on the same day the declaration was filed, he cannot use it as a set-off."

2d. Because the court erred in charging the jury, "that if the note was purchased by the defendant before the time of the filing of the writ in this case, and at the time of his purchase he had no notice of an assignment to Dodge of the Whitaker debt, it could be set off against whatever the jury might find to be due to the plaintiff."

3d. Because the verdict was contrary to the law and the evidence.

The motion was overruled, and the plaintiff excepted.

L. E. Bleckley, by N. J. Hammond, for plaintiff in error.

No appearance for defendant.

McCay, Judge.

We are not prepared to say that the acknowledgment of service and waiving copy was the commencement of suit. It may be that the plaintiff would never file it. The case of...