Williams v. Atlanta Nat. Bank

• Decision Date: 27 November 1923
• Docket Number: 14268,14269.
• Citation: 120 S.E. 658,31 Ga.App. 212
• Parties: WILLIAMS v. ATLANTA NAT. BANK. ATLANTA NAT. BANK v. WILLIAMS ET AL.
• Court: Georgia Court of Appeals

120 S.E. 658

31 Ga.App. 212

WILLIAMS v. ATLANTA NAT. BANK.

ATLANTA NAT. BANK v. WILLIAMS ET AL.

Nos. 14268, 14269.

Court of Appeals of Georgia, Second Division

November 27, 1923

Syllabus by the Court.

If the judge's certificate to the bill of exceptions unqualifiedly verifies it, a further statement in the certificate which does not contradict any of the recitals of the bill of exceptions is not cause for dismissing the bill.

Joint obligors may be sued together in the county of the residence of either. Where a suit is brought upon a promissory note against two defendants appearing to be joint obligors, and it is alleged that one of them is a resident of the county in which the suit is filed and that the other is a resident of another named county of this state, a plea to the jurisdiction by the latter, that his residence is not as the plaintiff alleges but in a third county named, fails to show a want of jurisdiction and is properly stricken for insufficiency.

Such a plea is not aided by the averment that the resident defendant did not execute the note and has never ratified its execution by any one else. The question of the liability of the resident defendant should be determined on the final trial of the case and not on a dilatory plea.

When the record shows what purports to be a valid return of service, and it is necessary to resort to extrinsic testimony to show that there has been no service, or that the service was for any reason invalid, the objection can be made only by plea in abatement (if before judgment), and in connection therewith the sheriff's return must be duly traversed.

(a) In the absence of a traverse of the entry, the attack upon the legality of the service in this case was unavailing.

While it is true, regardless of the rulings made above, that when the court upon the trial directed a verdict against the plaintiff and in favor of the plea of non est factum of the resident defendant the court should not have proceeded further as to the nonresident defendant, in the absence of a waiver of jurisdiction, but should consistently have dismissed the case as to him for want of jurisdiction (and so irrespective of whether such verdict was properly directed) yet this general rule is not applicable here, for the reason that the record discloses the equivalent of a waiver of jurisdiction; that is, an estoppel to assert it.

(a) Where a person signs the name of another to a note purportedly as his joint obligor, and puts the note into circulation as a commercial paper, he will be estopped to assert, in an action thereon by an innocent holder for value that he did not have the authority to sign the name of such other party to the note, and that as between him and the holder the case is not one of co-obligors, suable in county of the residence of either of the signatory parties. The court properly directed the verdict in favor of the plaintiff and against the nonresident defendant, notwithstanding the direction in favor of the resident defendant.

Where the execution of a note is denied by a plea of non est factum, the note will not be received in evidence until some extrinsic proof of its execution has been submitted. Slight evidence is sufficient to lay the foundation for its admission.

(a) Where, in such a case, it is shown by the plaintiff that the defendant who filed the plea of non est factum had on several occasions stated to the plaintiff's attorney that as soon as he could see his brother the note would be arranged, and that always until the filing of the suit he promised to "arrange" or renew it, the plaintiff was entitled to have the note admitted in evidence.

(b) The error in excluding the note entered into and rendered erroneous the subsequent action of the court in directing a verdict against the plaintiff and in favor of the plea.

(c) Even if the court had been right in excluding the note, it would have been improper to direct a verdict in favor of the plea merely because of the failure of the plaintiff to supply sufficient evidence to authorize the introduction of the note. In that case the plaintiff should have been nonsuited.

Error from City Court of Carrollton; Leon Hood, Judge.

Action by the Atlanta National Bank against I. W. Williams and L. J Williams. Judgment for plaintiff against I. W. Williams, and in favor of L. J. Williams. I. W. Williams brings error, and plaintiff excepts by cross-bill. Affirmed on defendant's bill, and reversed on plaintiff's bill.

The Atlanta National Bank filed a suit returnable to the June term, 1921, of the city court of Carrollton, upon a joint and several promissory note purporting to have been signed by Ira W. Williams and Lee J. Williams, alleging that Lee J. Williams was a resident of the county of the suit and that Ira W. Williams was a resident of Fulton county. The plaintiff is a holder by indorsement. On May 18, 1921, an acknowledgment of service was entered upon the petition, signed apparently by both defendants. It seems, however, that this acknowledgment was made by Lee J. Williams, both for himself and for Ira W. Williams, and that the plaintiff, in order to be sure of service upon the latter, procured an order at the return term for the issuance of a second original, with process directed to the sheriff of Fulton county, for service upon this defendant, as to whom it was ordered that the September term, 1921, be the appearance term. At this term no return of the process had been made, and a second order was passed, prolonging appearance until the December term. In the meantime, on October 3d, a return had been made upon the second original, as follows:

"Georgia, Fulton County.

I have this day served the defendant Ira W. Williams personally with a copy of the within petition and process. This October 3, 1921.

Lane Mitchell, Deputy Sheriff."

The defendant so served then made a special appearance at the December term, for the purpose of pleading to the jurisdiction of the court, in which, after amendment, it was averred that he was not at the time of the filing of the suit a resident of Fulton county, but a resident of the county of Thomas; that the superior court of Thomas county and the city court of Thomasville "have jurisdiction as to him and his property; and that the city court of Carrollton has not jurisdiction; nor is service upon him in Fulton county legal and proper."

He pleaded further that Lee J. Williams did not execute the note and did not authorize the same to be executed, but "that said note was executed by this defendant, and his act and deed." Upon this allegation it is urged that the case was not one of joint obligors.

Neither the sheriff nor his deputy of Fulton county was made a party to this proceeding, and it was stricken on motion. The court struck also a traverse by the same defendant to the acknowledgment of service, attacking the authority of Lee J. Williams to make the acknowledgment in behalf of Ira W. Williams. This so-called traverse filed on the date of the trial, December 12, 1922, is alleged to have been made at the first term after notice. The plaintiff in error takes the view that the court struck this plea because it was not filed earlier.

Lee J. Williams at the appearance term filed a plea of non est factum in his own behalf. The court held upon the trial that the plaintiff did not carry the burden of proving execution, and refused to admit the note in evidence upon this issue. Verdicts were thereupon directed in favor of the plea of non est factum filed by Lee J. Williams, but in favor of the plaintiff against Ira W. Williams for the amount sued for. Ira W. Williams brought a bill of exceptions complaining of all of the rulings hereinbefore stated except the direction of a verdict in favor of the plea of Lee J. Williams. To this ruling exceptions are brought by the plaintiff, in what he has termed a cross-bill. Against the bill of exceptions first mentioned there has been filed a motion to dismiss.

S. Holderness and Smith & Millican, all of Carrollton, and J. Mallory Hunt, of Atlanta, for plaintiff in error.

Willis Smith and Boykin & Boykin, all of Carrollton, for defendant in error.

BELL, J. (after stating the facts as above).

1. The bill of exceptions brought by Ira W. Williams contained the following recital of facts:

"Plaintiff's attorneys also contend that Ira W. Williams acknowledged service upon said petition as appears on said petition, bearing date of the 18th day of May, 1921. To this alleged acknowledgment, by permission of the court, Ira W. Williams filed his traverse setting up that he had not acknowledged service and had not authorized any one to do so for him; that the alleged acknowledgment was in the handwriting of Lee J. Williams; and that he had not authorized Lee J. Williams to so acknowledge such service, and he had not ratified the same, and he asked that Lee J. Williams be made a party to said traverse, and this traverse was made at the first term after said alleged acknowledgment. This traverse was allowed and ordered filed and served upon Lee J. Williams, who was made a party by order of court. After argument of counsel, both pleas to the jurisdiction and upon the traverse of the alleged acknowledgment of service and before said traverse and order of court could be served upon Lee J. Williams, and, on motion of plaintiff, the court dismissed said traverse and struck the same, ruling that the same had to be filed at the first term, regardless of whether Ira W. Williams had notice or not; that said traverse was bad, unless so filed, and under the circumstances it would make no difference whether Lee J. Williams was served or not."

The certificate to the bill of exceptions is in the usual form but preceding his signature the judge adds the following: "No...