Williams v. Bank

• Decision Date: 27 November 1923
• Docket Number: (Nos. 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

31 Ga.App. 212

120 S.E. 658

WILLIAMS .

v.ATLANTA NAT. BANK.

ATLANTA NAT. BANK .

v.WILLIAMS et al.

(Nos. 14268, 14269.)

Court of Appeals of Georgia,

Division No. 2.

Nov. 27, 1923.

(Syllabus by the Court.)

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 Pulton 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, hut 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] 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 point was made before the court that the traverse had not been served on Lee J. Williams, and Lee J. Williams was present and represented by attorneys."

It is contended that this statement is a qualification of the judge's certificate of the truth of the bill, and that for this reason the bill of exceptions should be dismissed. We cannot concur in this view. The bill of exceptions recites in effect that the judge held that the traverse to the acknowledgment of service was without merit, regardless of whether Lee J. Williams had been served with the traverse, and for that reason dismissed it instanter. It is not assigned that any party contended that the judge should not pass upon the sufficiency of the traverse until Lee J. Williams had been served therewith, so that the statement that "no point was made before the court that the traverse had not been served on Lee J. Williams" in no way contradicts any of the recitals of the bill of exceptions, which are unqualifiedly certified as true, and the motion to dismiss is therefore denied. Scott v. Whipple. 116 Ga. 211 (2), 42 S. E. 519; Stilwell v. Watkins, 135 Ga. 149 (2), 68 S. E. 1114; Davis v. Smith. 7 Ga. App. 192 (3), 66 S. E. 401; Lane v. State, 9 Ga. App. 294 (1), 70 S. E. 1118.

This ruling is not in conflict with the ruling in Hawkins v. Mayor, etc., of Americus, 102 Ga. 786, 30 S. E. 519; Jarriel v. Jarriel, 115 Ga. 23, 41 S. E. 262; Love v. Love, 146 Ga. 161, 91 S. E. 27; Watkins v. State, 29 Ga. App. 320, 114 S. E. 915, or with any of the other decisions by this or the Supreme Court, of which we are aware, to the effect that a bill of exceptions should be dismissed where it is not verified unqualifiedly and in whole by the judge's certificate.

[21 2. Irrespective of whether Ira W. Williams should be estopped to deny his authority in signing the name of Lee J. Williams to the note, the plea to the jurisdiction was altogether insufficient. Upon the face of the note it appears that the defendants are joint and several makers. Joint obligors may be sued together in the county of the residence of either. Civil Code 1910, § 6541. The | plaintiff alleged that Ira W. Williams was a resident of the county of Fulton. This defendant pleaded that he was not a resident of Fulton county, but of Thomas county. The petition alleges that Lee J. Williams resided in the county of Carroll, in which the action was brought. If they are joint obligors, the courts of Carroll county would have jurisdiction over the person of Ira W. Williams, whether he resided in the county of Fulton or the county of Thomas. His plea failed to show that the court was without jurisdiction over him, and thus far was without merit. Maddox v. Brooks, 17 Ga. App. 644 (1), 87 S. E. 911.

[J] 3. Furthermore, we do not think that it was aided by the plea of non est factum which he entered as to Lee J. Williams. Regardless of whether such a plea is personal and could be made only by the latter (see Civil Code 1910, § 5676), the question of their joint liability should be determined on the final trial, and not on a dilatory plea. In the case of Central of Georgia Ry. Co. v. Brown, 113 Ga. 414 (3), 38 S. E. 9S9, 84 Am. St. Rep. 250, the suit was brought in the county of Bibb for a tort alleged to have been committed in that county. The defendant filed a plea to the jurisdiction claiming that the cause of action, if existing, arose in the county of Washington, and seems to have shown that this was true beyond dispute; but it was alleged in the petition that the tort was committed jointly by the defendant's conductor and one McCowan, who, it was averred, resided in Bibb. It was held that the suit could be brought in the county of Bibb, and also that—

"In trying the plea to the jurisdiction of the court it was not proper to go into the merits of the case. The railroad company sought to show that McCowan was not liable to the plaintiff, and that the courts of Bibb county had, therefore, no jurisdiction of the company. We think that this is a mutter for determination on the final trial of the case."

See Warren v. Rushing, 144 Ga. 612 (1), 87 S. E. 775.

4. But it is...