Wingate v. Atlanta Nat. Bank

• Decision Date: 12 November 1894
• Parties: WINGATE et al. v. ATLANTA NAT. BANK.
• Court: Georgia Supreme Court

22 S.E. 37

95 Ga. 1

WINGATE et al. v. ATLANTA NAT. BANK.

Supreme Court of Georgia

November 12, 1894

Syllabus by the Court.

1. The declaration, as to form, complied substantially with the requirements of the pleading act of December 15, 1893.

2. The note declared upon containing a promise to pay attorney's fees, an amendment to the declaration praying for a recovery of the same did not set up a new and distinct cause of action.

3. The plea of the general issue having been withdrawn by defendants, no question as to alleged error in striking this plea is presented for adjudication.

4. Although the plea alleged that the defendants' firm did not execute and deliver the note sued upon, yet as it elsewhere alleged that one of the members of the firm did execute and deliver the same, without setting forth sufficient facts negativing the authority of such member so to do, the entire plea, taken together, did not amount to a plea of non est factum.

5. There being no denial in the defendants' plea, which was substituted for one previously filed and withdrawn, that the plaintiff acquired the note in due course of trade, before its maturity, and this plea, properly construed, not alleging that the plaintiff had knowledge of any facts which would put it on notice that the defendants were accommodation makers only, there was no error in striking this plea.

Error from city court of Atlanta; Howard Van Epps, Judge.

Action on a note by the Atlanta National Bank against Wingate & Mell and others. From the judgment rendered, defendants bring error. Affirmed.

Mayson & Hill, for plaintiffs in error.

B. F Abbott, for defendant in error.

LUMPKIN J.

This was an action upon a promissory note against Wingate & Mell as makers, and Black & McIntosh, as indorsers. An amendment to the declaration prayed for the recovery of attorney's fees. The material parts of the declaration and the amendment are set forth by the reporter. Wingate & Mell demurred to the declaration on the grounds that the plaintiff's cause of action was not set forth in orderly and distinct paragraphs, and that the amendment allowed contained a new and distinct cause of action.

1. We think the declaration, as to form, complied substantially with the requirements of the pleading act of December 15, 1893 (Acts 1893, p. 56). An action upon a promissory note is one of the simplest, as to form, which can be brought in the courts of this state; and while, in bringing an action of this kind, the plaintiff might cut his declaration up into a large number of minute paragraphs, it is not absolutely necessary to do so. It was quite an easy matter for the defendants, in the present case, to meet by their plea the paragraphs of the plaintiff's petition, by severally and distinctly answering each of the same. Very careful and accurate pleading might have led to the production of a declaration containing a larger number of separate and distinct paragraphs, and this would have been, probably, the better practice; but it requires no strain, we think, to hold that the declaration with which we are now dealing was, for all practical purposes, sufficient.

2. The note declared upon contained a promise to pay 10 per cent attorney's fees, if collected at law or through an attorney; but, through inadvertence or otherwise, there was no distinct allegation of indebtedness for such fees, nor prayer for the recovery of the same. Nevertheless, there was no error in allowing the amendment praying for a recovery of attorney's fees, over an objection that such an amendment set up a new and distinct cause of action. The promise to pay these fees...