Youmans v. Moore
| Decision Date | 16 April 1912 |
| Docket Number | (No. 3,839.) |
| Citation | 74 S.E. 710,11 Ga.App. 66 |
| Parties | YOUMANS et al. v. MOORE. |
| Court | Georgia Court of Appeals |
(Syllabus by the Court.)
1. Limitation of Actions (§§ 54, 157*)—Running Account—Payment—Application.
In mutual running accounts, where there has been no accounting or liquidation of the indebtedness, or other like act, by which a new point was established from which the statute could begin to run, none of the accounts would be barred until the last item charged is barred. Madden v. Blain, 66 Ga. 52; Gunn v. Gunn, 74 Ga. 568, 58 Am. Rep. 447; Walker v. Mercer. 41 Ga..44. In the absence of direction, creditors have the right to apply payments to the oldest item of indebtedness, so as to avoid the bar of the statute of limitations. Hobbs v. Crawford, 4 Ga. App. 585, 62 S. E. 157.
[Ed. Note.—For other cases, see Limitation of Actions, Cent. Dig. §§ 295-298, 631-634, 630; Dec. Dig. §§ 54, 157.*]
2. Evidence (§ 596*)—Instructions—Bub-den of Proof.
In a civil case it is improper and misleading to instruct the jury that the burden of proof is on the party asserting a fact, to carry the burden to a "moral certainty." The burden is successfully carried when the facts asserted are established by a preponderance of the evidence to the satisfaction of the jury. Civil Code 1910, §§ 5730. 5731; Supreme Conclave v. Wood, 120 Ga. 338, 47 S. E. 940. Where the material issues are close under the evidence, such erroneous instruction requires a new trial.
[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 2446-2448; Dec. Dig. § 596.*]
3. Set-Off and Counterclaim (§ 44*)—Action Against Firm—Individual Debts of Plaintiff.
"The debt of a firm is the debt of each of its members." Therefore, where a firm is sued on a note made by the firm, and each individual member of the firm is served, the right of set-off would exist in favor of the individual members for indebtedness due by the plaintiff to them, as well as for indebtedness due by the plaintiff to the firm.
[Ed. Note.—For other cases, see Set-Off and Counterclaim, Cent. Dig. §§ 82-99; Dec. Dig. § 44.*]
4. Appeal and P]rror (§ 1078*)—Review-Abandonment op Grounds of Error.
Grounds of error, not covered by the brief or the argument, will be treated as abandoned. The general statement in the brief that grounds not referred to or argued are nevertheless not abandoned will not be sufficient to change the rule above announced. Courts of review have the right to expect assistance from counsel by citation of authority or argument, and will be apt to accept the inference that the lack of interest by counsel is due to a conviction of the lack of merit.
[Ed. Note.—For other cases, see...
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Pelham Phosphate Co v. Daniels
...and will be apt to accept the inference that the lack of interest bycounsel is due to a conviction of the lack of merit." Youmans v. Moore, 11 Ga. App. 66, 74 S. E. 710. See, also, White Sewing Machine Co. v. Horkan, 17 Ga. App. 48(7), 86 S. E. 257; Muse v. Hall. 18 Ga. App. 651, 90 S. E. 2......
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Pelham Phosphate Co. v. Daniels
...and will be apt to accept the inference that the lack of interest by counsel is due to a conviction of the lack of merit." Youmans v. Moore, 11 Ga.App. 66, 74 S.E. 710. also, White Sewing Machine Co. v. Horkan, 17 Ga.App. 48(7), 86 S.E. 257; Muse v. Hall, 18 Ga.App. 651, 90 S.E. 222; Jeffer......
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Bostick v. State, (No. 11734.)
...of the clerk of said court, and is of record in said case." The brief contains no further reference to the demurrer. In Youmans v. Moore, 11 Ga. App. 66, 74 S. E. 710 (4), it is held that— "Grounds of error not covered by the brief or the argument of counsel for the plaintiff in error will ......