20 Ga. App. 153 | Ga. Ct. App. | 1917
1. A promissory note payable to ' a named person is negotiable only by the indorsement of that person. Civil Code (1910), § 4273.
2. The payee of. a promissory note may plead and prove, in defense to a suit by a bona fide holder of the note for value, who received it before maturity and without notice of any defect or defense, that he did not indorse or authorize the indorsement of his name on the back of the instrument. Civil Code (1910), § 4286.
3. Upon the filing of a plea of non est factum as to the indorsement of a note, the burden is upon the plaintiff to establish, by a preponderance of the evidence, the.fact of the indorsement. Thompson v. Kelsey, 8 Ga. App. 23 (4) (68 S. E. 518); Haley v. Vandiver, 8 Ga. App. 78 (68 S. E. 651); Bank of Norwood v. Chapman, 19 Ga. App. 709 (92 S. E. 225).
4. The verification of a plea of non est factum can be made at the trial term when the plea, without such verification, was filed at the appearance term and no motion was made at that term to strike it on this ground. Norton v. Scruggs, 108 Ga. 802 (2) (34 S. E. 166) ; Ward v. Frick Co., 95 Ga. 804 (22 S. E. 899) ; Neal v. Davis Foundry Ac. Works, 131 Ga. 701 (63 S. E. 221). Such verification can be allowed by the court without any formal order or amendment.
5. The testimony, the admission of which was excepted to, was possibly admissible for the purpose of impeaching one of the plaintiff’s witnesses, the cashier of the Uvalda Bank. However, even if it were irrelevant and inadmissible, under the facts of the ease its admission was not harmful, as it did not affect the controlling question in the case, to wit, had the payee indorsed the note or authorized any one else to do so for him?
6. That ground of the motion for a new trial which is based upon alleged newly discovered evidence, not having been referred to in the brief of counsel for the plaintiff in error, is treated as abandoned.
7. The jury determined in favor of the defendant the issue of fact as to the indorsement of the note sued upon, and, there being evidence to support this finding, the judgment overruling the motion for a new trial will not be disturbed.
Judgment affirmed.
