86 Ga. 46 | Ga. | 1890
Davis sued Wimberly for $324.45, alleging that amount was due him by Wimberly; that they had been partners, and that the partnership was dissolved; and that Wimberly had this amount of money more than he was entitled to. Wimberly filed no plea. When the case was called, the court ordered counsel to strike a jury. Counsel for plaintiff objected to defendant participating in striking the jury, upon the ground that he had filed no plea and had no standing in court, which objection was overruled by the court. Plaintiff was introduced as a witness, and his counsel, having finished his examination, objected to his being cross-examined by the defendant, on the ground that, having filed no plea, he was not entitled to cross-examine his witnesses. This objection was overruled by the court, and these two rulings of the court constitute the first two assignments of error allegéd' in the bill of exceptions. The plaintiff having testified, among other things, as to the amount of debts owed by the firm at the time of dissolution and the value of the assets which had come into his hands, and as to the relative amounts of the debts tcád assets, and as to the payment of the debts by him, on motion of defendant’s counsel the court ruled out said evidence, upon the
• We think that although'the defendant in this case had filed no pleas, he was entitled to participate in the selection of the jury to try the case brought against him, and to cross-examine any witnesses introduced by the plaintiff. While he could not introduce testimony in his own behalf, he had a right to stand by and see that the plaintiff made out such a case as would entitle him to recover. As was said by this court in the case of Hayden v. Johnson, 59 Ga. 106, “Default, according to the system of practice which has long prevailed in this State, is not equivalent to a confession of the plain, tiff’s cause of action. The defendant, while in default, may resist, passively, whatever is brought to attack him, but cannot make a counter-attack. Though not allowed to return the fire, he is not obliged to run, but may stand until he is shot down.” In the case of Durden v. Carhart, 41 Ga. 81, this court said: “The only effect oí a failure to plead, is the loss of the right to introduce evidence. But this neither relieves the plaintiff from the necessity of making out his case by proof, nor deprives the defendant of the right to object that the plaintiff’ has failed to meet this requirement.” Counsel for the plaintiff in error relied upon the case of Stephens v. Gate City Gas Co., 81 Ga. 150, to support his contention that the trial judge erred in allowing the defendant to strike a jury and to cross-examine plaintiff’s witnesses. That case, upon this point, only ruled that where defendant had been sued upon an open account, and suit was served personally upon him and he failed to file any plea thereto, under section 8457 of the code, the case was considered in default and the plaintiff
The next two grounds of complaint are, that the court erred in ruling out the testimony of plaintiff mentioned above, and in granting a nonsuit. This was an action by one partner against the other for money which the plaintiff claims the defendant had collected and failed to account for to the firm. The only allegation in the declaration was indebtedness of the defendant to the plaintiff; that there had been a partnership between them, which had been dissolved ; and that the defendant refused to pay to plaintiff any part of said indebtedness. The plaintiff testified as to these facts, and undertook to prove further the amount of the indebtedness .of the firm, the amount of the assets on hand at the time of the dissolution, that these assets went into his possession, that he paid the debts of the firm, and that the amount of said debts was more than the amount of the assets which he received. We do not think these facts could he proved under the allegations in the declaration. In a case of this sort, where one partner is trying to collect money from the other, these facts should have been alleged in the declaration. It is different, in our opinion, from an ordinary suit ot a creditor against a debtor. In a suit of the latter kind, where the statutory form is followed, the requirement
Judgment affirmed, with direction.