DeLoach v. Sikes, No. 6109

No. 6109 | Ga. | Feb 17, 1928

Beck, P. J.

1. Where several persons became sureties by indorsement of a promissory note, and upon failure by the maker to pay the note at maturity it was sued on by the payee and holder to judgment against the maker and the sureties, and thereafter the note and the judgment were transferred to one of the sureties who paid them off; and where it appears that the judgment was rendered during the pendency of bankruptcy proceedings and after the maker had been declared a bankrupt but before his discharge, and it being possible that he might have obtained his discharge and pleaded it against enforcement of the judgment, an equitable suit may be maintained upon the note by the surety who paid and had it transferred to himself, for the purpose of subjecting the property set apart to the bankrupt by the bankruptcy court as an exemption, the note containing a waiver of homestead; and the plaintiff in the equitable suit is not compelled to confine himself to his common-law rights under the judgment and execution, inasmuch as it was possible for the bankrupt to contest the validity of the judgment upon the ground that it was rendered pending the bankruptcy proceeding and before a discharge.

No. 6109. February 17, 1928.

2. Whether or not the court should have sustained the demurrer to that part of the petition seeking a recovery of attorney’s fees on the ground that petitioner was compelled to incur the expense of employing an attorney to bring the proceedings, the plaintiff in error was not injured by the ruling, inasmuch as the judgment recovered will exhaust the property set apart as a homestead, and the attorney’s fees will be payable only out of the property thus set apart.

3. Where during the trial a witness was interrogated by counsel for the party in whose behalf he had been introduced, and the court sustained an objection to the question propounded, an exception to that ruling is without merit unless it be shown that the witness, if permitted to answer the question, would have stated a fact material to the issue under investigation, and what was the fact to which he would have testified, and further that the court was then and there informed as to what answer was expected«from the witness by the party then interrogating him.

4. The court did not err in holding that counsel for the plaintiff was entitled to the opening and concluding argument.

5. That a judgment or decree does not follow or is not authorized by the verdict upon which it is entered can not properly be made a ground of a motion for a new trial. Coleman v. Slade, 75 Ga. 61.

Judgment affirmed.

All the Justices concur. H. H. aiders, for plaintiff in error. P. M. Anderson, contra.