129 Ga. 756 | Ga. | 1907
Suit was brought in Bichmond superior court by E. E. Andrews against J. J. Dicks. The plaintiff in the court below, defendant in error here, died while the case was pending in this court, and upon motion, Julia J. Andrews, as temporary administratrix of his estate, was made a party defendant in error. The following is a copy of the note upon which the action is based: “$1,050.00. Augusta, Ga., July i, 1905. One year after date I promise to pay to C. H. Cohen, or bearer,-one thousand and fifty dollars at any bank. Value received. J. J. Dicks.” The pleas filed by the defendant, omitting that portion unnecessary here to- consider, are as follows:
“2nd. Defendant admits the execution of the note as set out in paragraph three of plaintiff’s petition, except as to its apparent date of execution, and says that the note was really signed on the 3d day of April, 1905, while a petition in bankruptcy was pending against defendant before the Honorable Joseph Ganahl, referee in bankrupt in* the Hnited States court of this district.
“3rd. Defendant, further answering plaintiff’s petition, says that said note was given to the said C. H. Cohen at said time wholly without any valuable consideration, either moral or legal, and that defendant received no benefit or thing of value therefor, nor was said note given in renewal of any-account or obligation due by defendant to the said Cohen.
“4th. Defendant further shows that the plaintiff E. E. Andrews, suing as the bearer of said note, at time he took same knew*757 that said note was given to the said C. H. Cohen by defendant without any valuable consideration whatever.
“5th. Defendant shows that the said E. E. Andrews received and acquired said note from the said C. H. Cohen without consideration and without the payment to the said Cohen of anything of value whatever, and is therefore not a purchaser for value without notice.
“6th. Defendant further shows, that, after the note sued on was signed by defendant, there came on to be heard the petition in bankruptcy against defendant, to which plaintiff was a party, and after the hearing of said petition and consideration of the evidence therein, by the Honorable Joseph Ganahl, referee in the H. S. court of bankruptcy for the northeastern division of the southern district of Georgia, a composition of defendant’s debts were allowed at 25 cents on the dollar of defendant’s indebtedness, which was accepted by the plaintiff E. E. Andrews along with other creditors as a settlement and- release in full.”
When the case was called for trial, the court ruled that said pleas made no issuable defense, and entered judgment against defendant on the note. The defendant thereupon filed a bill of exceptions, complaining that this ruling of the court was error.
Reversed.