49 Ga. App. 431 | Ga. Ct. App. | 1934
The Rome Mercantile Company brought a joint suit against J. B. Isbell and Lula Fricks for the balance alleged to be due on a promissory note. Lula Fricks filed a plea denying any indebtedness. Isbell made no answer to the suit. It appears from the copy of the note attached to the petition that the note was executed by Isbell, and that Lula Fricks signed her name on the back, presumably as an indorser or surety, and that presumption is not rebutted by anything in the record. It also appears from the record that Isbell was -duly served with a copy of the petition and process. IJpon the trial, as recited in the bill of exceptions, “the plaintiff offered in evidence the original mortgage note, a copy of which is attached to the original petition, and thereupon counsel for plaintiff moved the court to direct a verdict on the ground that the defendant, Lula Fricks, had no sufficient answer or defense filed to the plaintiff’s suit, and, after argument, the court sustained the motion and directed a verdict in favor of the plaintiff and against the defendant, Lula Fricks, said verdict so directed being as follows, to wit: ‘We the jury find in favor of plaintiff $152.85 principal, together with $33.53 interest to this date. This July 13th, 1933. H. G-. Proctor, Foreman.’ Thereupon the court entered up judgment against the said Lula Fricks in words and figures as follows, to wit: ‘Whereupon it is ordered and adjudged that the verdict of the jury be and the same is hereby made the judgment of this court, judgment being rendered for the plaintiff and against the defendant [for the amounts set forth in the verdict]. This 13th day of July, 1933. James Maddox, J. S. C. R. C.’ To the order and judgment of the court in directing a verdict in favor of the plaintiff and against the defendant Lula Fricks, the defendant Lula Fricks then and there excepted and now ex
In this case the verdict and judgment, standing alone, import a verdict and judgment against both defendants (Houston v. Ladies Union Branch Association, 87 Ga. 203, 13 S. E. 634), but when considered in connection with the foregoing statement of fact in the bill of exceptions, the verdict and judgment should be construed to have been taken against Lula Fricks, the endorser, only. Of course, if there were an irreconcilable conflict between the bill of exceptions and the record the latter would control. But the conflict here is apparent only, and reconcilable when the verdict and judgment are construed in the light of the statement of facts in the bill of exceptions. Thus construed, the verdict and judgment were against Lula Fricks only, and therefore she was discharged from all liability. Civil Code (1910), §§ 3539, 3544; Lewis v. Armstrong,
The foregoing controls the case, and the other assignments of error are not considered.
Judgment reversed.