4 Ga. App. 826 | Ga. Ct. App. | 1908
All of the questions raised by the writ of error-are abandoned by the plaintiff in error in his brief, except the assignment of error which insists that the court erre¿l in striking the defendant’s plea in abatement. In addition to what we have said in the headnote, it is only necessary to state that the Massengale Advertising Agency, having brought an action against the plaintiff in error to recover upon an open account, effected a settlement with him, by the terms of which he paid $100 in cash, and gave certain promissory notes in settlement of the remainder of the account. These promissory notes were the basis of the-second suit. It appears that both suits were open upon the docket at the time that the plea in abatement was filed, but it is uncontroverted that the second suit was upon the notes given in settlement of the first. It is clear, where one settles an action instituted against hint, that, in the absence of any agreement between the parties to the controversy, the costs in the case become chargeable -against him. The case, therefore, does not fall within the provisions of §5043 of the Civil Code, which provides that where.