Jernigan v. Carter

60 Ga. 131 | Ga. | 1878

Bleckley, Judge.

1. If the jury had believed that the evidence established any one of the three pleas, a verdict in favor of the plaintiff for the amount of the note declared upon, would have been impossible. Such a verdict necessarily negatives each and all of the pleas. It is alike inconsistent with “not indebted,” non est factum, or that the plaintiff was dead when the action was commenced.

2. Misnomer is amendable instanter: Code, §3483. Hence, the suit was not void, though the plaintiff was described as Neal Carter, when his full name was John Neal Carter, and though, according to the evidence, he was usually called John, and only occasionally called Neal. Who was the real plaintiff from the beginning was a question of fact, and the evidence was ample to warrant the jury in believing that it was John Neal Carter, and not his father, Neal Carter, the latter of whom was dead when the suit was brought. The death ©f a person who was in fact not the plaintiff, though of the same name as that by which the plaintiff was described in the declaration, would not make the action void or cause it to abate. At bottom, the question is about persons, and not names, though in ascertaining persons names are important.

3. A lost note may be sued upon without taking steps to establish a copy, the Code, §3986, being permissive or cumulative, not mandatory or exclusive. 42 Ga., 462. The loss of the note while suit upon it was pending, did not render the establishment of a copy indispensable in order for the suit to proceed. There was a true copy annexed to the declaration.

That there was a plea of non est factum makes no difference. The plea could be met and overcome by sufficient parol evidence that the lost note was genuine, and that the copy preserved was correct. Cited in the argument: 51 Ga., 232; 30 Ib., 545 ; Code, §3986.

Judgment affirmed.