58 Ga. App. 404 | Ga. Ct. App. | 1938
Ralston, as transferee of certain promissory notes executed by Lancaster, instituted the present action against Lancaster. Paragraph 2 of the petition was as follows: ’ “That said Mahaley Lancaster is indebted to your petitioner in the sum of eleven hundred and forty-two dollars as principal, besides interest at 7 % per annum from January 1, 1929, to maturity, and besides 8 % per annum from maturity, upon five certain promissory notes given by Mahaley Lancaster on January 1, 1929, payable to the order of' Herman Hachmeister, and indorsed and transferred for value by him to petitioner; said notes being in the following sums and due on dates specified: $100 due November 1, 1929; $100 due November 1, 1930; $100 due November 1, 1931; $100 due November 1, 1932, and $800 due November 1, 1933; said notes bear credit of $25 dated November 29, 1929, and credit of $33. dated November 6, 1930; and besides 10 % of principal and interest due on said notes, as attorney’s fees. Copies of which said notes are hereto attached, marked exhibits, A, B, C, D, and E; two certain interest notes, mentioned in said principal notes, are also attached marked exhibits E and G.” The defendant’s answer was filed under oath, and contained a general denial of this paragraph and a plea of payment of the notes sued on. To the plea of payment the judge sustained a special demurrer, and gave to the defendant leave to amend the plea within thirty days. ‘ Within the time prescribed the defendant filed an amendment in the, office of the clerk of the court. It was not, however, presented to and allowed by the judge within such time. This was not a compliance with the order of the judge, as pointed out in headnote 1, and resulted in striking the plea on motion. It appears from the record that at the trial the plaintiff, without objection, introduced id evidence the notes with the written transfers thereon, and that the judge thereupon directed a verdict for the plaintiff. In the motion for new trial and in the bill of exceptions complaint
The Code, § 20-805, provides: “An indorsement or assignment of any bill, bond, or note, when the same is sued on by the indorsee, need not be- proved unless denied on oath.” Under this provision it has been held that where the maker, when sued on a promissory note by a transferee, by sworn plea properly denies the genuineness and legality of the indorsement, the onus probandi rests on the indorsee to prove the genuineness and legality of such indorsement, before the note is admissible in evidence. In this connection see Bruce v. Neal Bank, 134 Ga. 364 (67 S. E. 819); Carter v. Haralson, 146 Ga. 282 (91 S. E. 88); Fourth National Bank of Macon v. Lattimore, 168 Ga. 547 (148 S. E. 396); Federal Discount Co. v. Carter, 14 Ga. App. 645 (82 S. E. 51); Hancock v. Empire Cotton Oil Co., 17 Ga. App. 170 (86 S. E. 434); Ruby v. Boyett, 19 Ga. App. 516 (91 S. E. 939); Kreischer v. Bank of Louisville, 32 Ga. App. 699 (124 S. E. 539); Lightfoot v. Head, 27 Ga. App. 148 (2) (107 S. E. 609). Whether this rule has been changed by the negotiable-instruments law adopted in this State in 1924, so as to require the plaintiff to produce evidence of the genuineness and legality of the indorsement only when the defendant produces evidence showing that the title of the plaintiff is defective, presents an interesting question which we need not pass on in this case. Those of the profession interested in pursuing this question are referred to the following authorities, which are by no means intended as exhaustive of the subject: Ga. L. 1924, p. 165, §§ 195, 196; Code, §§ 14-211, 14-216, 14-223, 14-301, 14-416, 14-417, 14-505, 14-509; Brannan’s Negotiable Instruments Law (5th ed.), 302, 652, 653, §§ 23, 59. In this decision we are not to be construed as ruling that the general denial in the sworn answer of the paragraph of the petition wherein the plaintiff set up, among other things, the indorsement of the notes to him by
“Where the title of the holder of a note, transferred by indorsement, is questioned by a proper plea under oath, and the genuineness of the indorsement itself is so denied, proof is necessary on the part of .the plaintiff before the note thus challenged can be introduced in evidence. If, however, without proof to establish the title of the holder or the validity of the indorsement, the note is offered in evidence with an apparently sufficient indorsement thereon to convey title to the holder, and no objection to the note with the indorsement thereon is urged by the defendant, the failure to object will amount to consent on his part to the introduction of the note, and to a waiver of his right to exact proof of the indorsement, and he can not for the first time raise the objection in this court.” Hancock v. Empire Cotton-Oil Co., supra. The introduction of the note in evidence, without objection, amounted to proof of the transfer. The plaintiff was prima facie a holder in due course (Code, § 14-509), and in the absence of contradictory evidence a directed verdict for the plaintiff was proper. See Stan
Affirmed).