Morgan v. Mayor of Cohutta

| Ga. | Jun 9, 1904

Simmons, C. J.

1. An appeal to a jury in a justice’s court from a judgment against a municipal corporation must be entered in the name of the corporation.

2. Where, therefore, in such ease an individual, W., described as mayor pro tém. of the corporation, recited in the appeal bond (which was signed by W., “mayor pro tem.”) that, being dissatisfied with the judgment, he entered “his” appeal, this was not an appeal by the corporation, and should have been dismissed even though the corporation’s name appeared in the caption as party to the original case, and W., as mayor pro tem. of the corporation, for the corporation, acknowledged himself bound as principal.

3. An order for money, drawn by a municipal corporation upon its own treas. , urer, payable upon demand and without condition, is in effect a promissory note and is an “unconditional contract in writing” within the meaning of the Civil Code, §4134. Where upon demand such order is not paid, and suit is brought thereon in a justice’s court, the' defendant must make its defense at the first term.

4. It is too late, on the trial of an appeal to a jury in a justice’s court from a judgment rendered by the magistrate in favor of the plaintiff upon an unconditional contract in writing, for the defendant to file a plea, when it affirmatively appears that no defense was made at or before the first term of the case. Morgan v. Prior, 110 Ga. 791.

Argued May 26, Decided June 9, 1904.

Certiorari. Before Judge Fite. Whitfield superior court. December 16, 1903. '

W. M. Mann, by Ii. J. McCaviy, for plaintiff.- W. M. Jones and W. C. Martin, for defendant.

6. ITor the reasons above stated, and also because the verdict of the jury in the justice’s court was wholly without evidence to support it, the judge of the superior court erred in overruling the certiorari.

Judgment reversed.

AU the Justices concur.