Norton v. National Commercial Bank & Trust Co.

109 Ga. App. 867 | Ga. Ct. App. | 1964

Hall, Judge.

The defendant’s answer to a suit on a note dated June 15, 1956, denied the indebtedness and alleged that the note was paid on or about March 18, 1955. On motion of the plaintiff the trial court struck the defendant’s answer and thereafter entered judgment for the plaintiff. On this appeal by the defendant the controlling assignment of error is whether the trial court erred in striking the answer.

A party may at any time before verdict, either orally or in writing, move to strike the petition or answer of the opposite party, on the ground that no cause of action or defense is set forth. Ayers v. Young, 210 Ga. 441, 442 (80 SE2d 801); Niemeyer v. Dougan, 41 Ga. App. 99, 100 (7) (119 SE 544). An answer to a suit on a promissory note which merely denies the indebtedness and does not set up any legal defense is properly stricken on demurrer. Code § 81-307; Watson v. Davis, 97 Ga. App. 378, 380 (103 SE2d 182); Thomas & McCafferty v. Siesel, 2 Ga. App. 663 (58 SE 1131); Akers v. Decatur Street Bank, 16 Ga. App. 262 (85 SE 201).

Decided June 19, 1964. Ernest Bostick, for plaintiff in error. William P. Holley, contra.

In this answer the allegation of payment at a time preceding the date of the note was self-refuting and a nullity, and did not controvert the petition or show a legal defense. Accord Thomas & McCafferty v. Siesel, 2 Ga. App. 663, supra; Courson v. Lynn, 48 Ga. App. 297 (172 SE 685); Watson v. Davis, 97 Ga. App. 378, supra; McEntyre v. Clack, 104 Ga. App. 646, 649 (122 SE2d 595). Accordingly, the trial court did not err in striking the defendant’s answer and rendering judgment for the plaintiff.

Judgment affirmed.

Nichols, P. J., and Bussell, J., concur.