114 Ga. 185 | Ga. | 1901
The Peoples Savings Bank filed in the city court of Floyd county a petition in the following words: “The petition of the Peoples Savings Bank, a corporation, showeth: First, that Henry G. Smith and F. H. Rounsaville, partners using the firm name and style of Henry G. Smith and Company, of said county, are indebted to the petitioner in the sum of three hundred and twenty-four dollars and five cents, besides interest, upon a certain promissory note, a copy of which is hereto attached. Second, said Henry G. Smith and F. H. Rounsaville, partners, as aforesaid, [are] also indebted to petitioner in the sum of ten per cent, upon said principal and interest, for attorney’s fees upon said note, in the event of the filing of an unsuccessful defense to this suit. Third, said amounts of principal, interest, and attorney’s fees are due and unpaid, and said defendant refuses to pay the same. Wherefore petitioner prays: First, judgment against said defendant for the amounts alleged to be due. Second, that process may issue requiring said defendant to be and appear at the next city court to-answer petitioner’s complaint. Fouché &-Fouché, plaintiff’s attorneys.” Attached to the petition was a copy of an unconditional promissory note, purporting to have been signed by “ Henry G. Smith & Co.,” payable to the First National Bank, of Rome, Ga., and indorsed to the Peoples Savings Bank. The petition was served personally upon Henry G. Smith and F. H. Rounsaville. The former filed no defense. The latter, on September 11, 1900, filed an answer denying the 1st, 2d, and 3d paragraphs of the petition. Subsequently he filed an amendment in the following words: “ The defendant, F. H. Rounsaville, further says that the partnership of H. G. Smith & Co. is not liable for the note sued on, nor is he, for the reason that said note was not given in the course of the business of the partnership, or on account thereof, but the same was-given for the individual debt of H. G. Smith, which the said Smith owed said’ plaintiff and the First National Bank of Rome, and that the proceeds of said note were so applied; and of these facts the said plaintiff had notice at the time said transaction took place. J. Branham, def’t’s atty.” Still later, Rounsaville filed another amendment reading thus: “And now comes the defendant, Fred. H. Rounsaville, and withdraws so much of his plea filed on the-11th of September, 1900, as denies the allegations contained in the third paragraph of the petition, and admits that the note sued on
As Henry G. Smith filed no answer, and as the note sued on was an unconditional contract in writing, there certainly was no issue to
Judgment affirmed.