Shope v. Fite

91 Ga. 174 | Ga. | 1893

On certiorari the superior court rendered final judgment in favor of the plaintiffs, and the defendant excepted. The action was by Fite & Boston against Shope, in a justice’s court on a promissory note, an unconditional contract in writing, returnable to the November term, held on the 14th day of that month. On the 26th of October service was acknowledged by the defendant, and at the November term the case was continued at the instance of the defendant, without any plea being filed. At the December term the defendant by his attorney moved to file a plea of non est factum. Both he and the defendant stated that a plea had been prepared and given to the defendant to file at the first term, but it was not filed on account of defendant’s negligence for which his attorney was not to blame. The plaintiff objected to the filing of the plea, on the grounds, that a-plea of non est factum should be filed at the first term,, and that in all suits in justices’ courts on unconditional contracts in writing, the statute requires pleas to be filed at the first term or not at all. The justice overruled, the objections and allowed the plea to be filed. He then gave judgment for the plaintiffs, and the defendant appealed to a jury in the same court. The plaintiffs carried the case to the superior court by certiorari pending the appeal to the jury, the sole assignment of error in their petition being that the justice allowed the plea of non est factum or any plea to be filed at the second term.

To the answer of the justice setting forth the facts as above stated, the defendant excepted on the following grounds: (1) That the answer fails to show that defendant’s attorney also stated that after preparing the-plea, a few days before the November term, he wrote to-plaintiffs’ attorney that he had been employed by defendant and that he had prepared this plea to be filed and had given it to defendant, and desiped to know if he had any objections to the case going over to the second term, as he did not wish to go to the court unless-there was some certainty of the ease being tried; to-which plaintiffs’ attorney replied consenting to the case going over as requested; that at the time he gave this plea to defendant he told him it could be filed on the court day when it was set for trial, and that he would write to plaintiffs’ attorney suggesting that the ease go-over to the next term, and for him to go and see plaintiffs’ attorney before the day set for trial to see if he-had consented for the case to be continued, and if so- it-would be unnecessary to have the witnesses subpoenaed for that term. (2) The answer fails to state as a part-of the defendant’s evidence, that he went and saw plaintiffs’ attorney as directed and learned from him that the case would not he tried, and acting upon that he did not attend the court the day the case was set for trial, and did not for this reason file the plea at that term; that he understood from the justice that he could do so at the next term, and in this he may have been negligent, but if so it was his own negligence and not that of his attorney.

Payne & Walker, by brief, for plaintiff in error. T. II. Anderson, by brief, contra.

In addition to the plea of non est factum which was sworn to, the record shows that at the same time another plea was offered by the defendant, not sworn to, alleging that the note sued on had been changed in a material manner since it was made, which change was without his knowledge and consent, and consisted in the addition of the words “ witness my hand and seal.”