185 Ga. 592 | Ga. | 1938
The plaintiffs in error are represented by two attorneys. One of them filed a motion to withdraw the bill of exceptions, and prayed for an order of dismissal. The other resists this motion, and in writing represents that he conducted the case for the plaintiff in error in the trial court and in the Supreme Court, and prepared or directed the preparation of the pleadings and briefs in both courts; that his employment was on a partial contingent basis, and that if their position is eventually sustained there will be due him a substantial amount in addition to the fee already paid him. The request to withdraw is controlled by the decisions in Walker v. Equitable Mortgage Co., 114 Ga. 862 (40 S. E. 1010), and Richmond County v. Richmond County Reformatory Institute, 141 Ga. 457 (81 S. E. 232), and must be denied.
The “agreement” referred to did not form the basis of any relief sought, or constitute the cause of action or any part of it. A draftsman is not compelled to set forth every writing mentioned in his pleadings. See Code, § 81-105, and annotations.
The first special ground of the motion complains that the court erred in ruling that the plaintiffs (defendants in error) had the right to open and conclude the arguments before the jury. The defendants in the trial court admitted the execution and delivery of the notes and- the right of the plaintiffs therein to bring the suit. In a note to this ground the presiding judge certified as follows: “In connection with ground one of the amended motion, the court deems it proper to state that when the ease was called and both sides announced ready, counsel for plaintiffs inquired as to who would have the first strike, stating that if the defendants intended by their plea to admit that plaintiffs were entitled to a verdict and judgment without the necessity of introducing evidence, he conceded they would be entitled to open and conclude; whereupon counsel for defendants stated that they could not concede that plaintiffs were entitled to a judgment as prayed, without introducing evidence.”
The second ground recites that “the court erred, as movants contend, in admitting an alleged duplicate of the bond for title from T. A. Capps to E. P. Simpson as executor” etc., the objection being that it did not appear to be the original. The brief of evidence contains a statement that there was put in evidence “a duplicate of the bond for title from T. A. Capps to E. P. Simpson, as executrix” etc. It is a fair inference, we think, that the paper was a duplicate original. We see no error in admitting the writing in evidence. Compare Anderson v. Tate, 141 Ga. 840 (82 S. E. 246).
The plea set forth that Capps loaned $11,500. The proof showed that Capps had agreed to lend Miss Davenport, who bid off the property, or Mr. Simpson, the balance of the money needed to comply with the bid. This amount was $11,500. The proof further showed that the amount of Capps’ check which he delivered to the receiver for the purpose stated was $11,500. The principal of the notes, of which those sued on are a part, was $14,207.33. E. P. Simpson was apparently one of the makers of the notes to Capps. He signed them. The bond for title to the property, executed by Capps, named all the makers of the notes, except E. P. Simpson, as obligees therein. Davis, the receiver, testified that the judgment of T. A. Capps against E. P. Simpson and the tax fi. fas. against Capps Cotton Manufacturing Company accounted for the difference between the $11,500 and the total of the principal
Davis, having testified that the difference between the $11,-500 and the total of the principal of the notes was made up of Capps’ fi. fa. against Simpson, and the tax fi. fa. against Capps Cotton Manufacturing Company, it was error to sustain an objection to its admission in evidence on the ground that it was immaterial and irrelevant, and that there was “nothing to connect it with this transaction.” It nowhere appears in the record that any of the makers of the notes sued on were liable for this tax fi. -fa. It was no debt of theirs or either of them. The proof is that the company had no assets. It was a vital part of defendants’ case. It may be that Capps and the defendants in an independent transaction entered into a bona fide sale and purchase of this tax fi. fa. The evidence is silent on that point. We have only the testimony of the witness Davis that the difference represented by the amount of the check Capps paid him to complete the bid for the property, and the total of the principal of the notes sued, upon, represented in part this tax fi. fa. The fi. fa. should have been admitted in evidence.
The court charged the jury that if the difference between the amounts already referred to was for valid debts owing by E. P. Simpson to T. A. Capps, such would “constitute a valuable
A number of other complaints are set forth in the motion for new trial, all of which have been examined and considered. Except as otherwise pointed out in this opinion, none of these grounds are sufficient to require the grant of a new trial.
Judgment reversed.