Smith v. Rawson

61 Ga. 208 | Ga. | 1878

Jackson, Justice.

This was a suit in a justice court on a note for eighty dollars, with five dollars credited thereon, and appeal by consent to the superior court. The jury found eighty dollars, with interest, for the plaintiff, whereupon the defendants moved for a new trial, which was refused, and they brought the case here, making a number of assignments of error.

1. There was a plea to the jurisdiction on the ground that the plaintiff — -alleged therein to be the assignee in bankruptcy — could not sue in the state courts, but the plea was made by the attorney and not in person, was not made at the first term, and was not sworn to, which vitiated it. Code, §§3462, 3464, 3456, 3461. Nothing on the face of the plaintiff’s pleadings showed the bankruptcy or the character of the assignee, whether in bankruptcy or not.

2'. The practice has always been, so far as we know, to allow appeals by consent from inferior to superior courts, as from the courts of ordinary and the old inferior courts; and we see no reason why it should not also apply to justice courts. The sum sued for authorized the appeal, and the party’s consent ought to estop him from objecting.

3. There was a plea of a former judgment in this case, but it was void for want of service, and therefore a mere nullity. 48 Ga., 651-2. And it may be treated as a nullity in the justice court. 55 Ga., 410.

4. The court left it to the jury to say whether the bearer got the note before due; if so, the failure of consideration because the mule was not sound — the note being given for a mule — could not be inquired into.

5. The note was payable to Barton or bearer, and Barton’s indorsement could not affect the bearer’s right to recover. It bound him to pay it if the maker did not, and that was its only legal effect.

6. There is legal evidence ample to sustain the verdict except that the jury omitted to notice a credit of five dollars on the note. This credit is not dated, and the pi’esumption is that it was paid when the note matured. The judgment is wrong to the extent of five dollars; but it is affirmed, with directions to the plaintiff to write off the sum of five dollars from the principal thereof.

Judgment affirmed.