40 Ga. App. 314 | Ga. Ct. App. | 1929
Lead Opinion
“The provision of the Civil Code (1910), § 3546, giving a surety the right by written notice to require his creditor to proceed to collect the debt out of the principal, and declaring that if the creditor, after receiving such notice, fails to bring suit against the principal within three months thereof (the principal being within the jurisdiction of the State), the surety shall be discharged, is applicable in a case where the contract sued upon is not a Georgia contract, but a Minnesota contract. Sally v. Bank of Union, 150 Ga. 281 (2) (103 S. E. 460); s. c. 25 Ga. App. 509 (103 S. E. 798).” Watkins Co. v. Seawright, 168 Ga. 750 (149 S. E. 45).
The plaintiff, in the first paragraph of its petition, alleged that it was “a corporation duly organized and existing, pursuant to the laws of the State of Minnesota, with its office and principal place of business in the City of Winona in said State, and with power under its charter to contract and be contracted with, to sue and be sued, in its corporate name and capacity, to wit: The J. E. Watkins Company.” In the defendants’ plea the only reference to that paragraph of the petition was as follows: “Defendants deny paragraph one as alleged.” That denial was insufficient to make an issue as to the incorporation of the plaintiff company. “The existence of a corporation can only be denied by a plea of nul tiel corporation.” Wilson v. Sprague Machine Co., 55 Ga. 672-3; Bass v. African &c. Church, 155 Ga. 57 (9) (116 S. E. 816).
Where there is a conflict between a special ground of a motion for a new trial and the brief of the evidence, the latter will prevail. See, in this connection, Harris v. Vallee, 29 Ga. App. 769 (9) (116 S. E. 642). Grooms v. Grooms, 141 Ga. 478 (3) (81
'“Defendant, C. L. Garrison, not to be found in Fulton county. W. J. Lowery, Sheriff.”
Under the above-stated ruling this court must hold that the true entry is the one shown by the brief of the evidence. This is so notwithstanding that this court will take judicial cognizance of the fact that the name of the sheriff of Fulton county is J. I. Lowry, and not '“W. J. Lowery.” The documentary evidence showing the sheriff’s entry was admitted without objection, and the brief of the evidence was approved by counsel for both parties and by the court. Furthermore, the names “Lowery” and “Lowry” are idem sonans, and in such a case -the only issue is identity of person, not of name. Lovett v. State, 9 Ga. App. 232 (70 S. E. 989), and cit. Nor is our ruling affected by the fact that the initials of sheriff Lowry as given in the transcript of the record are not his true initials. The only question is, was the entry made by the sheriff of Fulton county? It is far more reasonable to conclude that in transcribing the record an error was made in the sheriff’s initials than to assume that some person other than the sheriff made the entry and falsely and criminally signed his name thereto as sheriff. Nor can this court hold as a matter of law that service by the sheriff of
The first and second divisions of this opinion are the answer of the Supreme Court to certain questions certified by this court. 168 Ga. 750 (supra). Under the rulings thereof and the further rulings stated above, the verdict directed by the trial court was contrary to law and the evidence, and the refusal to grant a new trial was error.
Judgment reversed.
Dissenting Opinion
dissenting. The 1st special ground of the motion for a new trial is in part as follows: '“Movants tendered in evidence duly authenticated copy of a suit filed in the Municipal Court of Atlanta (Fulton Section) on Feby. 5, 1934, against C. L. Garrison, principal, E. C. Seawright and J. G. Adams, sureties, upon the same contract herein sued upon, and upon which the following entry was made b}1' the serving officer of said court, to wit: e Georgia, Fulton County. Diligent search made and the defendant C. L. Garrison not to be found in City of Atlanta. This Feby. 16th, 1934. W. T. Trunlinson.’” Upon motion the court excluded this evidence, and the plaintiff in error alleges that such ruling was error. Assuming that everything contained in the ground is correctly stated (because this court has repeatedly held that it will not look to other portions of the record in order to facilitate the comprehension of a ground of a motion for a new trial), we are, in my opinion, compelled to hold that the ground is without merit, because the official character of W. T. Tumlinson is not shown, nor is it shown that he had any office or had any right to make the entry in question, and the entry, therefore, is as if none had been made.
If, however, we should go beyond the ground of the motion and look to other portions of the record, and we find in the evidence the following: '“Defendant C. L. Garrison not to be found in Fulton County. W. J. Lowery, Sheriff,” there is still no 'legal entay, because W. J. Lowery is not and was not at that time sheriff of Fulton County. This court '“is bound to take notice of who are the public officers of this State, where the law requires such officers to be commissioned by the Governor.” Abrams v. State, 121 Ga. 170 (48 S. E. 965), and sheriffs are so commissioned. Civil Code, § 363. Under this rule we must take judicial notice that James I.
In my opinion the judgment of the trial court should be affirmed.