Long v. McDonald , 39 Ga. 186 ( 1869 )

Warner, J.

The errors assigned to the judgment of the Court below in this case are: First, Because the Court refused to continue the cause upon the showing made therefor as stated in the record. Second, because the Court admitted the evidence of McDonald, the plaintiff, as to the contract made between him and Phinizy, who was dead. Third. Because the Court ordered the plea of Long, denying the partnership, to be stricken, and in refusing to hear any evidence on that question.

In regard to the first point made, the Code declares that ail applications for continuances, not expressly provided for therein, are addressed to the sound legal discretion of the Court, and shall be granted or refused, as the ends of justice may require. Section 3480. In view of the facts in this case, upon which the motion for a continuance was based, we are of the opinion, that the ends of justice required that the Court below should have exercised its sound legal discretion, and have continued the case upon the showing made therefor.

2. In regard to the admissibility of the evidence of McDonald, the party plaintiff, to prove the sayings and declarations of Phinizy, who was dead, for the purpose of establishing the fact, that Long and Phinizy were partners, the Court below was clearly in error according to the previous rulings of this Court, in its construction of the Act of 1866. Leaptrot vs. Robertson, 37th Ga. R., 586; Moore vs. Harlan & Hollingsworth, Ibid, 623. When one of two contracting partners is dead, the plaintiff cannot be a witness against the surviving partner to prove a contract made with the deceased partner.

3. As to the dismissal of the defendant’s plea denying that he was a partner of Phinizy, because not filed at the first term. We have had more difficulty in construing the 1888th and the 3404th sections of the Code. The one declares that, “ Partners suing or being sued in their firm name, the partnership need not be proved, unless denied by the defendant on oath upon plea in abatement filed.” The other declares that, “ No dilatory answer shall be received or admitted, unless an affidavit be made to the truth thereof, and must be filed at the first term.” It is insisted here, that a plea in abatement denying the existence of the partnership, is a dilatory plea, and must be filed at the first term of the Court after the commencement of the suit, and cannot be filed after-wards. It is true that the 1888 section denominates the plea denying the partnership a plea in abatement, but does not declare, that it shall be filed at the first term of the Court. But is a plea denying a partnership, according to the strict rules of pleading, a dilatory plea ? If in a suit against a copartnershi]), some of the partners were omitted or sued by a wrong name, a plea in abatement stating who were the partners, and their proper names, would be a dilatory plea, for it would only delay the plaintiff and give him a better suit; but a plea denying that the defendant was a partner, and not liable to the plaintiff at all as such, cannot be said to be a dilatory plea; for such a plea does not merely delay the plaintiff in his suit, but denies his right of action against him altogether, and is therefore a plea in bar. “ Pleas in bar deny that the plaintiff has any cause of action; and do not, like pleas in abatement, give a better suit.” 1st Chitty’s Pleading, 459. In the case of Holman vs. Carhart, (25th Ga. Rep., 608,)' this Court held that, “a plea by one of two persons sued as partners, that he did not sign the note sued on, or authorize any other person to sign it for him, and that he was not one of the partners when the debt was contracted, is not a plea in abatement, but a plea in bar.” Construing the two sections of the Code in the light of this decision we hold that the defendant’s plea denying the partnership was a plea in bar of the plaintiff’s right to recover ; and although sworn to, was not a dilatory pica which is necessarily required to be filed at the first term of the Court, as required by the 3404th section o'f the Code. Let the judgment of the Court below be reversed.