Baker v. Thompson , 89 Ga. 486 ( 1892 )

Judgment reversed.

2. The plaintiffs sued out interrogatories for J. A. Thompson, which, by agreement between parties, were executed and returned, and were read in evidence in behalf of the plaintiffs. Baker insisted upon objections he had taken in writing to the introduction of these interrogatories, which objections were, that Thompson had positively refused to answer the third and fourth cross-interrogatories. The objections were overruled, and error is assigned. The two cross-interrogatories referred to are as follows : “ Is it not a fact that as an attorney at law I was suing you and Scott for Dr. Baker and Baker & Hall: and is it not a fact that several other parties were suing Thompson & Scott; and is it not a fact that you and Scott were both in, a terrible straight for money in 1878, 1879 and Í880 ? This being a fact, why is it that you allowed this fi. fa. against me to go unsatisfied? Explain fully. Don’t you know it has been settled; and why are you now swearing a lie for the paltry sum of $25? Does any of this recovery go to you? If so, how much ? 'What part of this claim goes to the attorney, if collected ? Don’t you know that I am perfectly solvent, and why in the very beginning of this suit should you and Scott promise one half of the claim to a pretended attorney at law to help you collect it ? Explain fully. J. A. Baker.” The answer given by the witness was as follows: “ As to the other x-interrogatories I decline to make answer, as the matters of record therein referred to will speak for themselves. Our condition in 1878,1879,1880, can be better proven by the people of Cartersville, and Mr. Eite can testify as to the reference to himself. J. A. Thompson.”

3. It is further assigned as error that Attaway, the sole presiding justice, was sworn by the plaintiffs as a witness, over objection “ that the presiding court could not be sworn by an attorney and introduced in a case,” and then testified as to what J. A. Baker had sworn in this case when it was tried by the witness.

4. A motion was made to dismiss the case, because the summons did not show whether the defendants were partners or joint contractors. The summons was addressed to “ W. C..& J. A. Baker,” and the account sued on was made out in the same way. The court held that as the summons stood the suit was against the defendants as joint contractors. The plaintiffs then proposed to amend by adding the words- “ as partners,” after the names of the defendants, to which objection was taken on the ground that this would make new and distinct parties. The objection was overruled. The amount .was written out in the summons but not signed, and nothing further was said or done about it until the evidence was closed, when the plaintiffs’ counsel said that he declined to make the amendment. After hearing the testimony of "W. C. Baker, the plaintiffs’ counsel said that W. C. was clearly not liable and he would not ask a verdict against him. This statement was entered on the docket, and the verdict and judgment were against J. A. Baker alone. ■ He and W. C. both swore that W. C. was not liable on the account. The error assigned is the allowance of the amendment over the objection.

5. The jury returned this verdict: “We, the jury, find for plaintiffs $25 with interest.” Before the jury dispersed the justice, over objection of Baker, directed them' to return to their room and state the time from which they found interest. They did return and added to the verdict the words, “from January 1, 1877, at seven per cent.” Thereupon judgment was entered accordingly. Error is assigned upon the overruling of the objection, and upon the entry of judgment against J. A. Baker alone, the verdict being, as he insists, as much against W. C. Baker as J. A. Baker.

W. I. Heyward, for plaintiff in error. A. S. Johnson, contra.