Turner v. Pearson , 93 Ga. 515 ( 1894 )

Simmons, Justice.

1. The executors of T. M. Turner sued Pearson upon a promissory note dated February 10th, 1886, due January 1st next after date, signed by the defendant and payable to DeLamar Turner, executor. The defendant filed an equitable plea, the allegations of which will be found in the official report. On demurrer this plea was stricken by the court, and the defendant filed exceptions pendente lite. The plaintiffs introduced the note in evidence, and closed. The defendant introduced no evidence, and the jury returned a verdict for the plaintiffs. The defendant moved for a new trial upon the ground that the verdict was contrary to law and evidence, and a new trial was granted. The plaintiffs thereupon filed their bill of exceptions, in which they alleged, among other things, that the court erred in considering, on the hearing of the motion for a new trial, the exceptions pendente lite, they not being incorporated in or made a part of the motion. In this the court erred. The court had no authority to grant a motion for a new trial upon any other grounds than those set out in the motion. Shipley v. Eiswald, 54 Ga. 520.

2. The only evidence before the jury being the note sued on, the evidence demanded the verdict; and the only ground of the motion for a new trial being that the verdict was contrary to law and evidence, the court erred in setting the verdict aside and granting a new trial.

3. The exceptions. pendente lite having been sent up in the record, properly certified, this court, on the application of counsel for the defendant in error, granted him leave to assign error thereon. IJpon consideration of the error assigned, we are of opinion that the-court below was right in the ruling complained of. Where a debtor by promissory note and Ms creditor meet and have an accounting and settlement, and the debtor gives a new note for the balance due, in renewal of the old note, we do not think the debtor, when sued thereon, can, without alleging fraud or mistake, set up in a plea of payment alleged credits which ought to have been made upon the first note. If the defendant made the payments to the testator, as alleged, he ought to have known, when the accounting and settlement with the executor was had, whether these payments had been credited or not; he ought really to have known more about this than the executor did, and he cannot be allowed, after renewing his note to the executor, to say that certain credits for payments made to the testator should be allowed him now,unless he alleges some conduct or representations on the part of the executor, in procuring the new note, amounting to fraud, or that something was said or done •by the executor by which, he (the defendant) was deceived or misled. There being no such allegation in the plea in question, it was properly stricken.

Judgment reversed. Judgment on the exceptions pendente lite affirmed.