Arnold v. Atlanta Oil & Fertilizer Co. , 11 Ga. App. 581 ( 1912 )

Russell, J.

(After stating the facts). 1. This court is of the opinion that the plea to the jurisdiction was sufficient, as against the general motion to strike, filed at the trial term. We all agree that it was defective in form and would have been subject to a timely special demurrer. We do not think that the payee of a note has the right, without the knowledge or consent of the maker and over his objection, to procure tne accommodation indorsement of a person residing in a county other than that in which the maker lives, for the sole purpose of obtaining jurisdiction of the person of the maker in the county where the accommodation indorser resides. Every citizen has, subject to certain exceptions expressly declared, the right to be sued at his own domicile, and, unless the case be within one of the exceptions mentioned in the constitution, this right can not be taken away except with the consent of the citizen. It frequently happens that where one in good faith executes a promissory note, expecting at the time to pay it at its maturity, facts may thereafter arise constituting a good defense to the note. In our opinion, the payee of such a note can not, either because he apprehends a defense will be made or after discovering that a defense will be made to it, procure the signature of an indorser or surety residing in any county which he may select, for the sole purpose of obtaining jurisdiction of the maker in that county, unless the maker consents for such indorsement to be obtained. The force of every word in the contract, as well as the legal effect of the contract as a whole, with the resultant consequences to each party, under the law, has its origin in the consent of the parties to the contract in the form in which it was at the time when it was mutually agreed to and executed. If a contract has been so changed that the legal consequences, even though these are only consequences attending its enforcement, are different from the consequences which would have ensued from the enforcement of the contract as made, then the contract has been materially changed; and this change can not be made effectual except by'the consent of both parties.

Every one -is presumed to know the legal effect of his act, and to anticipate the legal consequences which will legitimately result; but without his consent one can not be bound to a change of his relation to the opposite party to the contract, so that the consequences to himself will be different from what he had the right to expect them to be at the time he entered into the contract. The right of being sued at one’s domicile (if one is to be sued at all) is a substantial right provided for the convenience of the citizen, who in every case is brought into court at the demand of another, who seeks to have a liability imposed upon him, and who must establish that liability by proof. The defendant presumptively has wronged no one, nor violated any obligation, and it devolves upon the plaintiff to prove his case by the preponderance of evidence; and if the plaintiff fails in this, the presence of the defendant has been required merely for the purpose of allowing the plaintiff to make the effort to establish his case.

It is alleged in the plea to the jurisdiction that the indorsement was obtained without the consent of the makers, either express or implied, and for the sole purpose of giving the courts of the county in which the indorser resided jurisdiction of the person of the defendants, and was a fraud on the rights of the makers. This averment was sufficient, as a matter of law, against the general motion to strike. Of course, the mere fact that the indorsement was obtained for the single purpose of giving the • court of the county of the indorser jurisdiction of the maker, would make no difference if the maker knew of the indorsement and even tacitly assented thereto. Indorsements are frequently required for this purpose, and this is entirely legitimate. What we hold is that such an indorsement, obtained without the knowledge or consent of the maker, does not deprive the maker of the right to be sued in his own county.

2. There was no error in striking the plea of set-off filed by J. W. Arnold Jr. It is true, of course, that where there are two makers of a promissory note, either as principals or indorsers, one can set off an individual claim against the plaintiff, growing out of the transaction which gave rise to the execution of the note. Wilson v. Exchange Bank, 122 Ga. 495 (50 S. E. 357, 69 L. R. A. 97, 2 Ann. Cas. 597). Here, however, it is’manifest, from an examination of the averments of the plea of set-off, that it was wholly insufficient to show a prima facie indebtedness by the plaintiff to the defendant. It was insufficient for this purpose for all of the reasons stated in the demurrer to the plea; and this is so manifest that we deem it unnecessary to discuss the question or to cite authorities in support of the judgment of the learned trial judge in striking this plea.

Judgment affirmed in part, and in part reversed.