Bank of Norwood v. Chapman , 19 Ga. App. 709 ( 1917 )

Broyles, P. J.

1. The answer was not subject to general demurrer. The special demurrer interposed, not having been filed at the first term, could not legally be considered. By failing to object at the time fixed by law for that purpose, the plaintiff waived any defect in the form of the answer, and the court did not err in overruling the demurrer and in refusing to strike the answer. Civil Code (1910), § 5628; Calhoun v. Mosley, 114 Ga. 641 (2), 642 (40 S. E. 714); Green v. Hambrick, 118 Ga. 569 (5), 572 (45 S. E. 420) ; Brown v. Georgia, Carolina & Northern Ry. Co., 119 Ga. 88, 91 (46 S. E. 71) ; Ford v. Fargason, 120 Ga. 708 (48 S. E. 180); Potts-Thompson Co. v. Capital City Tobacco Co., 137 Ga. 648 (74 S. E. 279) ; Watson v. Parian Paint Co., 138 Ga. 621 (75 S. E. 608); Smith v. Ice Delivery Co., 8 Ga. App. 767 (70 S. E. 195). It matters not that the trial judge may have (as contended in the brief of counsel for plaintiff in error but not disclosed by the record) overruled the special demurrer and the motion to strike the answer on their merits. His ruling being correct, it is immaterial for what reason it was made.

2. There was no error in the admission of the evidence set out in the 1st and 9th grounds, respectively, of the amendment to the motion for a new trial. Such evidence was admissible for what it was worth, and it was for the jury to say whether it, in conjunction with the other evidence in the case, was sufficient to bind the plaintiff bank.

3. A ground of a motion for a new trial must be complete within itself. The 2d, 3d, 4th, 5th, 6th, 7th, and 8th grounds of the amendment to the motion for a new 'trial complain of the admission of certain documentary evidence, but, such evidence not being set forth therein, either literally or in substance, under repeated rulings of the Supreme Court and of this court'these assignments of error can not be considered.

Decided April 5, 1917. Rehearing denied April 24, 1917.

Complaint; from Warren superior court—Judge Walker. May 20, 1916.

L. D. McGregor, fox plaintiff. M. L. Felts, for defendant.

4. The 10th ground of the amendment to the motion for a new trial is in substance a recapitulation, or omnibus complaint covering practically all, of the objections made to the evidence which was admitted, and to the rulings of the court thereon, which had been separately assigned as error in the preceding grounds of the motion. In the state in which this ground of the motion is presented it presents no question for consideration.

5. Under the facts of the case it was not error for the court to refuse to give the requested instructions set forth in the 11th, 12th, and 13th grounds of the amendment to the motion for a new trial.

6. - This was a suit brought by the Bank of Norwood upon a note signed by J. W. Chapman and made payable to “myself or order,” and apparently indorsed by the maker.’ The defendant, Chapman, having filed a verified plea of non est factum as to the indorsement of the note, the court did not err in “repeatedly” instructing the jury that “the burden was upon the Bank of Norwood to show, by a preponderance of the evidence, that J. W. Chapman indorsed the note on the back.” While it was held in Emory v. Smith, 54 Ga. 273 (2), that “slight evidence is sufficient to carry the issue of non est factum to the jury,” yet, under repeated rulings of the Supreme Court and of this court, the effect of the plea of non est factum is to put the burden upon the' plaintiff to prove by a preponderance of the evidence the execution .of the contract sought to be enforced.

7. There is no merit in the 15th ground of the amendment to the motion for a new trial, which excepts to the charge as a whole.

8. The verdict for the defendant was authorized by the evidence, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Jenlcms (mid, Bloodtoorth, JJ., concur.

Broyles, P. J.

It is strongly contended by the able counsel for the plaintiff in error, in his motion fór a rehearing, that, under the ruling of the Supreme .Court in Emory v. Smith, 54 Ga. 273, and Jewell v. Walker, 109 Ga. 241 (34 S. E. 337), the trial judge erred in this case in instructing the jury that “the burden was upon the Bank of Norwood to show, by a preponderance of the evidence, that J. W. Chapman indorsed the note on the back.” In the Emory case, supra, it was held, that “On the trial of an issue of non est factum, very slight evidence'of the execution of the paper is sufficient to justify the judge in submitting the whole question to the jury;” and in the opinion by McCay, J., it was