Edwards v. Ward , 37 Ga. App. 776 ( 1928 )

Stephens, J.

1. Under the authority of § 5858 (3, 5) of the Civil Code (1910) a party defendant is incompetent to testify as to transactions between himself and a deceased agent of the plaintiff. In a suit upon promissory notes where the defense offered and filed by both the defendant and the sureties was based upon the alleged fact that the notes were given as part of an usurious transaction, the defendant who negotiated the transaction with the plaintiff’s agent, since deceased, was incompetent to testify as to such transaction with the deceased agent. Johnson v. Hart, 82 Ga. 767 (9 S. E. 1110). The court therefore erred in admitting such testimony, over the plaintiff’s objection.

Decided March 3, 1928. J. G. & E. E. Edwards, for plaintiff. A. J. Griffin, J. B. G. Logan, P. Cooley, for defendants.

2. Where, upon the trial, the court orally allowed the defendants to file an amendment to the pleas already filed, the court did not err, upon a hearing of the plaintiff’s motion for a new trial, in passing an order nunc pro tunc allowing the amendment. The amendment having been orally allowed upon the trial, the assignment of error contained in the bill of exceptions excepting to the allowance of the amendment came too late, as the bill of exceptions was presented for certification more than sixty days after the date of the order excepted to.

Judgment reversed.

Jenkins, P. J., and Bell, J., eoneur.