Sirmans v. Folsom & Tillmaw Hardware Co. , 18 Ga. App. 586 ( 1916 )

Hodges,. J.

1. The Eolsom & Tillman Hardware Company sued J. B. Sirmans and W. H. Higgs as joint makers of a promissory note. Sirmans filed a plea and answer admitting liability as to, himself and setting up a defense in behalf of his codefendant, Higgs, which was stricken upon motion, and judgment was entered against Sirmans and Higgs for the amount sued for. There is no provision of law under which a defendant can file a plea for a codefendant in a suit upon a promissory note. An agent or attorney at law may verify a plea when the defendant resides out of the county. Civil Code, § 5643. This was not a plea by an agent for a defendant residing out of the county. In Brent v. Mont, 65 Ga. 93, where husband and wife were both sued, and the wife appeared and pleaded, it was held that a plea filed by her husband for her was properly stricken, it not appearing that she resided out of the county.

3. The plea being stricken, the case was in default, and attorney’s fees were properly allowed, it appearing, from the allegations of the petition, that written notice of intention to bring suit had been given in conformity with the statute (Civil Code of 1910, § 4353). Where no defense is filed, there arises an implied admission of the truth of the allegations in the petition, and the court is authorized to allow a recovery of fees without further proof, Valdosta &c. R. Co. v. Citizens Bank, 14 Ga. App. 329 (80 S. E. 913). The judgment, which was rendered by the court without the intervention of a jury, was in -the terms of the judgment of the same court as amended in the case of Elliott v. Wilks, 16 Ga. App. 466 (85 S. E. 679).

3. It being evident that the case was brought to this court for the purpose of delay only, damages are awarded the defendant in error. , Judgment affirmed, with damages.