Stewart v. Automobile Financing Inc. , 45 Ga. App. 466 ( 1932 )

Sutton, J.

Stewart purchased from Martin an automobile for $1355, payable $300 cash, and the balance in monthly installments, such deferred payments being evidenced by a promissory note bearing interest from maturity. To secure this balance Stewart executed, in favor of Martin, a conditional bill of sale or retention-of-title contract. The contract provided that if Stewart did not pay the installments when due, the seller or his assigns could at their option declare all the installments due and proceed to collect-the same. This contract was dated June 15, 1930. On the same day, Martin sold and transferred to Automobile Financing Inc., for value received, said contract, note, and the property therein described. Stewart defaulted in the payment of said installments, and a purchase-money attachment was sued out in the municipal court of Atlanta by the assignee. Stewart set up, by way of answer and counter-affidavit, that the assignee was not an innocent purchaser of the note, and that the entire transaction was a scheme and device to evade the usury law, there being usury in the transaction, the assignee loaning the money to him to pay for the automobile. The municipal court decided the ease in favor of the finance company, and Stewart filed in the superior court of Fulton county a petition for certiorari, which was sanctioned, but upon a hearing the certiorari was overruled and a new trial refused. To this judgment Stewart excepted.

The evidence in the case wholly failed to establish the facts alleged in defendant’s answer, as to usury and as to the finance company not being a holder in due course, but demanded a finding to the contrary. A verdict in favor of the finance company was demanded. In these circumstances it was not error for the court below to overrule the certiorari and refuse a new trial.

Judgment affirmed.

Jenlcins, P. J., and Stephens, J., concur.