Lawson v. Dixie Feed & Seed Co. ( 1966 )

Pannell, Judge,

dissenting. I was doubtful when I agreed to the original opinion in this case and I am now convinced that I was in error in so doing. The account sued upon and alleged was a joint account against the defendants, Lawson and Thurmond. Under these circumstances, the plaintiff, in order to be entitled to recover, must prove that both the defendants owed the account sued upon, or some part thereof. Harriman v. First Bryan Bapt. Church, 63 Ga. 186 (36 AR 117); Bank of Dalton v. Heartsill, 22 Ga. App. 166 (95 SE 751); Cox v. Henry, 113 Ga. 259, 261 (38 SE 856); Rogers v. Burr, 105 Ga. 432 (31 SE 438, 70 ASR 50). This the evidence utterly fails to do. There is some evidence which might be corroborating but does not amount to proof of this fact. An officer of the plaintiff testified that Mr. Lawson admitted owing a joint account with Thurmond. While this might be an admission against his interest and might be corroborative of proof of the main fact, if proof of the main fact were in existence, this testimony of Lawson does not prove an account against Thurmond. If Lawson had testified that he and Thurmond had a joint account, this would be proof against Thurmond. The evidence, therefore, since it does not authorize a recovery against Thurmond, cannot authorize a recovery against Lawson even in the face of testimony of his admission that he owes it. The fact that Thurmond failed to appear and plead and that the case is in default as to him does not prove a joint account. It is my opinion, therefore, that the evidence demanded a verdict in favor of the defendant Lawson in the absence of such proof, and that the trial court erred in its refusal to grant the defendant Lawson’s motion for judgment notwithstanding the verdict.

On motion for rehearing, I withdraw my concurrence in the judgment of affirmance previously entered.