Valdosta Bank & Trust Co. v. Davis

Beck, P. J.

(After stating the foregoing facts.) This court is of the opinion that the demurrer to the petition should have been sustained, and that it was error to overrule it. In the first place, the cancellation of the decree in the foreclosure suit and the delivery of the bonds which were originally held by the bank as security for the note of the railroad company to the bank, on which petitioner was a surety, was in accordance with the decree of the court rendered in a suit to which Davis himself was a party. The decree to which reference is made here is the one finally disposing of the ease after Davis was made a sales commissioner. Moreover, the petitioner himself participated in the final transactions, to which effect was given by decree of the court, under the terms of which Jones was bound to turn over all the bonds and the bank to cancel the decree rendered in the foreclosure suit. And to the provisions of the decree, though Davis was in a position to resist or object to them had they been objectionable, he made no objections and took no exceptions, but presumably participated in bringing about the results upon which the decree was based; and of course under such circumstances he might be held to have consented to the decree. He cannot complain that he was injured by an act thus done with his consent; and his petition seeking relief against the judgment for the balance due on the note from the railroad company to the bank is without equity, and the demurrer of the defendant to the petition should have been sustained.

Having held that the court erred in overruling the demurrer to the petition, it is unnecessary to pass upon the motion for a -new trial, as all that was done after disposing of the demurrer to the petition was nugatory.

Judgment reversed.

All the Justices concur, except