Witherington v. Ware

Russell, C. J.

The plaintiff’s petition alleged that the defendant was indebted to him in the sum of thirty-five dollars, besides interest, on a note. The note was fully described in the petition, and it was further alleged: “Said note is now lost. A copy of which is hereto attached, as near as possible.” There was no demurrer at the appearance term, and the execution of a substantially similar note was admitted in one of the paragraphs of the answer. Held: Though the petition might have been subject to a timely demurrer, still the action could not properly be dismissed on oral motion, and the court erred in so dismissing it. Civil Code, § 5318; Continental Fertilizer Co. v. Pass, 7 Ga. App. 721 (67 S. E. 1052); Duval v. Barron, 14 Ga. App. 304 (80 S. E. 701). “A suit upon a lost note is as effectual as a suit upon an established copy;” and since “the substance of the writing which is the foundation of the action” was set forth, it was not necessary, in the absence of a timely special demurrer, to attach a copy of the writing itself. Social Benevolent Society v. Holmes, 127 Ga. 586, 592 (56 S. E. 775); Gonackey v. General Accident Assurance Corporation, 6 Ga. App. 381, 384, 385 (65 S. E. 53). Cf. Lynah v. Citizens & Southern Bank, 136 Ga. 344 (71 S. E. 469). Judgment reversed.

Decided January 6, 1916.

Complaint; from city court of Dublin — Judge Hicks. March 12, 1915.

8. P. New, for plaintiff in error. Hal B. Wimberly, contra.