Mutual Fertilizer Co. v. Henderson

Broyles, J.

1. The presumption that an instrument was made on the day of its date is not conclusive, and may be overcome by parol evidence that it was in fact made on another date.

2.- The Mutual Fertilizer Company obtained judgment on a promissory note against S. M. Apperson, defendant, and A. H. Henderson, garnishee. Afterwards Henderson made a motion to set aside the judgment rendered against him for the alleged reason that, at the time the affidavit for garnishment was made, no suit was pending in court or had been commenced against the defendant Apperson, it so appearing from the papers in the main ease and in the garnishment ease. On the hearing of the motion all the papers were introduced in evidence, and showed that the suit against Apperson was filed on October 25, 1913 (and afterwards served), and that the summons of garnishment was issued on October 25, 1913, and served on the same day, but that the affidavit for garnishment was dated October 24, 1913. It appearing, however, from the undisputed evidence submitted on the hearing of the motion that the affidavit for garnishment was really made and filed on October 25th, 1913, and after the suit against Apperson had been commenced, and that the erroneous date given on the affidavit was a mere lapsus pennae, no good reason was shown for the setting aside of the judgment against the defendant, Henderson, and the court erred in sustaining the motion. Judgment reversed.

Decided July 29, 1916.

Motion to set aside judgment; from city court of Ashbúrn— Judge Tipton. January 24, 1916.

J. B. Hutcheson, for plaintiff in error. A. S. Bussey, contra.