Bowers v. Keller

GxnsBBT, J.

1. The plaintiff sued out an attachment against the defendant as a non-resident. The defendant answered, traversing the allegations of the affidavit and denying the indebtedness, and thereafter at the trial filed a special plea setting up that the indebtedness sued upon was contracted by the plaintiff in a trade-name which had not been registered as required by law, and that therefore there could be no recovery therefor. It appears that at the trial the plaintiff introduced no evidence, and defendant sustained his plea by evidence, but on cross-examination made out a prima facie case for the plaintiff by admitting the correctness of the acpount and that it was due. The bill of exceptions recites that “after hearing testimony by defendant [the plea was] sustained and plaintiff nonsuited,” and that “to this ruling and final judgment plaintiff excepted, now excepts, and assigns the same as error upon the ground that said ruling and said final judgment were contrary to law.” Held, that this assignment sufficiently presents to this court the question whether the judge erred in sustaining the plea and in thereafter granting a nonsuit.

Decided March 18, 1938. Claude B. Caldwell, J. Paul Stephens, for plaintiff. A. B. Williamson, for defendant.

2. Under the answer of the Supreme Court to the certified question presented to it in this case, the action of the judge in sustaining the plea and granting a nonsuit, is reversed and a new trial ordered. See Bowers v. Keller, 185 Ga. 435 (195 S. E. 447).

Judgment reversed.

Broyles, 0. J., and MacIntyre, concur.