Barfield v. Smith

Bell, J.

1. “In an action upon a promissory note, to entitle the defendant to the opening and conclusion, he must, before the plaintiff has introduced any evidence, admit in his written plea the execution ,of the note sued upon and that the plaintiff is the legal holder thereof.” Farmers & Merchants Bank v. Brantley, 20 Ga. App. 774 (93 S. E. 237) ; Coker v. Citizens Bank, 35 Ga. App. 595 (2) (134 S. E. 355). Mere oral admissions made in open court are not sufficient for this purpose. Dorough v. Johnson, 108 Ga. 812 (34 S. E. 168) ; DuBignon v. Wright, 122 Ga. 263 (50 S. E. 65).

2. In the instant suit on two promissory notes alleged to have been held by the plaintiff under several transfers from the payees, the defendant in his plea admitted signing both the notes, but denied that one of them was ever delivered, and did not admit ownership of either note in the plaintiff. The court therefore erred in allowing the defendant to open and conclude, and, the verdict for the defendant not being demanded, the plaintiff was entitled to a new trial.

Judgment reversed.

Jenkins, P. J., and Stephens, J., concur. G. G. Anderson, for plaintiff. John J. Jones, E. M. Price, for defendant.