Blount v. Radford

84 S.E. 591, 16 Ga. App. 95, 1915 Ga. App. LEXIS 506

• Court: Court of Appeals of Georgia
• Decided: March 18, 1915
• Docket: 5829
• Status: Published

Opinion

Broyles, J.

1. A bona fide holder of a promissory note for a consideration, before maturity, is protected from any defenses that can be set up by the maker, acceptor, or indorser, save a plea of non est factum, gambling, or immoral and illegal consideration, or fraud in its procurement. Civil Code, § 4286; Farmers and Traders Bank v. Eubanks, 2 Ga. App. 839 (59 S. E. 193). This being true, the trial court did not err in striking the 4th paragraph of the defendant’s answer, which pleaded other defenses.

2. An oral motion to strike a plea can be made at any time before the verdict, if the motion is in the nature of a general demurrer. Kelly v. Strouse, 116 Ga. 872 (43 S. E. 280); Cooney v. Sweat, 133 Ga. 511 (66 S. E. 257, 25 L. R. A. (N. S.) 75). In this case the oral motion to strike the plea, or as much of it as was contained in paragraph 4 of the answer, was in the nature of a general demurrer, the ground of the motion being that it set up no defense whatever as against the plaintiff’s petition; and consequently, although the motion was not made until the trial term, the court did not err in striking the plea.

Decided March 18, 1915.

Complaint; from city court of 'Waynesboro — Judge Davis. June 17, 1914.

H. J. Fullbright, for plaintiff in error. Brinson & Hatcher, contra.

3. A promissory note which is the basis of a suit need not have its execution proved, where no plea of non est factum has been filed. Civil Code, § 4295; Neal v. Gray, 124 Ga. 510 (4), 515 (52 S. E. 622); Howard Piano Co. v. Glover, 7 Ga. App. 548 (67 S. E. 277); Gray v. Oglesby, 9 Ga. App. 356 (71 S. E. 605).

4. The evidence authorized the verdict, and there was no error in the overruling of the motion for a new trial. Judgment affirmed.