Burkhalter v. Conley

100 S.E. 725, 24 Ga. App. 256, 1919 Ga. App. LEXIS 533

Opinion

Bdoodworth, J.

The judge of the superior court did not err in overruling the certiorari.

Judgment affirmed..

Broyles, G. J., and Luke, J., concur.

The verdict was “for the plaintiff,” and the court entered judgment thereon against all the defendants. W. L. Burkhalter sued out certiorari, contending that the verdict and judgment were unauthorized, because they made him a joint obligor with the other defendants; that the verdict and judgment should have been against J. F. Burkhalter as principal, W. L. Strickland as surety, and W. T. Burkhalter as indorser. It was contended also that the court erred in admitting the testimony objected to.

The judge of the superior court, in his judgment overruling the certiorari, said: “The main question to be determined is whether or not W. T. Burkhalter, who signed on the back of the note, after his name, the word ‘indorser/ limits his liability, or whether such indorsement makes him a surety only. After carefully reading the authorities cited by both parties, the court is of the opinon that the word ‘indorser/ following ‘W. T. Buckhalter/ on the note does not change the nature of the liability, and may be treated more as surplusage, the note being made by J. F. Burkhalter as maker to L. P. Conley, and indorsed on the back by W. L. Strickland and W. T. Burkhalter, indorser, and the suit being in the name of the original payee against J. F. Burkhalter as maker, and W. L. Strickland and W. T. Burkhalter as sureties. 61 Ga. 112; 26 Ga. 223; 4 Ga. 266. Under the act of December, 1826, persons who sign on the back of a note made by one party to another, or order, were made liable as sureties or joint promisors. The case at bar seems to fall well within that rule, and the mere limitation in the term ‘indorser’ would not change the real status, if as a matter of fact the indorsement of W. T. Burkhalter, along with Strickland, was to add strength to the paper and not to negotiate title. . . Whatever may have been the understanding between Mr. Strickland and Mr. Burkhalter, it could not affect the rights of Mr. Conley in the suit.” The court held that error in admitting hearsay testimony was not material.

II. H. Mders, W. T. Burlchalber, for plaintiff in error,

cited: Civil Code (1910), §§ 4275, 4279, 4268 (1), 5752, 5788, 3538, 3541; 103 Ga. 508; 79 Ga. 736 (1); 97 Ga. 772 (2); 99 Ga 303 (1); 112 Ga. 476 (1); 116 Ga. 8, 830 (1), 933; 101 Ga. 226 (1); 7 Cyc. 828; 32 Cyc. 21 (B); 4 Am. & Eng. Enc. L. (2d ed.), 477-8, par. 5.

B. Q. Beasley, contra,

cited: Civil Code (1910); §§ 3538, 3541; 90 Ga. 307, 309; 61 Ga. 112 (2), 114; 26 Ga. 223; 112 Ga. 476; 97 Ga. 127 (4); 62 Ga. 73 (2); 79 Ga. 736 (1).