Chatham Motor Co. v. Lincoln Motor Co.

120 S.E. 444, 31 Ga. App. 229, 1923 Ga. App. LEXIS 862

• Court: Court of Appeals of Georgia
• Decided: November 27, 1923
• Docket: 14367
• Status: Published

Opinion

Jenkins, B. J.

1. “The holder of a note is presumed to be such bona fide and for value.” Civil Code (1910), §4288; Rhodes v. Beall, 73 Ga. 641; Wade v. Elliott, 11 Ga. App. 646, 648 (75 S. E. 989); Brantley v. Merchants & Farmers Bank, 22 Ga. App. 667 (97 S. E. 109). The allegation of the petition, that the note sued on, indorsed by the payee, was negotiated by the payee to the plaintiff, was good as against the ground of general demurrer that the petition failed to disclose that' the plaintiff was a bona fide purchaser for value before maturity. No other basis of the general demurrer that “the petition fails to set out any cause of action” appears in the demurrer or the briefs, nor is there any other argument or insistence. With regard to the special demurrers, the brief of plaintiffs in error states that “the special demurrers were met by amendments,” and no argument or .insistence is made thereon.

2. In addition to filing a demurrer to the petition, the defendants filed'a plea denominated by them as a plea in abateifient (see Dougherty v. Bethune, 7 Ga. 90),'setting uj3 that on the date the note sued on was executed by the defendants, the payee was in the hands of receivers appointed by the United States court for the eastern district of Michigan, and therefore was unable to contract, rendering the note sued on null and void, and that “indorsement by said payee could not transfer title to the plaintiff in this case.” The court sustained the plaintiff’s demurrer to this plea. Upon direct bill of exceptions preceding any final judgment the defendants seek to review both the judgment overruling their demurrer to the petition and the judgment striking their plea. The latter judgment could not be reviewed by direct writ of error; and the exceptions thereon, being premature, cannot be considered with the exceptions to the judgment on the demurrer to the petition. Turner v. Camp, 110 Ga. 631 (2), 632 (36 S. E. 76); Amos v. Continental Trust Co., 22 Ga. App. 348 (6) (95 S. E. 1025); Johnson v. Battle, 120 Ga. 649 (48 S. E. 128); Western & Atlantic R. Co. v. Williams, 146 Ga. 27 (90 S. E. 478); City of Tallapoosa v. Brock, 143 Ga. 599 (85 S. E. 755); Baldwin v. Lowe, 129 Ga. 711 (59 S. E. 772); English v. Rosenkrantz, 150 Ga. 745 (105 S. E. 292). The motion to dismiss the entire writ of error cannot, however, be granted. Hill v. State, 118 Ga. 21, 22, 23 (44 S. E. 820).

Decided November 27, 1923. Ulmer & Bright, for plaintiff in error. Gonneral & Hunter, contra.

Judgment affirmed.

Stephens and Bell, JJ., concur.