Edwards v. Ward

Court of Appeals of Georgia

Edwards v. Ward

142 S.E. 173, 37 Ga. App. 776, 1928 Ga. App. LEXIS 610

CourtCourt of Appeals of Georgia

DecidedMarch 3, 1928

Docket17914

StatusPublished

This text of 142 S.E. 173 (Edwards v. Ward) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Edwards v. Ward, 142 S.E. 173, 37 Ga. App. 776, 1928 Ga. App. LEXIS 610 (Ga. Ct. App. 1928).

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Opinion

Stephens, J.

1. Under the authority of § 5858 (3, 5) of the Civil Code (1910) a party defendant is incompetent to testify as to transactions between himself and a deceased agent of the plaintiff. In a suit upon promissory notes where the defense offered and filed by both the defendant and the sureties was based upon the alleged fact that the notes were given as part of an usurious transaction, the defendant who [777]*777negotiated the transaction with the plaintiff’s agent, since deceased, was incompetent to testify as to such transaction with the deceased agent. Johnson v. Hart, 82 Ga. 767 (9 S. E. 1110). The court therefore erred in admitting such testimony, over the plaintiff’s objection.

Decided March 3, 1928. J. G. & E. E. Edwards, for plaintiff. A. J. Griffin, J. B. G. Logan, P. Cooley, for defendants.

2. Where, upon the trial, the court orally allowed the defendants to file an amendment to the pleas already filed, the court did not err, upon a hearing of the plaintiff’s motion for a new trial, in passing an order nunc pro tunc allowing the amendment. The amendment having been orally allowed upon the trial, the assignment of error contained in the bill of exceptions excepting to the allowance of the amendment came too late, as the bill of exceptions was presented for certification more than sixty days after the date of the order excepted to.

Judgment reversed.

Jenkins, P. J., and Bell, J., eoneur.

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Stephens, J.

1. Under the authority of § 5858 (3, 5) of the Civil Code (1910) a party defendant is incompetent to testify as to transactions between himself and a deceased agent of the plaintiff. In a suit upon promissory notes where the defense offered and filed by both the defendant and the sureties was based upon the alleged fact that the notes were given as part of an usurious transaction, the defendant who [777]*777negotiated the transaction with the plaintiff’s agent, since deceased, was incompetent to testify as to such transaction with the deceased agent. Johnson v. Hart, 82 Ga. 767 (9 S. E. 1110). The court therefore erred in admitting such testimony, over the plaintiff’s objection.

Decided March 3, 1928. J. G. & E. E. Edwards, for plaintiff. A. J. Griffin, J. B. G. Logan, P. Cooley, for defendants.

2. Where, upon the trial, the court orally allowed the defendants to file an amendment to the pleas already filed, the court did not err, upon a hearing of the plaintiff’s motion for a new trial, in passing an order nunc pro tunc allowing the amendment. The amendment having been orally allowed upon the trial, the assignment of error contained in the bill of exceptions excepting to the allowance of the amendment came too late, as the bill of exceptions was presented for certification more than sixty days after the date of the order excepted to.

Judgment reversed.

Jenkins, P. J., and Bell, J., eoneur.

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142 S.E. 173, 37 Ga. App. 776, 1928 Ga. App. LEXIS 610, Counsel Stack Legal Research, https://law.counselstack.com/opinion/edwards-v-ward-gactapp-1928.

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