Ewart Bros. v. Philips & Sons

162 S.E. 634, 44 Ga. App. 675, 1932 Ga. App. LEXIS 450

• Court: Court of Appeals of Georgia
• Decided: February 11, 1932
• Docket: 21482
• Status: Published

Opinion

Bell, J.

1. “If one of the defendants was merely an accommodation indorser upon tlie note, and tlie indorsement was made without authority from the corporation or was an act ultra vires upon the part of the corporation, such matter should have been set up by way of “defense to the action in the municipal court.” Ewart v. Philips, 174 Ga. 70 (162 S. E. 271).

2. The fact that one paragraph of the demurrer to the affidavit of illegality was “speaking” in character did not vitiate the other grounds of the demurrer, and, the affidavit being subject to the general ground of the demurrer, the judgment sustaining the demurrer and striking the affidavit should not be reversed because the demurrer was not good in every part or because the court may have considered extraneous matter in determining the sufficiency of the affidavit of illegality. Crittenden v. Southern Some Building & Loan Asso., 111 Ga. 266 (5) (36 S. E. 643).

3. The assignments of error upon the judgment striking the affidavit of illegality could not enlarge upon the grounds alleged in the affidavit, and the question as to whether the judgment was rendered without a compliance with the statute governing procedure in the municipal court of Columbus, not having been made in the affidavit of illegality, could not be raised for the first time in the assignments of error upon the judgment sustaining the demurrer and striking the affidavit of illegality.

4. Applying the above rulings, the petition for certiorari was without merit, and the judge of the superior court did not err in refusing to sanction the same. Judgment affirmed. Jenkins, P. J., and Stephens, J., concur.

Henry D. Gaggsiatter, for plaintiff: in error. A. W. & John G. Comrt, contra.