Foster, Son & Harlan v. Whitten

91 S.E. 918, 19 Ga. App. 549, 1917 Ga. App. LEXIS 231

• Court: Court of Appeals of Georgia
• Decided: March 20, 1917
• Docket: 7998
• Status: Published

Opinion

George, J.

1. A suit upon a promissory note under seal, dated February 9, 1891, and due one day after date, was commenced July 30, 1915. The plaintiff alleged, that “while the note, the foundation of the suit, shows on its face to be barred by the statute of limitations, it in fact is not barred; that for a number of years following the signing of the note defendant resided out of the State of Georgia; that for twelve or thirteen years since said note was signed defendant has been incarcerated in the Georgia Penitentiary, being legally dead, and for the remainder of the time has been beyond the limits of the State.” Held, that there was no error in striking the allegation that “for twelve or thirteen years since said note was signed defendant has been incarcerated in the Georgia Penitentiary, being legally dead.” The criminal act of the defendant, followed by his legal imprisonment, did not postpone the plaintiff’s right to commence and prosecute his suit upon the note. The plaintiff was himself unfettered and could have sued, and the proper venue for the suit remained in the county of .the defendant’s residence at the time of his arrest and conviction.

2. The excerpts from the charge of the court to which exceptions are taken are not erroneous for any of the reasons assigned, and the evidence warranted the verdict.

Decided March 20, 1917.

Complaint—appeal; from Whitfield, superior court—Judge Fite. November 27, 1916.

G. W. Head, W. H. Mann, for plaintiffs. George G. Glenn, for defendant.

Judgment affirmed.

Wade, O. J., and Lulce, J., concur.