Glaze v. Fulton National Bank of Atlanta

Court of Appeals of Georgia

Glaze v. Fulton National Bank of Atlanta

151 S.E.2d 478, 114 Ga. App. 291, 1966 Ga. App. LEXIS 723

CourtCourt of Appeals of Georgia

DecidedSeptember 14, 1966

Docket42184

StatusPublished

Cited by4 cases

This text of 151 S.E.2d 478 (Glaze v. Fulton National Bank of Atlanta) 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.

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Glaze v. Fulton National Bank of Atlanta, 151 S.E.2d 478, 114 Ga. App. 291, 1966 Ga. App. LEXIS 723 (Ga. Ct. App. 1966).

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Opinion

Bell, Presiding Judge.

1. “Where in an answer by paragraphs to a petition bringing suit on a promissory note, a defendant makes in answer to one paragraph a general denial of the indebtedness as alleged in the petition, and such answer nowhere sets up any legal defense, such denial is in effect a plea of the general issue.” Kingery v. Yancey Bros. Co., 100 Ga. App. 178, 180 (110 SE2d 411) and citations. “This general denial (as against an unconditional contract in writing, and in the absence of a plea of non est factum) amounts to no plea at all, so far as indebtedness is concerned.” Medlock v. Wood, 4 Ga. App. 368, 369 (61 SE 516). The allegation in defendant’s answer denying the paragraph of plaintiff’s petition alleging the indebtedness is insufficient as a defense against recovery for the principal and interest on the note. Wood v. Noland Credit Co., 113 Ga. App. 749 (2) (149 SE2d 720).

2. However, where in another paragraph of defendant’s answer defendant denies a paragraph of plaintiff’s petition alleging the giving of the notice required by Code Ann. § 20-506 in order to recover attorney’s fees provided by the note sued upon, this denial is a sufficient defense on the issue of attorney’s fees, and therefore, the answer, though defective in other respects is not wholly bad. Hicks v. Hamilton, 3 Ga. App. 112, 117 (59 SE 331). See also Kreischer v. Bank of Louisville, 32 Ga. App. 699 (3, 4) (124 SE 539); Greenwood v. Greenwood, 44 Ga. App. 847 (2) (163 SE 317). A general demurrer to a plea some parts of which are sufficient should be overruled. Finney v. Cadwallader, 55 Ga. 75 (3); Hicks v. Hamilton, supra. The trial court erred in sustaining plaintiff’s general *292 demurrer to defendant’s answer, which presents an issuable defense to- plaintiff’s case as laid, and in entering judgment for plaintiff for principal, interest and attorney’s fees.

Submitted July 8, 1966 Decided September 14, 1966. Merritt & Pruitt, Glyndon C. Pruitt, for appellant. Kilpatrick, Cody, Rogers, McClatchey & Regenstein, Carl I. Gable, Jr., for appellee.

The judgment will be affirmed with direction that plaintiff write off the amount of attorney’s fees included in the judgment. Upon failure-to do so- the judgment will stand reversed.

Judgment affirmed with direction.

Jordan and Eberhardt, JJ., concur.

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Bell, Presiding Judge.

1. “Where in an answer by paragraphs to a petition bringing suit on a promissory note, a defendant makes in answer to one paragraph a general denial of the indebtedness as alleged in the petition, and such answer nowhere sets up any legal defense, such denial is in effect a plea of the general issue.” Kingery v. Yancey Bros. Co., 100 Ga. App. 178, 180 (110 SE2d 411) and citations. “This general denial (as against an unconditional contract in writing, and in the absence of a plea of non est factum) amounts to no plea at all, so far as indebtedness is concerned.” Medlock v. Wood, 4 Ga. App. 368, 369 (61 SE 516). The allegation in defendant’s answer denying the paragraph of plaintiff’s petition alleging the indebtedness is insufficient as a defense against recovery for the principal and interest on the note. Wood v. Noland Credit Co., 113 Ga. App. 749 (2) (149 SE2d 720).

2. However, where in another paragraph of defendant’s answer defendant denies a paragraph of plaintiff’s petition alleging the giving of the notice required by Code Ann. § 20-506 in order to recover attorney’s fees provided by the note sued upon, this denial is a sufficient defense on the issue of attorney’s fees, and therefore, the answer, though defective in other respects is not wholly bad. Hicks v. Hamilton, 3 Ga. App. 112, 117 (59 SE 331). See also Kreischer v. Bank of Louisville, 32 Ga. App. 699 (3, 4) (124 SE 539); Greenwood v. Greenwood, 44 Ga. App. 847 (2) (163 SE 317). A general demurrer to a plea some parts of which are sufficient should be overruled. Finney v. Cadwallader, 55 Ga. 75 (3); Hicks v. Hamilton, supra. The trial court erred in sustaining plaintiff’s general *292 demurrer to defendant’s answer, which presents an issuable defense to- plaintiff’s case as laid, and in entering judgment for plaintiff for principal, interest and attorney’s fees.

Submitted July 8, 1966 Decided September 14, 1966. Merritt & Pruitt, Glyndon C. Pruitt, for appellant. Kilpatrick, Cody, Rogers, McClatchey & Regenstein, Carl I. Gable, Jr., for appellee.

The judgment will be affirmed with direction that plaintiff write off the amount of attorney’s fees included in the judgment. Upon failure-to do so- the judgment will stand reversed.

Judgment affirmed with direction.

Jordan and Eberhardt, JJ., concur.

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151 S.E.2d 478, 114 Ga. App. 291, 1966 Ga. App. LEXIS 723, Counsel Stack Legal Research, https://law.counselstack.com/opinion/glaze-v-fulton-national-bank-of-atlanta-gactapp-1966.

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