Lummus v. First National Bank

126 S.E. 305, 33 Ga. App. 345, 1925 Ga. App. LEXIS 754

• Court: Court of Appeals of Georgia
• Decided: January 13, 1925
• Docket: 16001
• Status: Published

Opinion

Luke, J.

1. Where, in a suit on promissory notes, the defendant admits a prima facie case in the plaintiff and assumes the burden of proof, and the only evidence offered in support of one or more of the essential elements of his alleged defense is subject to the objection that it is hearsay, it is proper to direct a verdict for the plaintiff. Such evidence, though admitted without objection, is without probative force. Brooks v. Pitts, 24 Ga. App. 386 (1) (100 S. E. 776), and citations.

Decided January 13, 1925. E. M. Smith, Maddox &■ Maddox, for plaintiff in error. O. E. Griffin, D. K. Johnston, contra.

2. Where it is proper to direct a verdict, but a verdict is directed for an amount greater than that sued for,’the judgment will be affirmed, with direction that the court below so amend the verdict and judgment as to make them conform to the pleadings. Morgan County v. Walton County, 121 Ga. 659 (49 S. E. 776).

3. In the instant case one of the notes sued on showed a credit of $25.39. The verdict is for the principal, interest, and attorney’s fees stipulated in the notes, without any allowance for the partial payment shown by the plaintiff’s petition. Direction is therefore given that the court below so amend the verdict and judgment as to allow the defendant the full benefit of such credited payment.

Judgment affirmed, until direction.

Broyles, C. J., and Bloodworth, J., concur.