McKoy v. Downs

Court of Appeals of Georgia

McKoy v. Downs

219 S.E.2d 625, 135 Ga. App. 912, 1975 Ga. App. LEXIS 1869

CourtCourt of Appeals of Georgia

DecidedSeptember 30, 1975

Docket51026

StatusPublished

Cited by1 cases

This text of 219 S.E.2d 625 (McKoy v. Downs) 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

McKoy v. Downs, 219 S.E.2d 625, 135 Ga. App. 912, 1975 Ga. App. LEXIS 1869 (Ga. Ct. App. 1975).

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Opinion

Webb, Judge.

Thomas DeFoor brought suit on a promissory note against Dean McKoy. One of McKoy’s pleaded defenses was that he had been forgiven payment by DeFoor and discharged from any obligation to repay. DeFoor died before the case came to trial, and his executor was substituted as plaintiff. From the "Memorandum of decision, findings of fact, conclusions of law, and judgment,” the thoroughness of which we commend,¹ it is clear that the court concluded that McKoy was incompetent to give any testimony in support of this defense on the authority of the "Dead Man’s Rule,” Code § 38-1603 (1). McKoy appeals. Held:

1. We reverse. Code § 38-1603 (1) applies only where "suit shall be instituted” by the personal representative of a deceased person. Where, however, "[a] plaintiff institutes a suit and dies pendente lite, and his executor is made a party in his stead, such suit is not one instituted by the executor, and the surviving defendant is not incompetent to testify as to transactions or communications with the deceased plaintiff.” McLendon v. Baldwin, 166 Ga. 794 (1) (144 SE 271).

2. The claim of usury is patently without merit.

Judgment reversed.

Bell, C. J., and Marshall, J., concur.

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Webb, Judge.

Thomas DeFoor brought suit on a promissory note against Dean McKoy. One of McKoy’s pleaded defenses was that he had been forgiven payment by DeFoor and discharged from any obligation to repay. DeFoor died before the case came to trial, and his executor was substituted as plaintiff. From the "Memorandum of decision, findings of fact, conclusions of law, and judgment,” the thoroughness of which we commend,¹ it is clear that the court concluded that McKoy was incompetent to give any testimony in support of this defense on the authority of the "Dead Man’s Rule,” Code § 38-1603 (1). McKoy appeals. Held:

1. We reverse. Code § 38-1603 (1) applies only where "suit shall be instituted” by the personal representative of a deceased person. Where, however, "[a] plaintiff institutes a suit and dies pendente lite, and his executor is made a party in his stead, such suit is not one instituted by the executor, and the surviving defendant is not incompetent to testify as to transactions or communications with the deceased plaintiff.” McLendon v. Baldwin, 166 Ga. 794 (1) (144 SE 271).

2. The claim of usury is patently without merit.

Judgment reversed.

Bell, C. J., and Marshall, J., concur.

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Bluebook (online)

219 S.E.2d 625, 135 Ga. App. 912, 1975 Ga. App. LEXIS 1869, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mckoy-v-downs-gactapp-1975.

Opinion

2. The claim of usury is patently without merit.

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