Richey v. Johnson

Court of Appeals of Georgia

Richey v. Johnson

93 S.E. 514, 21 Ga. App. 41, 1917 Ga. App. LEXIS 405

Court of Appeals of Georgia·Decided September 19, 1917·No. 8358·Published·Cited by 12 cases

Opinion

Bloodworth, J.

1. Where both a plea and a demurrer thereto are filed at the. first term, and the record is silent as to any action being taken thereon at that term, it will be construed that the whole case, including the demurrer and plea, was “continued by the court”; and the demurrer thus continued loses none of its vitality by the fact that it was not “determined at the first term.”

2. Where suit is brought on a promissory note, and' the defendant in his plea makes a general denial of the paragraphs of the plaintiff’s petition, this denial in general terms is but a plea of the general issue, and, since the act of 1893 (Ga. L. 1893, p. 56), is not issuable and is not a denial of the plaintiff’s right of recovery under the sysrem of defenses provided by that act. Such a plea was properly stricken on . demurrer. Johnson v. Cobb, 100 Ga. 139 (2), 141 (28 S. E. 72); Civil Code (1910), § 5634; McMillan v. Fourth National Bank, 18 Ga. App. 445 (89 S. E. 635) ; Akers v. Decatur Street Bank, 16 Ga. App. 262 (2) (85 S. E. 201); Thomas v. Siesel, 2 Ga. App. 663 (58 S. E. 1131).

3. “The original plea having set up no defense whatever, an amendment, the purpose of which was to set up- a defense not indicated by or referred to in such plea, was properly rejected on the ground that there was nothing to amend by.” Smith v. First National Bank, 115 Ga. 608 (2) (41 S. E. 983).

(a) The instant case is easily distinguishable from the case of Simmons Furniture & Lumber Co. v. Reynolds, 135 Ga. 595 (69 S. E. 913). In that case no attack was made upon the plea at the appearance term, and the only objection-to allowing the amendment was that “there was nothing to amend by.” In this case demurrer was filed at the first term, and the amendment was objected to on the ground that “there was nothing to amend by, and that there was nothing in the original plea suggesting any legal defense whatever.”

Judgment affirmed.

Broyles, P. J., and Jenkins, J., concur.

Judgment was rendered for the plaintiff for principal, interest, attorney’s fees, and costs; and defendant excepted.

E. G. Starh, for plaintiff in error. Erwin, Bucher & Erwin, contra.

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Bloodworth, J.

1. Where both a plea and a demurrer thereto are filed at the. first term, and the record is silent as to any action being taken thereon at that term, it will be construed that the whole case, including the demurrer and plea, was “continued by the court”; and the demurrer thus continued loses none of its vitality by the fact that it was not “determined at the first term.”

2. Where suit is brought on a promissory note, and' the defendant in his plea makes a general denial of the paragraphs of the plaintiff’s petition, this denial in general terms is but a plea of the general issue, and, since the act of 1893 (Ga. L. 1893, p. 56), is not issuable and is not a denial of the plaintiff’s right of recovery under the sysrem of defenses provided by that act. Such a plea was properly stricken on . demurrer. Johnson v. Cobb, 100 Ga. 139 (2), 141 (28 S. E. 72); Civil Code (1910), § 5634; McMillan v. Fourth National Bank, 18 Ga. App. 445 (89 S. E. 635) ; Akers v. Decatur Street Bank, 16 Ga. App. 262 (2) (85 S. E. 201); Thomas v. Siesel, 2 Ga. App. 663 (58 S. E. 1131).

3. “The original plea having set up no defense whatever, an amendment, the purpose of which was to set up- a defense not indicated by or referred to in such plea, was properly rejected on the ground that there was nothing to amend by.” Smith v. First National Bank, 115 Ga. 608 (2) (41 S. E. 983).

(a) The instant case is easily distinguishable from the case of Simmons Furniture & Lumber Co. v. Reynolds, 135 Ga. 595 (69 S. E. 913). In that case no attack was made upon the plea at the appearance term, and the only objection-to allowing the amendment was that “there was nothing to amend by.” In this case demurrer was filed at the first term, and the amendment was objected to on the ground that “there was nothing to amend by, and that there was nothing in the original plea suggesting any legal defense whatever.”

Judgment affirmed.

Broyles, P. J., and Jenkins, J., concur.

Judgment was rendered for the plaintiff for principal, interest, attorney’s fees, and costs; and defendant excepted.

E. G. Starh, for plaintiff in error. Erwin, Bucher & Erwin, contra.

Richey v. Johnson, 93 S.E. 514, 21 Ga. App. 41, 1917 Ga. App. LEXIS 405 (Ga. Ct. App. 1917).

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