Tilley v. Crawford-Miller Co.

101 S.E. 586, 24 Ga. App. 577, 1919 Ga. App. LEXIS 940

• Court: Court of Appeals of Georgia
• Decided: December 10, 1919
• Docket: 10682
• Status: Published

Opinion

Bkoyi.es, 0. J.

1. Under the ruling in Kirkland v. Gaskins, 20 Ga. App. 235 (92 S. E. 965), and cases therein cited, the court in the instant case did not err in directing a verdict against W. A. Tilley, one of the defendants, for the full amount sued for. The ruling in Seabolt v. Olvey, 18 Ga. App. 775 (90 S. E. 653), is not applicable to the facts of this ease.

2. Under the facts of the case, thee defendant T. Z. Tilley had a statutory right to prove by parol, before judgment, the fact of her surety-ship; and, being deprived of this right by the action of the court in directing a joint verdict against her and her codefendant, without allowing her an opportunity to sustain by proof the allegation in her answer that she signed the note sued upon as surety only, she is entitled to a new trial. Whitley v. Hudson, 114 Ga. 668 (3) (40 S. E. 838).

Judgment affirmed as to W. A. Tilley; reversed as to T. Z. Tilley.

Bloodworth, J., concurs. Luke, J., disqualified.

Upon the pleadings and without additional evidence the court directed a verdict' against the defendants for the amount sued for; they made a motion for a new trial, which was overruled, and they excepted.

J. J. Hill, for plaintiffs in error. H. H. Merry, contra.