Turner v. Strauss-Epstein Co.

93 S.E. 234, 20 Ga. App. 735, 1917 Ga. App. LEXIS 1057

• Court: Court of Appeals of Georgia
• Decided: August 3, 1917
• Docket: 8287
• Status: Published

Opinion

Jenkins, J.

1. Unless there has been a final determination of the case in the court below, a writ of error will not lie to an order striking a plea, even though the effect oí such order may be to entitle the plaintiff to a judgment or verdict as matter of course (Johnson v. Battle, 120 Ga. 649, 48 S. E. 128) ; and even where it appears that final judgment has in fact been rendered, in order that exception may be • taken to the sustaining of a demurrer followed by the striking of defendant’s plea, error must also be assigned on the final judgment rendered. McCranie v. Shipp, 10 Ga. App. 544; Lyndon v. Georgia Ry. & El. Co., 129 Ga. 353.

2. Under the rule announced in Harvey v. Bowles, 112 Ga. 422 (37 S. E. 364), this court in such case will not grant an application for leave to file in the court below, as exceptions pendente lite, a copy of the original bill of exceptions, where it appears that the answer as amended is without merit.

3. The agreement set up by the plea, that the payee of the note obligated himself not to bring suit thereon, should have been in writing, in order to furnish a valid defense as a covenant equivalent to release within the meaning of section 430S of the Civil Code of 1910. Mansfield v. Barker, 59 Ga. 851; Dendy v. Gamble, 59 Ga. 434; Dinkler v. Baer, 92 Ga. 432 (17 S. E. 953); Johnson v. Cobb, 100 Ga. 139 (28 S. E. 72) ; Lunsford v. Malsby, 101 Ga. 39 (28 S. E. 496) ; Marietta Savings Bank v. Janes, 66 Ga. 286; Crooker v. Hamilton, 3 Ga. App. 190 (59 S. E. 722). Under the ruling made in Johnson v. Cobb, supra, it would seem that the plea itself should show that such agreement was in writing; but, however this may be, a fair interpretation of the amended plea shows that such was not the ease, and that the defendant relied upon a contemporaneous parol agreement never to sue. The plea of failure of consideration was but an amplification of the defense already referred to; and the additional plea, alleging that such stipulation was omitted from the writing by fraud practiced upon the defendant by the payee, does not meet the requirements of law as laid down by numerous decisions of the Supreme Court and of this' court. See Hart v. Waldo, 117 Ga. 590 (43 S. E. 998), and cases therein cited. Writ of error dismissed. Broyles, P. J., and Bloodworth, J., concur.

Decided August 3, 1917.

Complaint; from DeKalb superior court—Judge Smith. June 10, 1916.

Paul L. Lindsay, for plaintiff in error. Foster & Stoclcbridge, contra.