Whitney v. Butts

16 S.E. 649, 91 Ga. 124

• Court: Supreme Court of Georgia
• Decided: January 4, 1893
• Status: Published

Opinion

Whitney sued Butts as maker and Simmons as indorser on a promissory note payable to the order of Simmons, and indorsed by Simmons. Butts pleaded the general issue, and payment. There was a verdict in favor of Butts and against Simmons. This verdict as against Simmons was unexcepted to, but a new trial was granted plaintiff as to the verdict in favor of Butts. Upon the second trial there was a verdict in favor of the defendant. The plaintiff’s motion for a new trial was overruled, and he excepted. The motion contained, beside the general grounds, the following:

1. The court erred in overruling plaintiff’s objection to the testimony of Simmons, and in refusing to exclude it on plaintiff’s objection that his testimony impeached the verity of the former verdict against Simmons as indorser for the full amount of the note sued upon, which verdict appeared in the record and was unobjected to or set aside. Plaintiff objected that Simmons was incapable as a witness and estopped by the verdict from testifying that he had, prior to the rendition of said verdict, paid the proceeds of the note to Whitney.

R. II. Lewis, by brief, for plaintiff. Reese & Little, by J. H. Lumpkin, for defendant.

2. After the introduction of the testimony of Simmons, the court, over plaintiff’s objection, excluded the former verdict and judgment which had been offered in evidence by plaintiff.