Witherington v. Ware

Court of Appeals of Georgia

Witherington v. Ware

87 S.E. 603, 17 Ga. App. 433, 1916 Ga. App. LEXIS 987

CourtCourt of Appeals of Georgia

DecidedJanuary 6, 1916

Docket6494

StatusPublished

Cited by2 cases

This text of 87 S.E. 603 (Witherington v. Ware) 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

Witherington v. Ware, 87 S.E. 603, 17 Ga. App. 433, 1916 Ga. App. LEXIS 987 (Ga. Ct. App. 1916).

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Opinion

Russell, C. J.

The plaintiff’s petition alleged that the defendant was indebted to him in the sum of thirty-five dollars, besides interest, on a note. The note was fully described in the petition, and it was further alleged: “Said note is now lost. A copy of which is hereto attached, as near as possible.” There was no demurrer at the appearance term, and the execution of a substantially similar note was admitted in one of the paragraphs of the answer. Held: Though the petition might have been subject to a timely demurrer, still the action could not properly be dismissed on oral motion, and the court erred in so dismissing it. Civil Code, § 5318; Continental Fertilizer Co. v. Pass, 7 Ga. App. 721 (67 S. E. 1052); Duval v. Barron, 14 Ga. App. 304 (80 S. E. 701). [434]*434“A suit upon a lost note is as effectual as a suit upon an established copy;” and since “the substance of the writing which is the foundation of the action” was set forth, it was not necessary, in the absence of a timely special demurrer, to attach a copy of the writing itself. Social Benevolent Society v. Holmes, 127 Ga. 586, 592 (56 S. E. 775); Gonackey v. General Accident Assurance Corporation, 6 Ga. App. 381, 384, 385 (65 S. E. 53). Cf. Lynah v. Citizens & Southern Bank, 136 Ga. 344 (71 S. E. 469). Judgment reversed.

Decided January 6, 1916.

Complaint; from city court of Dublin — Judge Hicks. March 12, 1915.

8. P. New, for plaintiff in error. Hal B. Wimberly, contra.

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Russell, C. J.

The plaintiff’s petition alleged that the defendant was indebted to him in the sum of thirty-five dollars, besides interest, on a note. The note was fully described in the petition, and it was further alleged: “Said note is now lost. A copy of which is hereto attached, as near as possible.” There was no demurrer at the appearance term, and the execution of a substantially similar note was admitted in one of the paragraphs of the answer. Held: Though the petition might have been subject to a timely demurrer, still the action could not properly be dismissed on oral motion, and the court erred in so dismissing it. Civil Code, § 5318; Continental Fertilizer Co. v. Pass, 7 Ga. App. 721 (67 S. E. 1052); Duval v. Barron, 14 Ga. App. 304 (80 S. E. 701). [434]*434“A suit upon a lost note is as effectual as a suit upon an established copy;” and since “the substance of the writing which is the foundation of the action” was set forth, it was not necessary, in the absence of a timely special demurrer, to attach a copy of the writing itself. Social Benevolent Society v. Holmes, 127 Ga. 586, 592 (56 S. E. 775); Gonackey v. General Accident Assurance Corporation, 6 Ga. App. 381, 384, 385 (65 S. E. 53). Cf. Lynah v. Citizens & Southern Bank, 136 Ga. 344 (71 S. E. 469). Judgment reversed.

Decided January 6, 1916.

Complaint; from city court of Dublin — Judge Hicks. March 12, 1915.

8. P. New, for plaintiff in error. Hal B. Wimberly, contra.

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87 S.E. 603, 17 Ga. App. 433, 1916 Ga. App. LEXIS 987, Counsel Stack Legal Research, https://law.counselstack.com/opinion/witherington-v-ware-gactapp-1916.

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