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Lawskills.com Georgia Caselaw
A. J. CANNON & CO. v. COLLIER et al.
35329.
Action on check. Before Judge Blackshear. Hall City Court. May 19, 1954.
FELTON, C. J.
1. The general assignments of error on the awarding of the nonsuit and on the overruling of the demurrers to the answers are sufficient to present questions for review.
3. Under the circumstances of this case, the plaintiff was put on inquiry as to the authority of Mrs. Moore, the indorser, to fill in the blank as to the amount, and thus took the check at its peril. The court did not err in awarding the nonsuit.
4. Mrs. Moore's having been sued as an indorser and the defendants Collier and Cravitt as makers, and the case having been in default as to Mrs. Moore, the court did not err in not permitting the plaintiff to put Mrs. Moore on the stand for cross-examination for the purpose of making out a case against Collier and Cravitt.
A. J. Cannon & Company sued Rosa Collier, Coleman Gravitt, and Mrs. J. T. Moore. The original petition alleged: "That the defendants Rosa Collier and Coleman Gravitt are a partnership doing business as Collier & Gravitt in Hall County, Georgia. 3. That the defendants are indebted to plaintiff in the just and full sum of $1,275, together with interest at the rate of 7% per annum from the 31st day of October, 1951, upon a certain check, a copy of which is hereto attached marked 'Exhibit A' and by reference made a part of this petition. 4. Plaintiff shows that on the 31st day of October, 1951, Collier & Gravitt issued to Mrs. J. T. Moore their check in the sum of $1,275, drawn on the Gainesville National Bank of Gainesville, Georgia, said check being signed 'Collier & Gravitt by Coleman Gravitt', and that said check was endorsed by the defendant Mrs. J. T. Moore and paid over to plaintiff in due course. 5. That plaintiff presented said check for payment in due course of banking and payment was refused by the said Gainesville National Bank for the reason that the account of Collier & Gravitt was insufficient to pay same. 6. Plaintiff shows that it is holder in due course of said check. 7. Plaintiff shows that the amount of said check is just, due, demanded and unpaid."
1. (a) The assignment of error, "To said ruling [the granting of a nonsuit], the plaintiff duly excepted and now excepts and assigns said ruling and judgment of nonsuit as error," is sufficient to present a question for review. Fargason v. Ford, 119 Ga. 343 (46 S. E. 431); Randolph v. Brunswick & Birmingham R. Co., 120 Ga. 969 (48 S. E. 396); Baker v. Higgenbotham, 186 Ga. 895 (2) (199 S. E. 174). (b) The assignment of error, "To this ruling of the court [the overruling of demurrers to the answers], the plaintiff in error excepted and now excepts and assigns the same as error upon the grounds that said order overruling plaintiff's demurrer to the defendant's answer was contrary to law," is sufficient to present a question for review where the demurrer and answer are specified as parts of the record. McGregor v. Third Nat. Bank, 124 Ga. 557, 562 (3) (53 S. E. 93); Toomey v. Read & Gresham, 133 Ga. 855 (1) (67 S. E. 100).
4. At the time of the trial Mrs. Moore had filed no defense and the case was in default as to her. The plaintiff sought to put Mrs. Moore on the stand as an opposite party for the purpose of cross-examination. The court would not allow the plaintiff to put Mrs. Moore on the stand for this purpose. He stated that, if the plaintiff wanted to examine her for the purpose of making out a case against her, he would permit it, but if the plaintiff wanted to examine her for the purpose of making out its case against Collier and Gravitt, the plaintiff would have to put her on the stand as its own witness. The court did not err in making this ruling. Mrs. Moore was sued as an indorser, while Collier and Gravitt wore sued as makers. Their defenses were different and their interests in the case were not so related as to render them joint defendants for the purpose that one could be called on cross-examination to testify against the interest of the others.
The court did not err in overruling the demurrers to the answers, in awarding a nonsuit and in refusing to allow the plaintiff to put Mrs. Moore on the stand for cross-examination on matters relating to the case against Collier and Gravitt.
Telford, Wayne & Smith, contra.
Stow & Andrews, for plaintiff in error.
DECIDED NOVEMBER 1, 1954.
Saturday May 23 03:22 EDT


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