Morgan v. Mize

¶1dissenting. I dissent from the judgment for the reason that the reasoning utilized to establish a basis for it is faulty because there is a hiatus in the defendant’s proof as to how the case appeared to the defendant at the time the warrant was sworn out. This hiatus is the question whether the plaintiff issued and delivered the check to the defendant. The evidence is that he did not issue or deliver it to the defendant. Therefore the hiatus must be filled, to reach the judgment rendered, by an assumption or presumption that the plaintiff signed the check and delivered it to the person who presented it to the defendant. Such an unauthorized assumption or presumption is not authorized by the evidence in this case and it is not authorized under the 3rd division of Code Ann. § 13-9933 (Ga. L. 1962, p. 593) etc., because no notice was given the plaintiff of the dishonor of the check and there was no ten-day waiting period after such notice. The check in this ease was retained by the defendant and paid on the third presentation to the bank on which it was drawn.