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12 Ga. App. 735

Linam v. Anderson

Court of Appeals of Georgia

Decided May 20, 1913

Court of Appeals of Georgia · decided 1913-05-20

<p>1. The demurrer to the petition was without merit.</p> <p>2. Where a note contains a condition that a failure to pay any installment of interest when due gives to the holder thereof the right, at his election, to declare the note due and payable, the acceptance of a payment on the principal of the note before the note is due does not, without an agreement to that effect, prevent the holder from subsequently exercising the option above stated.</p> <p>S. Where a note provides for the payment of ten per cent, on principal and interest as attorney’s fees, in the event the note is placed in the hands of an attorney for collection, on giving the statutory notice the plaintiff would have the right to recover this amount as attorney’s fees, although the note had not matured by lapse, of time, but had been declared due by the plaintiff, according to its terms, on failure to pay an installment of interest when due.</p> <p>4. When a plea in abatement is demurred to on both general and special grounds, and the trial court renders a judgment thereon in the following language: “This demurrer is sustained and the plea in abatement is stricken,” this judgment will be construed as applicable only to the questions raised by the general demurrer, and the questions raised by the special demurrer will be regarded as not adjudicated. The allegations of the plea in abatement, setting up that the plaintiff had made an agreement with defendants, in consideration of the payment by them of $500 on the note before the same was due, to waive the condition of the note giving the right at the election of the holder to declare the note matured upon a failure to pay any installment of interest when due, were sufficient to withstand a general demurrer.</p> <p>•5. A condition in .a promissory note that in the event that any of the “interest coupons, or any part thereof, remain unpaid for the space of thirty days after the same shall .have become due and payable, then the entire principal, with all arrearages of interest, shall immediately become due and collectible, at the option of the holder of this note,” and a condition in a deed given to secure the payment of the note, that “if any of said interest coupons should not be promptly paid .at its maturity, or should any tax or assessment accruing against said property become delinquent or liable to have execution issued therefor, then and in either of said events said principal note, together with all arrearages ni interest thereon, shall at once become due and collectible at the option of the holder thereof,” are not in conflict. But even if so, the condition ■of the note would prevail; and in the present case the principal note ’ was declared due and collectible under the condition above referred to • ¡as set out in the note.</p> <p>6. The allegations made by the answer were wholly irrelevant and immaterial, setting forth no defense whatever to the suit on the note; and therefore the answer was properly stricken on demurrer.</p> <p>7. The evidence demanded the verdict as directed; and the judgment entered thereon, both in form and substance, was in accordance with the pleading and the proof..</p>

Good law ✅— No negative treatment on recordhow we know

Decided 1913-05-20

How this case has been cited

Cited by 13 later decisions — most recently October 1976

13 state decisions

401913192019301940195019601970decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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'’Russell, J.,

¶1'dissenting. This court considered together the two writs of error in the same case. In the first bill of exceptions error was assigned upon the ruling on the plea in abatement. After the trial judge had stricken the plea in abatement the case proceeded *743to trial, and -the trial resulted in a judgment in 'favor of'tlie plaintiff, and the defendants filed their bill of exceptions, complaining, among other things, of the overruling of their motion for new trial. A majority of this court is of the opinion that the judge erred in striking the plea in abatement, and I concur in this judgment. This ruling disposes of the first of the writs of error. I can not agree to the conditional judgment of affirmance rendered upon the second writ of error. I think it perfectly, well settled that since the trial court erred in striking the plea in abatement, all subsequent proceedings in the trial were nugatory, and that the second bill of exceptions should be dismissed as having been prematurely brought. In my opinion, nothing is better settled than that where a plea in abatement which would entirely bar a recovery has been filed, the issue therein raised must be legally determined before there can be an adjudication upon the merits of the case, unless, under the peculiar circumstances of the particular case, the plea in bar and the issue upon the merits can legally be tried together.

¶2In a ease such as the one before us this court can not know what would have been the result if the issue formed by the plea in abatement had been tried. If upon the plea in abatement the defendant had prevailed, the result would have been that the suit would have ended. Since we can not know what the result may be in the hearing which we now order upon the plea in abatement, we should not, in my opinion, prejudge, and perhaps prejudice, the rights of the plaintiffs in error in the second bill of exceptions, by denying to them what I consider they were legally entitled to—a trial upon the merits after a legal adjudication upon the plea which we hold should have been submitted to a jury.

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