DYE v. RICHARDS., 210 Ga. 601, 81 S.E.2.d 820 (1954)
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Certiorari to Court of Appeals. 89 Ga. App. 376.
Summary
Certiorari to Court of Appeals. 89 Ga. App. 376.
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O. W. Roberts, Jr., contra.Shirley C. Boykin, Boykin & Boykin, for plaintiff in error.
1. Where a wife signs a note as an apparent principal, the burden is on her to prove her plea that she signed as a surety only, and that the payee of the note, with knowledge of the facts which constitute her a surety, contracted with her as a surety. Such a plea of suretyship is not sustained where it appears that the lender delivered the consideration for the note, both legally and morally, to the husband and wife jointly without division. In such a case the writing is to be regarded as the true contract, and it is not void or voidable because of some secret understanding between the wife and the husband, unknown to the lender.
2. Where a wife's plea of suretyship is not sustained by any competent evidence, and the court directs a verdict against her, the case will not be reversed because the court may have erred in a pendente lite filing which does not affect the only substantial issue in the case.
Roy Richards, as transferee, filed a suit on a note against Mrs. Beatrice F. Dye in the City Court of Carrollton. From the record it appears that the note was signed by Mrs. Dye, James E. Dye, her husband, and the plaintiff, in the order named, and was payable to West Georgia National Bank. On the trial in the city court, at the conclusion of the evidence, the judge directed a verdict for the plaintiff. On certiorari, the judge of the superior court reversed this judgment; the Court of Appeals, on writ of error, reversed the judgment of the superior court, and this court granted certiorari.
The two substantial issues considered and passed upon by the Court of Appeals here, first, whether the trial judge erred in directing a verdict for the plaintiff on the evidence introduced; and second, whether the trial judge erred in allowing an amendment of the plaintiff, which the defendant contended was erroneously allowed under a previous ruling of the judge of the superior court, unexcepted to, as the law of the case. See Richards v. Dye,
1. When the defendant by her answer admitted the execution of the note in the manner alleged, at a place where a principal would ordinarily sign, the law placed upon her the burden of establishing her plea of suretyship. This rule was succinctly stated by Judge MacIntyre for the Court of Appeals in Lovelady v. Moss,
The Code sections cited specifically prohibit the opposite party from testifying in his own favor as to transactions or communications with a deceased party, or the deceased agent of a party. The defendant's conversation with the deceased agent of the bank--being incompetent and inadmissible--would have no more probative value than hearsay evidence. Hearsay evidence, although admitted without objection, is "without probative value and insufficient to prove anything." Poole v. Duncan,
2. Whether or not the amendment offered by the plaintiff and allowed by the judge of the city court should have been rejected, based on a prior ruling, unexcepted to, by the judge of the superior court, as the law of the case--its allowance does not require a reversal of the judgment. The burden was on the defendant to establish her plea of suretyship by competent evidence. As stated in the brief of counsel for the defendant, the "plea of suretyship was the only issue in the case." The judgment of the court, being correct on this issue, will not be reversed on a pendente lite ruling which in no wise affected the merits of the cause.
Whether or not the opinion of the Court of Appeals is in harmony with all that is said here, the judgment reached by that court is correct in result, and is therefore
Affirmed. All the Justices concur, except Sutton, J., who is disqualified.
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