Fleming & Loflin v. Shepherd

Simmons, Justice. It appears from tlie record in this case that Fleming Loflin, for the use, etc., sued Shepherd on an open account. . The writ was served personally upon Shep,herd. No formal plea was filed, by the defendant at the appearance term. Shepherd’s counsel had his náme marked on the docket, and demanded a trial by jury for Shepherd. The account sued on had attached thereto an affidavit of its correctness, by Loflin, one of the plaintiffs. On the trial of the case, the plaintiffs tendered this affidavit in evidence as proof of the correctness of the account. It was obj ected to by the de [339] fendant, and the objection was sustained. The plaintiffs then tendered iu evidence the interrogatories of Fleming, which were objected to by the defendant, and the objection was overruled. The plaintiffs then closed the case. On motion of the defendant, the court granted a nonsuit. The plaintiffs filed their bill of exceptions, alleging that the court erred in not allowing them to read in evidence the affidavit of Loflin as to the correctness of the account, and in granting the nonsuit, (1) because the evidence was sufficient to authorize a verdict in their favor, and (2) because there was personal service of the writ and copy of the account, and (3) because no defence had been made by the defendant as contemplated by section 3457 of the code. The defendant filed his cross-bill of exceptions, alleging error in the court’s allowing the interrogatories of Fleming to be read to the jury, and insisting that the same was illegal and contrary to law, because the proof of the account was secondary, and hearsay on the part of Fleming. 1. Under the facts of this case as disclosed by the record, we think the court erred in granting this non-suit. After he had admitted the interrogatories of Fleming over objection of counsel for the defendant, we think that he should have submitted to the jury, under proper instructions, the question as to whether the answers to the interrogatories were sufficient to prove the correctness of the account. He should have left it for them to say, taking the whole answers together, whether Fleming testified to the correctness of the account from his personal knowledge, or simply from his knowledge of the books as he kept them. Upon an examination of the answers to the interrogatories, we find that Fleming, in his answer to the second interrogatory, testifies that the account is correct, and has not been paid; and in his answer to the cross-interrogatories, that the goods were sold by [340] Loflin and the employés, Savage, Newman and Reynolds ; and while he sold none of them himself, he had personal knowledge of the fact from being generally in and about the store and never hearing the correctness of the account disputed by the defendant, and that the defendant had been a customer of Fleming & Loflin prior to-' the making of this account. If the jury had believed that the witness swore to these facts from his personal knowledge, they would have been authorized to find for the plaintiff", especially as the defendant had filed no formal plea, but only had the name of his counsel marked on the docket, which, under previous rulings of this court, amounted to the plea of general issue. I think, however, that it is bad practice in any court to go into the trial of a case without requiring the pléadings to be reduced to writing. Written pleadings ought never to be dispensed with on the trial of any case in a' court of record. The plaintiff has as much right to know what defence the defendant will make as the defendant has to know the plaintiff’s ground of action. We think the court exued in granting a nonsuit in this case, under the facts as disclosed by the x-ecord. 2. There was no error in ruling out the affidavit of Loflin to the eox’reetness- of the account. We-know of no' law which allows a plaintiff to prove his accouxit by his-ex parte affidavit. It is allowed in justices’ court's, under special circumstances, by statute. 3. When the counsel’s name was marked on the docket for the defendant, which amounted to a filing of the plea of the general issue, that was a sufficiexxt defence, under the code, to put the .burdexx upon the plaintiffs of proving their acconxxt, although there had been personal service thereof. 4. The defendaxxt filed his cross-bill of exceptions, alleging that the court erred- ixx allowing the answers of Fleming to be read to the jury as evidence. We do [341] not think that this exception is well-taken. ' Some of the answers, or some portions of them, were certainly admissible. The defendant objected to the answers as a whole, and did not point out, nor undertake to point out to the court, the illegal parts thereof. Some parts being admissible, we will not reverse the trial judge for overruling the general objection to the answers as a whole. Fletcher v. Collier, 61 Ga. 653; Allen v. Brown, page 161 ante. ' The judgment of the court below is reversed as to the original bill of exceptions, and affirmed as to the cross-bill.