Kaiser & Bros. v. Brown

Atkinson, Justice. 1. "Whatever may have been the effect of the passage of the pleading act of 1893 upon, cases in default, the law is so well settled as to the practice prevailing in cases brought before its passage, that no discussion of the proposition announced in the first head-note supra is necessary. 2. The right of the superior court judges to render judgment without the intervention of a jury is limited to suits upon unconditional contracts in writing where no issuable defense is filed on oath. The contract of an endorser upon a promissory note or bill of exchange which is left at any bank or banker’s office for collection, is to pay upon nonpayment by the maker after protest and notice to him of such non-payment. This is a condition of liability, and hence, his liability not being absolute, he is not an unconditional promisor against whom, when sued alone without the maker, the court has jurisdiction, without the intervention of a jury, to enter a judgment; and this is true notwithstanding he makes no defense. The court having erroneously entered judgment without a verdict as its basis, it should have been set aside and a new-trial awarded. See Everett v. Westmoreland, 92 Ga. 670. Judgment reversed.