Bull v. Edward Thompson Co.

Simmons, C. J. 1. The mere failure of a plaintiff to produce writings in response to a notice served under section 3509 of the code does not entitle the defendant to a judgment as in ease of nonsuit. There must first be an order of court requiring the party notified to produce the papers, and a failure or refusal to comply therewith; and the court should not grant such an order when the defendant’s counsel refuses to state how the papers in question are material. Parish v. Weed Sewing Machine Company, 79 Ga. 682; Hamby Mines Limited v. Findley, 85 Ga. 431; Stiger v. Monroe, 97 Ga. 479. 2. There'was no error in refusing to dismiss an action pending on the appeal in the superior court from a justice’s court, on the ground that the promissory note sued upon, instead of a copy of the same, was attached to the original summons by which the action was begun. [135] June 8, 1896. By two Justices. Argued at the last term. Appeal. Before Judge Butt. Talbot superior court. March, term, 1895. C. J. Thornton, J. M. Mathews, Persons & Son, J. H. Worrill, and A. J. Perryman, for plaintiff in error. J. H. McGehee, contra. 3. In the trial of such an action there was no error in refusing to allow the defendant, who was the maker of the note, to testify to the contents of a lost written memorandum signed by himself, and handed to the plaintiff at the time 'the note was executed and delivered, it not being insisted that this memorandum constituted any part of the contract between the parties or was accepted by the plaintiff as such. Judgment affirmed,.