Carlton v. White

Atkinson, Justice. 1. In so far as concerns the error upon the direction of the verdict allowing counsel fees in this case, the questions made in the present record are controlled by the decision of this court in the case of Butler v. Mutual etc. Investment Company, 94 Ga. 563. Upon that question the facts in the case above referred to are identical with those which appear in the present record. 2. In the case of Mayer v. Thomas, reported in 97 Ga. 772, it was held that an accommodation maker of a promissory note was not entitled, upon non-payment at maturity, to have the same protested for non-payment, and to receive notice thereof, such as is required to be given an indorser under the provisions of our code. The principle ruled in that ease rules this, and no further discussion of that question is necessary or would be profitable. 3. Under section 2165 of the code, if one sued as a principal claim to be a surety only, and the fact of suretyship 388 does not appear on the face of the contract, this fact may be proved by parol as against the real principal, and the true status of the alleged suretyship defined in the judgment, provided, before judgment, the surety shall give notice to the principal of his intention to make such proof. In order, however, for one to avail himself of the provisions of this statute, he must plead and prove his suretyship. The records of the court stand as a memorial of its judgments, and it is therefore essential that when one seeks affirmative relief from a court, his pleadings should be so moulded as to authorize the rendition of a judgment in his favor. Courts are not authorized to grant relief where none is prayed, and therefore an omission to ask relief is equivalent to an admission that none is desired. Under the plea filed in the present cake, the real relation of the apparent principal of the paper to the indorser was that of surety only, and as between these two, upon proper pleadings,' he would have been entitled to have had the verdict so moulded. The notice required by the statute is necessary to enable him to offer parol evidence of the fact upon which the relief allowed is granted, but without the pleadings to support it, the evidence would not be admissible, even though the notice had been given. It therefore follows that, in the absence of a prayer in the plea asking for independent affirmative relief, the court did not err in the rendition of its judgment, notwithstanding the fact that the alleged principal was a surety only; and it is clear from what we have heretofore said, that no error was committed in overruling the defendant’s motion for a new trial. Judgment affivmed.