Small v. Cohen

Cobb, J. Small brought suit against Cohen for damages, and upon the trial a nonsuit was awarded. The averments of the petition and the evidence offered in support thereof are set forth in substance in the official report. 1. There was evidence sufficient to.. have established the cause of action set forth in the plaintiff’s declaration; but from this evidence it clearly appeared that the suit had not been brought within four years from the time the right of action accrued. The plaintiff, therefore, having proved his cause of action, and having proved also that the suit was not brought within time, it was the right of the defendant to take advantage of this and defeat the suit. 2. While there was evidence tending to show that the plaintiff had never purchased or owned the note which was involved in the suit, such evidence was inconsistent with the allegations of the petition. The cause of action set forth was for a breach of a covenant of warranty in the sale of a note, and the evidence referred to tended to show a case of damages by fraud and deceit on the part of the defendant, in which the note was used as an instrument to carry out the fraud. Such evidence, not supporting the allegations, could not be looked to to keep the case in court, but would rather be a sufficient ground for the dismissal of the same on account of the variance. 3. The proper method of taking advantage of the defense of the statute of limitations is by a special plea in bar. . It is true that it has been held, that where it appears upon the face of [254] the declaration that the cause of action is barred by the statute of limitations, such defense may be raised by demurrer. Colding v. Williamson, 71 Ga. 89; Holston Company v. Harris, 73 Ga. 113. It has never been held, however, in this State, that this defense can be taken advantage of in any other way. Upon objection made at the proper time, the trial court would have no right to grant a nonsuit upon the ground that the evidence showed that the cause of action was barred. This defense must be set up either by plea or demurrer. While it ivas error in the court, therefore, to have awarded a nonsuit on the ground that the plaintiff's cause of action was barred by the statute of limitations, as the plaintiff did not in the trial court object to the nonsuit on this ground, and there is no distinct assignment of error in the bill of exceptions complaining of this, and as the plaintiff did not in his brief or argument here raise the question, the judgment of the trial court in granting the nonsuit will not be disturbed, the result reached on the trial being substantially correct. Judgment affirmed. All the Justices concurring.