Staton v. Exchange Bank

Russell, C. J. 1. When the superior court refuses to dismiss an appeal, the case, of course, remains in court; and though, on writ of error, the judgment refusing to dismiss the appeal be reversed, the ease remains in the superior court until the remittitur has been made the judgment of that court. Consequently, before the judgment upon the remittitur is made the judgment of the superior court, an amendment, to cure any defect in the pleadings or proceedings, may be offered in that court; and the court, in allowing the filing of additional proceedings, may hear such preliminary proof as is requisite for tjiat purpose. In the present ease there was no error in allowing aliunde proof of the fact that the appeal was in fact filed within four days. Staton v. Exchange Bank, 14 Ga. App. 7 (80 S. E. 23). 2. On the trial of the issue made by a counter-affidavit to the foreclosure of a mortgage contained in a promissory note, payable to a bank, an indorser upon the note, who in the event of failure to collect the debt by foreclosure of the mortgage would remain liable on the note, was disqualified from testifying to any transactions or communications which were had with the deceased president of the bank with reference to the payment of the note. Judgment affirmed. Roan, J., absent. Harris & Harris, for plaintiff in error, cited: Staton v. Exchange Bank, 14 Ga. App. 7; Central R. Co. v. Paterson, 87 Ga. 646; Civil Code of 1910, § 5858 (3); Hidell v. Dwinell, 89 Ga. 532 (2). Lipscomb & Willingham, Nathan Harris, contra, cited: As to the amendment: Sullivan v. Rome R. Co., 28 Ga. 29; King v. King, 45 Ga. 195; Thurmond v. Clark, 47 Ga. 500; Savannah &c. Ry. Co. v. Chaney, 102 Ga. 814; Charleston &c. Ry. Co. v. Miller, 115 Ga. 9; City of Rome v. Sudduth, 121 Ga. 420; Rome Furnace Co. v. Patterson, 122 Ga. 776; Rice v. Ware, 3 Ga. App. 573; Central R. Co. v. Paterson, supra; Wynne v. Alford, 29 Ga. 694. As to the excluded testimony: Civil Code, 5858 (3); Acts 1900, p. 57; Daniel v. Burts, 72 Ga. 143; Parish v. Weed Co., 79 Ga. 682; Crawford v. Parker, 96 Ga. 156 (1); Clements v. Western Lodge, 101 Ga. 63; Johnston v. Coney, 120 Ga. 767 (2); Skeen v. Moore, 120 Ga. 1057; Williams v. Empire Ins. Co., 8 Ga. App. 310; Horton v. Smith, 115 Ga. 66; Parker v. Ballard, 123 Ga. 441; Turner v. Woodward, 136 Ga. 277; Wilkes v. Groover, 138 Ga. 408; Wilder v. Wilder, 138 Ga. 574.