Opinion
7 Div. 275.
April 5, 1927.
Appeal from Circuit Court, De Kalb County; H. T. Bailey, Judge.
Action on a promissory note by Mrs. O. A. Haralson against I. D. Vaughn, W. W. Vaughn, J. B. White, and J. A. Newsome. From a judgment in favor of defendants White and Newsome, plaintiff appeals. Reversed and remanded. Plea 3, interposed by defendants White and Newsome, is as follows: "(3) That the two defendants above named are sureties upon the note sued on in this case for I. D. Vaughn, the principal on said note, and that before the bringing of this suit these two defendants gave written notice to I. M. Presley, attorney for the plaintiff, who at that time represented the plaintiff as attorney for the collection of the note sued on, to bring suit then and against the principal debtor, and that suit pursuant to said notice was not brought thereafter to the first session of the court to which said suit could be brought after the receipt of said notice, and these defendants claim discharge from said note for said reason.
Baker Baker, of Ft. Payne, for appellant.
There was a total failure of proof as to plea 3, and the affirmative charge for plaintiff as to all defendants should have been given. Plaintiff's motion for new trial should have been granted. Code 1923, § 9543.
Chas. J. Scott and John B. Isbell, both of Ft. Payne, for appellees.
Notice to the attorney was notice to the owner of the note. 6 C. J. 638.
Appellant sued appellees on a promissory note, with waiver of exemption clause. She had judgment against appellees I. D. Vaughn and W. W. Vaughn, which judgment will stand affirmed. Judgment was rendered in favor of appellees J. B. White and J. A. Newsome, and against appellant for the costs. From this latter judgment this appeal is prosecuted. We pretermit a determination of the question whether or not plea 3, filed by appellees White and Newsome, was sufficient as against appellant's demurrers, for the reason that the evidence did not, in our opinion, bear same out. We find a total failure of competent proof of the fact that the appellees last named signed the note in question as sureties, rather than as comakers. Likewise the evidence in no sufficient way bears out the allegation that notice was served on appellant's attorney regarding the particular note here sued on. From a consideration of the whole evidence we are driven to the conclusion that the verdict was wrong and unjust, and that the trial court erred in overruling appellant's motion for a new trial. For this action, the judgment appealed from is reversed, and the cause remanded.
Reversed and remanded.