Blount v. Radford

Broyles, J.

1. A bona fide holder of a promissory note for a consideration, before maturity, is protected from any defenses that can be set up by the maker, acceptor, or indorser, save a plea of non est factum, gambling, or immoral and illegal consideration, or fraud in its procurement. Civil Code, § 4286; Farmers and Traders Bank v. Eubanks, 2 Ga. App. 839 ( 59 S. E. 193 ). This being true, the trial court did not err in striking the 4th paragraph of the defendant’s answer, which pleaded other defenses.

2. An oral motion to strike a plea can be made at any time before the verdict, if the motion is in the nature of a general demurrer. Kelly v. Strouse, 116 Ga. 872 ( 43 S. E. 280 ); Cooney v. Sweat, 133 Ga. 511 ( 66 S. E. 257 , 25 L. R. A. (N. S.) 75). In this case the oral motion to strike the plea, or as much of it as was contained in paragraph 4 of the answer, was in the nature of a general demurrer, the ground of the motion being that it set up no defense whatever as against the plaintiff’s petition; and consequently, although the motion was not made until the trial term, the court did not err in striking the plea.

*96 Decided March 18, 1915. Complaint; from city court of 'Waynesboro — Judge Davis. June 17, 1914. H. J. Fullbright, for plaintiff in error. Brinson & Hatcher, contra.

3. A promissory note which is the basis of a suit need not have its execution proved, where no plea of non est factum has been filed. Civil Code, § 4295; Neal v. Gray, 124 Ga. 510 (4), 515 ( 52 S. E. 622 ); Howard Piano Co. v. Glover, 7 Ga. App. 548 ( 67 S. E. 277 ); Gray v. Oglesby, 9 Ga. App. 356 ( 71 S. E. 605 ).

4. The evidence authorized the verdict, and there was no error in the overruling of the motion for a new trial. Judgment affirmed.