Henry v. Hill , 84 Ga. 283 ( 1890 )

Simmons, Justice.

The facts of this ease will be found in the official report. TJnder those facts, we think the court was right in refusing the motion to nonsuit, and in charging the jury that the judgments were valid. Two of the defendants, when sued upon the note, filed no plea. The other two filed a loose sort of plea which they called a plea of plene administravit. This plea was not sworn to by these two defendants. The plaintiff in the action seemed to have waived that requirement. The defendants went to the jury upon that plea, and the jury found against them. The judge awarded judgment against the other two defendants who filed no plea. The counsel for the plaintiff entered up judgment against the two defendants who filed the plea. Both judgments were put upon the minutes. It is now claimed by them that the judgment is illegal because the plea upon which they went to the jury was not sworn to as required by law, and therefore the judgment entered up against them by counsel is illegal. We do not think, under the facts disclosed by this record, that they should be allowed to make that question. By filing their plea, and the- plaintiff’s waiver of it being sworn to, they went before the jury and got the benefits of a jury triad, all that they could have gotten if the plea had really been sworn to. The jury found against them, and we think they were estopped, when these judgments were offered in evidence in a suit upon their bond, from setting up that the judgments are illegal because the case ought not to have gone before the jury on account of their own plea not being sworn to. By their own act they obtained a jury trial, and they ought not to be allowed now to say that the trial brought about thereby was illegal. Nor do we think that the two defendants who filed no plea can complain. They were in court and made no objection on account of the plea not being sworn to. They stood by and saw the case tried by the jury, and we do not think they can now say that the j udgment against their eodefendants is illegal because the plea was not. sworn to. We agree, therefore, with the court below that the judgments are not void. The most that can be said about them is that they are simply irregular. For a case somewhat in point see Merritt v. Bagwell, 70 Ga. 578. It being a mere irregularity, even the sureties on the bond could not take any advantage of the point, especially as no separate motion for nonsuit was made by them.

Judgment affirm,ed.