Citizens Bank v. Todd , 151 Ga. 475 ( 1921 )

Hill, J.

(After stating the foregoing facts.)

1. The certificate of the trial judge to the amending grounds of the motion for new trial was in the following language: “The above and foregoing grounds for amended motion for new trial read and allowed. Ordered filed as part of the record in said case.” No motion was made here to exclude the amended grounds of the motion from consideration because of the failure of the judge to approve them. But it is argued in the brief of the defendants in error that the amended grounds of the motion for new trial should not be considered, because they were not approved by the trial judge. They base their argument on the eases of Long v. Scanlon, 105 Ga. 424 (31 S. E. 436); Merritt v. Merritt, 113 Ga. 569 (3) (38 S. E. 973). In those cases it was held that .where the trial judge had simply “allowed” the amended motion for new trial, the word “ allowed ” was not equivalent to an approval of the amended grounds of the motion for new trial. Section 3 of the act of 1911 (Acts 1911, p. 150) provides that “Where the judge has finally passed on the merits of a motion for a new trial and the parties have raised no question as to the sufficiency of the approval of the grounds of such motion, . . no question as to these matters shall be entertained by the reviewing court, unless first raised and insisted on before the trial judge.” It appears from the record that the judge passed upon the merits of the grounds of the amended motion for a new trial. It does not appear from the record that any question as to the sufficiency of the approval of the amending grounds was raised and insisted upon before the trial judge. The act of 1911, supra, is therefore controlling, and we can not refuse to consider the amended motion for new trial, as insisted. The question here involved differs from that class of cases where it is held that the certificate of the judge amounts to a disapproval of the grounds of the motion for new trial. See Mims v. Mims, 151 Ga. 330 (106 S. E. 279).

2. Under the foregoing statement of facts the court did not err in overruling the demurrer to the petition. Properly construed, the petition sets out such a cause of action as is relievabJe in a court of equity. If it is true as allege'd (and it must be so taken on demurrer), the plaintiffs owed a note at the bank, and the bank agreed to accept another note executed by other persons in lieu of the original note and in settlement of it, except the interest, which was also settled, according to the allegations, by the acceptance of an order on a third person in payment of the interest; and if, after having accepted the note and the order, the bank sued upon the original note for the full amount, which is alleged to have been paid except the interest, and pending the suit the attorney and agents of the bank accepted the order in payment of the interest and agreed in open court to pass the case until the next term in order to perfect such settlement, then, if subsequently the bank took judgment against the plaintiffs for the full amount of the first note with interest, and execution was issued thereon without notice to the plaintiffs, who had relied in good faith upon the promise of the bank and its officials that the whole indebtedness had been settled and paid, such action on the part of the bank and its officials would be such a fraud upon the plaintiffs as would be relievable in a court of equity. This being so, the court did not err in overruling the demurrer to the petition.

3. The amended motion for new trial .complains of certain charges of the court and failure and refusal to charge. While there are some inaccuracies in the charge involving the question of usury, nevertheless the court did submit to the jury with substantial correctness the question as to whether the verdict was based on fraud. The question of usury should not have been injected into the case. The question as presented by the pleadings was whether the verdict should be set aside for fraud; the question as to usury was not properly before the jury, and the verdict will be construed as merely setting aside the other verdict which is attacked in this case on the ground of fraud. This is so because some of the plaintiffs to this case did not set up that plea, and the finding in the present ease is a finding in favor of all the parties plaintiff.

4. Certain grounds of the amended motion for new trial complain that the court erred in admitting certain evidence over defendants’ objection; but it does not affirmatively appear what objection, if any, was made to the admissibility of the evidence on the trial of the ease in the court below. The assignments are merely in the form of stating certain facts in connection therewith, and therefore are not such assignments of error as can be considered by this court.

5. The other assignments of error are without merit.

i 6. The verdict is supported by evidence, and the eourt did not err in overruling the motion for new trial. .

Judgment affirmed.

All the Justices concur.