Henry v. Hemingway
Henry v. Hemingway
Opinion of the Court
This is the second appearance of this case in this court; the facts are set forth in our first opinion, Henry v. Moister, 155 Ga. App. 462 (271 SE2d 40) (1980). In that opinion we held that Twiggs, assignee of the note in question, was an indispensable party to the case; therefore, we reversed and remanded for a new trial on condition that Moister (plaintiff-appellee) move to join Twiggs as the party plaintiff. Moister so moved; Twiggs now being deceased, Hemingway, executor of Twiggs’ estafé, was joined as a party plaintiff. Both sides stipulated that the record and transcript of the first trial would constitute the record and transcript in the instant case; the trial court issued a pre-trial order including a statement that in the absence of new and unusual evidence, the court would rule the same way at the second trial as it did at the first. The trial court again directed a
1. On November 2, 1979, nine months after appellants filed their answer, the trial judge held a pre-trial conference. During the conference the trial judge ruled that a defense of setoff would be excluded at trial because it was raised for the first time at the conference, and was based on claims which arose before the note was executed. At the conclusion of the conference (2:40 p.m.), the trial judge directed appellee Moister’s counsel to prepare a written pretrial order. The order was signed in less than an hour, and stated that it was entered “as of 2:40 p. m., November 2, 1979,” the time the pre-trial conference ended. Immediately upon conclusion of the pre-trial conference, appellants’ counsel submitted to the court a handwritten amendment to their answer, adding the defense of setoff. The court issued a written order disallowing the amendment on the ground that it was proffered after the court entered a pre-trial order “but before said Order was reduced to writing.” The order also provided: “The plea of setoff or any reference to the same had not been made during the other proceedings in this case, and nowhere appears in the pleadings prior to this purported amendment. Therefore, the amendment is not allowed.” Appellants contend that disallowance of their amendment was error, as it was proffered prior to entry of the pre-trial order.
Code Ann. § 81A-115 (a) provides, in pertinent part: “A party may amend his pleading as a matter of course and without leave of court at any time before the entry of a pre-trial order. Thereafter the party may amend his pleading only by leave of court. . . and leave shall be freely given when justice so requires ...” Since the order stated that it was entered as of 2:40 p.m., the exact time the pre-trial conference ended, it was entered prior to the time the amendment was proffered by appellants. Further, the written order denying leave to amend stated that the amendment was proffered after the order had been entered. Thus, the decision of whether to allow the amendment was discretionary with the trial court, and we find no abuse of discretion. Marshall v. Fulton Nat. Bank, 152 Ga. App. 121, 123 (2) (262 SE2d 448) (1979) (reversed on other grounds, 245 Ga. 745).
2. a. In Enumeration 4 appellants contend the trial court erred by refusing to allow testimony by the original payee and one of the makers as to whether interest was due and payable on the note, and if so, when it was due.
Bentley, the original payee of the nonnegotiable note, testified that no interest was due on the note prior to his personal bankruptcy in 1976; the trial court struck this testimony. Thereafter, appellants sought to introduce testimony of one of the makers of the note that no
b. In Enumerations 2 and 3 appellants contend the trial court erred by excluding testimony as to failure of consideration and failure to perform a condition precedent. In regard to failure of consideration, the trial court did not exclude testimony on this issue. On the contrary, the court stated specifically that such testimony would be permitted. This court cannot consider factual representations in a brief which do not appear in the record. Coweta Bonding Co. v. Carter, 230 Ga. 585, 586 (1) (198 SE2d 281) (1973); Gray v. State, 156 Ga. App. 117, 119 (3) (274 SE2d 115) (1980).
As to the exclusion of testimony relating to failure to perform a condition precedent, no offer of proof on this issue was made by appellants. Hence, Enumeration 2 is insufficient to raise any question for determination by this court. Barfield v. Aiken, 209 Ga. 483, 484 (6) (74 SE2d 100) (1953). While appellees’ evidence concerning performance of the condition precedent appeared more than adequate; nevertheless, appellants have the right to rebut such evidence, and testimony on this issue should be permitted by them on retrial.
3. Enumeration 5, complaining of the failure to direct a verdict for appellants, is without merit.
In view of the conflict existing as to interest due on the note, it
Judgment reversed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.