Opinion
41434.
ARGUED JULY 8, 1965.
DECIDED SEPTEMBER 13, 1965.
Action on draft. Augusta Municipal Court. Before Judge Mixon.
George W. Fryhofer, for plaintiff in error.
Thurmond, Hester, Jolles McElmurray, Thomas R. Burnside, Jr., contra.
1. The motion to dismiss the writ of error is denied and service of the bill of exceptions upon the party not served has been ordered by this court.
2. In this action by an accommodation indorser of a draft drawn by the Bank of Sardis, to recover of the drawer bank on an implied promise to pay, upon motion for a summary judgment against the bank, the defendant did not produce a sufficient affidavit, made upon personal knowledge of the affiant, to place the burden upon the plaintiff to prove that another bank which cashed the check, and to which the plaintiff made payment as accommodation indorser, was not a bona fide holder in due course. The facts shown demanded the finding by the court that the plaintiff was subrogated to the rights of the bona fide holder and he was entitled to recover the amount of the draft from the Bank of Sardis and the granting of a summary judgment was correct.
ARGUED JULY 8, 1965 — DECIDED SEPTEMBER 13, 1965.
Neil Sanders sued W. F. Rivers and the Bank of Sardis alleging that on the 14th day of December, 1963, the Bank of Sardis issued its draft on the First National Bank of Atlanta, payable to the order of W. F. Rivers in the amount of $2,195; that the draft was indorsed by the payee, W. F. Rivers, and by petitioner as a courtesy to W. F. Rivers, and was presented for payment at the Carolina Commercial Bank in Allendale, S.C.; that the Carolina Commercial Bank paid W. F. Rivers in payment of the check and that upon presentation to it the First National Bank of Atlanta, on December 18, 1963, refused to honor it because the Bank of Sardis stopped payment on it without notice to W. F. Rivers or to petitioner; that after petitioner paid the Carolina Commercial Bank the amount of the check demand was made upon the defendants for the amount so paid and the demands were refused. The action was in default as to W. F. Rivers. The Bank of Sardis answered. It denied liability and alleged that the issuance of the draft was procured by the fraudulent misrepresentation of defendant W. F. Rivers and Neil Sanders, acting jointly "in concert and conspiracy" in that said draft was issued in exchange for a personal check drawn on the Bank of Sardis by one of its depositors which had been stolen from said depositor. Upon the death of Neil Sanders, his executor was made a party in his stead. The plaintiff made a motion for a summary judgment which was supported by an affidavit of the president of the Carolina Commercial Bank. The Bank of Sardis opposed the motion for summary judgment by way of an affidavit of a deposition of the Bank of Sardis, James F. Buxton. The court granted the motion for summary judgment for the amount of the draft and costs and the Bank of Sardis excepted.
1. The motion to dismiss the writ of error is denied. Under Code § 6-1202 as amended, where one party has been duly brought within the jurisdiction of this court, this court will require service upon the other defendant who has not been served with a copy of the bill of exceptions and has not waived service. Moon v. Moon, 105 Ga. App. 597 ( 125 S.E.2d 560).
2. This action is not by the plaintiff as transferee of the instrument but is one based on the implied promise of the maker to pay the accommodation indorser upon the maker's failure or refusal to pay where the accommodation indorser discharges the instrument by payment. The affidavit of the President of the Carolina Commercial Bank, in support of the motion for summary judgment, shows prima facie that the Carolina Commercial Bank was a bona fide holder for value without notice of any infirmities in the instrument and that prima facie the plaintiff is subrogated to its rights. Lamis v. Callianos, 57 Ga. App. 238 ( 194 S.E. 923); Stevens v. Green, 42 Ga. App. 512 ( 156 S.E. 626); Carl S. Strickland Co. v. Union Banking Co., 42 Ga. App. 645 (5) ( 157 S.E. 115). Assuming but not deciding that the defense set forth was good as against the obligation of the Bank of Sardis to pay under the circumstances of this case, bearing in mind that the check which is the basis of this action is not the one given the Bank of Sardis but one issued by it, the affidavit of the drawer of the check by the customer of the Bank of Sardis, for which the Bank of Sardis gave its check on the First National Bank of Atlanta, does not show that it was made upon personal knowledge of the affiant and is therefore insufficient to establish the facts sought to be proved. His affidavit shows: "1. That the consideration for the issuance of the draft referred to in paragraph Two (2) of the petition was a check drawn by Buxton's Supermarket, James F. Buxton, on Bank of Sardis in the amount of $2,195.00 payable to cash and endorsed on the back Jean Blankenship and W. F. Rivers. 2. That said check, while it carried the genuine signature of James F. Buxton, was stolen from James F. Buxton by Jean Blankenship and W. F. Rivers and the Payee and amount filled in by Jean Blankenship and W. F. Rivers. 3. That the time W. F. Rivers presented said check at the Bank of Sardis and obtained said draft, W. F. Rivers stated to Lovett Bargeron, Cashier, that the check had been given by James F. Buxton in payment for a 1959 Cadillac automobile." The affidavit of the depositor of the Bank of Sardis, James F. Buxton, does not show that the facts stated therein were made on the personal knowledge of James F. Buxton, either as to the theft of the check or the misrepresentations to the Bank of Sardis, and the affidavit is insufficient to establish the defense by the Bank of Sardis and to place the burden of proof or of proceeding with the evidence upon the plaintiff herein. In the absence of evidence to destroy the prima facie presumption that the Carolina Commercial Bank was a bona fide holder in due course, the burden was not shifted to the plaintiff. "Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Code Ann. § 110-1205 (Ga. L. 1959, pp. 234, 235). Thus, the following authorities cited by the Bank of Sardis are not applicable: Silver v. Sellers, 59 Ga. App. 690 ( 2 S.E.2d 216); First Nat. Bank of Sandersville v. Moore, 37 Ga. App. 698 ( 141 S.E. 502); Carnation v. Pridgen, 84 Ga. App. 768 ( 67 S.E.2d 485).
The court did not err in granting the summary judgment.
Judgment affirmed. Jordan and Deen, JJ., concur.