This was an action on a promissory note, dated before June, 1865, originally brought in the name of “William H. Brewer, agent.” Plaintiff amended his declaration, by inserting, after the word agent, the following words: “for Kapp & Daun, who sue for the use of Jacob Kapp, a citizen of the State of New York.”
After the amendment had been allowed, defendant moved to dismiss the action on the ground that the tax affidavit required by the Act of 1870 had not been filed. Defendant proved by a witness introduced, that Kapp left the State in 1863; that he had seen him since the war in New York; that Daun, one of the firm of Kapp & Daun, lived, and had lived all the while in Atlanta, Georgia. Whereupon, the Court dismissed the case without referring it to a jury. No objection was made by the plaintiff, at the time, to the Court’s passing upon the question as to whether the case was such an one as required the tax affidavit to be filed. No proof was made that the paper belonged to Kapp, or that the partnership had been dissolved. The plaintiff excepted to the ruling of the Court on two grounds: 1st. Because the Court erred in determining to hear and pass judgment on the question presentéd by the motion to dismiss, and the evidence introduced in support thereof. 2d. Because the Court erred in dismissing the case at all.
If the plaintiff desired a jury, he could have obtained one by asking for it. If allegations in the declaration are held as a sufficient substitute, without proof of their truth, for the affidavit required by the Act, the law is nugatory.
We affirm the judgment.