1. A judgment against a defendant is not subject to be set aside on the ground that the petition failed to set out a cause of action where the defect which rendered the petition insufficient to set out a cause of action could have been cured by amendment. An amendable defect in a petition is cured by verdict.
2. A petition in a suit on a note against the maker, by a person other than the payee of the note, in which it is alleged that the note was delivered by the payee to another, and through a number of successive assignees was delivered to the plaintiff, but in which it does not appear that the note was ever transferred by indorsement by either the payee, or by any of the assignees, or that any of the assignees or the plaintiff had paid anything of value for the note, is subject to amendment curing any of those defects, thereby establishing by allegation in the petition a right and title to the note in the plaintiff. A verdict and judgment rendered for the plaintiff on such a petition unamended was not subject to be set aside on the ground that the petition by reason of such defects failed to set out a cause of action.
It appears from the motion that the alleged defect in the petition in the suit on the note was that the plaintiff, Georgia Securities Company, had no title to the note by reason of it not appearing that the note, although it had come into the possession of the plaintiff by delivery by the payee, had been indorsed by the payee, or the successive transferees, to the plaintiff, and that therefore the petition failed to set out a cause of action against the maker of the note, and for that reason the judgment rendered for the plaintiff was void and subject to be set aside on motion.
If the alleged defect in the petition was one which was amendable such defect was cured by verdict, and the judgment was not subject to be set aside by reason of such defect. Rollins v. Personal Finance Co., 49 Ga. App. 365 (175 S.E. 609);Watkins Co. v. Herring, 51 Ga. App. 396 (180 S.E. 525). Although it did not appear either from the note attached to the petition or from the allegations of the petition, that there had ever been any transfer of the legal title by indorsement to the plaintiff, the petition was *Page 184 subject to amendment alleging that the note in fact had been indorsed by the payee, and by the successive transferees to the plaintiff. The petition was also subject to an amendment alleging that each successive transferee of the note had paid value therefor and that the plaintiff had acquired the note for value. Under the Code, § 14-420, such allegation alleged a right and title in the plaintiff to maintain the suit. Bright v. AutoFinance Loan Co., 52 Ga. App. 841 (184 S.E. 786). While it appears that the note was executed March 21, 1921, which was before the enactment of the negotiable instruments law in 1924, this section of the law would be applicable to any transfer of the note without indorsement made after the passage of the act in 1924. While the petition in the suit on the note was silent as to when the successive deliveries and transfers of the note were made by the payee and the successive transferees, all of these transactions could have transpired after the enactment of the negotiable instruments law. It is possible therefore that the petition could have been amended by alleging that such transfers took place after 1924 and that each one was made for value.
The defect in the petition which is alleged in the motion to set aside the judgment as ground for setting it aside was an amendable defect and could have been corrected by amendment. Such defect was cured by verdict. Rollins v. Personal Finance Co.,49 Ga. App. 365 (175 S.E. 609); Watkins Co. v. Herring,51 Ga. App. 396 (180 S.E. 525). The court erred in overruling the demurrer to the motion to set aside the judgment.
Judgment reversed. Sutton, J., concurs. Felton, J.,dissents.