text:
    10700.
    GUY v. NATIONAL CITY BANK OF MEMPHIS.
    The advertising and prize scheme described in the defendant’s plea was not violative of law, and did not render illegal or immoral the eonsidertion of the notes sued on.
    Decided October 14, 1919.
    Complaint; from Marion superior court—Judge Howard. May 1, 1919.

      W. B. Short, George P. Munro, for plaintiff in error.

      John C. Butt, contra.
   Luke, J.

Mrs. Guy was sued, on notes executed by her, payable to Partin Manufacturing Company, and endorsed to the plaintiff. She pleaded as follows: “The notes sued on are based on an illegal and criminal transaction, for the same were taken by the Partin Manufacturing Company, the consideration being illegal, and such a contract being contrary to the laws of the State of Georgia. Defendant says that in December, 1918, she was’ the proprietor of a drug-store in Buena Yista, Georgia, known as the City Drug Store, conducted by her agents, and that she was engaged in selling drugs and various sundries usually found in a country drug-store, and doing an annual business of about $15,000; that she was approached by the Partin Manufacturing Company, who represented that they could increase the business of the said store from $15,000 per annum to at least $22,000 per annum, under an advertising scheme which was as follows: The Partin Manufacturing Company was to furnish defendant with such literature, stationery, etc., as was necessary to carry on its trade-boosting scheme. Defendant was to issue to each purchaser voting cards with each purchase made. Each purchaser was to receive one hundred votes for each one dollar purchase, one hundred votes were to be issued to each customer who paid one dollar on an account contracted after the campaign started. The advertising system was to continue for one year; at the end of such period the Partin Manufacturing Company was to furnish the successful winners of the prizes offered for the candidate who received the highest number of votes six prizes to be selected by the successful candidate, as follows: the candidate receiving the most votes would receive the winner’s chance, of an automobile, either a Palmer, Argo, Metz, Saxon, or five-passenger Ford, or five-passenger Emerson, according to the choice of the parties winning, the automobile being furnished to the winner by the Partin Manufacturing Company. The candidate who received the next highest number of trade votes was to be awarded by the Partin Manufacturing Company a grafanola, the third prize being a French ivory set, the fourth prize being a ladies’ gold fancy lavalliere and chain, the fifth prize a mahogany finished vacuum sweeper, sixth prize a three-piece carving set. Defendant says that the Partin Manufacturing Company was to send a representative who was to assist in getting candidates and helping to start the trade-boosting campaign. The candidates were to enlist their friends in making purchases at defendant’s store, so as to secure from defendant’s customers the trade balance issued to them, so that the candidates could use them in procuring the highest number of votes, which would enable them to win the prizes. Each candidate was to sell coupon books or trade cards which would be redeemable in merchandise at defendant’s store. For each one-dollar book or card a candidate sold, such candidate was to receive a thousand votes, and for each five-dollar card or book sold and remitted for, the candidate was to receive ten thousand votes. The customer was permitted to give his trade votes to any candidate for the various prizes, and to vote them for any candidate, or she or he might be a candidate. At the close of the campaign, when the final count was made, the person having the highest number of votes to his or her credit would be pronounced the winner of the automobile, the next in standing was to be awarded the second prize, and so on. The representative of the Partin Manufacturing Company was to induce as many persons as possible io compete for the prizes to be given'by the Partin Manufacturing Company. The advertising scheme of the Partin Manufacturing Company was to enlist the competition of as many candidates for the six prizes to bo given by them as possible, so that each and every candidate would be induced to work among their friends to patronize defendant’s store, and receive the trade balance awarded to each purchaser, in order that these balances might ho used by them when the prizes were distributed. By the method above described the Partin Manufacturing Company obligated and guaranteed that it would increase defendant’s sales from $15,000 to $22,000 per year. Defendant says that for the consideration above mentioned she gave the Partin Manufacturing Company the notes sued upon. Defendant says that after executing said notes she found that the advertising scheme of the Partin Manufacturing Company was illegal and contrary to the laws of Georgia, and that it was in violation of the criminal laws of said State as embodied in § 404 of the Criminal Code of said State. Defendant says that when she made this discovery she repudiated said contract. Defendant says that the contract between her and the Partin Manufacturing Company being illegal, that the notes sued upon are null and void, even though the plaintiff be an innocent purchaser of the same. Wherefore defendant prays judgment of the court in her behalf.” The court sustained a demurrer to the plea, and rendered judgment for the plaintiff.

No valid defence was set up by the plea, and it was not error to disallow it and render judgment for the plaintiff. See Tumlin v. Daniel Bros. Co., 141 Ga. 613 (81 S. E. 793). No such scheme was shown in the plea as would be violative of law and render the consideration illegal or immoral. See also Forbes Drug Co. v. Bernard Mfg. Co., 20 Ga. App. 270 (92 S. E. 1009).

Judgment affirmed.

Broyles, C. J., and Bloodworth, J., concur.


source: Caselaw Access Project

author: Broyles, C. J.

license: Public Domain

text:
    10701.
    WEAVER v. THE STATE.
    The rule requiring corroboration of the testimony of an accomplice does not apply to misdemeanor eases.
    Decided October 14, 1919.
    Accusation of larceny; from city court of Millen—Judge Dekle. June 2, 1919.

      A. S. Anderson, Earl V. Norman, for plaintiff in error.
   Broyles, C. J.

The only point argued in the brief of counsel for the plaintiff in error is that the defendant was illegally convicted because the only testimony connecting him with the offense charged was that of uncorroborated accomplices. The rule of law that the defendant in a criminal case can not legally be convicted upon the uncorroborated testimony of an accomplice (Penal Code, § 1017) does not apply to misdemeanor cases.

Judgment affirmed.

Lulce and Bloodworih, JJ., concur.


author: Bloodwobth, J.

text:
    10705.
    Cline v. The State.
    Decided October 14, 1919.
    Indictment for manufacture of intoxicating liquor; from Cherokee superior court—Judge Morris. May 10,1919.

      John S. Wood, for plaintiff in error.

      John T. Dorsey, solicitor-general, William, Butt, contra.
   Bloodwobth, J.

1. In the excerpts from the charge of which complaint is made we find no error.

2. The verdict is supported by some evidence, has the approval of the trial judge, and, under the law governing this court, the judgment must be

Affirmed.

Broyles, O. J., and Lithe, J., concur.


author: ^royles, C. J.

text:
    10875.
    Shale, trustee, v. Rourke, judge.
   ^royles, C. J.

1. It is the duty of counsel for the plaintiff in error to present to the presiding judge for his certificate a true bill of exceptions, and it is his further duty, where the judge refuses to certify the bill of exceptions tendered him but fails to give in writing his objections thereto, to request the judge to endorse upon the hill of exceptions his reasons for his refusal; and if the judge fails to do so, then the matter should be brought to the attention of this court. Coleman v. Johnson, 45 Ga. 317; Vason v. Gardner, 70 Ga. 517.

Decided October 14, 1919.

Application for mandamus.

F. A. Tuten, W. B. tflubbs, for petitioner.

2. Where the judge refuses to sign the bill of exceptions tendered him, and returns it to counsel for the plaintiff in error within ten days, without giving in writing the reasons for his refusal, but where he orally states them to counsel and he is not requested by counsel to put them in writing, and where further the judge, in conformity with the last provision of section 6158 of the Civil Code (1910), orders that notice be given to the opposite party of the fact and time of tendering the exceptions, and where the notice is given and a hearing is held, at which the judge again orally states his reasons for his refusal to certify the bill of exceptions, to wit, that it contains inaccurate and erroneous statements of the evidence, which are specifically pointed out by the judge, and where counsel for the plaintiff in error makes no effort to correct the bill of exceptions, but insists upon it being certified as tendered, the judge will not be required to sign the bill of exceptions.

Mandamus absolute denied.

Luke and Bloodworth, JJ., concur.


author: Rtepiiens, J.

text:
    10288.
    Jackson v. Chambers.
    Decided October 20, 1919.
    Action for damages; from city court of Carrollton—Judge Beall. December 10, 1918.
    The demurrer was on the ground that the suit “is based on torts, if any there be, arising both ex contractu and ex delicto.-” The petition alleges that the defendant has injured and damaged the plaintiff in the sum of $800, as shown by the facts set forth. According to the petition, the plaintiff was a cropper of the defendant for the year 1917, under a contract the terms of which are set out, and after the plaintiff had completed his work in the cultivation of the crop in compliance with the contract, the defendant, without cause, refused to allow him to complete the harvesting of the crop, and by threats of taking his life forced him to move from the premises and to accept in settlement of the amount due him by the defendant a stated sum which was much less than his share under the contract. A statement of the value of the crop, the cost of making it, and of deductions which should be made from its value, is given in the petition, showing a named sum to be due the plaintiff, and it is alleged that “the balance of the damages sued for, to wit $800.00, are made up on account of aggravated circumstances in said case.”
   Rtepiiens, J.

The petition in this case plainly sot out an action for damages sounding in tort, and the recital therein of a contract may be treated merely as showing the relationship of the parties. The court erred in sustaining the demurrer interposed and in dismissing the petition. Paine v. Watters, 9 Ga. App. 265 (70 S. E. 1114).

Judgment reversed.

Jenkins, P. J., and Smith, J., concur.

Emmett Smith, Buford Boykin, for plaintiff.

Leon Ilood,.II. 0. Strickland, for defendant.


author: Stephens, J.

text:
    10314.
    Higginbotham v. City of Rome.
    Decided October 20, 1919.
    Action for damages; from Floyd superior court—Judge Wright. January 9, 1919.
    The City of Rome was sued for damages on account of.the death of the plaintiff’s husband, alleged to have been caused by electricity when he came in contact with an uninsulated wire sagging over a pathway in the city. The plaintiff’s petition was dismissed on general demurrer. The petition alleges that this wire was a part of the line of the Rome Railway & Light Company, and had been strung on a glass knob attached to the cross-arm of a pole “erected on the west side of the Summerville road, about 30 or 40 feet on the south side of the Rome and Decatur Railroad trestle.” Immediately beneath the wire and about half way between the pole and the trestle was the pathway mentioned above. The pathway had been used by the public for a great number of years, and showed signs of considerable use, “all of which was known to the City of Rome, or by the exercise of ordinary [care] could have been ascertained, for the usage of said pathway was open, notorious, peaceable, and without restriction, and one Poole, who was then in the employment of the City of Rome, guarding its convicts, knew of the existence and usage of said pathway.” The insulation of the wire had worn off, and its unprotected condition had existed for several years. On September 8, 1916, the glass knob to which the wire was attached was struck and broken by a rock hurled against it by blasting conducted by the city,'and this caused the wire to sag to within four or five feet of the ground just over the pathway mentioned. The breaking of the knob and the sagging of the wire and its uninsulated condition were at once brought to the attention of Poole, the city’s guard or agent in charge of the blasting, and he requested a person not in the employment of the city to notify the Koine Railway & Light Company of the condition of the wire and to repair it. It remained in this condition until the plaintiff’s husband was killed; and the defendant knew that it was in this condition. The plaintiff’s husband started to his home some time after eleven o’clock at night on the same date from a store situated about a hundred yards from where he was killed, and, as had been his custom for years, “he started to go along the pathway aforesaid, and came in contact with said heavily charged non-insulated wire and was instantly killed.” It is alleged ■that the City of Rome was in charge, possession, and control of the tract of land where he was killed. “The defendant was engaged in widening and straightening the street, which was a public street of said city, at the place contiguous to where said Higginbotham was killed, and in order to widen said street it was necessary to remove the rock at the place where said Higginbotham was killed. When said Higginbotham was killed he was only a few feet from the public street as then in use. The defendant, in doing this work, was carrying out its avowed project of straightening said street.”
   Stephens, J.

The petition in this ease (a suit for damages for the negligent homicide of the plaintiff’s husband) sufficiently set forth a cause of action .against the City of Rome. The court erred in sustaining the demurrer and in dismissing the suit. The case of Zettler v. City of Atlanta, 66 Ga. 195, relied on by counsel for the city, is clearly distinguishable from this ease.

Judgment reversed.

Jenloins, P. J., and Smith, ./., concur.

The petition contains specific allegations of negligence of the city in allowing the wire to hang as close to the pathway as it did, and in the condition in which it was, and in not placing a guard at that point to prevent injury after having discovered that the breaking of the knob had caused the wire to sag. There are also allegations as to the age and earning capacity of the plaintiff’s husband, and as to notice of the claim, etc.

In the brief of counsel for the defendant it was contended that the city was under no duty as to the condition of the place at which the plaintiff’s husband was killed, and that he was at fault in leaving the public street and going at night on a path on private property which proved to be dangerous.

Harris & Harris, for plaintiff. Max Meyerhardt, for defendant,


text:
    10318.
    Byrd v. First National Bank of Reynolds.
    Decided October 20, 1919.
    Foreclosure of mortgage; from Taylor superior court—Judge Howard. November 16, 1919.

      C. W. Foy, for plaintiff in error.
   Stephens, J.

There was evidence to authorize the finding of the jury that the note sued on represented a debt of the defendant and not of her husband, and against the defendant’s plea of suretyship for her husband’s debt.

Judgment affirmed.

Jerilcins, P. J., and Smith, J., concur.


text:
    10330.
    Harrell v. Taylor.
    Decided October 20, 1919.
    Attachment; from city court of Bainbridge—Judge Spooner. January 4, 1919.

      Hartsfield & Conger, for plaintiff in error.

      W. V. Custer, contra.
   Stephens, J.

1. The alleged defect in the affidavit for attachment being one that may be cured by amendment, and no exception thereto having been taken in the court below, it can not be considered here.

2. There was some evidence to support the verdict, and the motion for a new trial being based on the general grounds only, the court did not err in overruling the motion.

Judgment affirmed.

Jerilcins, P. J., and Smith, J., concur.


author: Jenkins, P. J.

text:
    10342.
    Georgia Railway and Power Company v. Ryan et al. Southern Wood Preserving Company v. Ryan et al.

    10344.
   Jenkins, P. J.

This was an action by a passenger on a street-railway against two alleged joint tort-feasors. Petitioner shows that one of the defendants, the street-railway company, had, in order to permit her to alight, brought its car to a stop, not at the near side of the street intersection as required by the city ordinance, but had negligently carried its car a considerable stated distance over and beyond such designated place for stopping, and, in thus continuing the progress of the car beyond the point legally designated for stopping it, had negligently approached within a dangerously close distance to the rear end of a wagon, to which was hitched a nervous and balking horse. It is alleged that the other defendant, the owner of the wagon, gave to the horse a violent jerk at the time the car was coming to a stop, thus causing the horse to hack and the load of the wagon to he projected into the door on the front end of the street-car; all of which joint acts of negligence it is alleged resulted in serious bodily injury to the plaintiff, who was then preparing to alight from the car. The defendant street-railway company excepts to the overruling of its demurrer, which sought to dismiss the petition on the ground that the alleged acts of negligence on its part were not the proximate canse of the injury. A verdict having been rendered against the defendants jointly, each made a motion for a new trial on the general grounds, and exceptions were taken to the overruling of the motions. Meld:

Decided October 20, 1919.

Actions for damages; from city court of Atlanta—Judge Reid. December 7,1918.

Colquitt & Conyers, B. V. Carter, B. V. Carter Jr., for plaintiffs in error.

Alexander MacDougald, Hewlett & Dennis, contra.

1. No general yet precise and inflexible rule can be laid down with reference to the highly involved and much-discussed subject as to what constitutes the proximate cause of an injury. Consequently each case must depend for solution upon its own particular facts; but it is a well-settled principle of law that where two concurrent causes operate directly in bringing about an injury, there can be a recovery against either one or both of the responsible parties. The mere facjt that the injury would not'have been sustained had only one of the acts of negligence occurred will not of itself operate to define and limit the other act as constituting the proximate cause, for if both acts of negligence contributed directly and concurrently in bringing about the injury, they together will constitute the proximate cause. Barrett v. Savannah, 9 Ga. App. 642 (72 S. E. 49); Bonner v. Standard Oil Co., 22 Ga. App. 532 (96 S. E. 573), and eases cited. The determination of questions as to negligence lies peculiarly within the province of the jury, and in the exercise of this function the question as to what constitutes the proximate canse of an injury complained of may be directly involved as one of the essential elements and disputed issues in the ascertainment of what negligence, as well as whose negligence, the injury is properly attributable to. White v. Seaboard Air-Line Ry., 14 Ga. App. 139 (80 8. E. 667). It was not error, therefore, for the judge to overrule the railway company’s demurrer to the petition, since it was properly a question of fact, for the jury to determine from the evidence, whether the defendants were guilty of negligence in any of the particulars charged, and, if so, whether the eon cur-rent acts of negligence of both wrong-doers, or the separate acts of either of them, constituted the proximate cause of the injury.

2. There was evidence tending to substantiate the contentions of plaintiff as to each of the grounds of negligence referred to, and the trial court did not err in overruling either of the motions for a new trial.

Judgment in each case affirmed.

Stephens and Smith, JJ., eoneur.


text:
    10343.
    Georgia Railway and Power Company v. Ryan et al. Southern Wood Preserving Company v. Ryan et al.

    10345.
    Decided October 20, 1919.
    Actions for damages; from city court of Atlanta—Judge Beid. December 7, 1918.

      Colquitt & Conyers, E. V. Carter, E. V. Carter Jr., for plaintiffs in error.

      Alexander MacDougald, Hewlett & Dennis, contra.
   Jenkins, P. J.

1. The law of these cases is settled by the rulings made in the case of Georgia Ry. & Power Co. v. Ryan, ante, 289.

2. Tlie're was sufficient evidence to authorize the court to submit to the jury the questions as to the plaintiff’s right to recover for necessary expenses consisting of reasonable physician’s bills incurred by him in consequence of the injuries sustained by his minor daughter; and the evidence was sufficient to sustain the verdict rendered, covering this element of damages, as well as the loss by the plaintiff of the services of his minor daughter during her minority. The court did not err, therefore, in overruling either of the motions for a new trial.

Judgment affirmed in each ease.

Stephens and Smith, JJ., concur.


text:
    10347.
    KLEIN & SON v. VANDIVER.
    Where to an action of trover for a diamond stud, sold by the plaintiff to the defendant under a contract in which title was retained in the vendor until full payment of the purchase price, the defense pleaded was that the stud had been lost without fault on the part of the defendant, and where the only testimony on this point was his statement that he “lost the same while in bathing,” the defendant failed to carry the burden which the law imposed upon him, and the evidence demanded a finding in favor of the plaintiff. Such a finding having been made by the judge of the municipal court (who tried the case without a jury), it was error for the judge of the superior court to set the judgment aside on certiorari and grant a new trial.
    Decided October 20, 1919.
    Certiorari; from Fulton superior court—Judge Pendleton. November 29, 1918.

      Douglas & Douglas, for plaintiffs.

      Moore & Pomeroy, J. C. Savage, for defendant.
   Jenkins, P. J.

This is an action of bail-trover filed in the muni-, cipal court of Atlanta for the recovery of a certain diamond stud. The case was tried before the chief judge of that court without the intervention of a jury. The evidence was brief, that of the plaintiff being as follows: “My name is Jno. D. Allen. I work in the office of Douglass and Douglass. I called upon Mr. Vandiver and demanded the return of the property described in the petition. I do not know whether Mr. Vandiver had the property or not.” The plaintiff then introduced the contract and notes, and rested; whereupon the defendant testified: “My name is H. F. Vandiver. I am the defendant in this case. I purchased the property described in the petition. At the time this suit was brought I did not have the stud. I lost the same while in bathing. I have not converted the stone. Plaintiff was advised of these facts prior to the institution of this suit.” This was the entire evidence as submitted before the trial judge, who thereupon rendered judgment in favor of the plaintiff. A motion for a new trial was then made, and upon the same being overruled, the case was taken to the superior court of Fulton county by writ of certiorari. The judge of the superior court decided in favor of the original defendant by sustaining the certiorari and ordering a new trial. Plaintiff excepts to this judgment of the superior court, and contends that the trial judge did not err in finding iú his favor; that the evidence showed that the diamond stud in controversy was sold upon a contract reserving title, regularly executed, and that even if it were true, as contended by the defendant, the vendee, that he had lost the diamond stud while in bathing, the trial judge was nevertheless authorized to find that this did not relieve him from liability in an action of trover. Section 4123 of the Civil Code (1910) reads: “Where property is sold and delivered, but title is not to pass until payment in full of the purchase money, and the property is lost, damaged, or destroyed without the vendee’s fault, he is entitled to a rescission of the contract or to an abatement in the price, unless it is otherwise agreed in the contract of sale.” Under the provisions of the code just quoted, the contention of the defendant would be sound only in the event' that he showed that the loss of the property was caused without fault on his part, and the burden of establishing this was upon him. Whether or not he did so was a question of fact under the undisputed evidence, to be determined by the trial judge sitting as both court and jury. His finding that the defendant had failed to carry this burden is, in our opinion, not only abundantly authorized, but demanded by the evidence. Consequently the trial judge did not err in refusing the motion for a new trial, and the judgment of the superior court sustaining the certiorari and ordering a new trial is therefore

Reversed.

Stephens and Smith, JJ., concur.


text:
    10365.
    Hall et al. v. McLendon et al.

   Jenkins, P. J.

J. W. and C. I. Hall obtained an execution in the superior court of Emanuel county against S. J. McLendon, which was levied upon a stock of goods in the city of Nashville, Ga., the entry of levy as made by the sheriff stating that “I have this day levied the within ñ. fa. upon the following property [describing it], levied on as the property of S. J. McLendon, and in his possession.” Nancy S. McLendon, wife of the defendant in fi. fa., interposed her claim to the goods levied upon, and on the trial of the issue thus formed the plaintiffs proceeded by introducing their execution with entry of levy thereon, and, after the introduction of evidence by both the plaintiffs and the claimant, the jury returned a verdict in.favor of the claimant. Held:

1. The court did not err in charging the jury “If you find it was her [claimant’s] property, even though the property had been handled by him [the defendant in fi. fa.], if he has been controlling the property, but as a matter of fact it was her property, acquired by her or inherited by her, then I charge you that if she at some particular time may have permitted him to control or handle the property, that would not destroy her right to the property.” See Keller v. Mayer, 55 Ga. 406; Wells v. Smith, 54 Ga. 262.

2. While it is true that in a claim case, if it appears that the defendant in fi. fa. was in possession of the property levied upon at the time of the levy, the burden of proof is upon the claimant, and he has the right to open and conclude the ease (Bartlett v. Russell, 41 Ga. 196; Powell v. Westmoreland, 60 Ga. 572; Bank v. Harper, 114 Ga. 603, 40 S. E. 717), still, even though the entry of levy shows the defendant in fi. fa. to have been in possession, if the claimant upon the call of the case fails to assume the burden of proof and proceed, and the plaintiff assumes the affirmative, the plaintiff is entitled to open and conclude (James v. Kiser, 65 Ga. 515; Doyle v. Donovan, 76 Ga. 44); for, as was said in Taylor v. Brown, 139 Ga. 797 (3), 800 (77 S. E. 1062) : “Where, in a claim ease, the claimant, before the introduction of evidence commenced, did not admit possession in the defendaat in execution, or in any manner claim the right to assume the burden of proof and to open and conclude the introduction of evidence (each side.introducing evidence), it was too late, after the evidence had closed and before the argument began, to assert for the first time the right to the opening and conclusion, on the ground that the- entry of levy (which the plaintiff in execution had introduced in evidence) recited that the property’was levied on ‘as the property of, and in possession of, the defendant.’ ” See also Southern Ry. Co. v. Gresham, 114 Ga. 183 (39 S. E. 883); Northington v. Granade, 118 Ga. 584 (2), 586 (45 S. E. 447); Taylor v. Bank of Tifton, 140 Ga. 45 (78 S. E. 335); Baird v. Hill, 141 Ga. 15 (80 S. E. 281); Morris v. Reed, 14 Ga. App. 729 (4), 732 (82 S. E. 314); Wisenbaker v. West Yellow Pine Co., 16 Ga. App. 699 (5) (86 S. E. 46).

Decided October 20, 1919.

Levy and claim; from city court of Nashville—Judge Lovett. December 31, 1919.

R. A. Hendricks, for plaintiffs. J. A. Alexander, contra.

la) Under the facts of this ease the court erred in permitting the claimant to open and conclude the argument, and while this right is generally an important and valuable one (Widincamp v. Widincamp, 135 Ga. 644, 70 S. E. 566), yet where, as in this case, the verdict as rendered was demanded by the evidence, an erroneous ruling with reference to the right to open and conclude the argument can not in any event be reversible error. Moore v. Brown, 81 Ga. 10 (3a), 13 (6 S. E. 833); Madison Supply & Hardware Co. v. Richardson, 8 Ga. App. 344 (5) (69 S. E. 45); Bank of Omega v. Youmans, 21 Ga. App. 284 (94 S. E. 279).

Judgment affirmed.

Stephens and Smith, JJ., concur.


text:
    10369.
    Heed, receiver, v. Dorris & Company et al.

    Decided October 20, 1919.
   Jenkins, P. J.

Even though it be conceded that where the consignee of an interstate shipment of freight proceeds, without notice to the shipper, to reconsign the goods upon the original bill of lading to a third person, and such third person refuses to accept them, the carrier who transports the goods under the reeonsignment can ordinarily recover from the original consignor the freight and demurrage charges which have accrued thereon, provided that it has notified the original consignor with reasonable promptness of such failure to accept (see Jelks v. Philadelphia & Reading Ry. Co., 14 Ga. App. 96, (80 S. E. 216); B. & O. Railroad Co. v. Montgomery, 19 Ga. App. 29, 90 S. E. 740), still, in this case, since it appears from the petition itself that the carrier failed to give notice of such refusal to the original consignor, but proceeded to dispose of the goods and to convert the proceeds to its own use, without showing any reason why the giving of such notice was, under the circumstances, impracticable, the trial court did not err in sustaining the demurrer to its petition in a suit against the original consignor. Bird v. Georgia Railroad, 72 Ga. 655; Merchants & Miners Transportation Co. v. Moore, 124 Ga. 482 (52 S. E. 802), Alabama Great So. R. Co. v. McKenzie, 139 Ga. 410 (77 S. E. 647, 45 L. R. A. (N. S.) 18); Atlantic Coast-Line R. Co. v. Goodwin, 1 Ga. App. 351 (57 S. E. 1070); Atlantic Coast-Line R. Co. v. Henderson Elevator Co., 18 Ga. App. 279 (88 S. E. 101); C., N. O. & T. P. Ry. Co. v. Malsby Co., 22 Ga. App. 595 (3) (96 S. E. 710).

Judgment affirmed.

Stephens and Smith, JJ., concur.

Complaint; from city court of Yaldosta—Judge Cranford. January 28, 1919.

Patterson & Copeland, for plaintiff in error.

Franklin & Langdale, contra.


author: Smith, J.

text:
    10381.
    FLOYD COUNTY v. GRAHAM.
    1. Section 402 of the Civil Code of 1910 makes it the duty of the county authorities in this State to furnish the different county offices with “office supplies generally,” and this would include a telephone in the office of a clerk of the superior court whenever it appears that its installation is reasonably necessary to carry on the legitimate business of that office.
    2. The court, therefore, did not err in overruling the demurrer attacking the plaintiff’s petition on the ground that he, as clerk of the superior court of Eloyd county, had no authority to have installed in his office at the expense of the county a telephone which he alleged to have been necessary to carry on properly the legitimate county business.
    Decided October 20, 1919.
    Complaint; from city court of Floyd county—Judge Nunnally. February 14, 1919.

      Graham & Wright, for plaintiff in error.

      Maddox & Doyal, contra.
   Smith, J.

This is a suit by S. L. Graham against Floyd County to recover $30.95, this sum having been paid by him as rent for a telephone installed in his office in the court-house of the county. PlajntifPs petition shows that he is the clerk of the superior court of Floyd county, as well as ex-officio clerk of the city court of said county, and that the telephone in question was installed in his office for the necessary and proper conduct of said office; that the defendant county has failed and refused to pay for the same, but that the aforementioned sum has been paid by him. The defendant interposed a demurrer, to the overruling of which it excepted.

The sole question for adjudication in this case (and this is admitted by counsel for plaintiff in error in his brief) is whether or not a county is liable for a telephone installed in the office of a clerk of the superior court, which instrument is to be used in the necessary conduct of the legitimate business of said office. Section 402 of the Civil Code (1910) is as follows: “It shall be the duty of the ordinaries or board of county commissioners, or other county authorities where such boards exist, and who have the management of the revenues of the counties, to furnish coal, wood, lights, furniture, stationery, records, and office supplies in general, for the different county offices of the various counties in this State, at the expense of each county; provided that this section shall only apply to the offices of said officers in the various court-houses in said counties.” It will be observed that this section makes it the duty of the county commissioners, or other county authorities, to furnish county officers having offices in the court-houses of the various counties of this State with “office supplies in general.” Is this phrase broad enough to include a telephone? We think so. In other words, we construe this section to mean that a county officer having an office in the courthouse is entitled to have all office supplies and equipment reasonably necessary to maintain his office in a modern up-to-date manner, corresponding with offices of similar character responsible for a like amount of work. What bank of today would undertake to do business without an adding machine ? Could it be reasonably and intelligently contended for a moment that the county commissioners of Fulton County, responsible for an enormous amount of business, should be denied the benefits of an adding machine? What well organized law office of today is without a typewriter? Could any physician enjoying a general practice be without a telephone? To put these questions is but to answer them in the negative. Should not, therefore, a clerk of the superior court be given the universally recognized convenience incident to telephone service, which in this day of rapid progress is absolutely necessary to the proper conduct of any business of importance? We think so; and it is our opinion that the legislature intended that the term “office supplies in general” should include all necessary office equipment—such as telephones, typewriters, etc. Our view of the question under consideration is, we think, strengthened by the opinion of Judge Powell in the case of Wood v. Vienna Telephone Co., 8 Ga. App. 209 (68 S. E. 872), wherein he says: “Telephone service is no longer a luxury; it is a modern business necessity [italics ours]. When it is needed in connection with the matters and things which the county authorities are authorized to maintain and to tax for, they may lawfully contract for it; It then becomes a part of the maintenance and equipment of the public buildings, a part of the expense of courts, of prisoners, of paupers, etc. It becomes a part of the machinery by which the county authorities carry on the legitimate county business; and the authorities may lawfully pay for it out of the county funds.”

From what is said above it is clear that the petition set out a cause of action, and that the trial judge did not err in overruling the demurrer.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.


text:
    10416.
    MOORE v. SIMS.
    1. The mere fact that a wife may be the owner of one or more cows which feed upon provender furnished solely upon the credit of her husband will not render her liable for the value of such foodstuff, nor authorize a judgment against her for the same, on the theory that she was the concealed principal of her husband, when there is no evidence that he was in any way acting as her agent when the purchase was made. See Hightower v. Walker, 97 Ga. 748 (25 S. E. 386) ; Montgomery v. Walton, 111 Ga. 840 (36 S. B. 202) ; Blount v. Dugger, 115 Ga. 109 (41 S. E. 270); Cornelia Planing Mill Co. v. Wilcox, 129 Ga. 522 (59 S. E. 223).
    2. There being no evidence to authorize the verdict in favor of the plaintiff, and the case being remanded solely for this reason, it is unnecessary to pass upon the errors alleged in the amendment to the motion for a new trial; for if such errors were committed they will probably not occur on another trial.
    Decided October 20, 1919.
    Appeal; from Barrow superior court—Judge Cobb. February 13, 1919.

      J. D. Quillian, for plaintiff in error.

      B. H. Kimball, contra.
   Smith, J.

This is a suit against a wife as the undisclosed principal of her husband. The issue of fact involved in this case is whether or not the husband purchased certain cow food on his own account or as agent for his wife. The verdict of the jury being adverse to the defendant, she made a motion for a new trial, which was overruled and she excepted.

The plaintiff testified that the defendant owed him $61.75 on a just, due, and unpaid account; that the account represented foodstuff which the defendant’s cows ate; that the defendant and her husband lived on his place, and that when they came there the cows were so thin they conld hardly walk; that the cows used his pasture, and Dick Moore, the defendant’s husband, bought the foodstuff from him which was fed to the cows; that the defendant told him that the cows did not belong to either her or her husband. On cross-examination the witness testified that he did not sell the food in question to the defendant,” but that he sold it to her husband, and booked it to him; that the defendant “never agreed to pay for it. She never said anything about it to me. I could not swear that she knew on what basis the food was bought by Dick from me. I could not swear she knew that Dick was buying this foodstuff on the credit,” but that the defendant’s cow ate it; that he thought the cows belonged to Dick until he was informed to the contrary by the defendant. G. W. Woodruff testified that the defendant and her husband lived on his place the year before they moved to the plaintiff’s farm, and that the defendant’s husband told him he wanted to buy a cow for her, and that he had heard that the cow was paid for with defendant’s money. The defendant testified that she had never bought anything from the plaintiff in her life, and had never authorized her husband or any one else to buy anything from him on credit; that she never promised to pay the plaintiff the account sued on, and never authorized any one else to promise him she would pay it; that she did not know anything about her husband’s purchase from the plaintiff, and did not know on what terms the foodstuff was sold him— whether on credit or for cash.

From these facts, and all reasonable deductions therefrom, we do not think that there was any evidence, either direct or circumstantial, to show the husband’s agency in contracting the debt sued upon, and the court therefore erred in overruling the motion for a new trial on the general grounds alone.

Judgment reversed.

Jenkins, P. J., and Stephens, J., concur.


text:
    10417.
    James v. Sullivan, guardian.
   Stephens, J.

Upon the call of this ease there being no representation for the plaintiff in error, by brief or otherwise, and it being plainly apparent that the writ of error was prosecuted for delay only, the motion of the defendant in error that the record be opened, the judgment therein affirmed, and damages of ten per "Cent, for delay be awarded him, is granted. (Civil Code, § 6249).

Decided October 20, 1919.

Motion for new trial; from Douglas superior court—Judge Bartlett. December 27, 1918.

J. B. Hutcheson, for defendant in error.

Judgment affirmed, with damages.

Jenkins, P. J., and Smith, J., concur.


text:
    10443.
    Prater v. Baughman.
    Decided October 20, 1919.
    Complaint; from city court of Atlanta—Judge Reid. March 8, 1919.

      Walter A. Sims, for plaintiff in error.

      Napier, Wright & Wood, contra.
   Stephens, J.

The failure of an executory consideration in a promissory note is not a defense against a purchaser for value before maturity who had knowledge of the character of the consideration but who acquired the note before the consideration had actually failed, and who had no notice, constructive or otherwise, that the consideration would fail. Simmons v. Council, 5 Ga. App. 286 (63 S. E. 238); Whitten v. Railway Postal Clerks’ Investment Asso., 16 Ga. App. 685 (85 S. E. 973); Turner Lumber Co. v. Henderson Co., 20 Ga. App. 682, 689 (93 S. E. 301), and authorities cited. In the instant case no facts were developed from which the jury could find that the plaintiff (the transferee of the notes sued upon) had or could be charged with notice that the consideration would fail, and the trial judge, therefore, did not err in directing a verdict for the plaintiff.

There is nothing decided in Adams v. Hatfield, 17 Ga. App. 680 (87 S. E. 1099), or the other cases cited by counsel for plaintiff in error, as applied to their particular facts, in conflict with the rule laid down above.

Judgment affirmed.

Jenkins, P. J., and Smith, J., concur.


text:
    10469.
    BARRETT v. MAYNARD.
    1. The various excerpts from the charge of the court, excepted to, when considered with the charge in its entirety and the facts of the ease, are not erroneous for any reason assigned.
    2. The verdict was authorized by the evidence, and the court did not err in overruling the motion for a new trial.
    Decided October 20, 1919.

      Eviction; from Hall superior court—Judge Jones. March 22, 1919.

      H. V. Johnson, Sloan & Sloan, for plaintiff in error.
    W. N. Oliver, contra.
   Smith, J.

The 4th and 5th grounds of the motion for a new trial may be considered together. In these grounds the defendant (the plaintiff in error) complains of the language used in the charge to the jury in reference to improvements or repairs which he insisted had been made by him under an agreement with the agent of the plaintiff. He criticises the use of the language “to make improvements, build fences and fix door knobs, or doors, or hot houses, or cleaning out a well,” and insists that there was nothing in the pleadings or in the contentions of the parties, or in the evidence, as to the matter of improvements. There was a contention by him that, under an agreement had by him with the agent of the plaintiff, he did make certain improvements or repairs upon the property, and that he was entitled to recoup this amount. While in the first part of the paragraph of the charge of the court set out in the 4th ground the words used are somewhat inaccurate, yet the latter part and this excerpt from the charge, as well as the excerpt set out in the 5th ground, taken together with the whole charge, shows that the question of improvements or repairs was substantially and clearly presented to the jury. There is no. merit in these two grounds of the motion. See section 3699 of the Civil Code, which is as follows: “The landlord must keep the premises in repair, and is liable for all substantial improvements placed upon them by his consent.” There was no contention or evidence in this case that the premises had become in bad repair and that the landlord had been notified of the defects, and after a reasonable time had failed to make the repairs, but the whole contention was upon an express agreement that certain improvements or repairs were to be made upon the property, and that the defendant claimed a recoupment or set-off for the amount of such repairs. This raised a question of fact for the jury, and was concluded by their verdict.

The 6th and 7th grounds of the motion for a new trial may also be considered together. The complaint made in these two grounds relates to excerpts from the charge where the court adds after the words, “You see, if at the time Mr. Barrett didn’t owe anything to Mrs. Maynard, his rent was paid up and he wasn’t in arrears,” the following: “he was not a tenant holding over and beyond the time for which he had rented, or if there had been no breach of the contract by him by failing to pay rent, if he was over or ahead in payment of rent, in other words, if he wasn’t in such position as subjected him to a proceeding of this kind at that time, then you couldn’t find in favor of Mrs. Maynard for any amount.” The court further charged, “If she was entitled to sue out this process at the time, as I stated, when Barrett was a tenant holding over, or his contract had been breached by failure to pay rent, then Mrs. Maynard would recover the full amount of the rent from then “down to the time of the trial, down to date; she would.recover double that amount.” It is insisted that all the language used in these two excerpts relating to the defendant-holding over or beyond the term for which he had rented was error and prejudicial to the defendant. In order to understand the question raised it is necessary to go back to the pleadings and the evidence. The affidavit to dispossess the defendant was founded upon the single •ground that he had failed to pay rent due. The counter-affidavit denied that any rent was due, and then went further and denied that he was holding over beyond the term for which he had rented the property. He testified that he had rented the property for one year, the rent being payable monthly at the end of each month. He denied that he owed any rent and he denied that he was holding the property beyond the term for which he had rented it. The excerpts from the charge of the court set out in these grounds of the motion, so far as they relate to a tenant holding over, were not applicable to the contentions or the evidence in the case, but the charge, taken as a whole, including these excerpts, clearly and fully submitted the real issues to the jury, and the verdict was for the exact amount of double rent from the date of suing out the warrant to dispossess and the date of the trial. Therefore, the instructions complained of were not misleading but mere surplusage.

That amount of the verdict finding the defendant liable for rent prior to the issuance of the dispossessory warrant was written off by the plaintiff in the court below, and so the verdict is cured as to this matter.

The general grounds of the motion for a new trial need not be considered, as there was evidence to support the verdict.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.


author: ■ Jenkins, P. J.

text:
    10470.
    Haverty Furniture Company v. Hunter.
    Decided October 20, 1919.
    Action for damages; from Fulton superior court—Judge Ellis. January 11, 1919.

      Little, Powell, Smith & Goldstein, King & Spalding, for plaintiff in error.

      M. U. Mooty, Brewster, Howell & Heyman, contra.
   ■ Jenkins, P. J.

Even under the ruling in the ease of Knight v Savannah Electric Co., 20 Ga. App. 314 (93 S. E. 17), as to which a question is now pending for determination by the Supreme Court in another case certified to that court by this court, it can not be said as a matter of law that in this case a judgment for the defendant was absolutely demanded. It therefore follows that the defendant can not; complain because the trial court, in the exercise of its discretion, has seen proper to grant the motion of the plaintiff for the first grant of a new trial, thereby setting aside the judgment in the amount of the plaintiff’s recovery. If the plaintiff is entitled to recover at all, the evidence does not. demand that the verdict be limited to the amount named in the judgment. See Parks v. Stevens, 21 Ga. App. 180 (94 S. E. 60), and cases cited.

Judgment affirmed.

Stephens and Smith, JJ., concur.


text:
    10475.
    Warlick v. McLeod.
    Decided October 20, 1919.
    Rehearing denied November, 19, 1919.
    Application for discharge from custody; from Floyd superior court—Judge Wright. February 15, 1919.

      Henry Walker, for plaintiff in error.

      L. H. Covington, contra.
   Jenkins, P. J.

This ease is an application for discharge in a bail-trover proceeding. The court did not err in discharging the applicant upon his own recognizance, since there was evidence to authorize a finding to the effect: (1) that the applicant was at the time the application was made, and had since remained, in the legal custody of the sheriff (Everett v. Holcomb, 1 Ga. App. 794, 58 S. E. 287); (2) that he was unable to give the bond and security required by law; and (3) that the nonproduetion of the property sued for was a physical impossibility at the time of the issuance of the writ, which condition had continued to exist without subsequent fault or misconduct on the part of the applicant. Marsh v. Ben. H. Fletcher Co., 17 Ga. App. 735 (88 S. E. 416).

Judgment affirmed.

Stephens and Smith, JJ., concur.


text:
    10483.
    Donalsonville Live Stock Co. v. Corporation Service Co.
    Decided October 20, 1919.
    Motion to arrest judgment; from city court of Bainbridge—John R. Wilson, judge pro liac vice. March 31, 1919.

      W. V. Guster, for plaintiff in error. J. G. Sale, contra.
   Jenkins, P. J.

1. “The title of the holder of a note can not be inquired into, unless it is necessary for the protection of the defendant, or to let in the defense which he seeks to make.” Civil Code (1910), § 4290.

2. In this case the answer of the defendant corporation, in the suit on a note executed by it, does not set up a defense which would be good oven as against the original payee. “After a contract entered into by a corporation has been performed by either of the contracting parties, the fact that the making of the contract involved an unauthorized exercise of corporate power on the part of the company will not coivstitute a defense to an action brought by the party having performed the contract, to recover compensation for a breach of the contract by the other party.” Towers Excelsior Co. v. Inman, 96 Ga. 506 (23 S. E. 418); Johnson v. Mercantile Trust Co., 94 Ga. 324 (24 S. E. 576).

3. “After the rendition of a verdict in a civil case it was too late to object that one or more of the jurors who tried the case had not been sworn, even though this fact was not known by the losing party or his counsel before the verdict was rendered.” Towns v. Rome Railway &c. Co., 19 Ga. App. 457 (91 S. E. 790), citing Slaughter v. State, 100 Ga. 323 (28 S. E. 159), in which latter case it was said: “In so far as it may be gathered from any of the above authorities that a failure to swear one, or more, or all, of the jurors trying a civil case would be fatal to the verdict rendered, even where the losing party knew of such failure before the trial ended, and yet made - no objection or complaint, we do not wish to be understood as now agreeing to such a conclusion. Our present decision is limited to the question before us as it relates to criminal cases.”

Judgment affirmed.

Stephens and Smith, JJ., concur.


text:
    10486.
    Green v. Proctor.
    Decided October 20, 1919.
    Petition for certiorari; from Upson superior court—Judge Searcy. March 24, 1919.

      J. B. Davis, for plaintiff in error.
   Jenkins, P. J.

The judgment of the ordinary requiring the removal of obstructions from an alleged private way was sufficiently authorized under the evidence; and the judge of the superior court did not err in refusing to sanction the writ of certiorari.

Judgment affirmed.

Stephens and Smith, JJ., coneur.


text:
    10511.
    Yates & Gladney v. Fireman's Fund Insurance Co.
    Decided October 20, 1919.
    Complaint; from city court of Carrollton—Judge Beall. April 7, 1919.

      Leon Hood, for plaintiff in error.

      'Boykin & Boykin, contra.
   Smith, J.

1. The only ground of the motion for a new trial other than those which complain of the verdict assigns error upon the refusal of the court to order a nonsuit. This exception will not be considered, since the motion for a new trial, which was overruled, assigns error on the ground that the verdict is contrary to the evidence and without evidence to support it. See Collins v. Strickland, 21 Ga. App. 542 (3) (94 S. E. 1035), and cases there cited.

2. The evidence authorized the verdict, and there was no error in refusing a new trial.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.


text:
    10536.
    Stevens v. Seaboard Air-Line Railway.
    Decided October 20, 1919.
    Action for damages; from Liberty superior court—Judge Sheppard. April 9, 1914.

      W. G. Hodges, for plaintiff.

      Bolling Whitfield, N. J. Norman, for defendant.
   Stephens, J.

1. The question of whether or not the petition as amended was properly dismissed because it failed to allege that the costs in the previous suit had been paid (Civil Code, §§ 5625, 5629) was not raised in the trial court by plea in abatement, and the allegations of the petition not negativing this fact, its sufficiency in this respect can not be attacked for the first time in the reviewing court. Poplarville Sawmill Co. v. Driver, 17 Ga. App. 674 (2), 675 (88 S. E. 36).

2. The allegations of the petition, construed, as they must be, most strongly against the pleader, fail to show any specific act of negligence by the defendant railway company which is charged as the proximate cause of the injury sued for. It appears from the recitals of fact in the petition that the proximate cause of the plaintiff’s injury was the balking of his horse, and it is nowhere alleged that the defendant, by any specific act of negligence, caused the balking of the horse and the resulting injury. The court therefore did not err in sustaining the general demurrer to the petition and in dismissing the suit.

Judgment affirmed.

Jenkins, P. J., and Smith, J., concur.


text:
    10573.
    MULHERIN v. SABEL & ROTHSCHILDS.
    Whether acceptance of an offer to sell was within a reasonable time was a question for the jury, under the allegations of the plaintiff’s (the acceptor’s) petition, where it appeared that the offer was made by letter dated on the 22d day of the month, mailed at Augusta, Georgia, and addressed to Jacksonville, Elorida, and the acceptance was by telegram from Jacksonville, dated on the 24th day of the same month.
    Decided October 20, 1919.
    Complaint; from city court of Richmond county—Judge Black. April 25, 1919.
    I. S. Peebles Jr., for plaintiff in error. S. IJ. Myers, contra.
   Smith, J.

The petition in this case set out substantially tha' by telegrams and letters exchanged between the parties (copies of which were attached to the petition) the defendant entered into a contract to sell a described engine to the plaintiffs for the price of $350; and the only question raised by the general demurrer of the defendant was whether the plaintiffs waited too long,—an unreasonable time,—in accepting his offer of sale, his letter being dated April 22,1918, and mailed at Augusta, Georgia, to the plaintiffs at Jacksonville, Florida, and the answer by wire being dated April 24, 1918, Jacksonville, Florida. Under the allegations of the petition it was a question of fact, for the jury to determine, whether or not the answer by wire was made within a reasonable time. The court therefore did not err in overruling the general demurrer.

Judgment affirmed.

Jenlcins, P. J., and Stephens, J., concur.


text:
    10664.
    DYER v. CANNON.
    1. In the trial of a ease based upon a distress warrant and a counter-affidavit it was error to admit, over objection, the plaintiff’s testimony that in a conversation not in the defendant’s presence a named person told him that the defendant “had out two bales of cotton, and . . was going to move the two bales” away the next day. This testimony was inadmissible, as being hearsay.
    2. Without this inadmissible testimony there was no evidence to support the verdict.
    Decided October 20, 1919.
    Distraint; from Twiggs superior court—Judge Kent. May 1, 1919.

      L. D. Moore, for plaintiff in error.

      U. F. • Griffin, Jr., R. A. Harrison, Walter DeFore, contra.
   Smith, J.

G. F. Cannon sued W. G. Dyer for rent due for the year 1917, the amount sued for being $322.50. The affidavit was in the usual form and the counter-affidavit simply denied that the rent was due. An amendment was offered by the plaintiff in which .it was alleged that at the time of the bringing of the distress warrant in this case, the tenant W. G. Dyer was seeking to remove his crops from the premises without the consent of the plaintiff. The jury found in favor of the plaintiff, $390 principal and $36.40 interest. The defendant made a motion for a new trial, upon the general grounds, and also upon three special grounds. In one of the grounds it was complained that the verdict and judgment were for $68 principal and $5.69 interest more than the amount claimed in the distress warrant. In view of the ruling stated in the head-notes, it is unnecessary to say more as to this ground than that the error complained of, if error at all, will not likely recur on another trial, as the plaintiff will have an opportunity to amend his affidavit with reference to the amount claimed as rent. The the third ground of the amendment to the motion for a new trial refers to the evidence of G. F. Cannon, relating to a conversation had with one W. C. King on the day preceding the issuance of the warrant and not in the presence of Dyer, the defendant. This evidence was improperly admitted, it being purely hearsay. In the third ground of the amendment of the motion for a new trial it is insisted that the verdict is contrary to the evidence and without evidence to support it, in that there was no evidence to show that Dyer, the defendant, had removed or was seeking to remove any of his crop from the premises. The evidence of the conversation between G. F. Cannon and W. C. King having been erroneously admitted, there was no evidence left in the case to sustain the contention of the plaintiff that Dyer had removed or was removing or seeking to remove any of his crop from the premises, and it was admitted by the plaintiff that the rent was not due until October 15, 1917. It is true that there was some evidence to the effect that Dyer, the tenant, had gathered some wheat off of the farm in the latter part of May, and had it ground, using part of it for himself and his family, and exchanging 24 pounds of the flour for 24-pounds of commercial flour, which was used by himself and family; but this evidence was insufficient to support the contention of the plaintiff, which was set out in the amendment to his affidavit to procure the distress warrant. This transaction occurred in May prior to the suing out of the distress warrant on August 27th, and was not substantial enough to place the defendant in the position where a distress warrant could legally issue against him under section 3700 of the Civil Code of 1910.

Judgment reversed.

Jenlcins, P. J., and Stephens, J., concur.


text:
    10675.
    Thibadeau v. Powell Trust Company.
    Decided October 20, 1919.
    Certiorari; from Fulton superior court—Judge Bell. April 4, 1919.

      O. Don Miller, for plaintiff in error. R. J. Jordan, contra.
   Smith, J.

“In all eases where a tenant shall hold possession of lands or tenements over and beyond the term for which the same were rented or leased to him, or shall fail to pay the rent, when the same shall become due, and in all cases where lands or tenements shall be held and occupied by any tenant at will or sufferance, whether under contract of rent or not, and the owner of the lands or tenements shall desire possession of the same, such owner may, by himself, his agents, or attorney in fact, or attorney at law, demand the possession of the property so rented, leased, held, or occupied; and if the tenant refuses or omits to deliver possession when so demanded, the owner, his agent, or attorney at law, or attorney in fact may go before the judge of the superior court, or any justice of the peace, and make oath of the facts.” Civil Code (1910), § 5385.

The judge of the municipal court, who tried the case without a jury, had the parties and the witnesses before him, and from an examination of the testimony this court cannot say as a matter of law that there was not some evidence to support each of the elements essential to the maintenance of such a proceeding.

Judgment affirmed.

,Jenlcins, P. J., and Stephens, J., concur..


text:
    10686.
    Smith v. Roddenbery Hardware Company.
   Smith, J.

The plaintiff’s petition shows that he entered into a written contract with the defendant, pursuant to which he deposited $150, for the “right of exclusive sale of Grant Motor Cars in Thomas County,” the deposit to be refunded on his sale of four ears. In this action he sought to recover the deposit. The sale of the four cars was a condition precedent to his recovery of the deposit; and it not appearing from the petition that he complied with this condition, or that he had any valid reason for non-compliance, or that the defendant had in any way breached the contract, no cause of action was set forth, and the trial court properly dismissed the petition on demurrer. See Griswold v. Scott, 13 Ga. 210 (2); Kimbrough v. Worrill, 38 Ga. 119; Baker v. Tillman, 84 Ga. 401 (11 S. E. 355); Life Insurance Company of Virginia v. Proctor, 18 Ga. App. 517 (89 S. E. 1088).

Decided October 20, 1919.

Complaint; from city court of Cairo—Judge Bigsby. May 26, 1919.

Titus, Dehle & Hophins, for plaintiff.

M. L. Ledford, for defendant.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.


text:
    10691.
    Hurst v. Jordan.
    Decided October 20, 1919.
    Trover; from city court of Dublin—Judge Flynt. May 19, 1919.

      W. A. Dampier, for plaintiff in error. T. JS. Hightower, contra.
   Smith, J.

1. Applications for new trial on the ground of newly discovered evidence are not favored; and where, from the affidavits of the witnesses by whom the new facts are to be proved, it appears that the alleged newly discovered evidence is merely cumulative and impeaching in its nature, and would not likely produce a different result on another trial, the trial judge did not abuse his discretion in refusing a new trial on this ground.

2. There was ample evidence to authorize the verdict, and the trial judge did not err in overruling the motion for a new trial.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.


author: Bloodworth, J.

text:
    10132.
    Southern Express Company v. The State.
   Bloodworth, J.

This ease came to the Court of Appeals and a decision was rendered therein. 23 Ga. App. 376 (98 S. E. 272). By writ of certiorari the ease was carried to the Supreme Court, and the judgment of the Court of Appeals was reversed; the Supreme Court holding as follows: “1. The act of 1917 (Acts Ex. Sess. 1917, p. 7), amending and supplementing the prohibition laws of this State, authorize a common carrier to transport and deliver to a practicing physician, who is the sole proprietor of a drug-store, pure alcohol for medicinaJ purposes, under certain conditions specified in the act, from one point within the State -to another point within the State of Georgia. 2. Under the facts of this case it was error to hold that the common carrier was guilty of a misdemeanor for transporting pure alcohol shipped by a wholesale druggist living at a point within this State to a practicing physician living at another point within this State, where it appeared that such physician had an office and kept drugs therein for *he purpose of compounding his own medicine, and where such alcohol was to be used for medicinal purposes only, and all the conditions of the act relative to receiving and delivering the alchohol had been complied with by the physician and common carrier. Nor was it illegal under the act of 1917 for such common carrier, under such circumstances, to have pure alcohol in its possession.” See full opinion of the Supreme Court, 149 Ga. 489 (100 S. E. 709).

Decided November 4, 1919.

Indictment for violation of prohibition law; from Mitchell superior court—Judge Harrell. September 2, 1918.

Pope & Bennet, Robert G. & Philip PL. Alston, for plaintiff in error.

R. G. Bell, solicitor-general, P. A. Hooper, contra.

in view of these rulings of the Supreme Court, the clerk of this court is directed to enter an order vacating the original judgment affirming the judgment of the court below in this case; and the judgment of that court is Reversed.

Broyles, O. J., mid Luloe, J., concur.


author: Luke, J.

text:
    10370.
    RINGWALD et al. v. WATKINS MEDICAL COMPANY.
    Exclusive right to sell in Evans county (except in municipalities) articles manufactured or sold by the plaintiff was granted by the contract under which it was sought to recover the price of goods sold to the principal defendant; and the court erred in striking the defendants’ pleas, in which they set up that the plaintiff had violated the contract by allowing a certain agent to sell and deliver in a designated part of the county goods delivered to him by the plaintiff.
    Decided November 4, 1919.
    Complaint; from city court of Statesboro—Judge Proctor. January 15, 1919.
    The J. E. Watkins Medical Company sued Eingwald, Waters, and DeLoach for a sum alleged to be due for goods sold to Eingwald, under a written contract, a copy of which was attached to the petition. 'Eingwald in his answer denied indebtedness, and alleged that " under his said contract with the plaintiff he was entitled to the territory of Evans county to the exclusion of all other agents and employees of the plaintiff company, but that in direct violation of the contract sued on and contrary to the terms thereof the plaintiff allowed and permitted one Curry, who was the plaintiff’s regular agent, to sell and deliver goods and articles, delivered by the plaintiff to said Curry, in that portion of Evans county south of the Seaboard Air-Line Kail-way.’7 Waters and DeLoach in their answer alleged that they signed the contract as sureties onlyj that the contract had been violated in the manner stated above and in other respects stated, and that their risk as sureties was thereby increased. The court struck the answers, on demurrer, and rendered judgment for the amount sued for, and the defendants excepted.

      Anderson & Jones, for plaintiffs in error.

      Brannen & Booth, contra.
   Luke, J.

The determination of this case depends upon the construction of a contract. The part in controversy is as follows: “That for and in consideration of the promises and agreements hereinafter contained, to be kept and performed by the party of the second part, the company promises and agrees to sell and deliver to the party of the second part, free on board cars at Winona, Minnesota, or, at its option, at any of its regular places of shipment, any and all medicines, extracts, and other articles manufactured or sold or which may hereafter be manufactured or sold by it, unless prevented by fire, insurrection, invasion, strikes, or other cause, at the usual and customary wholesale prices, as the party of the second part may reasonably require for sale by him from time to time, from the date hereof until the first day of March, 1916, as hereinafter provided, in the following described territory, excepting the incorporated municipalities therein located, to wit: - In the State of-Georgia, Evans County.” The plaintiffs in error (defendants) contend that the court erred in holding that the contract did not grant exclusive rights to the sale of the medicines in the county of Evans, excepting the municipalities in that county. The defendant in error contends that no exclusive right was given to the sale of the medicines in Evans County except the municipalities therein. We are of the opinion that when the contract is properly construed (especially when the contract as a whole is read), exclusive right to the sale of the medicines, etc., is granted in the county of Evans, excepting the municipalities. The very fact that the municipalities are excepted is a strong indication that it was the purpose and intent of the parties to grant exclusive right of sale in the remainder of Evans county. Of course, by the terms of the contract the purchaser could only expect delivery for sale of such number of articles and amount of goods as he might reasonably require for sale from time to time. Differing as we do with the trial judge in his construction of the contract, we hold that he erred in sustaining the demurrers to the pleas of the defendants, and in thereafter rendering judgment in favor of the plaintiff.

Judgment reversed,

Broyles, C. J., and Bloodworth, J., concur.


text:
    10405.
    Hudson v. The State.
    Decided November 4, 1919.
    Indictment for murder—conviction of manslaughter; from Gilmer superior court—Judge Morris. February 14, 1919.
    Plato Hudson killed Miles Watkins. The only eye-witness of the homicide who testified at the trial was Andrew Sluder, at whose house it occurred. This witness testified, that the defendant was his brother-in-law and came to the house with him at his invitation, and went into the kitchen to get some water, and remained in the kitchen until the wife of the witness called for supper; and after supper the defendant went into the sitting-room, in which were Miles Watkins, Henry Hudson, and the witness; that Miles Watkins, who was seated in the only chair in the room, rose and offered the chair to the defendant; that the defendant said he did not want a chair, and Miles sat down again; that after this "they said a word or two to one another;” the witness did not remember what was said, but he did not think they were quarreling. The next thing the witness remembered was that Miles asked the defendant what he had against him, and the defendant replied that he had nothing against him, and asked if he (the defendant) had not always treated Miles right; Miles said, "Yes,” and asked if he had not always treated the defendant right. “Both said they had treated one another right.” Then Miles said, “It looks God damn suspicious you have got something against me; you are following me around.” The defendant said, "No, Miles, I haven’t got anything against you.” Miles had risen from his chair near the fire-place, pushed the chair back, and put his hand behind him. The witness testified: “About that time I saw they was getting mad, and I stepped up and said, ‘We don’t want any trouble,’ and Miles run his hand behind and Plato stepped back.” When Miles put his hand back he pulled a knife out of his pocket. “There was a word or two said,” and “then Miles says to Plato, ‘I will cut your God damned throat,’ and Plato says, ‘No, you wont, put your knife back in your pocket,’ and he says, ‘If you come on me with that knife I will kill you,’ and Miles says, ‘You are plenty mean enough, but,’ he says, ‘you aint got the nerve;’ and by that time I was between them and pushed Plato back and Miles both, and by that time Miles made a strike like that, and Plato saw that and was on the outside of the door, and the gun fired in my face, and Miles walked on after him. The gun come from back behind Hudson somewhere. . . I don’t know whether it come from out of his pocket. . . That was right along somewhere along about the same time the knife was drawn; he stepped back against the door-facing like that, and he had his hand in his pocket before Miles pulled his out. I don’t know which one it was drew first, because I was standing between them; anyhow Miles got his knife out and had it in his hand, and Plato was standing back there and had his hand back here. When the first shot was fired Plato was standing . . on the outside of the door. . . I was standing right against the door and had done pushed Plato back and had pushed Miles back and told them I didn’t want no trouble there. I pushed Plato and Miles back that way and the gun fired in my face and I stepped back. . . Plato [was] just on the outside of the door somewhere, may be back nearly to the far end of the porch; it was all done so quick you couldn’t tell exactly how it was. . . When the second shot was fired Miles was on the outside of the door and Plato Hudson had done went back that way. Miles had made a strike like that, and Hudson was still on back there right then.” “When the first shot was fired Plato was out on the porch.” Three shots were fired, and Hudson was wounded three times, once in the left hand, once in the neck, close to the Adam’s apple, and once between 'the eyes. He fell at the last shot, and died immediately. The shots were in quick succession, “just about like you could count three.” The witness could not tell whether Miles ever reached Plato or not; “they were right in there together.” “There were no injuries on Plato.” Mrs. Sluder came out of the kitchen after the killing, and the defendant said to her, “Rindy, I hate that. I am sorry I done that, I 'wouldn’t have done it on your account for ten thousand dollars.” The witness thought that Plato said also, “It don’t frighten me,” or “don’t scare me to do this” shooting. These statements were made in a few minutes after the shooting, “just in about the time” the wife of the witness could have walked out there. The witness further testified: The knife was open when Miles “made his strike and said he would cut [Plato’s] God damned throat; they had started about that time; he had done started towards Plato with his knife open just like that. . . At the time Miles raised up, Plato was standing in the door; if he had a pistol in his hand at that time I didn’t see it.” At the time Miles made the advance and made the lick he said he would cut Plato’s damned throat, and Plato backed out of the door. “ Miles advanced to the door then and made a lick at the door, and Plato was backing all the time and telling him not to come on to him with a knife, that he would kill him. Miles was following him with a knife in his hand. When the first shot was fired Miles advanced right into him. . . Another lick was made and [Plato] shot the second time. Miles made another lick at Plato and he shot another time; he still continued to back to one end here, and Miles made another lick. Then at the time he made another lick Plato fired again and Miles fell with his head towards Plato, with his knife in his hand, open. . . Plato did not curse Watkins there that night that I heard, neither did he threaten him.” At the time Miles threatened to cut Plato’s throat “Plato hadn’t done anything, only he stepped back in the door and put his hand in his back here, about his coat. I never saw nothing in Plato’s hand then as I stepped between them. When Plato fired the second shot he had backed six, eight or may be ten feet, . . may be twelve or fifteen feet. Watkins was advancing on him all the time. When tire third shot had fired he had backed some fifteen or twenty feet when the smoke raised up; he was then on the end of the porch, . . right against the washstand. . . There wasn’t a shot fired in the room at all.” The witness testified further as to the relative positions of Watkins, Hudson, and himself, the dimensions of the room and the porch, etc.
   Luke, J.

The defendant’s conviction of voluntary manslaughter was unauthorized by the evidence, and the court erred in refusing to grant a new trial.

Judgment reversed.

Broyles, O. J., and Bloodworth, J., concur.

James M. Patterson testified as to the defendant’s threat “to get five or six” persons not named, wbo had caused his wife, and himself to have trouble. The witness said nothing as to when the threat was made. Rufus Carroll testified that in the spring preceding the killing of Watkins, which occurred in December, he heard the defendant say, in regard to Watkins, that he (the defendant) was “going to shoot his horns oif.”

The defendant, in his statement at the trial, said that he shot Watkins to save his own life; that it seemed he had. to do it or be killed himself; that he was frightened when Watkins threatened to cut his throat and went to striking in his face; that Watkins was striking and he (the defendant) was backing all the time until he (the defendant) “struck the far end of the porch;” that when he “throwed” his “gun” on Watkins it was knocked down by the left hand of Watkins, and Watkins continued striking as fast as he could; that he did not know what Watkins had against him when Watkins raised up and drew the knife, and did not know until then that Watkins was “mad” with him; that the last time he had seen Watkins was when'Watkins stayed all night at his house in the spring; that he had never had anything against Watkins, and did not remember telling anybody that he had; and that he was carrying the “gun” because of threats of a “slacker” that he had helped to catch.

Herbert Clay, B. L. Smith, for plaintiff in error,

John T. Dorsey, solicitor-general, William Butt, contra.


author: Bloodwoeth, J.

text:
    10424.
    Humphries, alias Davis, v. The State.
   Bloodwoeth, J.

The motion for new trial in this case contained the usual general grounds only. The sole question for determination was whether or not the evidence was sufficient to show that there had been a breaking and entering of the house alleged to have been burglarized. The members of this court thought tire evidence sufficient to establish the burglary, but the decision in Lester v. State, 106 Ga. 371 (32 S. E. 335), seemed to forbid such a finding. This court therefore certified to the Supreme Court the following questions: “1. Is the foregoing evidence [the evidence in this case] sufficient to authorize a finding that there had been a breaking and entering of the house? 2. Is the decision in Lester v. State, 106 Ga. 371, that the evidence there was not sufficient to show a breaking and entering, a correct ruling?” The Supreme Court answered both questions in the affirmative, holding that “the evidence set forth in the question propounded by the Court of Appeals is sufficient to authorize a finding that there had been a breaking and entering of the house. And this is not in conflict with the decision in the case of Lester v. State, 106 Ga. 371, where it was held that the evidence was not sufficient to show a breaking and entering. An examination of the record in the case just referred to discloses that certain material facts do not appear in the official report of that case; but when these facts are considered, the ruling made by the court was undoubtedly correct.” 149 Ga. 480 (100 S. E. 637).

Decided November 4, 1919.

Indictment for burglary; from Bibb superior court—Judge Mathews.

For the facts, see the report of this case in 149 Ga. 480 (100 S. E. 637).

Park & Stone, Hubert P. Bawls, for plaintiff in error.

John P. Boss, solicitor-general, contra.

There being evidence to authorize the verdict, the judgment is

Affirmed.

Broyles, O. J., and Luke, J., concur.


text:
    10452.
    White et al. v. Stallings.
    Decided November 4, 1919.
    Complaint; from Monroe superior court—Judge Searcy. February 10, 1919.
    Stallings sued White and Manning on a promissory note for the purchase price of a mare. The defendants filed answers in which they admitted the execution of the note but denied indebtedness thereon, and alleged that “plaintiff sold said note to S. Silver, who afterwards brought trover suit in the city court of Barnesville against-and recovered a judgment for the amount of said note, which judgment has been paid off and settled in full.” Manning alleged also that “while his name appears on said note as joint maker, he had no connection with said transaction, and thought he signed said note only as a witness, but through an oversight signed the wrong line, which makes him appear as joint maker.” The defendants offered as an amendment a certified copy of a trover suit of S. Silver against Warren Jenkins, and of a judgment for the plaintiff therein, in the city court of Barnes-ville, in which the property sued for was described as in the above-mentioned note,—one bay mare six years old and weighing about 800 pounds. The court, on motion of the plaintiff’s counsel, on the ground that no legal defense was set forth, struck the answers; the court then directed a verdict for the plaintiff, and the defendants excepted.
   Bloodworth, J.

The record in this case does not show that the court erred either in striking the plea of the defendants or in thereafter directing a verdict for the plaintiff.

Judgment affirmed.

Broyles, O. J., and Luke, J., concur.

B. E. Manry, A. M. Zellner, for plaintiffs in error.

James M. Smith, contra.


text:
    10489.
    District Grand Lodge No. 18 v. Fortune et al.

    Decided November 4, 1919.
    Rehearing denied December 9, 1919.
    Complaint; from city court of Floyd county—Judge Nunnally. March 15,1919.

      C. P. Goree, for plaintiff in error.

      L. E. Covington, Wright Willingham, contra.
   Luke, J.

It does not appear that the trial judge, who, without the aid of a jury, heard the traverse to the return of the sheriff, erred in finding against the traverse, since the evidence in support of the traverse did not demand a finding that the plaintiff in error had traversed the sheriff’s return of service at the first term after it had received notice thereof, as required by section 5566 of the Civil Code (1910). It follows that the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, C. J., and Bloodworth, J., concur.


text:
    10545.
    Clarke & Wood v. Brooke et al., for use, etc.
    Decided November 4, 1919.
   Bloodworth, J.

1. The motion to dismiss the bill of exceptions is overruled.

(а) The cases cited and relied upon by defendant in error to sustain the 1st and 2d grounds of the motion to dismiss were decided before the act approved Aug. 21, 1911 (Ga. Laws, 1911, p. 149). See sections 3 and 4 of that act, and Bank of Dalton v. Clark, 19 Ga. App. 729 (3) (92 S. E. 40).

(б) Counsel for the defendants in error cites certain cases to sustain the 3d ground of his motion to dismiss. These were decided before the act of 1896 (Ga. L. 1896, p. 45). See Hammond v. Hammond, 135 Ga. 768 (3), 770 (70 S. E. 588); Harnage v. State, 7 Ga. App. 573 (67 S. E. 694).

2. The judge of the superior court properly overruled the petition for certiorari.

Judgment affirmed.

Broyles, O. J., and Luke, J., concur.

Certiorari; from Fulton superior court—Judge Ellis. January 20, 1919.

The case is described in the bill of exceptions as “the case of Clarke & Wood versus J. P. Brooke et al., for use of J. P. Brooke, the same being a certioriari,” etc. The bill of exceptions does not elsewhere mention the defendant or defendants in error. An acknowledgment of service thereon is signed, “W. H. Lewis, attorney for defendant in error.” The judgment complained of is dated January 20, 1919. The bill of exceptions says: “Plaintiffs in error come on this the 19th day of March, 1919, and within the time prescribed by law, and present . . their bill of exceptions,” etc. The motion to dismiss the writ of error is on the grounds: (1) that the bill of exceptions does not name all the parties defendant; (2) that it does not appear that service on any of the defendants designated as “et al.” was made or acknowledged or waived; that the acknowledgment signed by W. H. Lewis as attorney for “defendant” could only be construed as referring to the defendant J. P. Brooke, named in the bill of exceptions; and (3) that it appears from the bill of exceptions that it was tendered and certified more than thirty days after the rendition of the judgment excepted to, and it does not appear when the court adjourned.

A. B. Wilson, for plaintiff in error.

W. H. Lewis, J. P. Brooke, contra.


text:
    10580.
    LANGSTON v. THE STATE.
    1. One is not disqualified from being a juror in a criminal ease because of the formation and expression of an opinion as to the guilt or innocence of the accused, unless such opinion is formed and expressed either from having seen the crime committed or from having heard the testimony-under oath.
    2. On the hearing of the extraordinary motion for a new trial in this case the evidence for the defendant was met with a counter-showing by the State, and it is not made to appear that the judge abused his discretion in overruling the motion.
    Decided November 4, 1919.
    Conviction of assault with intent to rape; from Jeff Davis superior court—Judge Highsmith. April 4, 1919.

      8. D. Dell, for plaintiff in error.

      Alvin V. Sellers, solicitor-general, contra.
   Broyles, C. J.

In the instant ease, upon the hearing of the extraordinary motion for a new trial, it was shown by the affidavit of Hattie Lowery that one of the jurors was the magistrate before whom the warrant charging the defendant with the crime for which he was subsequently convicted was sworn out, and that the juror had stated to the affiant, before the trial of the defendant in the superior court, that there was no doubt about the defendant’s guilt and that he ought to be convicted. It was shown by the affidavit of defendant’s counsel that after the trial in the superior court the juror virtually, admitted to him that he had made such statements, and that he further stated “that he always investigated thoroughly such cases before he issued warrants, and did in this case, and that at the time of the alleged conversation with Hattie Lowery the matter was fresh in his mind, and that he guessed he made the statements.” The two affidavits were accompanied by the necessary supporting affidavits. The State, in a counter-showing, presented an affidavit from the juror in question in which he admitted that he was the justice of the peace who issued the warrant against the defendant; that the defendant was brought before him and waived commitment hearing and that he assessed bond; “deponent also remembers that at about this time Hattie Lowery asked him what the charge was against the defendant, and deponent told her that Eugenia Reddick had sworn out a warrant against the defendant, charging him with assault with intent to rape her little girl, but deponent does not remember telling Hattie Lowery or any other person that defendant was guilty and ought to be convicted, or that there was any doubt about his guilt; nor does deponent remember making any other statement of a similar nature to anybody; deponent can not swear positively that he did not make such a statement, for the reason that he does not remember it, but says that if he did make such a statement he has completely forgotten it.” In his affidavit the juror further stated: “Deponent says that at the time of the trial of said case and at the time deponent was accepted as a juror to try the same, there was no bias or prejudice resting upon deponent’s mind either for or against the defendant, Robert Langston; that deponent entered upon the trial of said case with his mind open and impartial as between the State and the accused and with his mind free from any bias t! prejudice whatever; that he returned in said case tbe only verdict which, in deponent’s opinion, was authorized by the evidence; that if the evidence had warranted or authorized it deponent would have gladly returned a verdict of acquittal; that deponent had not formed any opinion, previous to the trial of said case, as to the guilt of the defendant, and had no prejudice or bias resting upon his mind either for or against the accused, and that he entered upon the trial of said ease with the determination to render whatever verdict was, in deponent’s opinion, required by the evidence, whether of conviction or acquittal, and that to the best of his ability he did return such verdict.” (Italics ours.) It also appears from a note by the trial judge that the warrant against the defendant issued by the juror was put in evidence upon the trial, and that this was known by the defendant’s counsel.

As held in the first headnote, to disqualify one from being a juror in a criminal case, because of the formation and expression of an opinion as to the guilt or innocence of the accused, the opinion must have been formed and expressed, either from having seen the crime committed or from having heard the testimony under oath. Penal Code, § 1001 (1); Loyd v. State, 45 Ga. 57 (6); Wilburn v. State, 141 Ga. 510 (3), 511 (81 S. E. 444), and cases cited. While the evidence upon the hearing of the extraordinary motion for a new trial may have demanded a finding that the juror had exp-essed an opinion as to the defendant’s guilt, it did not demand a finding that he had formed and expressed such an opinion, since the juror in his affidavit specifically denied that he had formed any opinion, previous to the trial of the case, as to the guilt of the defendant. Furthermore, even if it be conceded that the exp-ession of an opinion necessarily shows a prior formation of the opinion, it does not appear in this case that the opinion of the jury as to the guilt of the accused was formed from having seen the crime committed or from having heard the testimony under oath. The defendant waived a commitment trial, and consequently it will be presumed that no testimony under oath was heard by the committing magistrate. We do not think that the swearing out of the warrant could be considered as "testimony under oath” within the meaning of the statute. There was no contention that the juror had seen the crime committed. Consequently it was for the judge, who as to all matters of fact was the trior, to decide whether the juror had formed and expressed an opinion as to the guilt of the accused from having heard any of the testimony delivered on oath; and, in our opinion, his decision in favor of the State on this issue of fact was authorized by the evidence submitted. It follows that the court did not err in overruring the motion for a new trial.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


author: Luke, J..

text:
    10617.
    Davis v. The State.
    Decided November 4, 1919.
    Indictment for misdemeanor; from Glascock superior court— Judge Walker. April 25, 1919.

      E. T. Shurley, for plaintiff in error.

      B. 0. Norman, solicitor-general, contra.
   Luke, J..

Section 22 of the act passed by the General Assembly of the State o£ Georgia at its extraordinary session held in March, 1917, provides that “it shall be unlawful for any corporation, firm or individual in this State to knowingly permit or allow anyone to have or possess or locate on his premises any apparatus for the distilling or manufacturing of the liquors and beverages specified in this act.” Under "this law an indictment was found against the accused, alleging that he “did unlawfully permit and allow, and did have and possess and locate on his premises . . apparatus for the distilling and manufacturing of spirituous, vinous, malted and fermented and intoxicating liquors and beverages, said apparatus consisting of a complete still and two barrels of ‘mash’ and ‘mobby.’ ” On the trial of the case a Witness testified: “I found a copper still and two barrels of ‘mobby’ on Mr. Davis’ premises. The still was in running order, all except the worm and condenser. I found the body part of the still. To constitute a complete still it takes what we call the ‘pot,’ or body part of the still (that is the part they put the ‘mobby’ in), the boiler, and a cap (that is the top that goes over the boiler), and worm leading to the condenser, leading through a barrel of water.” Held:

1. Neither “mash” nor “mobby” is a part of the “apparatus for the distilling or manufacturing” of the liquors referred to in the statute.

2. The evidence quoted above does not show that a “complete still” was found on the premises of the accused, and therefore is insufficient to support the allegation in the indictment.

Judgment reversed.

Broyles, O. J., and Bloodworth, J., concur.