author: Powell, J.

text:
    706.
    COLE v. THE STATE.
    In a prosecution for assault and battery, it is not competent for the defendant to show, as justification, that prior to the assault, and not contemporaneously therewith, the prosecutor or person assaulted had committed an injury upon the person, family, or property of the defendant.
    Certiorari, from Ben Hill superior court — Judge Whipple. July 25, 1907.
    Submitted October 9,
    Decided October 29, 1907.
    Mrs. Cole was tried and convicted of the offense of battery, in the city court of Fitzgerald. She presented a petition for certiorari to the judge of the superior court, who refused sanction; and she brings error. The testimony was that Mrs. Cole came up to the prosecutor, J. F. Greek, in the cotton factory at Fitzgerald, said to him, “You have got to quit whipping my boy,” thrust her hand up toward his face, and, according to the statement of the prosecutor, actually touched his face, though it did not hurt him. Several witnesses testified that she did not touch him and merely pointed her hand up toward his face, but the verdict of the jury necessarily concluded the issue in favor of the theory that there was a slight touching. The defendant’s statement was as follows: “Joe Greek had been whipping my boy. He is all the time picking at him and on one occasion made him drunk. He had just been beating him and made him cry, and as soon as I saw him I walked up to where he was talking and told him he must not whip my boy again and shook my hand in his face. I did not hit him at all.” The defendant also attempted to prove by witnesses that the prosecutor had slapped and hit her son, a small child, just before the rencounter occurred; that while the assault did not occur in her immediate presence, the boy ran away crying to her and that she quickly came and assaulted the prosecutor in the manner specified above. The court repelled the evidence; and error is assigned to this ruling. The two following requests to charge, which were refused by the court, thereby furnishing the basis of another assignment of error, present the theory of the l&w_-asserted by counsel for plaintiff in error, to wit: “A parent may not only commit a reasonable battery to protect his or her child, but any treatment of the child by another, which if meted out to the parent would justify the parent to commit a battery, would, if meted out to the child, justify the parent in committing the same kind of battery upon the one from whom the treatment flows,” and “It is not the law that a parent may commit a battery only in defense of a child. He or she ma3r be provoked by a battery on his or her child, and if the jury believe the battery committed by him or her in consequence of the provocation is reasonable and justified, he or she may be acquitted by the jury, and it is for the jury to decide whether he or she is justified.” A chain-gang sentence of four months, with alternative of $40 fine, was imposed

      O. H. Elkins, for plaintiff in error.

      E. D. Graham, solicitor-general, contra.
   Powell, J.

(After stating the facts.)

Judges have to declare the law as they find it to be; and not as they personally wish it to be. Every man who is acquainted with' the God-given instincts of motherhood, which impel every true mother to fly not only to the protection of her child, but also to vindicate wrongs done it, realizes what a strong excuse this natural impulse furnishes for her conduct under circumstances such as this case discloses, and also respects her the more because she so loves and so acts. We would, if in duty we could, strain the tethers of the law which binds us, in order that we might give this mother a new trial. But what is the law? A mother may justify the commission of an assault and battery by proof of any act done to her child, which if clone to herself personally would furnish like justification. This is elemental and undisputed. However, it may be asserted equally irrefragably, that in misdemeanors, based on assaults or batteries, no provocation which. does not occur in the defendant’s presence or at the immediate time of the difficulty can be pleaded by the defendant in justification. To quote from 2 Bishop’s New Criminal Law (8th ed.), §41, “The person beset is permitted to act only in self-defense; he can not take the law into his own hands to inflict punishment for the injury. Therefore, if he strikes when all danger is past, he is guilty.” Wharton’s Criminal Law (8th ed.), §621, on the same subject, says: “He can defend, but not punish.” The broadest statement of the rule in behalf of the defendant, so far as has come within our observation, is given in Blackstone’s Commentaries (book 3, p. 3), where, in discussing the different methods by which private wrongs may be redressed, the venerable writer says: “Of the -first sort, or that which arises from the sole act of the injured party, is the defence of one’s self, or the mutual and reciprocal defence of such as stand in the relations of husband and wife, parent and child, master and servant. In these cases, if the party himself, or any of these his relations, be forcibly attacked in his person or property, it is lawful for him to repel force by force; and the breach of the peace, which happens, is chargeable upon him only who began the affray. For the law, in this ease, respects the passions of the human mind; and (when external violence is offered to a man himself, or those to whom he bears a near connexion) makes it lawful in him to do himself that immediate justice to which he is prompted by nature, and which no prudential motives are strong enough to restrain. It considers that the future process of law is by no means an adequate remedy for injuries accompanied with force; since it is impossible to say to what wanton lengths of rapine or cruelty outrages of this sort might be carried, unless it were permitted a man immediately to oppose one violence with another. Self-defence, therefore, as it is justly called the primary law of nature, so it is not, neither can it be in fact, taken away by the law of society. In the English law particularly it is held, an excuse for breaches of the peace, nay even for homicide itself: but care must be taken that the resistance does not exceed the bounds of mere defence and prevention; for then the defender would himself become an aggressor.”

An exception from the common law and general rule is found in onr statute allowing provocation by opprobrious words as a defence in such prosecutions. Even under this statute, the opprobrious words must have been used in the presence of the defendant, at the time of the assault, and not previously. Berry v. State, 105 Ga. 683 (31 S. E. 592). Eyidence of insulting words used by the prosecutor to the .daughter of the accused, while he was absent, is not admissible on a trial of one charged with assault and battery. Walker v. State, 117 Ga. 323 (43 S. E. 737). Hard law, but law.

The law will justify an assault for less necessity than it would a homicide. One may strike another who has just hit him, not merely to prevent another immediate blow, but to prevent future similar outrages. This much we deduce from the statement of Blackstone above; this much the law allows to the individual by way of redressing his own wrong and preventing future wrong; but after the initial attack is ended and the immediate affray is over the law withdraws its permission for a further breach of the peace and compels the injured party to resort to the courts for his redress.

It is argued to us, that in this case, if the accused had killed the prosecutor, the law would have given such effect to the previous wrongful conduct of the latter and the passion aroused thereby that the homicide might be reduced from murder to manslaughter; and this we concede to be true. It is further insisted that a provocation to which the law gives such effect as to make it mitigation for a homicide ought to have at least enough efficacy to justify a mild battery. The distinction is this: murder is an unlawful killing with malice; manslaughter is an unlawful killing in anger without malice; proof of prior provocation may exclude the idea of malice in the homicide, but does not exclude the idea of unlawfulness; it merely substitutes the element of anger without malice for the element of malice, thus distinguishing the of-fences. Battery is the unlawful beating of another, whether it be done with malice or without malice, but in anger. Provocation which merely substitutes into the offense the element of anger for that of malice does not alter the nature of the crime; the ele-' ment of unlawfulness, which in battery is the only necessary element, remains.

This court has no jurisdiction to review a sentence imposed in a criminal case, on the ground that it is excessive, if it be within the limits set by the statute. The lower court is in so much better position to exercise a sound discretion in these matters that we feel a delicacy in making any expression that would seem to show any dissatisfaction with the action of the trial court in this respect. However, in this case, if this record states the whole truth, the sentence is so disproportionate to the offense proved that we feel justified in breaking our wonted silence in such matters. Indeed, the defendant’s transgression -is so slight, and her alleged provocation so great, that to our minds as men a fine of one dollar would be ample, if not excessive. • We are not mentioning this fact, however, for the mere purpose of criticism or comment, but as a basis for the direction' we have decided to give in connection with our judgment of affirmance in the case. We strongly suspect that the judge of the superior court, to whom the petition for certiorari was presented, overlooked the fact that in criminal certiorari from the city court of Fitzgerald, the law of certiorari from county courts applies; and that in such cases the judge of the superior court has -the power to review the sentence and “to pass such judgment or sentence as, in review of the whole case, is consistent with justice and law.” Penal Code, §767. In passing upon this question he exercises an original discretion. We therefore affirm the judgment, with the direction that within thirty days after the remittitur from this court is filed in the court below, the judge of the superior court may, in his discretion, sanction the petition for certiorari and cause answer to be made, as prescribed in the Penal Code, §766, to the end that he may pass upon the justness of the sentence and change it if he sees fit to do so. Of course, if he is satisfied with the sentence as it is, even upon the ex parte statement of the matter contained in the petition for certiorari, he should decline to exercise the discretion which this direction confers upon him.- He is in so much better position to do full justice to the interests of society, as well as of the accused, in this matter, that we would not have anything herein expressed so construed as to operate in any wise to the constraint of a full and free exercise of his untrammeled discretion.

Judgment affirmed, with direction.


source: Caselaw Access Project

author: Hill, C. J.

license: Public Domain

text:
    708.
    HALL v. THE STATE.
    1. A valid mortgage can not be made of a crop which has no actual or potential existence at the date of the mortgage. Therefore, where a mortgage was given on a crop planted at the date of the mortgage, but which was subsequently destroyed by natural causes, and a new crop planted, the' lien of the mortgage did not attach to any portion of the new crop
    2. A conviction under the. Penal Code, §671, could not be predicated on the sale of any part of the crop planted subsequently to the date of the mortgage; but such conviction, to be lawful, must be based on the fraudulent sale of the crop planted before the date of the mortgage.
    3. The refusal to charge the jury in accordance .with written requests embodying the foregoing principles of law was error.
    Indictment for misdemeanor, from Terrell • superior court— Judge Worrill. July 27, 1907.
    Submitted October 9,
    Decided October 29, 1907.

      Raines & Gnrr, H. A. Wilkinson, for plaintiff in error.

      J. A. Laing, solicitor-general, R. R. Arnold, J. B. Ridley, contra.
   Hill, C. J.

The indictment in this case is for a violation of the Penal Code, §671. The evidence for the State showed that the defendant executed a mortgage to the prosecutor,, dated April 16, 1906, covering his. crop for 1906; and, without the consent of the prosecutor, sold his crop when gathered, and appropriated the proceeds to the payment of other indebtedness, leaving the mortgage unpaid, and that thereby the mortgagee, sustained loss. The defendant contended that the crop covered by the mortgage was first planted in March, 1906, but, while growing, it was nearly all destroyed by a hailstorm, which occurred May 1, 1906. Subsequently to this storm and the destruction of the crop, a new crop was planted, and harvested and sold by the defendant. The evidence does not clearly show how much of the old crop which was covered by the mortgage escaped destruction and came to maturity and was gathered and sold by the defendant; but there was evidence which tended to prove the contention of the defendant that the amount realized from the old crop was not sufficient to pay liens prior in dignity to the mortgage. The jury solved the facts against the defendant; and we are asked to grant a new trial, on the general grounds, and because the court erred in refusing to charge, in accordance with written requests, as follows: (1) "The mortgage given to J. W. E. Lowry to secure his debt due him by J. H. Hall is not a good and valid mortgage, unless the crops were planted at the time said mortgage was made and executed.” (2) “You would not be authorized to convict the defendant unless the mortgage given by him to J. W. F. Lowry was a valid mortgage.” (3) “The burden is on the State to show that the mortgage is valid.”

Under the evidence in the case, the foregoing requests were pertinent and legal and should have been given by the court. It is well settled that there can be no valid sale or mortgage of a crop until it is planted. The crop must have an actual or potential existence at the date of the mortgage. Redd v. Burrus, 58 Ga. 575; Crine v. Tifts, 65 Ga. 644; Forsyth Mfg. Co. v. Castlen, 112 Ga. 201 (37 S. E. 485, 81 Am. St. R. 28). If the crop which was planted before the mortgage was executed was in fact largely destroyed by the hailstorm which took place, the mortgage lien remained only as to the portion of that crop which had escaped destruction; its lien did not attach to the crop that was planted subsequently to its date, and if this part of the crop was not sufficient to pay those liens which were prior in dignity to the mortgage lien, then the defendant could not be legally convicted under the Penal Code, §671. Certainly the crop planted subsequently to the date of the mortgage was not subject to it, and the mortgagor could not have incurred any criminal liability to the mortgagee for its sale. There being some evidence in the record Aldrich would have sustained the foregoing contentions of the defendant, he Avas entitled to have the law embodied in his request, applicable thereto, submitted to the jury by the court, and the refusal to do so Avas error. Judgment reversed.


text:
    739.
    FINCHER, marshal, v. COLLUM.
    1. Under a “general Avelfare” charter clause in tisual form, a city council may pass an ordinance requiring owners of clogs to register them, secure tags, and pay fees therefor, and authorizing the killing of all untagged dogs; also making the OAraers of untagged dogs subject to punishment. The fact that the tag fees on female dogs are higher than those on male dogs- does not render such an ordinance invalid. Such ordinances are sanitary, and not fiscal, in their nature; ai-o an exercise of the police power, and not of the taxing poAver.

      2. The charter of the City of Dalton, approved February 24, 1874 (Acts 1874, p. 181), and the subsequent acts amendatory thereof, represent the entire charter powers of the city; and provisions contained in prior charters but omitted from this act are no longer in force.
    Habeas corpus, from city court of Dalton — Judge Longley. August 23, 1907.
    Argued October 9,
    Decided October 29, 1907.
    Collum was convicted in the police court of Dalton for keeping a dog in violation of the “dog ordinance” of that city. He took habeas corpus against the marshal of the city, and was released on the ground that the ordinance is void; and the city brings error. The ordinance (omitting immaterial parts) is as follows: “It shall be unlawful to keep, maintain, or allow kept on one’s premises, within the City of Dalton, any dog not tagged as hereinafter set out. The clerk is hereby directed to prepare suitable', metal tags for sale for those desirous of keeping dogs within the City of Dalton. Tags to be placed on male dogs shall be sold at one dollar each, and tags to be placed on female dogs shall be sold at five dollars each. . . Such tags, when attached to the neck of said animal, shall protect said animal from being killed during the year within which same is sold, except as hereinafter provided. The police force is hereby required to kill all dogs, male or female, found within the limits of the City of Dalton, after the first day of June, 1907, which are not protected by a proper tag, as hereinbefore set out, and they are further required to kill all dangerous, vicious, and mad dogs found within the limits of said city, whether they shall be tagged or not; and nothing herein contained shall be construed to prevent the killing of such vicious, dangerous, and mád dogs. The owner of any dog found within the limits of Dalton after the first day of June, 1907, and not bearing the tag herein provided for, shall be guilty of a violation of this ordinance; and the word 'owner/ as herein used, shall he construed to mean any person having such dogs in charge, or allowing the same kept on any premises owned or occupied by him.” Violations are to be punished in accordance with the penal ordinance of-the city.
    It is alleged, in the petition for habeas corpus, that the ordinance is void because it is a tax ordinance, and by the city charter (§§44, 78) 1'cense fees and taxes can be enforced only by execution. Also that it is void “because it imposes a license fee or tax of one dollar on male dogs, and a license fee or tax of five dollars each on female dogs, and therefore violates the constitutional provision that ‘all taxation shall be uniform on the same class of subjects;’” especially in the light of §4 of the Political Code, which says that “the masculine gender shall include the feminine and neuter.” Also that it is void because of lack of authority in the charter of Dalton to regulate any dogs except such as are “straying at large within the corporate limits,” while the ordinance attempts to make illegal the keeping of dogs on the citizens’ own premises. In this connection the ordinance -is alleged to be “an oppressive and tyrannical usurpation of power and an illegal invasion of the rights of a citizen and resident of said city.” It is further alleged, that' “if said ordinance is claimed to he- a police regulation to promote the peace, health, or good order of the city,'it is wholly impotent, void,' and illegal as such, being inconsistent with the laws of Georgia, and, instead of being a police protection, is just the opposite, its effect being to turn loose upon the streets of said city, under the protection of a license, every vicious dog in the city, whose owner buys' a tag for said dog, and puts the same on, said tag having on them ‘Licensed Dog,’ and is no protection to the children or women or others on the public street against mad or. vicious dogs, as a muzzle would be.” For these reasons it is averred that the restraint under the conviction under the ordinance .is “wholly illegal, void, senseless, tyrannical, oppressive, and malicious.”

      Julian McCamy, for plaintiff in error.

      C. D. & F. K. McCutchen, contra.
   Powell, J.

(After stating the facts.)

If the ordinance were adjudged to be a tax ordinance, the question arising from the discrimination in the amount imposed on female dogs and that imposed upon the males might be serious; though we are inclined to think that the subtle influence which she-dogs possess of attracting all the he-dogs in the neighborhood to their immediate vicinity at stated periods, thereby making themselves “attractive nuisances,” as it were, might furnish a legitimate basis for putting bitches in a special taxing class. Still, just here the present complaining party wo aid be met with the obstacle that he owns a dog, and not a bitch; and favored classes are not allowed to complain of discriminations in their favor. Mayor v. Simmons, 96 Ga. 480 (3) (23 S. E. 508); Reid v. Mayor, 80 Ga. 757-8 (6 S. E. 602). However, the ordinance is not a tax ordinance, but a police regulation. “The power to regulate the keeping of dogs and to enforce such regulations by fine, forfeitures, and penalties is recognized as one within the police power.” This power of regulation may lawfully be exercised through a requirement that all persons keeping dogs on their premises shall register the same, procure a badge for each dog, and pay a fee. Griggs v. Macon, 103 Ga. 602 (30 S. E. 561) ; 1 Dill. Mun. Corp. (4th ed.) 212, note 2; Cole v. Hall, 103 Ill. 30; Commonwealth v. Markham, 70 Ky. (7 Bush) 486; Van Horn v. People, 46 Mich. 183 (9 N. W. 246, 41 Am. R. 159); Carthage v. Rhodes, 101 Mo. 175 (14 S. W. 181, 9 L. R. A. 352); Gibson v. Harrison, 69 Ark. 385 (63 S. W. 999, 34 L. R. A. 268); Sentell v. N. O. R. Co., 166 U. S. 698 (17 Sup. Ct. 693, 41 L. ed. 1169). That bitches are taxed more than males works no invalidity. Hendrie v. Kalthoff, 48 Mich. 306 (12 N W. 191). Such measures are sanitary, not fiscal. Commonwealth v. Markham, supra. The nature and habits of dogs make them the special subjects of the police power. Despite the faqt that the virtues of the dog have commanded the favorable attention of Senator Yest and others who have paid him many glowing tributes, still he has not a universal good name. There are good dogs and bad dogs. Holy Writ has but few good words for dogs. Note the unfavorable categories in which they are placed: “Por without are dogs, and sorcerers, and whoremongers, and murderers, and idolaters, and whosoever loveth and maketh a lie.” Eev. 22:15. “Thou shalt not bring the hire of a whore, or the price of a dog, into the house of the Lord thy God for any vow; for even both these are abomination unto the Lord thy God.” Deut. 23: 18. “Beware of dogs, beware of evil workers, beware of the concision.” Phil. 3:2.

We have no disposition to take issue with the unbroken current of authority which says that dogs are under the special watch and ward of the police power. Take our canine citizenship out from under the dominion of the police power, and every municipality which finds itself in the throes of a mad-dog scare will be exposed to the chagrin of seeing its ordinances, hastily drawn to meet the emergency, resisted by defenses and assailed by injunctions predicated upon the thirteenth, fourteenth, and fifteenth amendments to the Federal constitution. Shall pointers and setters or yellow curs he the sufficient cause for clash between State authorities and Federal courts? Shall a day come when a “grandfather clause” will be the necessary adjunct to every town dog law? In the light of,, such possibilities public policy forbids the courts to interfere, or to do anything which will tend to diminish the hold of the police power upon the subject; although to leave the subject as it is may occasionally result in the “senseless, tyrannical, oppressive, and malicious” restraint of some good citizen.

However, it is not every city government that possesses, untrammeled by limitations, this subtle something which we call the police power. Let us examine the charter of Dalton to see how far this city is authorized to go on this dog question. Under an unlimited “general welfare clause” the ordinance would be valid. Crum v. Bray, 121 Ga. 709 (49 S. E. 686). Has Dalton such power? We will review briefly its charters. On December 29, 1847 (Acts 1847, p. 41), an act was passed converting the village of Cross Plains into the City of Dalton. By §16 of that act “The mayor and council shall have power to pass such ordinances as they may deem advisable fox the management of all hogs, dogs, horses, mules, and other stock, straying at large within the corporate limits.” On January 18, 1852, an act was passed repealing the act of December 15, 1847. On December 28, 1853 (Acts 1853-4, p. 235), an act was passed to incorporate the City of Dalton, in lieu of the Town of Dalton. In §24 of this last-mentioned act it was recited that the act of January 15, 1852, repealing the act of December 29, 1847, incorporating the City of Dalton; had not been acted under; and the actions of the mayor and city council during the years 1852 and 1853 were ratified and declared legal and. valid. In this charter no reference is especially made, to the regulation of dogs and stock, but an unlimited “general welfare” clause appears. On February 24, 1874, there was passed (to quote the title) “An act to consolidate, amend, and codify the various acts incorporating the City of Dalton in the county of Whitfield, and the various acts ameüdatory thereof, and to define the duty of the mayor and council and other officers of said city.” This act does not deal specifically with the question of dogs or stock, but contains a “general welfare” clause in usual form. Under this charter, the Supreme Court in the case of King v. Ford, 70 Ga. 628, upheld an ordinance by which the city marshal of Dalton justified his conduct in suppressing the pranks of a “sportive filly,” which, as appears from the record in that ease, gave considerable annoyance, by her divers sundry pranks and gambols, to the quiet-loving citizenship of that most excellent city. Jt may be interesting to note that the fathers of the young gentlemen who have so fervently and ably argued the present case in this court for the respective sides of the issue were in that case likewise opposed, one to the other. “As the mantle of the elder Pitt fell upon the younger Pitt,” etc. But to proceed with the decision of the case: if the 16th section of the act of 1847 is to be considered as still in force, as is contended by defendant in error, the express authority to regulate dogs and stock “running at large” might, under the principle of expressio unius exclusio alterius, be considered a restriction upon the right to regulate dogs kept upon the premises of the owner. See Mayor and Council of Waycross v. Walker, 116 Ga. 221 (42 S. E. 375). We think, however, that this section is no longer a part of the charter of Dalton ; the repealing act of 1852, as well as the omission of the pro.visions of the section from the new charters of 1854 and 1874, seems to have eliminated it, and to have left the “general welfare clause” untrammeled by its provisions. Indeed, we think that the act of 1874 and the subsequent acts amendatory thereof constitute the only existing charter powers of the City of Dalton. The language in which the title to the act of 1874 is couched indicates a clear intention to cover the entire subject-matter, and to repeal such portions of former charters as were not therein included. McVicker v. Conkle, 96 Ga. 594 (24 S. E. 23); Central Railroad v. State, 104 Ga. 831 (31 S. E. 531, 42 L. R. A. 518). “The general rule, that when a statute not merely cumulative of the common law or of previous statutes, and not made to cure the deficiencies thereof, is designed to create a new and independent system, and to dispose of the whole subject of legislation, it is the only law on that subject and without an express repealing clause displaces the old statutes, has been almost universally applied to codes and revisions.” 26 Am. & Eng. Enc. Law (2d ed.), 733. We conclude, therefore, that the City Council of Dalton had the charter power to pass the ordinance; that it is a reasonable exercise of the police power; that, being an exercise of the police power and not a revenue or tax ordinance, provisions which relate to taxes and ordinary license fees are not applicable; in fine, that there is no reason for declaring the ordinance void.

If in the discussion we have been led away from wonted judicial serenity and seriousness, our apology is that the strenuousness with which the collection of this fine of one dollar and costs has been resisted, and with which that resistance has been resisted; the vehemence of language in the pleadings; the volume of matter in the briefs; the earnestness with which all these questions have been presented (and we must confess that the young men have argued the matter with consummate skill and ability), when brought into contrast with the actual subject-matter of the controversy, present a phase of humor that has tempted us-aside.

Judgment reversed.


text:
    505.
    DUBLIN & SOUTHWESTERN RAILWAY COMPANY v. AKERMAN & AKERMAN.
    •1. The name “Akerman & Akerman” connotes a partnership. An amendment alleging that they are a partnership is permissible, though not necessary.
    2. An attorney may render services for a person or corporation in a suit to which the client is not a formal party.
    3. “The managing officers and agents of corporations have power to employ attorneys to prosecute and defend suits for the corporation, or otherwise to assist in legal proceedings in which it is interested, without any express delegation of power to do so, or any formal resolution of the board of directors to that effect.”
    4. The evidence in this case demanded the verdict rendered.
    Complaint, from city court of Eastman — Judge Thomas presiding. April 9, 1907.
    Submitted October 21,
    Decided October 30, 1907.
    Akerman & Akerman brought suit against the Dublin & Southwestern Railway Company on an account as follows: “To service in the case of Southern Railway Company v. Mayor & Council of Eastman et al. in the Circuit Court of the United States for the Southern District of Georgia, $100.00.” The defendant demurred, (1) because no party plaintiff is named, it not appearing that Akerman & Akerman are either a partnership or a corporation; .(2) because it appears from the account that defendant is being sued for services in a case to which it does not appear to have been a party. The plaintiff amended, alleging that Akerman & Akerman are a partnership. The demurrer was overruled. Upon the trial the following testimony was introduced by the plaintiff: Judge Clements testified, that.in June, 1905, the Southern Kailway Company filed a petition in the United States Court against the Mayor & Council of Eastman; and he was representing that defendant. The suit involved the right to a certain strip of land on which the Southern Kailway Company was about to lay a sidetrack, and which the city, it seems, was about to give'to the "Dublin & Southwestern Kailway Company for terminal "or similar purposes. (The exact nature of this suit is immaterial to this case, except to the extent that the city and the Dublin & Southwestern Ky. Co. had a mutuality of interest.) The answers of the city had been prepared and filed. This witness further testified: “I met Judge Koberts, who had been to Dublin, and he came to me and told me that .Col. J. M. .Stubbs, who was general counsel for the Dublin & Southwestern, had told him and requested him to see me and get the Akermans in the ease. Judge Koberts and myself were local counsel for the Dublin & Southwestern. I went to Macon in three or four days afterwards, and when I got up there I spoke to Mr. Alex Akerman, the older member of the firm, and told him of the message I had received from Col. Stubbs through Judge Koberts. We discussed the case and he told me what he would charge to go into the case. . . Mr. Akerman told me he would charge $100 to go into the ease. Before the case was called Col. Stubbs and Mr. Kentz both appeared in the Federal building in Macon, and Mr. Kentz again spoke to me about the employment of Mr. Akerman, or rather he and Col. Stubbs discussed it with me; they were both in the court-room after the case had been started and during a pprtion of the trial. I told Mr. Kentz what Mr. Akerman said about the fee, and he directed me to employ him for the railroad company, and that the company would pay Mr. Akerman. I immediately did that, and Mr. Akerman went into the case, and Mr. Kentz was in there while the ease was being tried and saw Mr. Akerman participating in ' the case. Before the suit of the Mayor and Council of Eastman had been disposed of, an amendment was offered by the Southern, asking that the Dublin & Southwestern be made a party also.” Judge Eoberts testified that Col. Stubbs, the general counsel for the railway company, asked him to tell Judge Clements to employ Akerman & Akerman to represent the railway compands interests in the matter, on account of the special skillfulness of that firm in matters of procedure in the Federal courts. As to Mr. Eentz, who was referred to in the testimony, Judge Eoberts testified, “I think Mr. Eentz was 'president of the Dublin & Southwestern as it then existed; he was supervisor and superintendent of the extension of the road to this place. . . I think Mr. Eentz was the only president the road ever had up until the time it was sold out.” Judge James Bishop, who represented the Southern Eailway in the suit, testified to the successful fight made by Akerman & Akerman to prevent the Dublin & Southwestern Eailway Company from being joined by amendment as party defendant to the suit pending against the City of Eastman. It further appeared, from the testimony of directors of the railway company and others, that Mr. Eentz had referred to this fee at meetings of directors and' had said that he would see to its being paid, but that he wanted to hold Akerman & Akerman off and see if he could not get them down on the price. Messrs. Akerman presented their bill to the City of Eastman, and, after the city had declined to pay it, on the ground that the railway company alone was liable, this suit was brought. The defendant introduced no testimony.

      J. P. Highsmith, for plaintiff in error.

      C. W. Griffin, Tye, Peeples, Bryan & Jordan, contra.
   Powell, J.

(After stating the facts.)

The statement in the first headnote is too plain to justify elaboration. Buffington v. State, 124 Ga. 24 (52 S. E. 19); Smith v. Columbia Jewelry Co., 114 Ga. 698 (40 S. E. 735); Western & Atlantic R. Co. v. Dalton Marble Works, 122 Ga. 776 (50 S. E. 978).

The statement in the second headnote seems likewise obvious. Very frequently the most valuable service an attorney can perform for his client is to keep him out of a suit.

The third headnote is copied bodily from 10 Cyc. 928 (8b). We are inclined to think that the general counsel or head of the le.gal department, in a corporation such as this, would have the implied power to employ such special or local attorneys as might be necessary. Certainly the employment of an attorney by the joint .authority of the general counsel and the president, who also exercises the duties of superintendent, is to be regarded as the act •of the corporation. It is said, in the argument, that there is no •evidence of Mr. Rentz’s official capacity; that Judge Roberts’s testimony to that effect was prefaced by the words “I think.” 'There is no rational distinction between the expressions “I think” •and “according to my recollection,” as applied to the testimony of a witness as to the existence of a fact which came within his personal knowledge. Mimbs v. State, ante, 387 (58 S. E. 499); Voisin v. Commercial Ins. Co., 60 App. Div. (N. Y.) 499 (70 N. Y. Supp. 147, 154); Humphries v. Parker, 52 Me. 502, 504; Galveston Ry. Co. v. Parrish, 43 S. W. 536. See the second definition of the verb “think,” in the Century Dictionary.

The testimony is clear and unequivocal that this debt is due and owing by the defendant to the plaintiff. It is true that there are some exceptions taken in the record, 'based upon objections to testimony; but should we concede all these objections to be well founded (though indeed they are not), still they relate to immaterial matters, -not in any wise changing the only material fact, which is overwhelmingly established and not denied, that this debt is due the plaintiffs; and therefore these exceptions are utterly immaterial. By not a word of testimony does the defendant dispute the debt; the only reason, so far as the record shows, why it has not been paid is indicated by the statement made by the president at the directors’ meeting, that he was “holding them off to see if he could not get them down some.” After a careful consideration of the record, we have become satisfied that the bringing of the case to this court is but a part of the defendant’s plan to “hold off” the plaintiffs; that it was for delay only. Protection to the State as well as the defendants in error demands the awarding of damages in-such cases.

Judgment affirmed, and ten fer cent, damages awarded.


author: Russell, J.

text:
    531.
    NATIONAL LUMBER COMPANY v. TURNER et al.

    1. The guardian of a ward who dies pending his minority, intestate, becomes then the administrator of his estate. Civil Code, §2569.
    2. An administrator can not be garnished in the absence of a statute conveying- express authority for that purpose, for the reason that without-such a statute the court of ordinary alone has jurisdiction. Under the-Civil Code, §§4734, 4735, an administrator is, in certain cases therein provided for, subject to garnishment; but the provisions of these sections being in derogation of the jurisdiction of the court of ordinary, the garnishment proceedings must be -in strict compliance with the terms-of the exceptions therein provided.
    3. Process of garnishment sued out to reach the distributive share of a person in the hands of the administrator, or to impound a debt owed by the estate to a debtor of the garnishing creditor, is void, unless “the creditor will swear — in addition to the oath required in ordinary cases— that his debtor resides without the State, or is insolvent.” Without, such an affidavit, the court of ordinary still has jurisdiction of the person and the subject-matter, and no other court acquires jurisdiction.
    4. The affidavit upon which the garnishment was based, containing no-statement that the heir, distributee, or creditor of the estate was insolvent, the city court of Baxley was without jurisdiction to issue process of garnishment; and consequently all subsequent proceedings, including the judgment against the garnishee, were void. Therefore, in a suit brought against suplí- administrator and the surety on his bond, , founded upon such void judgment against the garnishee, it was not error to render a judgment in favor of the defendants.
    Action on bond, from city conrt of Baxley — Judge Thomas, April 13, 1907.
    Submitted October 22,
    Decided October 30, 1907.

      W. W. Bennett, for plaintiff. V. E. Padgett, contra.
   Russell, J.

In 1905 the National Lumber Company obtained a judgment against E. W. Turner, in the city court of Baxley, for $308.52. On March 6, 1906, the lumber companjr sued out-process of garnishment before the judge of the city court of Baxley and had summons of garnishment served upon E. W. Turner, as guardian of Frances Virginia Turner, deceased, calling upon him to answer what amount he owed the defendant, E. W. Turner, as an individual. The garnishment was made returnable to-the April term, 1906, of the city court of Baxlejr, and service was perfected on E. W. Turner, guardian, the garnishee, on March 6, 1906. The affidavit upon which the process of garnishment issued was as follows: “Georgia, Appling County. In person before the undersigned officer, authorized to issue process of garnishment, came W. W. Bennett, the attorney at law of the National Lumber Co.; a corporation under the laws of Georgia, who on his oath says that E. W. Turner, to the best of my knowledge and belief, is indebted to the National Lumber Co. in the sum of two hundred and 'seventy-five dollars, for which amount judgment has already been obtained in the city court of Baxley, Ga., and that he has reason to apprehend the loss of said sum, or some part thereof, unless process of garnishment do issue.” (Signed, etc.) The National Lumber Company gave a garnishment bond in conformity with the affidavit. The garnishee filed no answer to the summons of garnishment, either at the April or the June term; and on August 9, 1906, judgment was entered against the garnishee, E. W. Turner, guardian of Frances Virginia Turner, deceased, for $275 and costs. On December 14, 1906, an execution was issued on this judgment and, after being entered on the general execution docket, was placed in the hands of the sheriff, who made a return thereon of nulla bona. Thereupon the plaintiff in fi. fa., the National Lumber Company, brought'the present action against E. W. Turner, guardian, as principal, and H. M. Herndon as security, on the guardian’s bond. The petition, after setting forth the foregoing facts and alleging that E. W. Turner was one of the heirs at law of his deceased daughter and ward, Frances Virginia Turner and had received, from the sale of land belonging to his deceased ward, the sum of $1025, asked judgment against the principal and the security on the guardian’s bond, for $275, being the amount of the judgment he had obtained against the guardian as garnishee. The defendants, Turner, guardian, and Herndon as security, defended solely upon the ground that the judgment against the garnishee and the proceedings upon which said judgment was based were null and void. The issue was tried before the judge of the city eourt of Baxley, who, on April 13, 1907, held that the garnishment proceeding was invalid and that the judgment rendered thereupon was null and void, and rendered a judgment in favor of the defendants, which is now excepted to.

We think the judgment of the judge of the city court of Baxley was right. The plaintiff in error insists that the garnishment proceedings and the judgment based therecn and the fi. fa. issued upon the judgment, all admitted in evidence, show a valid, legal, binding judgment against the defendant, E. W. Turner, guardian. If this were true, the guardian having received $1025 belonging to the estate of his ward, and being one of her heirs, his interest therein as such heir could be reached by his judgment creditors, by the process of garnishment. The learned counsel for the plaintiff in error insists that the case is controlled by the Civil Code, §§4705, 4706, 4708, 4709. These are the sections applicable to proceedings in garnishment generally; and the affidavit which we have quoted above was made in conformity with §4708. We think, however, that this guardian could only be garnished under the terms of code-section 4735; and that while the'judge of the city court of Baxley is clothed, by the act of 1897, sec. 10 (Ga. Laws 1897, p. 423), with ample power to take the affidavit and issue the process of garnishment, he could only do this in conformity with the terms of §4735.- It appears, from the record, that the ward, Frances Virginia Turner, died in 1901, a minor eighteen years of age, leaving her estate in the hands of her guardian, because it was not sold until March 6, 1906. Under these circumstances the guardianship terminated, and E. W. Turner became the administrator of his deceased ward’s estate. The Civil Code, §2569, provides that írWhen a ward shall die intestate pending his minority, the guardian shall proceed to distribute his estate in the same manner as if he had been appointed administrator upon such estate, and the sureties on his bond shall be responsible for the faithful administration and distribution of such estate.” This code-section is not in the same verbiage as the original act from which it is taken (Acts 1858, p. 57). The original act provided that “whenever any ward or wards shall depart this life, leaving assets of any kind, the guardian or guardians of said ward or wards are hereby vested with all the powers of administrators on estates, and shall be controlled by the laws in force in this State in relation to administrators.” In Jefferson v. Bowers, 33 Ga. 452, the Supreme Court held that this act applied to guardians of lunatics, and so construed it. There is one material difference between the code section and the original act. The code section makes the guardian an administrator only when the ward dies intestate, whereas the original act vested the guardian with all the powers and duties of administrator whenever his ward died “leaving assets of any kind.” The original act made the guardian the administrator without regard to the contingency that thé ward, might have executed a will. The code section perhaps is intended to provide for that contingency. It is clear, therefore, that in the absence of either allegation or proof that Frances Virginia Turner left a will, her guardian, E. W. Turner, upon her death, became, by the terms of §2569, the administrator of her ■estate, and was only subject to garnishment under the provision of §4735, which furnishes an exception to the usual rule' as to garnishments. Under the provisions of §4735, an executor or administrator may be garnished for a legacy or distributive share, or for any debt owed by the estate to any other person, but the creditor must, in addition to the oath required in ordinary cases of garnishment, swear that his debtor either resides without the State or is insolvent. As will be noted from the affidavit in this case, the affiant did not swear either that E. W. Turner resided out of the State, or that he was insolvent. Not having placed his case within the exception, the affidavit was fatally defective, and gave the city court of Baxley no jurisdiction. All of the subsequent proceedings, including the judgment, for want of jurisdiction were void.

The garnishee fails to answer a garnishment at his peril, but he is not required to answer a void process of garnishment, and therefore, in this case, the fact that the garnishee failed to make answer was of no importance and adds nothing to the authority of the court or its power to enter judgment against the garnishee. Unless the affidavit made to obtain process of garnishment conferred jurisdiction upon the court rendering the judgment, the judgment was void, and could be attacked whenever it was material to the interest of the parties to consider it. The judgment against the garnishee was a nullity. Civil Code, §5369. Section 4735 fully authorizes the issuance of summons of garnishment against an administrator, for the distributive share of the distributee, but only when the creditor complies with its terms. The administrator is primarily responsible to the ordinary, and the court of ordinary has jurisdiction. The mandatory requirements of §4735 must be complied with, in order to give any other court than the court of ordinary jurisdiction of an administrator, in a special proceeding like a garnishment. Harris v. Kittle, 119 Ga. 30 (3) (45 S. E. 729); Brown v. Wiley, 107 Ga. 85 (32 S. E. 905). “Without the aid of a statute, an administrator or executor can not be garnished for funds which he holds as such administrator or executor. The reason is that he. is an officer of the court, and as such must account for all funds in his hands, and it would be improper and against public policy for another court to interfere with the administration.” Brown v. Wiley, supra. This is a general rule. Our State has varied it to the extent of the provisions of the Civil Code, §§4734, 4735; but these sections furnishing exceptions to the general rule must be strictly complied with. Had the affidavit made to obtain the garnishment contained the statement that the debtor, E. W. Turner, was insolvent, the judgment against the garnishee and the return of nulla bona on the fi. fa. issued in pursuance of such judgment, if supported by proof of the other allegations, would have authorized a judgment against the guardian and the surety on his bond. In the absence of a sworn averment, in the original affidavit, that the defendant was insolvent, or that ¿he resided without the State, the jurisdiction of the court of ordinary was exclusive, and the jurisdiction conferred by the act of 1897, creating the city court of Baxley, §10, to issue the garnishment, was inoperative. This being true, all subsequent proceedings against the garnishee were, for want of jurisdiction, void, and properly so considered by the judge in the trial of the pending case against the guardian and the surety. Judgment affirmed.


text:
    571.
    Harrell et al. v. Nussbaum et al.

    Money rule, from Decatur superior court.
    Motion to dismiss writ of error.
    Argued October 28,
    Decided October 30, 1907.

      M. E. O’Neal, for plaintiffs.

      Russell & Hawes, for defendants.
   Powell, J.

This court, irrespective of the amount involved, has no jurisdiction of a writ of error complaining of the judgment of a superior eourt in a civil action originally instituted therein.

Writ of error dismissed.


text:
      527.

    PATTERSON v. SAMS.
    1. Niceties of pleading are not required in the justices’ courts; and an allegation, in a petition attached to the summons, that the servant of the defendants fired a brush heap near the line of plaintiff’s land, and went away and left the fire burning near the property of the plaintiff, which was destroyed by fire, is ample allegation of negligence.
    2. The word “servant” in the Civil Code, §3817, refers only to domestic servants.
    3. One can not complain of a ruling which he himself has invoked.
    4. The verdict was authorized by the evidence and there was no error in refusing a new trial.
    Action for damages, from Fayette superior court — Judge Reagan. April 29, 1907.
    Submitted October 22,

    Decided October 31, 1907.

      J. W. Wise, for plaintiff in error.
    W. B. Hollingsworth, J. W. Culpepper, contra.
   Russell, J.

Mrs. Sams brought suit against Will and George T. Patterson, in a justice’s court, for $100, damages, alleging that the defendants caused 93 cords of her wood to be burned and destroyed. It appears that the justice rendered a judgment with which the plaintiff was dissatisfied, and she appealed to a jury in the justice’s court. After verdict by the jury in the justice’s court, the case was carried by certiorari to the superior court, and the judgment of the justice’s court was reversed, and the case was remanded for another trial in the justice’s court. Before this trial the case was, by consent of both parties, appealed to the superior court. On the trial in the superior court, upon motion of plaintiff’s counsel, a nonsuit was granted as to Will Patterson, and a verdict was rendered against G. T. Patterson for $65. Before proceeding to trial in the superior court, the defendants demurred generally and specially to the plaintiff’s petition attached to the summons in the justice’s court. They demurred specially because the petition did not set out the kind of servant the defendants employed, nor what his duties were, and because the petition failed to set out with sufficient certainty in what manner the defendants were negligent, or in what way their servant was negligent. The court overruled the demurrers, and exceptions were filed pendente lite. Error is assigned on the judgment overruling the demurrers, and on the order granting the nonsuit, and on the refusal of the motion for new trial.

There was no error in overruling the demurrers. The petition alleged, that “defendants, by their servant, one Carl Scott, fired a brush heap on their land, and negligently went away and left said fire burning,” etc. Under the ruling n Lockett v. Pittman, 72 Ga. 817, the word “servant” can have no other meaning than a domestic servant, and no other duties than those which appertain to such servants. And even if in an action brought in the superior court it were necessary to allege special facts showing the servant to be a domestic servant, and to set forth the duties of such servant with' particularity, this is not necessary or required in a justice’s court. Nor was there any merit in the defendants’ second ground of special demurrer. The allegation, that the defendants’ servant, Carl Scott, allowed fire to spread from the brush heap near the line of plaintiff’s premises, which had been fired by him, and to • spread to petitioner’s land, where it burned her wood, because he went away and left the fire burning, well knowing that said fire was near the property of plaintiff and likely to spread to her property if left unwatched, is, we are clear, a sufficiently certain statement of the manner in which the defendants and their servant were negligent, to withstand a special demurrer in any court, and far more ample than was required in a justice’s court.

It must be borne in mind that the case, being in the superior court by appeal from the justice’s court, must be tried as if it were still in the justice’s court. And, as was expressly held in Ga. S. & F. Ry. Co. v. Barfield, 1 Ga. App. 203 (58 S. E. 236), “the terms of the Civil Code, §4116, requiring a copy of the cause of action sued on to be attached to the summons in a justice’s court, do not necessitate a specific allegation of negligence, or a detailed relation of the acts from which negligence may be inferred, or by which it is to be proved, or that the plaintiff set out a statement of the facts which constitute the alleged negligence.” The requirement as to summons and copy in a justice’s court is an' exception to the general rules of pleading. And the case is not changed by reason of an appeal to the superior court. As held by this court in Southern Railway Co. v. Oliver, 1 Ga. App. 734 (58 S. E. 244), “it is neither possible, practicable, nor requisite to indulge in the niceties of pleading,” in a justice’s court. There was, therefore, no error in overruling both the special and the general demurrer. The suit was predicated upon the Civil Code, §3817: “Every person shall be liable for torts committed by his wife, and for torts committed by his child, or servant by his command, or in the prosecution and within the scope of his business, whether the same be by negligence or voluntary.” “A petition alleging negligence on the- part of an employee in and about a matter falling within ‘the regular discharge of his duties within the scope of his employer’s business,’ and consequent injury to the plaintiff, sets forth a cause of action against such employee’s master.” Thompson v. Wright, 109 Ga. 466 (34 S. E. 560).

The plaintiff in error is estopped from complaint of the grant of the nonsuit, as to Will Patterson, because it appears, from the record, that a nonsuit.was granted upon motion of counsel for plaintiff in error. Civil Code, §5150.

There was no error in overruling the motion for a new trial, as the evidence in behalf of the plaintiff fully authorized the verdict rendered in her favor. It is true that the testimony of the defendant George T. Patterson would have authorized a verdict in his favor. He testified, that he told his serví nt to work at a different place that day, and not to set out fire until he himself could be present, and that he was at home sick that day. But the plaintiff’s witness W. J. Sams testified that Carl Scott (who had testified in the justice’s court and since died) swore in the justice’s court that the defendant directed him to set fire to the grass which caused the burning of the wood in question; and the comparative credibility of this testimony was a question for the jury. Upon the case, see Brown Store Co. v. Chattahoochee Lumber Co., 121 Ga. 809 (49 S. E. 839). Judgment affirmed.


text:
    528.
    Winn v. Ingram.
   Powell, J.

1. The verdict was not without evidence to support it.

2. There was some evidence on which to base the charge complained of as not being pertinent.

3. After the jury had been deliberating about two hours, the court called them in and inquired if they had agreed or were likely to agree; the foreman replied in the negative; the court inquired as to how they were divided in number, asking them not to" indicate in whose favor the ma-' jority might be; the foreman answered that they stood nine to three; the court instructed them to return to their room, to deliberate further, and to see if they could not agree. After the lapse of another hour, and when the noon recess was about to be taken, the court again inquired of the jury as to what progress had been made toward an agreement; the foreman replied that they then stood ten to two; the court stated that as they were making progress he would let them continue their deliberations and would have dinner provided for them, but that he could not send them to the hotel as usual, there being good reason for not letting them go there. Again, at four o’clock in the afternoon, the court called them in and asked if they had yet agreed; the foreman said that they had not; the court sent them back to their room. Later a verdict was rendered. JieM,.tliat the verdict was not the result of improper coercion on the part of the court; and that the action of the court is not sufficient reason to require the grant of a new trial.

Complaint, from city court of Dawson — Judge Edwards. April 23, 1907.

Submitted October 22,

Decided October 31, 1907.

Raines & Gurr, for plaintiff.

Marlin & Hoyl, for defendant.

Judgment affirmed.


text:
    546.
    SUTTON v. McCOY.
    One who has sold property to another on credit on open account can not maintain trover for the property, although the latter may not have paid for the property. Therefore it is not reversible error for the court to exclude testimony which would merely tend to corroborate the plaintiff’s statement in such a case, that the defendant had not paid him in full for the property.
    Trover, from city court of Miller county — Judge Bush. May 25, 1907.
    Submitted October 23,
    Decided October 31, 1907.

      W. I. Geer, for plaintiff.

      Bush & Stapleton, for defendant.
   Powell, J.

The plaintiff, Sutton, brought trover against the defendant, McCoy, for a mule. The plaintiff testified that he had never sold the mule to the defendant. The defendant testified that he had. The defendant further testified that he had not only bought the mule on credit, but afterwards had paid for it in full. On this last proposition the plaintiff also took issue with him. The defendant testified, that he turned over his crop of nine bales of cotton to the plaintiff, in payment of his indebtedness for rent, supplies, and the mule,- and that the plaintiff told him that this was sufficient to pay for all these things. The plaintiff responded that he had received only eight bales of cotton; and then tendered an account for rent and supplies, which he swore was true and correct, and which, instead of showing the mule to be paid for in full, shows only a credit of $31 after extinguishing the amount of rent and supplies claimed by him. For certain irregularities in the form in which the account was stated, the court excluded it; but his reasons are immaterial, in the light of what we are holding in the case. If the defendant bought the mule, it would be immaterial whether he had paid only $31 on it, or had paid for it in full; for trover will not lie to enforce the payment of the purchase-money for property sold on credit on open account. Usually rulings on collateral and immaterial matters, whether correct - or not, afford no reason for overruling the action of the trial court in refusing to grant a new trial, when there is ample evidence to support the verdict and the trial judge approves it.

Judgment affirmed.


text:
    575.
    KELLY v. FUDGE.
    To a suit filed in and addressed to a city court, with prayer to that court for process, there was attached process, tested in the name of the judge of that court and requiring the defendant to be and appear “at the next superior court” to be held on the date named by law for the next regu: lar term of the city court. Held, that the process was not void, and was amendable by allowing the clerk to strike the words “superior court,” where they appeared therein, and to insert the words “city court” in lieu thereof.
    Trover, from city court of Miller county — Judge Bush. June 11, 1907.
    Submitted October 29,
    Decided October 31, 1907.

      P. D. Rich, for plaintiff. W. I. Geer, for defendant.
   Powell, J.

This was a trover suit, brought by Kelly against Fudge. The suit was brought to and filed in the city court of Miller county, to which court process wáo prayed. Process was annexed, requiring the defendant “to be and appear at .the next Superior Court to be held in and for said county on the 2nd Monday in June next. . . Witness the Hon. C. C. Bush, Judge said Court.” At the time required in the process, the defendant appeared in the city court, and there filed his written demurrer and motion to dismiss the case “because petition is addressed to the city court, and the process is to superior court.” The judge held that this motion was good; but before the petition was dismissed, the plaintiff asked leave to allow the'clerk, who was then present, to amend the process by inserting the words “city court,” wherever the words “superior court” appeared. This amendment the court refused to allow, and dismissed the suit “because there is no process attached to same.”

The process was'not void. Civil Code, §4994. The defendant had notice of the pendency of the suit. He was notified, by the summons, to be and appear at court on the second Monday in June. The law informed him that the Hon. C. C. Bush was judge of the city court of Miller county, and not of the superior court of that county. He was also thus notified that no regular term of the superior court convened in that county on the date above stated; also that the city court did. At the appointed time he was present to make his defense. See Richmond & Danville R. Co. v. Benson, 86 Ga. 203 (12 S. E. 357, 22 Am. St. R. 446), in Which many cases are cited in support of the proposition herein announced.

As the process was not void, the amendment should have been allowed. Civil Code, §4047; Richmond & Danville R. Co. v. Benson, supra. This ease is distinguishable from that of Lowrey v. Richmond & Danville R. Co., 83 Ga. 504 (10 S. E. 123), for the reason that in the Lowrey case the process not only required the defendant to appear' at the superior court, but bore test in the . name of the judge of that court, in direct violation of the Civil Code, §4974, while in this case the process bears test in the name of the proper judge.

The defendant, in his brief in this court, attempts to attack the process for a reason additional to that herein determined. The record, however, showing clearly that this question was not presented to or passed on by the lower court, .it is not properly here for adjudication. Judgment reversed.


text:
    579.
    JACKSON v. BROTHERS & SISTERS OF PROMISE.
    The ccmrt erred in refusing to allow the amendment offered by the plaintiff and in dismissing the action.
    Complaint, from Bibb superior court — Judge Felton. April 16, 1907.
    Submitted October 29,
    Decided October 31, 1907.

      H. F. Strohecker, Charles Akerman, for plaintiff.

      Glawson & Fowler, for defendant.
   Powell, J.

The action was instituted in a justice’s court. In the exhibit to the original summons the cause of complaint is stated as follows: “The Brothers & Sisters of Promise (incorporated) of Bibb County, Georgia, Oct. 12, 1906, to Susie Jackson, sole heir at law of Hamp Jackson, to amount of benefit due on death of Hamp Jackson, $60.00.” The defendant appeared and pleaded in the justice’s court. By original plea the defendant admitted an indebtedness to the plaintiff of $54, on account of the death benefit of Hamp Jackson, and offered to pay that sum into court. Judgment was rendered against the defendant, and it appealed to the superior court. In that court the defendant amended its plea and denied any liability at all, stating that while Hamp J ackson, when he died, was a member of the defendant benefit association, and while, under the by-laws, “on the death of a member of- the Brothers & Sisters of Promise, each member of the society shall be assessed in the sum of twenty-five cents to go to the family of the deceased, or to whom it may have been willed,” and, under this by-law, $52 had been paid in, and was owing to the family of Hamp Jackson, yet, Hamp Jackson having left no will, the sum was due his family; but that plaintiff was not a member of his family. It further set up that if any indebtedness was due at all, it was to the administratrix on Hamp Jackson’s estate, and not to the plaintiff. In the superior court the defend- and moved to dismiss' the action, on the following grounds: (1) that no cause of action is set out; (2) that the original summons fails to show on its face that the plaintiff has the right to sue as “'heir at law;” (3) that the cause of action, if any, is in the administratrix of Hamp Jackson. The plaintiff offered to amend the summons, (1) by inserting before the words “sole heir” the words “child and only member of the family;” and (2) by adding after the words “death of Hamp Jackson” the following, “arising from contract contained in the laws of said society in the 13th section of the constitution, as follows: Sec. 13. On the death of a member of the Brothers & Sisters -of Promise, each member shall be assessed in the sum of twenty-five cents, to go to the family of the deceased, or to whom it may have been willed. This assessment must be paid within thirty days.” The judge refused to allow the amendment, and dismissed the action. We hold:

1. Even in the absence of amendment, the cause of action was set forth in the exhibit to the original summons with adequate definiteness for the purpose of justice’s court procedure (especially in the absence of timely special» demurrer); and, on appeal to the superior court, the sufficiency of the summons is governed there also by the same rule as pertains in the court below. “Some degree of certainty,” not full legal definiteness, is the test in such cases. Powell v. Alford, 113 Ga. 979 (39 S. E. 449); Thomas v. Forsyth Chair Co., 119 Ga. 693 (46 S. E. 869); Georgia Southern & Florida Ry. Co. v. Barfield, 1 Ga. App. 203 (58 S. E. 236), and cit.; Southern Express Co. v. Briggs, 1 Ga. App. 294 (57 S. E. 1066); Southern Ry. Co. v. Oliver, 1 Ga. App. 734 (58 S. E. 244).

2. The amendment offered merely tended to amplify the original allegations and should have been allowed.

3. For a death benefit payable to the family of the deceased, those persons whose relationship to the deceased are legally connoted in the word “family” are entitled to sue, and not his personal representative. Starnes v. Atlanta Police Relief Asso., ante, 237 (58 S. E. 481). Judgment reversed.


text:
    408.
    MAYOR AND COUNCIL OF DUBLIN v. DUDLEY.
    1. A judgment overruling a demurrer can not properly be made a ground of a motion for a new trial.
    2. The failure of the court to charge a proposition of law which is not applicable to any defense set up in defendant’s plea is not, in the ab: senee of a written request so to charge, reversible error, although there may be some slight evidence tending to support such a theory of the case.
    3. The evidence warranted the verdict.

      Action for damages, from city court of Dublin — Judge Burch. February 28, 1907.
    Argued June 21,
    Decided November 11, 1907.

      W. C. Davis, for plaintiffs in error. Ira S. Chappell, contra.
   Russell, J.

One of the grounds of the motion for a new trial is that the court erred in overruling a demurrer. It has been uniformly held, for many years, that this is not a proper ground of a motion for a new trial; and, in the language of Chief Justice Lumpkin, as used in the case of Sutton v. McLeod, 29 Ga. 594, we now say, “This principle is hoary with age. We bow to it reverently.”

Nor is it a good ground for a new trial that the judge failed to charge a proposition of law, ev.en though there was some slight evidence to support a charge thereon, where such charge would have given the defendant the benefit of a theory not hinted at in his answer, and where no written request was presented to the trial judge. There being sufficient evidence to warrant the verdict, which is also approved by the trial judge, it should stand.

Judgment affirmed.


text:
    462.
    Vanzant et al. v. Bank of Abbeville.
   Hill, C. J.

A and B borrowed money from a bank, to pay their insurance premiums, and executed their notes therefor. When sued by the bank on the notes, they set up the defense, that the notes were procured bv fraud, in that the cashier of the bank had induced them to take out the policies of insurance and borrow the money from the bank to pay the premiums, by his promise that the bank would protect them in the first payment of the premiums whenever they became due; that, relying upon such promise, they took out the policies and executed the notes sued on, and delivered them to the bank for the money, to pay the premiums of their policies of insurance. They further pleaded that the transaction was a fraudulent scheme to induce them to take out said policies and to execute their notes to the bank. This plea was demurred to, because the facts alleged were insufficient to show fraud, and because it was an attempt to vary the terms of a written contract by parol, and constituted no defense. Held, that the court did not err in sustaining the demurrer, and striking the plea, and entering judgment for the plaintiff. Civil Code, §§3675, subsec. 1, and 5201.

Judgment affirmed.

Complaint, from city court of Abbeville — Judge Nicholson. April 8, 1907.

Submitted October 14,

Decided November 11, 1907.

E. H. Williams, for plaintiffs in error.

M. B. Cannon, N. M. Patton, contra.


text:
    466.
    JARRELL, by next friend, v. AMERICAN PIPE BENDING MACHINE COMPANY.
    The petition, while setting forth a transaction apparently actionable, did not set it forth with sufficient certainty: lienee the court 'did not err in dismissing the action, upon timely special demurrer pointing out the deficiencies.
    Action for damages, from city court of Atlanta — Judge Reid. March 20, 1907.
    Argued October 14,
    Decided November 11, 1907.

      William H. Withers, Thomas L. Bishop, for plaintiff.

      Smith, Hammond & Smith, Frampton E. Ellis, for defendant.
   Powell, J.

Jarrell brought suit against the American Pipe Bending Machine Company. At the first term, to the petition, a demurrer containing the general ground of no cause of action, and several special grounds, was filed. To meet the demurrer a series of amendments were filed by the plaintiff. The substance of the petition and of the additions made to it by the amendments is as follows, the matter inserted by the amendments being indicated by inclosure in parentheses: (1) Defendant is a corporation, etc. (2) Petitioner is a minor of the age of fourteen years, and was in the employ of the defendant. Defendant knew that he had no experience (petitioner informed defendant that he was without experience), and knowingly put-him to work on a very dangerous machine without warning him of the danger of operating said machine (by the foreman in charge of the works of the defendant company). (3) On March 24, 1906, petitioner was at work upon a machine which had been assigned to him (by the foreman in charge of defendant’s works who directed him how to run the machine, instructing him that if the drill should stop for any cause he was to throw the lever with his left hand, and stop the machine or it would break the machinery, and petitioner was following the instructions given him at the time his hand was injured), and, not knowing of its dangerous character, attempted to stop the machine, as he had been directed to do, when his left hand was thrown violently and suddenly from the lever into the cogs of the machine, cutting off his forefinger from his left hand, bruising and mashing his left hand, making him a cripple for life. (4) Petitioner was in the place assigned to him (to wit, to work on a large •steam drill, drilling holes in the heads of boiler heads) and in the discharge of his duties and without fault on his part; and the •defendants were negligent: First, in putting said minor to work on a dangerous machine without giving him warning of the danger. Second: The defendants were negligent in not providing a safe place for the child to work. Third: The defendants were ■negligent in having a boy of his youth and size to work on that machine (petitioner being a small boy for his age), defendant knowing that it required more strength than petitioner [possessed] to throw the lever and hold the drill at the same time. (5) Petitioner was disfigured, suffered great pain, is permanently injured, etc. The court sustained the demurrer on both the general and the special grounds. This judgment is assigned as error.

We think that the petition is sufficient to withstand general demurrer. As to the‘special grounds, it occurs to us that the best way to dispose of them is to take them up seriatim and decide them as if they were a series of questions propounded to us. In the cases of Cedartown Cotton & Export Co. v. Miles, 2 Ga. App. 79, 58 S. E. 289, and Southern States Portland Cement Co. v. Helms, 2 Ga. App. 308, 58 S. E. 524, we discussed at some-length the allegations necessary to a perfect suit by a servant against the master for personal injuries. In this opinion, reference will be frequently made to these two bases, and for brevity they will be cited as the Miles case, and the Helms case, respectively.

Should the demurrer to the above petition have been sustained, . (1) because the same contains no allegations of fact showing that the danger complained of was unknown to the servant? No. Lack of actual knowledge may be stated directly and without elaboration. Miles case. (2) Because the same contains no allegations of fact showing that the danger complained of was known or -ought to have been known by the defendant? No. Miles case, Helms case. (3) Because the same contains no allegations of fact showing that the plaintiff did not have means of knowing of the danger complained of, equal to those of the master? No. The inexperience and youthfulness of the servant as opened to the knowledge always imputed to the master as to the nature of his instrumentalities make a prima facie case of inequality of means of knowledge. (4) Because the same does not contain any allegations of fact showing that the servant could not have known of the danger complained of, by the exercise of ordinary care? Yes. In the light of the insufficient and meagre description of the machine and of the dangerous element in it, this demurrer is well taken. Miles case. (5) Because, so far as the allegations of plaintiff’s petition show, plaintiff had sufficient capacity to be sensible of danger, and the power to avoid it? No. In the form in which the ground of demurrer is stated, it is “speaking.”

(6) Should the demurrer to the following portion of paragraph 2 of the petition, to wit, “Defendant knew that he [plaintiff] had no experience,” have been sustained, (a) because there are no allegation's of fact supporting the conclusion so pleaded? No. Total lack of experience is a fact which may be stated directly, just as total lack of knowledge may be. (b) Because there are^no allegations showing what agent or servant of defendant whose knowledge was binding on it had the knowledge alleged? No. The amendment avoided this ground, (c) Because the expression, “had no experience” is too vague and indefinite to permit or require defendant to join issue thereon? And in what particular plaintiff had no experience, or with reference to what kind and character of work, or machinery, or labor, is in no manner made' plain? Yes. The allegations, as against this special demurrer,, should have gone forward and have shown in what particular the plaintiff was inexperienced. As stated, it is too indefinite in this respect. (7) Should the demurrer to the following portion of paragraph 2 of the petition, to wit, “On a very dangerous machine,” have been sustained, (a) because the same is a mere conclusion unsupported by any allegations of fact, and how and -why and in what particular said machine was “very dangerous” is not set forth; what danger complained of is not stated, and no allegations of fact are made which throw any light on what is meant by said expression “very dangerous?” Yes. See the Miles case for a discussion of the particularity with which the nature of the machine and the dangerous element in it must be set forth. (&) Because what and where said machine was and was located is not shown? No. (8) Should the demurrer to the following portion of paragraph 2 of the petition, to wit, “without warning him of the danger of operating the machine,” have been sustained, (a) because there are no allegations setting forth what warning should have been given plaintiff by defendant? Yes. (&) Because there are no allegations setting forth what danger is referred to and its nature and character? No; except so far as it makes the point that the nature and character of the danger is not alleged explicitly.

(9) Should the demurrer to the following portion of paragraph 3 of the petition, to wit, “Plaintiff not knowing of its dangerous character,” have been sustained, (a) because there are no facts alleged supporting the conclusion so pleaded ? No. (&) Because there are no facts alleged which show why plaintiff did not know of such dangerous character of the machinery? No. (c) Because there are no facts alleged which show that plaintiff did not have means of knowing such alleged danger equal to those of the master? No. (d) Because there are no facts alleged showing that the plaintiff could not have known of such alleged danger by the exercise of ordinary care? Yes. (10) Should the demurrer to the following portion of paragraph 3 of the petition, to wit, “attempted to stop the machine as he had been directed to do,” have been sustained, (a) Because there are no facts set forth supporting the conclusion therein pleaded? No. (b) Because there are no facts set forth showing what action plaintiff took in attempting to stop the machine? Yes. (c) Because there are no facts alleged which show what he had been directed to do? No. (d) Because there are no facts alleged showing how or in what manner he had been directed to stop the machine? No. (e) Because there are no facts showing who directed him to stop the machine, and when? As to who directed, no; as to when, yes. The averment of a time as to every traversable fact may be compelled by special demurrer. Mandeville Mills v. Dale, 2 Ga. App. 607 58 S. E. 1060. (11) Should the demurrer to the following portion of paragraph 3 of the petition, to wit, “His left hand was thrown violently and suddenly from the lever into the cogs of the machine,” have been sustained, (a) because there are no facts supporting the conclusion pleaded? No. (5) Because there are no facts alleged explaining how or why his hand was violently thrown from the lever? Yes. Miles case. (c) Because there are no facts alleged showing that plaintiff could not have avoided such occurrence by the exercise of ordinary care? No. The plaintiff need not anticipate and plead an avoidance to an affirmative defense.

(12) Should the demurrer to the following portion of paragraph 4 of the petition, to wit, “[Plaintiff] was in the place assigned to him,” have been sustained, (a) because there are no facts supporting the conclusion so pleaded? No. (&) Because the place referred to is not stated? No. (c) Because there are no facts showing what agent or servant of the defendant so assigned plaintiff to this place? No. (d) Because no facts are set forth which support the allegations that he was so assigned? No. (13) Should the demurrer to the following portion of paragraph 4 of the petition, to wit, “in the discharge of his duties,” have been sustained because the same is a statement merely of a conclusion, without any facts supporting same ? No. '(14) Should the demurrer to the following portion of the petition, to wit, “without fault on his part,” have been sustained because the same is supported by no allegations of fact and is a mere conclusion? No. (15) Should the demurrer to the- following portion of paragraph 4 of the petition, to wit, “Defendants were, negligent in putting said minor at work on a dangerous machine without giving him warning of the danger,” have been sustained, (a) because the same embodies mere conclusions without any allegations of fact supporting same? No. (&) Because neither therein nor elsewhere does it appear what warning should have been given or what danger should have been apprehended, or that said danger materialized in the injury complained of? No. (16) Should the .demurrer to the following portion of paragraph 4 of the petition, to wit, “’Defendants were negligent in not providing a safe place for the child to work,” have been sustained, (a) Because the same is unsupported by any allegations of fact and is a mere conclusion; there are no facts alleged showing wherein the defendants were negligent; there are no facts alleged showing that it did not provide a safe place to work; there are no facts alleged showing that the plaintiff was a child; on the contrary a person over fourteen years of age is not a child? No. (17) Should the demurrer to the following portion of paragraph 4 of the petition, to wit, “Defendants were negligent in having a boy of his youth and size at work on that machine,” have been sustained, (a) because the same embraces mere conclusions unsupported by any allegations of fact?No. (ft) Because the saíne is not sound as a matter of law; it is not negligence per se to employ a youth over fourteen years of age, and there are no facts set forth whatever supporting the conclusion alleged that defendants were negligent in having plaintiff to work as alleged; wherein defendants were negligent is not shown or supported by any allegations of fact; how or wherein defendants were negligent because of plaintiff’s size is in no manner shown by plaintiff’s pleadings; no allegations are made which show that plaintiff did not know of his own youth and size, or that he did not know of any danger in engaging in work for defendant as stated; nor are any facts alleged showing that plaintiff did not know, or by the e-xercise of ordinary care could not know of any and all dangers attendant upon his engaging in such work, being of the age and size which plain-tiff was; what plaintiff’s size was, does not appear? No. In regard to the five last grounds, it may be said that where a petition has set forth the particulars of a transaction with definiteness, the conclusions of negligence on. which the pleader relies may be stated in general terms. These grounds fall, of course, by the sustaining of demurrers to the prior allegations on which they are based; but in themselves they are not the subject of demurrer on the grounds stated.

If the defendant in this case had filed no special demurrers, the petition would have supported a verdict. The court, as we have held, properly sustained many of the special demurrers. To affirm the judgment generally, since a general demurrer was sustained, would operate as a res adjudicata, barring a subsequent suit on the same cause of action. Judgments based upon mere deficiencies of statement should not operate to preclude substantial rights; as judgments upon the merits of the transaction should. Frequently in cases where we have found that the cause of action was not stated with sufficient certainty, we have affirmed the trial courts in sustaining demurrers; but, by direction, gave leave to amend. In the present case we are not willing to go that far, because the plaintiff was given full opportunity of amendment before the judgment of dismissal was entered. While he availed himself of this privilege, he left several glaring deficiencies in his petition. So that, instead of affirming with leave to amend,' we .affirm the judgment, with direction that the dismissal shall not operate as a res adjudicata upon the merits.

Judgment affirmed, with direction.


text:
    470.
    Albany and Northern Railway v. Rawls.
    Action for damages, from city court of Albany — Judge Crosland. March 29, 1907.
    Argued October 14,
    Decided November 11, 1907.

      Lane, Maynard & Hooper, Pope & Bennet, for plaintiff in error. Mann & Milner, contra.
   Hill, C. J.

No error of law is assigned, and tlie verdict is supported by some evidence. This court can not interfere.

Judgment affirmed.


text:
    471.
    Selman v. Malcom.
    Distraint, from city court of Monroe — Judge Arnold. April 13, 1907.
    Argued April 9,
    Decided November 11, 1907.
    The motion for a new trial, the refusal of which is assigned as error, is on the grounds, that the verdict is contrary to law, evidence, etc., and that the court erred in charging as follows: “I charge you that a fact testified to by one positive witness is to be believed in preference to one who swears that he did not see or know of its having transpired. That is, if a witness swears that he saw a man drawing a bucket of water out there at the well, that would be positive evidence, and is to be believed in preference to one or many witnesses who might have had the same opportunity of seeing it, but swear they did not. Their testimony would be negative, and entitled to less weight and consideration than one swearing positively that a certain thing did transpire.” It is alleged that this instruction was erroneous because it did not embrace an instruction that the jury, in weighing the testimony of the witnesses, should consider and pass upon the question of their credibility, — as to whether the witnesses were of equal credibility.
   Hill, C. J.

This case is controlled, on the only error of law assigned, by Wood v. State, 1 Ga. App. 684 (3), and Phillips v. State, Id. 687.

Judgment reversed.

W. O. Dean, for plaintiff. Napier & Cox, for defendant.