text:
    8757.
    MILLS v. ANDERSON.
    1. Under the express requirement of the constitution, justice’s courts must be held at fixed times and places; and it is declared by statute that a judgment at a place other than that so fixed shall be void.

      (a) The presence and participation of the person against whom'judgment is rendered in a justice’s court at a place other than that fixed by law will not estop him from attacking the validity of the judgment, for this reason, by affidavit of illegality.
    2. The court erred in declining to allow the exceptions to the answer of the magistrate, and in refusing to submit to a jury the issue of fact raised by the traverse. . -
    3. While an absolutely void judgment can not be attacked by certiorari, the judgment of a justice’s court in dismissing an affidavit of illegality or in passing upon the issue raised thereby may be reviewed by certiorari, under the usual rules in regard thereto.
    Decided September 13, 1917.
    Certiorari; from Washington superior court—Judge Hardeman. March 16, 1917.

      M. L. Gross, for plaintiff in error. Evans & Evans, contra.
   Wade, C. J.

George Mills, in his petition for certiorari,, alleged, that on the first Monday in May, 1916, there came on for trial before W. P. Davis, justice of the peace for the 1488th district, G. M., of Washington county, a suit on a note, brought by Ivory Anderson against him, and that “the said justice of the peace, W. P. Davis, called same for a, hearing in Ms blacksmith shop, about 100 yards distant from the regular place of holding his said court, and then and there entered up judgment against the said George Mills;” and that “the said place of entering up judgment and hearing said cause was not the legally constituted place of holding court in said district.” The petitioner alleged further, that the justice of the peace issued an execution against Mm, based upon said judgment, which was duly levied'upon a black horse mule as the property of the defendant Mills, on June 30, 1916; that on July 10, 1916, the defendant in execution filed an affidavit of illegality to said judgment and execution, upon the ground that the judgment was rendered at a place other than the regular court ground, for the said district, “same having been rendered by the justice of the peace, W. P. Davis, upon a hearing of the merits in said case at the blacksmith shop of the said W. P. Davis, justice of the peace aforesaid, and said shop -not being the regular court ground as aforesaid, and for that reason the same was void;” that the affidavit of illegality aforesaid came on for a hearing on July. 10, 1916, before the said justice of the peace, “and the said court, upon reading said affidavit of illegality, - entered up judgment on his docket, dismissing said affidavit of illegality, and ordered the.levy to proceed; that said affidavit was not traversed by the plain tiff in execution.” The' petition further set forth that the justice of the peace “committed error in dismissing said affidavit of illegality, for the reason that the same fully set forth that said judgment and execution was void because same was rendered upon a hearing had at a place not the legally constituted court ground in said district, and that said affidavit of illegality was not traversed or the facts set forth therein denied by the plaintiff in execution.” The sole error complained of in the petition for certiorari is the action of the justice of the peace in dismissing the affidavit of illegality which attacked the judgment previously rendered as being void.

The magistrate, in his answer- to the writ of certiorari, stated that he tried the case “on the second Monday in May, the regular court day, and that said court was held at the most accessible and convenient place in Tennille, there being no regular court-house in said district and never has been.” He further answered that at the trial of the illegality case “the defendant appeared and plead, and the coxxrt overrxxled the illegality;” that'the trial of the illegality was -held on July 10, 1916, and the only ground thereof was that the court was held at respondent’s shop, and further that at the time when and the place where the judgment was rendered the “defendant and his attorney appeared in person and plead to the merits of the case, but made no exception or objection as to the .place of holding said court.” The píaintiff in certiorari filed exceptions to the answer of the justice of'the peace, averring that it was incomplete, in that -the magistrate failed to attach to his return the affidavit of illegality, or a copy of the judgment in said court, or the fi. fa. issued on said judgment, or a copy of the order dismissing the affidavit of illegality. The plaintiff in certiorari likewise filed a traverse, duly verified, denying that portion of the answer of the magistrate which recited 'that “said court was held at the most accessible and convenient place in Tennille, there being no regular court-house in said district and never has been,” and asserting that this declaration was erroneous, “as the regular place of holding court in said district is that place set out in plaintiff’s affidavit of illegality, which is 100 yards from the shop.” The judge of the superior court entered the following order: “It is unnecessary to submit the traverse to a jury or pass on the exceptions, because they are, in the judgment of the court, immaterial, in view of unti averse! parts of the answer. It appears that the plaintiff in certiorari was sued on a note in the justice court; that in answer to the summons he appeared both in person and by attorney at the justice court and plead to the action; the case was tried and the plaintiff in certiorari lost. He made no exceptions to the place of holding the court, and he did not, either by appeal or certiorari, except to this judgment,. After levy of the execution he interposed an affidavit’ of illegality and attacked the judgment on the sole ground that the judgment is void because rendered at a place not legally established as the justice-court ground. The plaintiff in certiorari is estopped by his conduct. The justice did not err in dismissing the illegality.”

Section 4705 of the Civil Code of 1910 declares: “All judgments of such justices rendered, in any civil cause, anywhere else than at the place for holding their courts lawfully appointed are void.” The constitution, article 6, section 7, paragraph 2 (Civil Code, § 6534), requires that justices of the peace “shall sit monthly at fixed times and places,” and it is now well settled, by repeated adjudications of the Supreme Court and of this court, that a judgment purporting to have been rendered by a justice’s court is wholly void if in fact rendered at a place at which the court could not lawfully sit. Reed v. Thomas, 66 Ga. 595; Johnson v. Heitman, 67 Ga. 482; Bozeman v. Singer Manufacturing Co., 70 Ga. 685; Hilson v. Kitchens, 107 Ga. 230 (33 S. E. 71, 73 Am. St. R. 119); Lott v. Wood, 135 Ga. 831 (70 S. E. 661); Carter v. Atkinson, 13 Ga. App. 390 (4, 5) (77 S. E. 370). The fact that such a judgment is not merely voidable, but absolutely void, makes it subject to attack by affidavit of illegality (Hart v. Lazaron, 46 Ga. 396; Ansley v. Glendenning, 56 Ga. 386 (1); Park v. Callon way, 128 Ga. 119 (4), 122 (57 S. E. 229); Lott v. Wood, supra); and the party against whom the judgment is rendered is not es-topped from attacking it as void because he appeared and pleaded at the trial, and then failed to urge objection upon the ground that the trial was not being had at the regular place for holding court in the district. It will appear, by reference to the judgment of the judge of the superior court, that his ruling was based entirely upon the idea that the defendant’s right to attack the judgment for want of jurisdiction was waived because he appeared and pleaded at the trial. In Block v. Henderson, 82 Ga. 23 (8 S. E. 877, 3 L. R. A. 325, 14 Am. St. R. 138), the court held:. “When a justice of the peace went outside the limits of his district and undertook to hold his court, he had jurisdiction neither of the subject-matter nor of the person, and no waiver or agreement made before him outside of his jurisdiction could confer jurisdiction upon him. Outside the limits of his district, he was not a judge. Reichert v. Voss, 78 Ga. 54 [2 S. E. 558], cited and distinguished.” There can be no difference in principle between waiving the jurisdiction of a justice of the peace presiding outside his district, and waiving his jurisdiction to try a case elsewhere than at the place fixed by law within the district, since in both instances judgments so rendered would be absolutely void. If such judgments were merely voidable, of course the ruling of the learned trial judge would have been eminently proper. In McDonald y: Farmers Supply Co., 143 Ga. 552 (85 S. E. 861), the first headnote says: “The constitution requires that justices’ courts shall be held at fixed times and places. The statute expressly declares that a judgment rendered at a place other than that so fixed shall be void. A judgment so rendered is not merely irregular, but void.” In the body of the decision Justice Lumpkin, speaking for the court, says: “The constitution declares that justice’s courts shall sit at fixed times and places. Const. art. 6, sec. 7, par. 2 (Civil Code (1910), § 6524). By section 4705 of the Civil Code it is declared that 'All judgments of such justices rendered, in any civil cause, anywhere else than at the place for holding their courts lawfully appointed are void.’ No provision is made for holding such courts hy agreement [italics ours] at other places than those fixed by law. Accordingly, the trial and verdict in this case were not merely irregular, but, by the positive terms of the statute, were void.” It appears, from an examination of the opinion, that when the case came on for trial in the justice’s court “the weather w;as cold and no provision had been made for heating the lawfully appointed place for holding court. By agreement court .was held in a house in the same town, about fifty yards from the regular place for holding court. From the verdict a certiorari was sued out. No point was raised as to the place where the. justice’s court was held. On the hearing a judgment was rendered,, declaring that-the certiorari was refused,’ and a judgment was entered on the certiorari bond. A fi. fa. was issued and levied, and an affidavit of illegality was interposed on the ground that the judgment rendered in the justice’s court was void and that the judgment rendered in the certiorari proceeding was also void. The court dismissed the illegality, and the defendant in fi. fa. excepted.” In that, case the defendant was not only present at the trial but even agreed that court should be held in another house in the same town, and only fifty yards distant from the regular place for holding court, and yet the Supreme Court held that an affidavit of illegality would lie to the judgment thus rendered by the justice, which was void for this reason alone. Whether in fact any particular house had ever been designated as the. place for holding court in the 1488th district was sufficiently brought into question (under the liberal rules as to pleadings in justice’s courts), even if the allegations in the petition for certiorari (which are verified by the magistrate’s answer), relative to the recitals in the affidavit of illegality, be alone considered; and the judge of the superior court erred, both in declining to allow the exceptions of the plaintiff in certiorari, which required the magistrate to send up copies of the various pleadings in the case, and in declining to reserve for submission to the jury the issue raised by the traverse to the answer of the magistrate, which itself distinctly and directly called into question the truth of his statement that there was no regular court-house in said district and never had been, and that the'court .was held at the most accessible and most convenient place.

It is insisted by the defendant in error that a wr-it of certiorari is not the proper remedy for attacking a judgment wholly void, and that the judgment overruling the certiorari was therefore for this reason proper. ^Reference to the record is sufficient to dispose of this suggestion. The defendant against whom the judgment was rendered did not by certiorari attack the judgment as void, and ask that the same be set aside for that reason, but duly filed an affidavit of illegality, making this attack, when the fi. fa. was levied; and the petition for certiorari thereafter brought was brought solely to review the judgment of the justice of the peace in dismissing the affidavit of illegality. It appears that the plaintiff in certiorari first filed his affidavit of illegality, as provided in Hilson v. Kitchens, supra, and in Planters Bank v. Berry, 91 Ga. 264 (18 S. E. 137), and- as also distinctly held to be proper in McDonald v. Farmers Supply Co., supra. In other words, the certiorari was brought not to set aside a void judgment, but to correct the ruling of the justice of the peace in dismissing an affidavit of illegality which asserted that a judgment was void, because rendered at a place not authorized by law.

Judgment reversed.

George and Luke, JJ., concur.


source: Caselaw Access Project

author: George, J.

license: Public Domain

text:
    8781.
    ADAIR & McCARTY BROTHERS INCORPORATED v. CENTRAL BANK & TRUST CORPORATION.
    A banking corporation received from another bank (its customer), for collection, a check apparently duly indorsed by the payee and by the forwarding bank. The receiving bank in turn indorsed the cheek and presented it to the drawee bank, by which it was paid. The receiving bank then, in, good faith and without notice or knowledge of any defect or failure of title, fully accounted to its customer for the proceeds of the collection. Afterward the payee and owner of the check (whose name had been indorsed thereon by its selling agent without notice and without authority so to do) brought an action against the bank first mentioned, on an implied contract for money had and received. Held, that the payment of the proceeds of the collection by the defendant'bank to its customer, in good faith and without notice or knowledge of any defect in the title to the check, was a complete defense to the action. The ruling would be otherwise had the suit been for wrongful conversion of the check, unless ratification were shown.
    Decided September 13, 1917.
    Certiorari; from Pulton superior court—Judge Bell. March 28, 1917.
    The plaintiff was the owner and holder of a note payable to its order, made by Henderson & Vandegriff, of Nacoochee, Georgia, and instructed one of its traveling salesmen, Powell, to call on the makers of the note and collect it. He was authorized to accept either a check or currency, as the makers might prefer. He did not have the note in his possession. On April 13, 1916, he was given a check by the makers, payable to the order of the plaintiff. Without notice to the plaintiff or authority so to do, Powell indorsed the check in the name of the plaintiff, and cashed it at the bank of the Clermont Banking Company, of Clermont, Georgia. That bank forwarded the check to the Citizens Bank of Gaines-ville, which indorsed and in turn forwarded the cheek to the Central Bank and Trust Corporation, of Atlanta, the defendant. The defendant in turn indorsed the check and sent it through the Atlanta Clearing House to the drawee, the White County Bank, of Cleveland, where it was paid on April 18, 1916, and charged to the account of the makers. The defendant did not at any time own any interest in the cheek, but acted as an agent in collecting it. When the defendant received from the drawee bank the proceeds of the check, it accounted for them to the Citizens Bank of Gaines-ville; and it knew nothing of any irregularity in the indorsement for several months thereafter. After the giving of the check, the plaintiff by letter called on the makers of the note to pay it, and was notified that it had been paid by check to Powell, and that the check itself had been paid.' The plaintiff then Avrote to the makers that if Powell had received the check and indorsed it in the plaintiff’s name and collected the proceeds, and if the makers would send to the plaintiff the check bearing such indorsement, the plaintiff would mark the note paid and surrender it to the makers. The makers complied with this proposal, and the plaintiff canceled the note and returned it to the makers, with full knowledge of all the circumstances relating .to the indorsement and collection of the check. The plaintiff thereafter called on Powell to pay over to it the proceeds of the cheek, and he promised to do so. After some delay he disappeared; and the plaintiff called upon the defendant to make good the amount of the cheek, the defendant refused to do so, and suit was brought in the municipal court of Atlanta. A judge of that court, sitting without a jury, heard the facts and gave judgment in favor of the defendant. The superior court, on certiorari, affirmed the judgment of the municipal court, and the plaintiff excepted.

      Smith, Hammond & Smith, for plaintiff in error.

      (Handler, Thomson & Hirsch, contra.
   George, J.

We are not prepared to say that the act of the plaintiff in cancelling the note and delivering it to the makers, with full knowledge of the foregoing facts, and its effort to collect the proceeds of the check from its agent, Powell; and its delay of several months in notifying the defendant of Powell’s lack of authority to indorse the check, did not amount to a ratification of the unauthorized indorsement. It is true that ratification is disclaimed, but one may disclaim and yet ratify. The issue was for the judge who heard and determined the facts of the case. Even though the facts be undisputed, yet, if different inferences may be drawn from the facts proved, the question is for the jury. Compare Dixon v. Bristol Savings Bank, 102 Ga. 461, 468 (31 S. E. 96, 66 Am. St. R. 193). On the question of ratification, it must be borne in mind that Powell was the admitted agent of the plaintiff, with authority to collect the note, and to receive in payment thereof either the cash or a cheek. He therefore merely exceeded his authority when he indorsed the check in the name of the plaintiff. If, under any view of the evidence, the question of ratification is one of fact, that question has been determined by the trial court adversely to the plaintiff. We do not, however, hold that the plaintiff ratified the indorsement of the check by its salesman.

If the plaintiff did not ratify the unauthorized indorsement, it clearly elected to waive the tort and sue in assumpsit upon an implied contract for money had and received. This election is made manifest by the plain and unambiguous language of the petition filed on its behalf, wherein it is alleged that the defendant is “indebted” to the plaintiff in the principal amount of the check, together with legal interest from a date stated. Furthermore, it is expressly averred that “said proceeds of said check are held for the use of plaintiff as the rightful owner of said check, and this suit is brought to recover same.” The prayer of the petition is for the recovery of the amount of the check, with interest. The suit does not ask for “damages,” but is an action for money had and received. An action of this character is based on the theory of an unjust enrichment of the defendant, and upon an implied promise on the part of the defendant to pay to the plaintiff that which it has received, and which in law and in good conscience belongs to the plaintiff, and not to the defendant. It is inequitable that one should retain money which equitably belongs to another. It is undisputed that, long before the defendant had notice or knowledge of the irregularity in the indorsement, the check had been duly collected and the proceeds fully paid to the Citizens Bank of Gaines-ville. The defendant was a mere collecting agent of the Citizens Bank of Gainesville. In an action for the wrongful conversion of the check the defendant would be liable. Since the plaintiff has elected to waive its action in tort, and has sued upon an implied contract, and since the defendant, without notice or knowledge of plaintiff’s rights in the premises, -has fully accounted to its principal for the proceeds of the cheek, the judge of the superior court, in our opinion, rendered the proper judgment. Pratt v. Foster, 18 Ga. App. 765 (90 S. E. 654); Rogers v. Durrence, 10 Ga. App. 657 (73 S. E. 1083); Alexander v. Coyne, 143 Ga. 696 (85 S. E. 831, L. R. A. 1916D, 1039); Cowart v. Fender, 137 Ga. 586 (73 S. E. 822, Ann. Cas. 1913A, 932).

Judgment affirmed.

Wade, G. J., and Luke, J., concur.


author: Wade, C. J.

text:
    8784.
    Glover v. Wesley et al.

    Decided September 13, 1917.
    Certiorari; from Eulton superior court—Judge Ellis. January 31, 1917.

      E. A. Etheridge, for plaintiff, cited:

      Matthews v. Poythress, 4 Ga. 287 (4); Bank of Commerce v. Barrett, 38 Ga. 126; Mims
      v. West, 38 Ga. 18; Howard v. Simpkins, 70 Ga. 332; Hudson v. Best, 104 Ga. 131.
   Wade, C. J.

The note sued on contained the following recital: “This is one of a series' of notes of the same tenor and of even date herewith, said series representing the balance of purchase-money for a tract of land on # 82 Riee street, Atlanta, Ga., as fully described in a bond for title of "even date from payee to maker thereof, which bond for title is hereby referred to and made a part-hereof; and all makers hereof and indorsers and securities hereon are hereby firmly bound by all the. conditions and agreements of said bond.” Held, that this was enough to put the purchaser of the note upon such inquiry as would have led him to knowledge of the fact that it had been fully paid and satisfied; and, under' section 4291 of the Civil Code of 1910, which provides that “Any circumstances which would place a prudent man upon his guard, in purchasing negotiable paper, shall he sufficient to constitute notice to a purchaser of such paper before it is due,” the judge of the municipal court did not err in rendering judgment in favor of the defendant, and the judge of the superior court did not err in overruling the certiorari.

Judgment affirmed.

George and Ijuhe, JJ., concur.

Dodd & Dodd, for defendants, cited Park’s Code, § 4291.


author: Geqrge, J.

text:
    8793.
    Sellers v. Carter et al.

    Decided September 13, 1917.
    Appeal; from Appling superior court—Judge Highsmith. March 12, 1917.

      Padgett & Watson, for plaintiff.
   Geqrge, J.

1. A judgment setting apart a year’s support under sections 4041 et seq. of the Civil Code of 1910 is in effect a conveyance to the widow of an interest in her deceased husband’s estate, and the description of the property must be such as to render it capable of identification. The certainty of description required in a deed or other conveyance is required in a judgment setting apart a year’s support. In the case of lands, if the description is so vague and indefinite that the property can not be identified, the title of the estate is not, divested by the judgment setting apart a year’s support. McSwain v. Ricketson, 129 Ga. 176, 179 (58 S. E. 655) ; Hawes v. Elam, 131 Ga. 323 (62 S. E. 227) ; Hancock v. King, 133 Ga. 734, 735 (66 S. E. 949).

2. If the description is so imperfect and indefinite that the land can not be identified, and if there is nothing in the pleadings to aid the description, the judgment is void, and can not be amended at the instance of the grantee of the widow (made in this case twelve years after the date of the judgment) by the addition of descriptive terms. In the absence of'aid from the application, the return of the appraisers, or the judgment setting apart the year’s support, the order setting apart “50 aeres, more or less, of lot' of land number 383 in the Second Land District of Appling County, Georgia,” is void; and the grantee of the widow can not create a title in the applicant by amending 'the judgment. The court therefore did not err in sustaining the general demurrer to the petition.

Judgment affirmed.

Wade, 0. J., and Luhe, J., concur.


author: Wade, C. J.'

text:
    8812.
    Rountree v. Chrisman & Company.
   Wade, C. J.'

The property levied upon was described in the mortgage fi. fa. as “one yellow mare mule 6 years old, about 15 hands high,” and the mortgage upon which this fi. fa. was based covered property described as “one yellow mare 6 year old, about 15 hand high,” but the mortgage recited, immediately following these words of description, that “it is expressly agreed that said J. N. Chrisman & Company do not warrant health, life, soundness, and work of said mule [italics ours], only tlie title thereto, and which the said J. A. Moree hereby mortgages to the said.J. N. Chrisman & Company, to secure the pur-, chase price aforesaid.” The mortgagor sold the mortgaged property to a person who in turn sold it to the plaintiff in error, and the latter interposed a claim to it when it was levied upon under the mortgage fi. fa. as “one yellow mare mule, . . the property of J. A. Moree, by virtue of a mortgage fi. fa.,” etc. Held, that the mortgage, when considered as a whole, indicated the existence of a contract lien upon a yellow mare mule sufficiently to place all third persons upon constructive notice thereof; and the trial judge (there being no conflict in the evidence) , did not err in directing a verdict in favor of the plaintiff in fi. fa., finding the property subject to the mortgage execution.

Decided September 13, 1917.

Levy and claim; from city court of Nashville—Judge Christian. February 13, 1917.

J. Z. Jackson, for plaintiff in error.

Hendricks, Mills & Hendricks, contra.

Judgment affirmed.

George and Luke, JJ., concur.


text:
    8813.
    Kinney v. Kinney, administrator.
    Decided September 13, 1917.
    Certiorari; from Habersham superior court—Judge J. B. Jones. March 16, 1917.

      J. G. Edwards & Sons, for plaintiff.

      J. J. & Sam Kimzey, for defendant.
   George, J.

1. Niceties in pleading are not required in a justice’s court. G. S. & F. Ry. Co. v. Barfield, 1 Ga. App. 203 (58 S. E. 236). Accordingly,' a liberal construction has been given section 4715 of the Civil Code (1910). If the defendant in a justice’s court is informed of the nature of the plaintiff’s demand against him, the requirement of the code-section is met. Hendrix v. Elliott, 2 Ga. App. 301 (2) (58 S. E. 495).

2. The cause of action attached to the summons in this case was a substantial compliance with the requirements of section 4715, supra, and was not subject to general demurrer on the ground that the cause of action stated was founded upon an oral agreement to answer for the debt of another, and therefore was not enforceable, under the statute of frauds. The defense of the statute of frauds can not be raised by demurrer unless the petition affirmatively shows that the contract is oral. Marks & Powell v. Talmadge’s Sons & Co., 8 Ga. App. 557 (2) (69 S. E. 1131).

3. The justice before whom the case was tried erred in dismissing the plaintiff’s petition on demurrer, and the judge of the superior court likewise erred in overruling the plaintiff’s petition for certiorari.

Judgment reversed.

Wade, O. J., and Luke, J., concur.


author: Geoege, J.

text:
    8822.
    Clark v. Harper.
    Decided September 13, 1917.
    Certiorari; from Fulton superior court—Judge Bell. March 20, 1917.

      Neufville & Neufville, for plaintiff in error.

      Hendrix & Silverman, contra.
   Geoege, J.

1. Under the provisions of subdivision b of section 42 of the act creating the municipal court of Atlanta (Acts 1913, p. 168), the appellate division of that court is without power to review assignments of error based upon the grounds (1) “that the verdict found or the judgment rendered is .contrary to the evidence and the principles of equity; and (2) that said verdict'or judgment is decidedly and strongly against the weight of the evidence.”

2. “Where a party obtains a writ of certiorari directed to the trial judge in the municipal court of Atlanta, he can have reviewed the question of whether the finding is contrary to law; but if, instead of suing out the writ of certiorari, he takes an appeal to the appellate division, he can not have such finding reviewed by certiorari.” Johnston v. Brenau College-Conservatory, 146 Ga. 182 (91 S. E. 85).

3. The plaintiff in error obtained a writ of certiorari to review a judgment of the appellate division of the municipal court, denying an appeal from the judgment of the trial judge overruling a motion for new trial. By the petition for certiorari it was sought to review the judg- - ment of the appellaie division, and not the judgment of the trial judge. The petition was presented to the judge of the superior court more than thirty days after the trial of the case in the municipal court. Therefore assignments of error upon the grounds that the judgment is contrary to evidence and the principles of equity, and is decidedly and strongly against the weight of the evidence, can not be considered by the Court of Appeals.

4. Where the pleadings are imperfect and defective, but no point is made on them at the trial, and there is sufficient legal evidence, admitted without objection, to support the judgment entered, this court is without authority to set aside the judgment. Furr v. Fddleman, 80 Ga. 660 (7 S. E. 167). In such circumstances, whatever might have been remedied by amendment will be considered as cured by the judgment, no objections to the sufficiency of the pleadings being urged.

5. The assignments of error not covered by the foregoing rulings are without substantial merit. The judge of the superior court did not err in overruling the certiorari.

Judgment affirmed.

Wade, O. J., and Luke, J., concur.


text:
    8821.
    Clark v. Chancellor.
    Decided September 13, 1917.
    Certiorari; from Fulton superior court—Judge Pendleton. March 20, 1917.

      Neufville & Neufville, for plaintiff in error.

      Hendrix & Silverman, contra.
   Wade, C. J.

The assignments, of error not controlled by the judgment of this court in the ease of Clark v. Harper, ante, 817,'are without substantial merit. Under the pleadings and evidence as presented in the petition for certiorari, the judge of the superior court did not err in overruling the certiorari.

Judgment affirmed.

George and Luke, JJ., concur.


author: Luke, J.

text:
    8823.
    Clark v. Johnson.
    Decided September 13, 1917.
    Certiorari; from Fulton superior court—Judge Pendleton. March 20, 1917.

      Neufville & Neufville, for plaintiff in error,

      Hendrix & Silverman, contra.
   Luke, J.

The assignments of error not controlled by the judgment of this court in the case of Clark v. Harper, ante, 817, are without substantial merit. Under the pleadings and evidence as presented in the petition for certiorari, the judge of the superior court did not err in overruling the certiorari.

Judgment affirmed.

Wade, C. J., and George, J., concur.


text:
    8824.
    Caldwell et al. v. Zimmerman.
   Wade, C. J.

Certain household furniture was set apart as a year’s support for the joint use of the widow and five minor children of one Caldwell, in duly, 1913. Subsequently a judgment was obtained against the widow alone, and the execution was levied upon the property so set apart. A claim was filed by the widow in her own behalf and as next friend for her minor children, setting up that the property levied upon ■ was a part of the estate of the deceased Caldwell, and had been duly set apart as a year’s support for his widow and minor children, and therefore was not subject to the execution. The jury in the justice’s court decided in favor of the claimants, and on certiorari the judge of the superior court set aside the verdict. Held:

1. The title to the personal property set apart jointly to the widow and her minor children was vested in them for their joint use and benefit, and was not subject to partition among the beneficiaries of the year’s support; nor could a division thereof be compelled, so long as a beneficiary of the year’s support existed and still occupied that relation. Howard v. Pope, 109 Ga. 259, 261 (34 S. E. 301). Neither could the property be subjected to payment of a judgment for a debt contracted by the widow individually, in the consideration of which it did not appear that the minors had any interest. Any other ruling would defeat the contemplated purpose of the law in allowing a year’s support for the joint use of a widow and minor children, and would in effect be opposed to the principle laid down in the case of Howard v. Pope, supra.

Decided September 13, 1917.

Certiorari; from Fulton superior court—Judge Bell. March 28, 1917.

J. G. Wilson> for plaintiffs in error. 8. A. Massell, contra.

(а) The justice of the peace did not err in refusing to dismiss the claim, for any of the reasons assigned; as, regardless of some surplusage, there was a proper issue thereby presented for determination in behalf of some (if not all) of the claimants; and the affidavits and bond given were sufficient to preclude the dismissal.

(б) The justice of the peace did not err in repelling as evidence the original statement of account against the defendant in fi. fa., which was offered as the basis of the judgment upon which the fi. fa. had been issued. That statement was irrelevant, as it was immaterial in this case whether the debt was a pre-existing claim against the widow, as in Hill v. Van Duzer, 111 Ga. 867 (36 S. E. 966).

2. The judge of the superior court therefore erred in sustaining the certiorari.

Judgment reversed.

George and Luke, JJ., concur.


text:
    8828.
    Walton v. Lawrenceville Oil Mill.
   Wade, C. J.

1. A servant can not recover from his master damages for an injury caused by a defect in machinery supplied him, or its antiquity of structure, where it appears that the servant had means of knowledge equal to or better than those of the master as to such defects or antiquity, and, despite such knowledge, continued to work with the defective or antiquated machinery.

(a) In this case, according to his own testimony, the servant was superintendent of an oil mill, and upon him rested the duty, in behalf of the defendant company, of inspecting and repairing its machinery, and he thus enjoyed better means than the master of discovering that the . valve which caused the injury to him was antiquated or defective, especially since it was a part of his daily duty to use this particular valve, and the master’s knowledge of its condition directly depended upon .the thoroughness with which he discharged his duty to inspect and repair, and the promptness and accuracy of his reports relating to the machinery.

Decided September 13, 1917.

Action for damages; from Gwinnett superior court—Judge Hardeman. March 17, 1917.

.0. A. Nix, Evans & Evans, for plaintiff.

Smith, Hammond & Smith, for defendant.

(6) The knowledge of the servant that an inspection of the boiler had been recently made by another person, acting without any authority from the defendant but solely in behalf of a company that had insured the boiler against explosion, did not justify him, in the exercise of ordinary care for his own safety, in relying upon such an inspection, or relieve him of the legal consequences of his negligence in failing to discover the defects in the valve (connected with the boiler) which caused the injury.

2. The evidence did not authorize the verdict in favor of the plaintiff, and the trial judge did not err in granting a new trial upon that ground.

Judgment affirmed.

George and Lulce, JJ., concur.


text:
    8830.
    Mills v. Pope.
   George, J.

1. On the trial of a claim to personalty the court charged the jury as follows: “When a promissory note for the purchase-money of personal property, which contains a reservation of title to the property in the payee until the note is paid, is by the payee transferred for value to a third person without recourse, the title reserved for securing the payment of the debt is divested; and if at the time of such transfer the title so held is not likewise transferred to the purchaser of the note as a security in his hands, }t vests in the maker, and the transferee becomes an ordinary creditor of such maker.” Held, that the charge was authorized by the evidence, and the plaintiff in fi. fa. was entitled to the instruction given. The charge is a correct statement of the law. Burch v. Pedigo, 113 Ga. 1157 (39 S. E. 493, 54 L. R. A. 808); SwannDavis Co. v. Stanton, 7 Ga. App. 669 (67 S. E. 888).

2. After a charge covering the impeachment of witnesses by proof of general bad character, the court added: “The witness may be sustained, by similar proof of character.” The exception is that this additional charge is unauthorized by the evidence, since no proof was offered tending to sustain the good character of the witness attacked. Held, that the charge excepted to was not error requiring the grant of a new trial.

3. The remaining assignment of error complains of the failure of the court to define the preponderance of evidence. The court instructed the jury as follows: “A preponderance of evidence does not necessarily lie with the number of witnesses, but is the greater weight of the evidence.” This is a correct statement of the law, and the charge given is not erroneous because the court failed to add that, in determining where the preponderance of evidence lies in the case, the jury may take into consideration the number of witnesses. There was no request for a specific instruction to this effect.

Decided September 13, 1917.

Levy and claim; from Newton superior court—Judge Smith. April 10, 1917.

King &. Jdhnson, for plaintiff in error. Rogers & Knox, contra.

4. The general grounds of the motion for a new trial are not argued, but, upon a review of the record, it appears that the verdict finding the property subject is not without evidence to support it. The court did not err in overruling the motion for a new trial.

Judgment affirmed.

Wade, O. J., and Luhe, J., concur.


text:
    8847.
    McKinney v. The State.
    Decided September 13, 1917.
    Conviction of assault with intent to rape; from Dawson superior court—Judge J. B. Jones. April 28, 1917.

      W. M. Johnson> B. P. Qaillard Jr., for plaintiff in error.

      Robert McMillan, solicitor-general, W. B. Sloan, contra.
   George, J.

1. The several excerpts from the charge of the court which are assigned as error in the amendment to the motion for a new trial are without substantial merit. The charge of the court, considered as a whole, was full and fair, and is not subject to the criticism that it was argumentative and unduly emphasized the contentions of the State.

2. The evidence is sufficient to warrant the verdict finding the defendant guilty of the offense of assault with intent to rape, and the verdict has the approval of the trial judge. This court is without power to interfere.

Judgment affirmed.

Wade, O. J., and LuJce, J., concur.


text:
    8878.
    Kelley v. The State.
   Geoege, J.

1. Where the evidence against the accused is entirely circumstantial, it is the duty of the trial judge, whether so requested or not, to instruct the jury on the rule of law applicable to such evidence, as laid down in section 1010 of the Penal Code (1910). Harris v. State, 18 Ga. App. 710 (90 S. E. 370), and cases there cited.

2. It is unnecessary to consider the assignments of error based upon certain excerpts from the charge of the court, since the errors in the charge will hardly occur upon a second trial of the case.

3. There was no error in rejecting the evidence set out in the 3d ground of the amendment to the motion for a new trial.

4. We express no opinion upon the sufficiency of the evidence. Eor error in failing to charge the law of circumstantial evidence, as indicated in the first division of this decision, the motion for a new trial should have been granted.

Decided September 13, 1917.

Accusation of misdemeanor; from city court of Polk county—■ Judge John 3L Davis. May 14, 1917.

Irwin & Tison, Fielder & Fielder, for plaintiff in error.

J. A. Wright, solicitor, F. S. Ault, contra.

Judgment reversed.

Wade, O. J., and LuJce, J., concur.


text:
    8889.
    Harte v. Sturtevant.
    Decided September 13, 1917.
    Certiorari; from Chatham superior court—Judge Meldrim. May 3, 1917.

      O’Byrne, Hartridge & Wright, for plaintiff in error.

      W. B. Stubbs, O. N. Alford, contra.
   George, J.

1. The Civil Code (1910), § 5185, requires that before any writ of certiorari shall issue, the party applying for it shall give bond “and shall also produce a certificate from the officer whose decision or judgment is the subject-matter of complaint that all costs which have accrued on the trial below have been paid.”

2. Section 18 of the act creating the municipal court of Savannah (Georgia Laws, 1915, p. 124) is broad enough to authorize the clerk of that court to give a certificate that all costs which have accrued on the trial below have been paid; and the judge of the superior court did not err in refusing to dismiss the petition for certiorari because such a certificate had not been made by the officer whose decision was complained of.

3. Even if so much of the act creating the municipal court of Savannah as confers upon the clerk the power to make the certificate with reference to the payment of costs which have accrued upon the trial of a case in that court is a special law, and therefore unconstitutional because in conflict with code-section 5185, supra, there are no sufficient pleadings to require the Court of Appeals to certify the case to the Supreme Court.

Judgment affirmed.

Wade, O. J., <md LuJce, J., ooncur.


text:
    8894.
    City of Atlanta v. Hagan.
    Decided September 13, 1917.
   George, J.

The petition set forth a cause of action, and the demurrer was properly overruled.

Judgment affirmed.

Wade, G. J., and LuJce, J., concur.

Action for damages; from city court of Atlanta—Judge Eeid. May 5, 1917.

Hagan, by his next friend, sued the City of Atlanta for damages. The petition alleges, that on February 23, 1915, at which time he was an inexperienced common laborer, eighteen years of age, and was employed by the defendant as a common laborer, he was injured without fault on his own part, and through the negligence of the defendant, its servants and employees, as herein set forth: (13) On that date plaintiff was put to work by the defendant, racking lumber for storage upon a certain scaffold built for that purpose by the defendant under the direction and supervision of its foreman of carpenters, W. H. Winn. (14) The specific work plaintiff was doing on that date was receiving the lumber passed up .to him by other common laborers who were at work with him, plaintiff being at that time upon the scaffolding, piling said lumber upon it as directed by said foreman. (15) The said scaffolding was defective, unsound, and dangerous. (16) The defective, unsound, and dangerous character and condition of the scaffolding were not known to plaintiff, and he did not have equal means with the master of knowing such fact, and by the’exercise of ordinary care could not have known of it. (17) Plaintiff relied, as he had a right to rely, upon the performance by his master, the defendant, of its duty to furnish him with a sound and safe place to labor. (18) The defendant, through its said foreman of carpenters, informed plaintiff that said scaffolding was not dangerous, but was reasonably suited for the use intended. (19) Plaintiff relied upon this assurance, as he had a right to rely thereon, and at said time and place he was engaged as aforesaid in the performance of his labor, racking lumber upon said scaffolding. (20) The said scaffolding had been constructed under the personal supervision of the said foreman of carpenters, at the north end and under the Washington-street viaduct, and was about seven or eight feet in height and constructed of lumber measuring 2x10. The said structure consisted of an upright piece standing upon the ground, and at the top end of said piece of lumber a cross-piece was extended from said upright piece of lumber to and resting upon a wall on the east side under said viaduct. The end of said lumber extending from the upright piece to said wall was held by two nails to said upright piece and was resting upon said wall, but not fastened by anything. The said piece of lumber extending from said upright piece to the -wall was made of 2x10 material and rested on its edge. (21) At the said time and place the said scaffolding proved defective, unsound, and dangerous. (22) The said defective, unsound, and dangerous condition of the scaffolding was due to the fact that it was not securely nailed with a sufficient number of nails at one end, and was not nailed at all at the end resting upon the wall, “and by said cross-piece of timber being allowed to stand on edge, thereby offering no resistance to the heavy weight of the lumber which was being piled upon it.” (23) Plaintiff was not a earjjenter, had no knowledge of carpentry work, and the said defective, unsound, and dangerous condition and character of scaffolding were not known to him, his want of knowledge arising from ignorance and inexperience of construction work of this kind. (24) The defendant knew, or ought to have known, of the defective, unsound, and dangerous condition of said scaffolding. (25) On February 23, 1915, while plaintiff was engaged in racking lumber upon the scaffolding as aforesaid, the said scaffolding, because of its defective, unsound, and dangerous condition, collapsed without any warning to plaintiff, and he, along with the lumber upon said scaffolding, was precipitated to the ground below, a distance of seven or eight feet, landing upon his back, across the edge of a piece of square-edged timber, and he was then and there seriously, dangerously, and permanently injured as 'hereinafter more fully set forth. (26) By reason of the said scaffolding collapsing and precipitating plaintiff to the ground as aforesaid, he was seriously and permanently injured. Allegations were made as to the nature and -extent of the injuries, and as to presentation of the plaintiff’s claim against the city.

The defendant demurred to the petition generally, and démurred specially to the numbered paragraphs set out above, and contended that no cause of action was set out; that the allegations were too vague and indefinite; that it appeared that the alleged defective condition was visible, and the plaintiff’s means of knowing of it were equal to those of the master; that the defendant was not liable on account of the statement of the foreman; that Ms statement amounted to nothing more than the statement of any other employee, and that it could not justify the plaintiff in doing what was obviously unsafe.

J. L. May son, 8. D. Hewlett, for plaintiff in error, cited:

Civil Code (1910), § 3131; Monroe v. Dublin Cotton Mills, 127 Ga. 623, 624; Riverside Mills v. Jones, 121 Ga. 36; Kimmer v. Weber, 121 N. Y. 417, and cases there cited; 26 Cyc. 1115, 1116, note; Birmingham Furnace &c. Co. v. Gross, 97 Ala. 220; Reynolds v. Barnard, 168 Mass. 226; Haughey v. Thatcher, 89 N. Y. App. Div. 375; Phœnix Bridge Co. v. Castleberry, 131 Fed. 175; Riverside Mills v. Brooks, 6 Ga. App. 67; Daniel v. Forsyth, 106 Ga. 568; White v. Kennon, 83 Ga. 343; Ludd v. Wilkins, 118 Ga. 525; Bolden v. Central Ry. Co., 130 Ga. 456; Quinn v. Allen, 1 Ga. App. 807; Jellico v. White, 11 Ga. App. 836; Mills v. Bartow Lumber Co., 9 Ga. App. 171; Short v. Cherokee Mfg. Co., 3 Ga. App. 377; Banks v. Scofield’s Sons Co., 126 Ga. 670; Crown Cotton Mills v. McNally, 123 Ga. 35 (3); Dozier v. Atlanta, 118 Ga. 354. As to foreman’s statement: Williams v. Atlantic Coast Line R. Co., 18 Ga. App. 117; Niblett v. LaGrange Mills,. 18 Ga. App. 173; Brush Electric-Light & Power Co. v. Wells, 103 Ga. 512, 515; W. & A. R. Co. v. Bishop, 50 Ga. 465; McDaniel v. Acme Brewing Co., 113 Ga. 80; Cherokee Brick Co. v. Hampton, 16 Ga. App. 53, 54; Kilgo v. Rome Soil Pipe Co., 16 Ga. App. 737.

Coburn & Hohenstein, Atkinson & Born, contra, cited:

Ocean Steamship Co. v. Matthews, 86 Ga. 418, 423; East Tenn. &c. Ry. Co. v. Smith, 90 Ga. 558; Cockrell v. Langley Mfg. Co., 5 Ga. App. 317; Hubbard v. Macon Ry. & Light Co., 5 Ga. App. 223; Southern Cotton Oil Co. v. Dukes, 121 Ga. 787; Southern States Cement Co. v. Helms, 2 Ga. App. 308; Southern Ry. Co. v. Diseker, 13 Ga. App. 799.


text:
    8905.
    McLane v. The State.
   George, J.

1. Where the accused in a criminal case exercises his right to make a statement to the jury, it is the duty of the presiding judge to instruct the jury substantially in the terms of the statute touching the prisoner’s statement. Where, however, the statement neither admits nor denies guilt, and the evidence for the State is uncontroverted and sufficient to warrant and uphold a conviction, the omission to instruct the jury substantially in terms of the statute touching the weight and credit to be given to the prisoner’s statement will not require a new trial. See Doster v. State, 93 Ga. 43 (4) (18 S. E. 997).

2. On the trial of one indicted for assault with intent to murder by the use of a deadly weapon, the burden is on the State to show (1) the assault, (2) the deadly character of the weapon, (3) the intent to take" life, and (4) the commission of the assault under such circumstances that, had death ensued, the party making the assault would have been guilty of the offense of murder. Accordingly, the failure to charge the jury in effecttbat the specific intent to take human life is a necessary element in the offense of assault with intent to murder will require a reversal, where the trial results in a verdict of guilty of the offense of assault with intent to murder, and the evidence does not demand a finding that the assault was made with the specific intent to take life. On this question, the charge of the court assigned as error is as follows: “An assaiilt is an attempt to commit a violent injury upon the person of another. Assault with intent to murder is by using any weapon likely to produce death.” The charge as a whole' sufficiently covered the essential elements in the offense of assault with intent to murder, with the exception noted. The failure to give the omitted instruction, in substance or effect, was harmful, under the facts in this record.

Decided September 13, 1917.

Indictment for assault with intent to murder; from Hart superior court—Judge Hodges. April 21, 1917.

A. A. McGurry, for plaintiff in error.

A. S. Shelton, solicitor-general, contra.

3. The further assignments of error are without substantial merit.

Judgment reversed.

Wade, O. J., and Luke, J., concur.


author: Pee Cueiam.

text:
    8911.
    Tidwell v. Alabama Great Southern Railroad Co.
    Decided September 13, 1917.
    Action for damages; from Dade' superior court—Judge Tarver. March 22, 1917.

      Martin G. Smith, for plaintiff. Payne & Hale, for defendant.
   Pee Cueiam.

This case is here on a direct bill of exceptions in which the only assignment of error is that the court erred in awarding a nonsuit. No proper brief of the evidence is in the bill of exceptions or made a part of the record. What purports to be a brief of the evidence contains all the evidence in extenso, both material and immaterial, and also all the testimony which the court excluded from evidence, including objections thereto and argument of counsel thereon. The judgment of the lower court must therefore be affirmed. Civil Code (1910), §§ 6140, 6141; Cunningham v. Strom, 8 Ga. App. 87 (68 S. E. 616); Albany & Northern Ry. Co. v. Wheeler, 6 Ga. App. 270 (64 S. E. 1114); Huntley Mfg. Co. v. Nixon Grocery Co., 6 Ga. App. 46 (64 S. E. 79); Bunn v. Atlantic Coast Line Railroad Co., 18 Ga. App. 66 (88 S. E. 798).

Judgment affirmed.

Wade, C. J., and George and Luke, JJ., concur.


text:
    8915.
    Clark, administrator, v. Wright, administratrix.
    Decided September 13, 1917.
    Appeal; from Burke superior court—Judge Hammond. March 2, 1917.

      Henry J. Fullbright, Frank Hardeman, for plaintiff in error.

      M. G. Barwick, contra.
   George, J.

This case is here on a direct bill of exceptions in which error is assigned on the refusal of the court to allow an amendmént, and on' the refusal to admit in evidence a judgment of the court of ordinary-setting apart a year’s support to the widow, and a written agreement between the widow and the temporary administrator. The amendment was not sworn to, and every question presented by the bill of exceptions ■ was fully disposed of adversely to the contentions of plaintiff in error by the decision of the Supreme Court in this ease. Wright v. Clark, 145 Ga. 534 (89 S. E. 618). There was no error in refusing the amendment, in rejecting the proffered evidence, and in directing d, verdict for' the defendant in error.

Judgment affirmed.

Wade, C. J., and Luke, J., concur.


author: IjUKE, J.

text:
    8050.
    Macon Railway and Light Company v. Southern Bell Telephone and Telegraph Company.
    Decided September 18, 1917.
   IjUKE, J.

1. There being in the charge of the court a very full and detailed statement of the plaintiff’s contentions, including in substance the allegations of the petition and of the amendment thereto, without mention of any contention of the defendant, or of the defendant’s denial of contentions or allegations of the plaintiff, and without any reference to the defendant’s pleading, and the ease being a close one under the evidence, the trial judge should have granted the defendant’s motion for a new trial, in which this was complained of. Seaboard Air-Line Ry. v. Sikes, 4 Ga. App. 7 (6), 12 (60 S. E. 868) ; Atlanta Street R. Co. v. Hardage, 93 Ga. 457 (4), 461 (21 S. E( 100). “It is a well-settled rule of law that if the judge undertakes to state the contention of one party, he should also state the contention of the other.” Brown v. Everett-Ridley-Ragan Co., 111 Ga. 415 (36 S. E. 818). In the cases cited as adverse to this ground of the motion for a new trial (Millen & Southwestern R. Co. v. Allen, 130 Ga. 656 (61 S. E. 541); Phinizy v. Bush, 135 Ga. 678 (70 S. E. 243), and cases there cited), contentions of both sides were stated in the charge, and the complaint was that the contentions of one side were not stated with sufficient fullness.

2. No other ground- than that stated above requires a new trial.

Judgment reversed.

Wade, O. J., and George, J., concur.

Action for damages; from Bibb superior court—Judge Mathews. August 14, 1916.

Hatcher &■ Smith, John B. L. Smith, Grady Q. Hams, for plaintiff in error. Brutus J. Clay, Bichard Curd, Hardeman, Jones, Park & Johnston, contra.


text:
    8481, 8526.
    Jenkins v. Whittier Mills Company; and vice versa.

   Luke, J.

1. Where a defendant is duly served and fails to appear or plead within the time prescribed by law, an entry by the judge of the sole word “default,” upon that part of the appearance docket which is devoted to the ease is a sufficient compliance with the requirements of the Civil Code (1910), §§ 5653, 5661. Browner v. Maddox, 1 Ga. App. 332 (4) (58 S. E. 278).

(а) Whether or not in the city court of Atlanta an entry of default can ever be legally necessary, or anything more than a mere memorandum for the convenience of the judge, is a question not now presented for decision; but see: Dodson Printers’ Supply Co. v. Harris, 114 Ga. 966 (2) (41 S. E. 54) ; Thurmond v. Groves, 126 Ga. 779 (55 S. E. 915).

(б) Whenever an entry of default is necessary or proper, it is preferable, though not legally essential, that the entry be in the language of the statute and be followed by the date on which it is made. Under such a practice, the entry in the present case would have read: “In default, Nov. 8, 1916.”

2. The provisions of the Civil Code (1910), § 5656, as to opening a default at the first term, apply only to judgments of the character referred to in the preceding headnote, and have no reference whatever to a final judgment which, under the provisions of the act establishing the city court of Atlanta, may be rendered at the first term as effectively as at any subsequent term. But aside from section 5656, supra, the court, as a general rule, has plenary power over all its judgments and orders during the term at which- they are rendered, and may modify or vacate them for good cause shown. Florida Central R. Co. v. Luke, 11 Ga. App. 290 (75 S. E. 270).

3. Where no defense is filed within the time required by the act creating the city court of Atlanta, and a verdict is rendered in favor of the plaintiff, and a judgment is duly entered thereon, the judgment will not be vacated, even during the same term, at the instance of the defendant, where he shows no good reason in law for his failure to appear and file his defense within the time required by the act. The discretion vested by law in the trial judge is a legal discretion, and will be exercised only where the defendant shows a legal reason for its exercise. No such reason having been shown in this case, the judge properly denied the motion of the defendant to open the so-called default, set aside the verdict of the jury, and allow the defendant to interpose its tardy defense. Florida, Central R. Co. v. Luke, supra.

Decided September 18, 1917.

Action for damages; from city court of Atlanta—Judge Beid. January 27, 1917.

Brewster, Howell & Heyman, Hugh Howell, Morris Machs, Samuel A. Massell, for plaintiff.

Smith, Hammond & Smith, for defendant.

(a) No question was raised in the trial court as to what is the proper procedure in such a ease,—whether a motion to open the “default,” a motion for a new trial, a petition to a court of equity, or some other procedure iri the same or another eoui't. This decision will not, therefore, be treated as having included any such question.

4. It can not be said, as a matter of law, that the evidence demanded the particular verdict returned; and the judgment of the trial court granting a first new trial must therefore be affirmed.

Judgment affirmed on main hill and on cross-hill of exceptions.

Wade, C. J., and George, concur.


author: Bloodworth, J.

text:
    8217.
    HESTER, sheriff, for use, etc., v. DAVIS.
    Where a purchaser at sheriff’s sale refused to comply with his bid and the property was resold and an action for a deficiency in the amount realized was brought against him by the sheriff, for the use of different holders of executions, and, pending the suit, he filed a petition in bankruptcy, listing the sheriff as a creditor, thus: “James Hester, sheriff, suing for the use of the Mount Vernon Bank et ah,” and the sheriff thus designated was notified of the pendency of the bankruptcy proceeding, and the petitioner therein was adjudicated a bankrupt and was duly granted his discharge hv the bankruptcy court, and an attorney at law, representing all the parties for whose use the sheriff was suing, at the time of the adjudication in bankruptcy, knew of the adjudication, and these facts appeared from the pleadings and the agreed statement of facts on the trial of the sheriff’s suit, the judge, who tried the case without a jury, did not err in holding that the discharge in bankruptcy included the claim involved in the suit, although none of the parties for whose use the sheriff was suing, other than the Mount Vernon Bank, were named in the bankruptcy proceeding or in any notice given therein, and none of them were themselves notified of its pendency, and no proof or payment of any ela'im on their part was made in the bankruptcy court.
    Decided September 19, 1917.
    Complaint; from Montgomery superior court—Judge Graham. November 11, 1916.

      James Hester, sheriff, suing* for the use of the Mount Yernon Bank and other holders of executions, sought to recover from M» D. Davis $520, the difference between the amount bid by Davis at a sheriff’s sale of certain land and what the land brought at a subsequent sale by the sheriff, Davis having failed and refused to pay the amount of his bid. After the filing of this suit the defendant filed a petition in bankruptcy and was discharged as a bankrupt. The claim-of the Mount Yernon Bank was subsequently settled and the suit proceeded for the use of other parties for whom it had been brought, viz., Hunter-Benn & Co., William Herndon, transferee of the First National Bank of Dublin, and the Dublin Fertilizer Works. The case was by consent tried by the judge of the superior court upon an agreed statement of facts, and he rendered judgment in favor of the defendant. The material parts of the agreed statement of facts were in substance as follows:
    On the first Tuesday of October, 1914, James Hester, as sheriff of Montgomery county, after duly levying and advertising, put up for sale, according to law, an undivided third interest in 306 acres of land in the 1221st district, G. M., of that county, levied on as the property of B. A. DukeS, under an execution from the city court of Mount Yernon in favor of the Mount Yernon Bank against B. A. Dukes, principal, and J. D. Miller and William Herndon, securities, and also under an execution from the justice’s court of the 1221st district, G. M., of that county in favor of the Mount Yernon Bank against B. A. Dukes and J. D. Miller, principals, and J. M. Brooksher, as indorser or surety. At the said sale M. D. Davis bid the sum of $1020, and, that being the highest and best bid, the property was knocked off to him at that price. He failed and refused to comply with his bid by paying that sum to the sheriff and accepting a deed to the land, and on the first Tuesday of February, 1915, the sheriff, after duly advertising the land again, put it up for sale, and the Mount Yernon Bank bid the sum of $500, and, that being the highest and best bid, the property was knocked off to the Mount Yernon Bank for that sum, and the sheriff executed to it a deed to the land. Sometime thereafter, during the year 1915, the said M. D. Davis filed, in the district court of the Hnited States for the eastern division of the southern district of Georgia, a voluntary petition in bankruptcy, and was duly and legally adjudicated a bankrupt by that court. In that petition he listed “James Hester, sheriff, suing for the use of the Mount Vernon Bank et al.,” as a creditor; and the said “James Hester, suing for the use of the Mount Vernon Bank et. al.,” was duly notified of the pend-ency of the petition in bankruptcy. The Mount Vernon Bank, Hunter-Benn & Company, Phil McRae, William Herndon, transferee of the First National Bank of Dublin, and the Dublin Fertilizer Works were not scheduled in the petition or notified of its pend-ency, or that the said M.,D. Davis had been adjudicated a bankrupt by the United States court. Since the filing of the above-stated suit the Mount Vernon Bank and Phil McRae have been settled with in full, and their claims, the basis of their interest in said case, satisfied; and the plaintiff is not now pursuing the said suit for their use or benefit, but is pursuing it only for the use and benefit of Hunter-Benn & Company, William Herndon, transferee of the First National Bank of Dublin, and the Dublin Fertilizer Works, none of whom proved their claim in the bankrupt court, or received any payment thereon. Since the above-stated case became ripe for trial, and during the first of the year 1916, the said M. D. Davis was duly and regularly granted a discharge by the said United States court from all debts provable in bankruptcy,
    The plaintiff contended: (1) that the scheduling of the plaintiff as “James Hester, sheriff, suing for the use of the Mount Vernon Bank et al.” and the notice to him as such plaintiff, were insufficient in law; that the bankruptcy law requires that the name of every person, firm, or corporation to whom the bankrupt is indebted shall be listed in his petition and notified of the adjudication. ' (2) It was further contended that the discharge in bankruptcy did not operate as a discharge from the claim sued on in this case, for the reason that the suit was for a statutory penalty and it was not a debt provable in bankruptcy.

      M. B. Calhoun, for plaintiff, cited:
    (1) Bankruptcy act of 1898, see. 17, subsection 3; Marshall v. English American Loan & Trust Co., 127 Ga. 376; Collier on Bankruptcy (5th ed.), 214; Liesum v. Krauss, 35 Misc. (N. Y.) 376. (2) Hamilton v. McCroshey, 112 Ga. 651.

      L. 0. Underwood, for defendant, cited ;■
    Civil Code (1910), §§ 6071-2; Sherman v. Walker, 68 Ga. 148; Collier on Bankruptcy (5th ed.), § 63, p. 478; Hamilton v. McCroskey, supra (distinguished).
   Bloodworth, J.

Under the pleadings and the agreed statement of facts, appearing in the record, the court, sitting without the intervention of a jury, did not err in rendering judgment in favor of the defendant.

Judgment affirmed.

Broyles, P. J., and Jenkins, J., concur.


author: Banke, Presiding Judge.

text:
    A90A0766.
    LEE et al. v. BRITT.
    (406 SE2d 535)
   Banke, Presiding Judge.

The appellants, Mr. and Mrs. Lee, sued the appellee to recover for personal injuries, property damage, and loss of consortium sustained as a result of an automobile collision. A jury returned a verdict awarding Mr. Lee total damages in the amount of $2,023.94, while awarding Mrs. Lee $247 for her personal injuries and $500 for loss of consortium. After giving the appellee a credit for certain no-fault insurance benefits which had been paid to the appellants, the trial court entered judgment in favor of Mr. Lee in the amount of $563.58 and in favor of Mrs. Lee in the amount of $500. The Lees appealed to this court; and, in a decision reported at 196 Ga. App. 152 (395 SE2d 347) (1990), we dismissed based on a conclusion that a direct appeal was not authorized under the circumstances. The Supreme Court reversed that decision in Lee v. Britt, 260 Ga. 757 (400 SE2d 5) (1991), and the case is back before us for a decision on the merits. The appellants’ sole contention is that the damages awarded to them were so inadequate as to reflect bias or prejudice against them on the part of the jurors in that the award was less than the total aggregate amount of their “liquidated” damages.

The evidence introduced at trial showed that the appellee, who was 87 years old at the time, collided head-on with the appellants while attempting to access an interstate highway via an exit ramp. The appellee was not injured, and the appellants were treated at a local emergency room and released. They thereafter resumed their normal work schedules, experiencing no loss of time from work. The accident occurred on March 20, 1985. In April of 1985, Mr. Lee was examined by an orthopedic surgeon, who diagnosed him as suffering from cervical and thoracic strain. However, this physician testified that by December of 1985, the appellant had substantially recovered from any injuries he may have sustained in the accident. Subsequently, in March of 1986 and in August of 1986, the appellant sustained on-the-job injuries to his back which left him unable to work. The parties stipulated that any medical bills incurred by him as a result of these job-related injuries were not subject to recovery in the present case. Mr. Lee introduced total medical bills in the amount of $1,594.72. Mrs. Lee introduced emergency room bills in the amount of $155, a bill for an examination by an orthopedic surgeon in the amount of $92, a $270 bill for a neurological examination which she had received three years after the accident, and bills for dental treatment (a root canal and crown) which she had received subsequent to the accident in the amount of $730. Held:

Decided June 5, 1991.

Kunes & Kunes, G. Gerald Kunes, for appellants.

Simpson & Gray, Joseph B. Gray, Jr., for appellee.

“The general rule on appeal of an award of damages is that a jury’s award cannot be successfully attacked so as to warrant a new trial unless it is so flagrantly excessive or inadequate, in the light of the evidence, as to create a clear implication of bias, prejudice, or gross mistake on the part of the jurors. (Cits.) Even though the evidence is such as to authorize a greater or lesser award than that actually made, the appellate court will not disturb it unless it is so flagrant as to ‘shock the conscience.’ [Cits.]” Cullen v. Timm, 184 Ga. App. 80, 82-83 (2) (360 SE2d 745) (1987). See also OCGA § 51-12-12.

It would appear that Mr. Lee was in fact awarded damages in excess of his medical expenses. The jury’s failure to award Mrs. Lee the full amount of the medical expenses which she sought to recover does not create a clear implication of bias, prejudice, or gross mistake under the circumstances, inasmuch as the jury could have determined from the evidence that not all of these expenses were necessitated by the accident. See generally Johnson v. Cook, 123 Ga. App. 302 (180 SE2d 591) (1971).

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


text:
    A91A0015.
    SEMONES v. THE STATE.
    (406 SE2d 483)
   Banke, Presiding Judge.

The appellant was found guilty of driving with an unsecured load in violation of OCGA § 32-6-21. He contends on appeal that the trial court erred in determining that no evidence of criminal intent was necessary to support the conviction.

The essential facts are not in dispute. On April 24, 1989, the appellant purchased two dining room chairs at a store in Lilburn, Georgia. At his direction, the assistant manager of the store loaded the chairs onto the appellant’s truck and tied them down with baling twine. Both the appellant and the assistant manager believed that the load was secure when the appellant left the store. However, as the appellant was driving down the highway, one of the chairs fell from the truck onto the roadway, causing the vehicle immediately behind him to swerve to avoid missing it; and that vehicle was, in turn, struck by the vehicle behind it. There was evidence that the twine used to secure the chairs had broken. Held:

OCGA § 32-6-21 provides, in pertinent part, as follows: “(b) No person shall operate or load for operation, on any public road, any vehicle with any load unless such load and any covering thereon is securely fastened so as to prevent said covering or load from becoming loose, detached, or in any manner becoming a hazard to other users of the public road.” Pursuant to OCGA § 32-1-10 (a), “[a]ny person who violates [this provision] . . . shall be guilty of a misdemeanor. . . .”

In Queen v. State, 189 Ga. App. 161 (c) (375 SE2d 287) (1988), and Hoffer v. State, 192 Ga. App. 378 (1) (384 SE2d 902) (1989), this court held that certain statutes relating to motor vehicle safety impose “strict criminal liability,” meaning that they “can be violated and enforced . . . without a showing of mens rea or guilty knowledge on the part of the violator.” Queen, supra, 189 Ga. App. at 163. See also Davis v. City of Peachtree City, 251 Ga. 219, 220, n. 1 (304 SE2d 701) (1983). In Queen, the operation of a motor vehicle with a defective headlight (OCGA §§ 40-8-20; 40-8-22) was held to be such an offense, while in Hoffer, running a red light (OCGA §§ 40-6-20; 40-6-21) was held to be such an offense. The state argues that OCGA § 32-6-21 similarly imposes strict criminal liability, with the result that the only evidence of intent necessary to support a conviction was evidence that the appellant “intended to drive the truck with the chairs in the bed of the truck.”

“It has been said that intent requirements are- omitted as a matter of policy in the case of ‘public welfare offenses.’ Other factors which have been noted as favoring a strict-liability construction of statutory offenses are that the offense is capable of inflicting widespread injury, or creates a danger or probability of injury which will be the same without regard to intent; that an intent or scienter requirement would obstruct the purpose of the statute or make it difficult of enforcement; and that the accused, even if he does not will the violation, is usually in a position to prevent it with no more care than society might reasonably expect. Another distinction which has been suggested is that where the means of knowledge are available to the accused, or the act is such as to impose a duty on the actor to ascertain the facts at his peril, knowledge is not an essential element of the statutory offense unless the statute so provides. . . .” (Indentation and footnotes omitted.) 21 AmJur2d, Criminal Law, pp. 274-275, § 139.

Decided April 30, 1991

Rehearing denied June 7, 1991

Dennis, Corry, Porter & Thornton, William E. Gray II, Virginia M. Greer, for appellant.

Gerald N. Blaney, Jr., Solicitor, Allison L. Thatcher, Assistant Solicitor, for appellee.

Because the offense of which the appellant was convicted meets all of these criteria, we hold that the trial did not err in ruling that proof of mens rea or guilty knowledge was unnecessary to support a conviction.

Judgment affirmed.

Beasley, J., concurs. Carley, J., concurs in judgment only.


author: Birdsong, Presiding Judge.

text:
    A91A0181, A91A0182.
    READ v. BENEDICT; and vice versa.
    (406 SE2d 488)
   Birdsong, Presiding Judge.

Appellant/cross-appellee (Joan Read) appeals the orders of the superior court denying her motion for new trial on the issue of punitive damages and her motion for reconsideration of partial directed verdict on the issue of interest claimed; and granting appellee/crossappellant’s (Thomas Benedict) motion for judgment notwithstanding the verdict on the issue of attorney fees and striking $26,250 from the verdict and judgment entered. Appellee/cross-appellant has cross-appealed the order of the trial court denying his motion for judgment notwithstanding the verdict or, in the alternative, for new trial on the issues of voluntary payment and unjust enrichment.

This appeal arises from a suit for legal malpractice in which Joan Read in essence averred that Thomas Benedict, an attorney, was negligent in closing the sale of her family’s home then owned by her mother. Closing occurred on or about July 1986. Specifically, Joan Read asserted that Thomas Benedict improperly structured the real estate loan closing against her express wishes so as to cause the tax liens of her husband (John Read) to attach to the property, and then improperly advised her regarding the attachment of these liens. Held:

Case No. A91A0181

1. Appellant asserts the trial court erred in granting appellee’s motion for judgment notwithstanding the verdict on the issue of attorney fees and expenses of litigation, because “sufficient evidence of appellee’s bad faith was presented at the trial and the trial court erred in granting appellee’s motion for judgment notwithstanding the verdict on the issues of attorney fees and expenses of litigation.”

Pretermitting the bad faith issue is the question whether appellant’s trial tactics failed to preserve the bad faith issue for appellate review. We find the issue has not been preserved.

The record reflects that during the charge conference, the trial judge informed the parties that appellant’s request to charge number 12 on the issue of costs of litigation would be given, except he was going to inform the jury that the issue of bad faith would not apply. Then the trial judge expressly informed the parties that “therefore, the only way attorney fees could be awarded in this particular action, in my judgment, is that the jury [will] have to find the defendant had been stubbornly litigious or had caused the plaintiff unnecessary trouble and expense.” (Emphasis supplied.) Thereafter, appellant’s counsel presented “a couple of comments about some [charges] that [he thought] would be erroneous,” but did not raise any objection to the trial court’s ruling regarding the bad faith issue. Subsequently, the trial court pertinently charged the jury, regarding the award of litigation expenses, that “where the defendant has acted in bad faith in making the contract — and that does not apply in this case because there is no bad faith as this judge has determined in making the contract.” Thereafter, when asked if there were any exceptions or objections to the charge, appellant voiced several issues, but did not take any exception or objection to the exclusion of bad faith from applicability during the charge on expenses of litigation.

By failing to object or take timely exception to the trial court’s exclusion of the bad faith from jury consideration, whether such exclusion was intentional or accidental, appellant by her own trial tactics assisted in misleading the trial court, generating the ruling and charge at trial, and in preventing the jury from considering the issue of bad faith in its award of litigation expenses. As a result, the jury, under the charge as actually given and to which no exception was timely taken, could not have awarded attorney fees on the basis of a bad faith finding. On appeal appellant cannot complain of a judgment, order, or ruling that her own procedure or conduct aided in causing. West v. Nodvin, 196 Ga. App. 825, 829 (3) (e) (397 SE2d 567). Further, by her conduct at trial, appellant in effect acquiesced in the trial court’s ruling that bad faith did not apply, and did thereby abandon any issue of error predicated on the existence of bad faith on appeal. See Whisnant v. State, 178 Ga. App. 742, 744 (344 SE2d 536); Horan v. Pirkle, 197 Ga. App. 151, 152 (397 SE2d 734).

Moreover, assuming arguendo, the issue of bad faith had not been abandoned, it was without merit. A genuine controversy existed in this case as a matter of law, and the existence of a bona fide controversy generally precludes any claim for attorney fees based on bad faith. See, e.g., EBCO Gen. Agency v. Mitchell, 186 Ga. App. 874, 875 (2) (368 SE2d 782). We agree with the trial court that Backus Cadillac-Pontiac v. Ernest, 195 Ga. App. 579 (394 SE2d 367) is distinguishable.

Having waived bad faith, there are only two grounds remaining on which the award could be supported. “When bad faith is not an issue and the only asserted basis for a recovery of attorney fees is either stubborn litigiousness or the causing of unnecessary trouble and expense, there is not ‘any evidence’ to support an award pursuant to OCGA § 13-6-11 . . . if a bona fide controversy . . . exists between the parties.” Dimambro Northend Assoc. v. Williams, 169 Ga. App. 219, 224-225 (6) (312 SE2d 386). Accord Jeff Goolsby Homes Corp. v. Smith, 168 Ga. App. 218 (2) (308 SE2d 564). As a bona fide controversy did exist, the trial court did not err in awarding j.n.o.v. to appellee as to this matter.

2. Appellant asserts there was sufficient evidence to support an award of punitive damages and the trial court erred in granting appellee’s motion for directed verdict thereto and in refusing to grant a new trial thereon.

Regarding the error enumerated, we note that punitive damages would not lie as to any ex contractu claim in this case. OCGA § 13-6-10. However as to causes of action grounded in tort, such as exist in this case, an award of punitive damages can lie. See, e.g., OCGA § 51-12-5. Although “[m]ere negligence, although gross” will not support an award of punitive damages (Associated Health Sys. v. Jones, 185 Ga. App. 798, 802 (2) (366 SE2d 147)), as to causes of action ex delicto arising before July 1, 1987, which includes a cause of action averred to arise by reason of legal malpractice, punitive damages can be awarded by the jury based upon the existence of aggravating circumstances, in either the act or the intention. OCGA § 51-12-5. “It is well established that that language means such damages cannot be imposed in any case unless there is willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of a conscious indifference to consequences. The latter expression (conscious indifference to consequences) relates to an intentional disregard of the rights of another, knowingly or willfully disregarding such rights.” (Citations and punctuation omitted.) Petrolane Gas Svc. v. Eusery, 193 Ga. App. 860 (1) (389 SE2d 355). Ordinarily the imposition of punitive damages is a jury issue; however, the controlling criteria remains whether there is any evidence to support such an award. Petrolane, supra at 862.

In this case, there is some evidence, albeit strongly controverted, which if believed by the jury would establish appellee entered an attorney-client relationship not only with the lending institution but with appellant and her husband, Dr. Read; that a potential conflict of interest thereafter arose between the lending institution (which issued lending instructions requiring that Dr. Read acquire title to the property contrary to the wishes of appellant); that a potential conflict of interest also may have existed between appellant and her husband, Dr. Read; that nevertheless appellee continued to represent all parties; that at closing appellee favored the desires and legal interests of the lending institution over appellant and ignored the desires and legal interests of appellant by preparing closing documents that passed title to Dr. Read before vesting title in appellant, Joan Read — with a result Internal Revenue Service (IRS) tax liens recorded against Dr. Read attached to appellant’s family home contrary to her express wishes; that appellee failed to make a timely and full disclosure to the Reads of the legal efféct of the closing documents in regard to IRS tax liens attachment, thereby precluding them from making an informed choice whether to elect not to close and to seek another lending institution; and, that appellee in whom appellant put her trust because he was “the attorney” advised her it was required that the property be transferred to Dr. Read, but that by recording the deeds together the IRS tax lien would not attach to the property.

A motion for directed verdict cannot be granted if there is any evidence, direct or circumstantial, creating a material issue of fact. Armech Svc. Co. v. Rose Elec. Co., 192 Ga. App. 829, 831 (2) (386 SE2d 709); Reeb v. Daniels Lincoln-Mercury Co., 193 Ga. App. 817 (1) (a) (389 SE2d 367). As the record contains some although certainly not an abundance of evidence, evidencing that entire want of care by appellee which would raise the presumption of conscious indifference to the consequences, the issue of punitive damages should have been placed with the jury for resolution. Thus, the trial court erred in granting a directed verdict in behalf of appellee as to the issue of punitive damages, and in refusing to grant appellant a new trial. The evidence, with all reasonable deductions therefrom, does not demand a particular verdict pertaining thereto. See generally Armech, supra at 831.

3. Appellant asserts that her claim for interest was supported by sufficient evidence and the trial court erred in granting appellee’s motion for directed verdict on the interest claim. We disagree. No competent evidence was introduced at trial to establish the prime rate applicable to the interest calculation. Prime rate fluctuates and is not a proper subject for judicial notice. The trial court properly did not take judicial notice of the prime rate and instruct the jury regarding such fact. Moreover, because of its fluctuating nature, the particular prime rate at any given moment is not the type of fact normally to be found within a person’s “general knowledge and experience” of which the jury sua sponte could take “judicial cognizance.” See generally Green, Ga. Law of Evid. (3d ed.), § 6. Further, an individual juror could “not act on his private knowledge” of the applicable prime interest rate (OCGA § 9-10-6), and the jury, either individually or as a group, could not base its award of interest upon speculation. McGarr v. McGarr, 239 Ga. 640 (4) (238 SE2d 427). As we find no competent evidence of record sufficient to enable the jury to calculate the applicable prime rate and, thus appellant’s interest claim with reasonable certainty (compare Crankshaw v. Stanley Homes, 131 Ga. App. 840 (207 SE2d 241)), the grant of directed verdict as to the interest claim was not erroneous.

Case No. A91A0182

4. For the following reasons, we are satisfied that the trial court did not err in denying cross-appellant Benedict’s motion for judgment notwithstanding the verdict or, in the alternative, for new trial on the issue of voluntary payment.

We find that Ins. Co. &c. v. Kyla, 193 Ga. App. 555 (388 SE2d 530), Atlanta Milling Co. v. Norris Grain Co., 271 F2d 453 (5th Cir.), and the other cases involving voluntary payment, cited in cross-appellant’s brief, are distinguishable from the facts of this case. For example, the cases which cross-appellant relies upon do not involve a three-cornered transaction culminating in a tort claim similar to the case sub judice. Additionally, in Ins. Co. &c., supra, Insurance Company of North America was “attempting to recover the excess payment” therein involved and was not attempting to recover damages for tortious conduct. Accordingly, these cases are not controlling.

Cross-appellant asserts that, subsequent to closing, Joan Read voluntarily made certain payment to the IRS to obtain release of the tax liens of the premises, and accordingly such voluntary payments are not recoverable under the provisions of OCGA § 13-1-13.

In denying the motion, the trial court inherently concluded the defense of voluntary payment would not apply to preclude a plaintiff from recovering damages in a tort action from a tortfeasor merely because plaintiff previously had made payment to a third-party creditor in settlement of an indebtedness which had been proximately caused by the negligence of the tortfeasor in question. Moreover, the trial court expressly declined to apply the defense of voluntary payment to a so-called “three-cornered transaction, culminating in a tort claim”; thus a voluntary payment by Joan Read to the IRS, and not to attorney Thomas Benedict, to remove the tax liens was in effect held not to give rise to a legitimate defense of voluntary payment within the meaning of OCGA § 13-1-13. We agree.

Although OCGA § 13-1-13 in appropriate circumstances clearly could be applied in a suit brought by plaintiff so as to preclude recovery from “the other party” of the amount originally given by the plaintiff to “the other party” in voluntary payment of a “claim,” (compare First Nat. Bank &c. v. Mayor &c. of Americus, 68 Ga. 119; Arnold & DuBose v. Ga. R. &c. Co., 50 Ga. 304; see Camp v. Phillips, 49 Ga. 456), the statute on its face does not apply to a three-cornered transaction culminating in a tort claim for damages (such as exists in this case). Generally, “[i]n construing a legislative act, a court must first look to the literal meaning of the act. [Cit.] If the language is plain and does not lead to any absurd or impracticable consequences, the court simply construes it according to its terms and conducts no further inquiry.” Diefenderfer v. Pierce, 260 Ga. 426, 427 (396 SE2d 227). To construe OCGA § 13-1-13 so as to preclude the award of damages in a suit grounded in tort when the alleged voluntary payment involved was to a third party not involved in a suit for the purpose of satisfying a claim caused by the negligence of the defendant tortfeasor would produce an absurd result. In such circumstances, it becomes the duty of the courts to seek to construe the statute so that it makes good sense while remaining “faithful to the legislative intent.” Telecom*USA v. Collins, 260 Ga. 362, 364 (393 SE2d 235). We decline to give OCGA § 13-1-13 the construction sought by the cross-appellant and hold that the defense of voluntary payment is not available in this instance.

5. Cross-appellant’s assertion that the trial court erred in denying his motion for judgment notwithstanding the verdict or, in the alternative, for new trial on the issue of unjust enrichment also is without merit. The trial court in essence concluded the defense of unjust enrichment does not apply where the award by the jury is based on “evidence of damage in a tort action.”

“No person is unjustly enriched unless the retention of the benefit would be unjust.” 66 AmJur2d, Restitution & Implied Contracts, § 3. Viewing the record in its entirety and in light of this principle, we are satisfied that cross-appellee has not been unjustly enriched by the jury’s award of damages.

Decided May 13, 1991

Rehearings denied June 4, 1991 and June 10, 1991.

Jones, Brown, Brennan & Eastwood, Taylor W. Jones, Rebecca A. Copeland, for appellant.

Freeman & Hawkins, H. Lane Young II, Joseph A. Roseborough, for appellee.

For the reasons above stated, the judgments of the trial court are affirmed, except as to its holdings granting appellee’s motion for directed verdict and refusing to grant new trial on the issue of punitive damages.

Judgments affirmed in part and reversed in part.

Pope and Cooper, JJ., concur.


text:
    A91A0380.
    KITTLES v. BOLTON.
    (406 SE2d 496)
   Birdsong, Presiding Judge.

This is an appeal from summary judgment granted to the plaintiff George Bolton in his petition for declaratory judgment as to his rights under a sheriff’s levy and sale.

Appellee Bolton purchased the property, a house and lot, at a sheriff’s sale, following legal advertisement which did not include any mention that an estate for years in the appellant Mrs. Georgia Kittles would be excepted from the sale. It was Mrs. Kittles who levied on the property to satisfy a $30,000 year’s support judgment which she had obtained in 1987 against her late husband’s estate. Appellee Bolton paid $75,000 for the property but has been unable to obtain possession, Mrs. Kittles contending she is entitled under her husband’s will to reside there until November 1991. Mr. Kittles died in November 1981; his widow’s estate for years was to run ten years. Mr. Kittles’ two children are the remaindermen to this legacy to Mrs. Kittles; one of them is also one of the two executors of the estate. Held:

The trial court did not err in granting summary judgment to the appellee, George Bolton, entitling him to possession of the house and property free of any interest of Mrs. Kittles.

Mrs. Kittles obviously could not levy on the property to satisfy her year’s support award unless the property belonged to the estate; she therefore cannot contend at the same time that her legacy of an estate for years was perfected. If her legacy, i.e., her estate for years, had been assented to by the executors (see OCGA § 53-2-109), the benefit would have inured to the remaindermen; that is, their remainder interest would be perfected as well, and all the property would thus have passed out of the hands of the executors and out of the estate. Pound v. Faulkner, 193 Ga. 413 (5), (6) (18 SE2d 749); Wilson v. Aldenderfer, 183 Ga. 760 (189 SE 907). In order to authorize a conclusion that Mrs. Kittles had the right to levy on the property to satisfy her judgment against the estate, we must first conclude her estate for years had not been assented to, so that the property was still the property of the estate. Although Mrs. Kittles contends her estate for years was separated or divisible from the remaindermen’s interest, and that she could levy upon the remaindermen’s interest, this is not a correct proposition, for if her legacy was assented to, the remainder-men’s interests were perfected also. The property would no longer be in the estate and could not be levied on to satisfy a debt of the estate. Pound, supra; Wilson, supra.

On the face of these facts, it might seem that the fact Mrs. Kittles lived in the property since 1981, with the apparent approval of the executors, would indicate at least an implied assent of the executors to her legacy, under OCGA § 53-2-109. See also Clay v. Clay, 149 Ga. 725 (101 SE 793); Moore v. Turner, 148 Ga. 77 (95 SE 965). But assent is not necessarily presumed from residence of the legatee or similar facts. See Johnson v. Thomas, 144 Ga. 69 (86 SE 236). If there had been any assent to Mrs. Kittles’ legacy, the remaindermen’s interests would have been perfected as well. That is, if the executors assented to the legacy of Mrs. Kittles’ estate for years, the remainder interest would have been perfected, the property would have passed out of the estate, and she could not have levied upon it to satisfy her year’s support judgment. As executor one of the remaindermen allowed the levy on her remainder property as property of the estate, thus confirming, under all we have said, that it never passed out of the estate, and therefore neither did the other remainderman’s interest.

The conclusion is inescapable that, whatever Mrs. Kittles’ occupation for these years may be called, whether at leisure or at sufferance, it was not on account of a choate devise under the will. If notwithstanding what we say here she successfully could convince a jury that there was assent to her devise and that she has the right to live on the property until November 1991, then the effect would be that the remaindermen’s interests became perfected as of the time of their assent and the property will have passed out of the estate; she could not properly have levied on it to satisfy her $30,000 year’s support judgment. But she was able to levy on the property because she had no perfected interest in the devise, and neither did the remainder-men, for the property was still in the hands of the estate. It is therefore irrelevant whether appellee had notice of her claim when he purchased the property. The ruling of the trial court is affirmed.

Judgment affirmed.

Pope and Cooper, JJ., concur.

Decided May 17, 1991

Rehearing denied June 10, 1991

Lissner, Killian, Cunningham & Zacker, Robert P. Killian, for appellant.

Amanda F. Williams, Martha F. Dekle, for appellee.