text:
    9316.
    SCOTT v. DAVIS.
    1. The bill of exceptions was dated October 12, and there was an acknowledgment of service on October 24, in the following form; “Due and legal service of the foregoing bill of exceptions is hereby acknowledged, a copy being received; reserving all legal rights and exceptions.” The defendant in error moved to dismiss the bill of exceptions, because service was not made or acknowledged within ten days of the signing of the same. The motion is denied, as not being well taken. Ga. L. 1911, p. 149 (Park’s Ann. Code, §.6164 (a); Stewart v. Randall, 138 Ga. 796 (76 S. E. 352) ; Jones V. Patterson, 138 Ga. 862 (76 S. E. 378) ; Oooh v. Parsons, 143 Ga. 12.7 (84 8. E. 559) ; Mitchell Automobile Co. v. McDaniel, 143 Ga. 516 (85 S. E. 635); Langford v. Salter, 146 .Ga. 123 (90'S. E. 860).
    2. “The point that the verdict should have specified the damages in solido, instead of finding a designated sum with interest thereon, can not be raised under the genera,! ground that the verdict is contrary to law and contrary to the evidence.” JDtna Insurance Go. v. Peavy, 9 Ga. App.. 759 -(72 S. E. 300).
    3. There being no legal brief of the evidence, the assignment of error as to the overruling of the motion for a new trial, which is based upon the general grounds only, will not be passed upon.
    Decided March 13, 1918.
    Action for‘deceit; from Madison superior court—Judge W. L. Hodges. September 17, 1917.

      John B. & Howard Gordon, John J. & Roy M. Strickland, for plaintiff in error. Berry T. Moseley, contra.
   Harwell, J.

This is the second appearance of this case in the appellate courts, it having been carried to the Supreme Court when dismissed on demurrer. Davis v. Scott, 141 Ga. 33 (80 S. E. 284). It is a suit for deceit, and resulted in a verdict for the plaintiff. The motion for a new trial is upon the general grounds. The brief of evidence is apparently the full stenographic report reduced to narrative form with no effort at abridgment. There is in fact on the last page of the brief a certifícate of the court stenographer that “The above and folegoing 25 pages constitute a true and correct copy of the evidence, reduced to narrative form, produced upon the (rial of the above stated case.” Apparently all of the objections to testimony, and arguments of counsel thereon; and the rulings of the court, and discussions between the court and counsel on other phases of the case are embodied verbatim et literatim in the brief. This immaterial matter constitutes nearly one third of the brief. This is not a legal brief of the evidence, and the assignment of error based upon thé general grounds of the motion will not be passed upon. Lanham v. Presley, 7 Ga. App. 839 (68 S. E. 448), and citations; Albany & Northern Ry. Co. v. Wheeler, 6 Ga. App. 270 (64 S. E. 1114); Hitchcock v. Latham, 97 Ga. 253 (2) (22 S. E. 997); Jones v. West View Cemetery, 103 Ga. 560 (39 S. E. 710); Graham v. City of Baxley, 117 Ga. 42 (2) (43 S. E. 405). “The Supreme Court will not review the evidence in a case when it is apparent that there has been no bona fide effort to brief the evidence as required by law, and when the document purporting to be a brief of the evidence is extensively interspersed with objections to testimony, statements, motions and arguments of counsel, rulings of the court, evidence to which objections were sustained, and also colloquies between counsel and the court. Equitable Mortgage Co. v. Bell, 115 Ga. 651 (43 S. E. 82); Graham v. Baxley, 117 Ga. 42 (43 S. E. 405); Wall v. Mercer, 119 Ga. 346 (46 S. E. 420). Wh^re, in such a case, no question-is presented for decision which can be determined without reference to the evidence, the judgment of the court below must be affirmed.” McComb v. Hines, 123 Ga. 246 (51 S. E. 300).

Judgment affirmed.

Broyles, P. J. and Bloodworth, J., concur.


source: Caselaw Access Project

author: Harweii,, J.

license: Public Domain

text:
    9321.
    BANK OF CUMMING v. MASON.
    Payment made before maturity to the payee of the note sued on was not, under the facts of this case, a legal defense as against the plaintiff bank, a bona fide holder, which had received the note before maturity, as collateral' security.
    Decided March 13, 1918.
    Certiorari; from Cherokee superior court—Judge Morris. Oc-. tober 13, 1917.
    The Bank of Cumming sued Mason in a justice’s court on a promissory note for $40 and interest, made by him, payable to O. L. & M. G. Lummus or bearer, and indorsed by the payees. The defendant filed a plea that he was not indebted to the plaintiff as alleged, and that the note sued on had been paid by him in full, and that he did not owe the plaintiff or any other person anything on the note. The note was introduced in evidence by the plaintiff, and the cashier of the bank testified that the bank took the note before it was due, as collateral security for a debt which 0. L. & M. G. Lummus owed it, and that the note for which this $40 note was put up as collateral had not been paid in full to the bank, and that neither Mr. Mason nor any one for him had paid this $40 note to the bank, and that it.is the property of the Bank of Cumming. The defendant testified that he paid the note sued on in full to M. G. Lummus on January 24, 1913, before the note matured; and he introduced in evidence, over objection by counsel for the plaintiff, a receipt from Lummus, dated January 24, 1913, for $40, “in full of notes and accounts.” He further testified that at the time he paid it, Lummus told him that he did not have the note with him, but would send it to him; that he did not know that the bank had title to the note, and had never heard anything about the bank having it until “some time ago,” when the bank called upon him for payment. The cashier of the bank further testified that the $40 for which Mason had a receipt was not paid to the bank by Mason or Lummus.
    The jury returned a verdict for the defendant. The plaintiff carried the case to the superior c.ourt by certiorari, alleging that the verdict was contrary to law and the evidence, and that the court erred in admitting in evidence the receipt, it not being a receipt of the plaintiff, and the money not being paid to the plaintiff. The certiorari was overruled, and the plaintiff excepted.

      H. L. Patterson, for plaintiff.
   Harweii,, J.

(After stating the foregoing facts.) It is undisputed that the note sued on in this case was received by the plaintiff before its maturity, as collateral security for a debt due by the payees, and that this debt was not paid. It further appeared that the payment made by the defendant to Lummus, payee of the note, was made before maturity, and it was not shown that the payee had possession of or was the owner of the note when the payment was made. Hnder the facts appearing in the record, the trial judge erred in overruling the certiorari. Paris v. Moe, 60 Ga. 90; Haug v. Riley, 101 Ga. 386 (29 S. E. 44, 40 L. R. A. 344); McDonald v. Horton, 20 Ga. App. 489 (93 S. E. 110).

Judgment reversed.

Broyles, P. J., and Bloodworth, J., concur. <


author: Broyles, P. J.

text:
    9326, 9327.
    Central of Georgia Railway Company v. O’Kelley; and vice versa.

   Broyles, P. J.

1. Under the facts of the ease the court did not err in refusing to give the requested instructions to the jury, as complained of in the first ground of the amendment to the motion for a new trial.

2. Grounds 2, 9, 14, and 19 respectively of the amendment to the motion for a new trial complain of the refusal of the court to exclude certain testimony. ,At least some of the testimony to which objection- was madp in each of these grounds was admissible. It was not error, therefore, to refuse to rule out all of the testimony objected to.

3. The admission of the testimony set out in grounds 4, 8, 11 and 17 respectively of the amendment to the motion for a new trial was not error for any reason assigned.

4. Under repeated rulings of the Supreme Court and of this court, a special ground of a motion for a new trial must be complete within itself. If it is so incomplete as to require a reference to the brief of evidence to render it intelligible, it will not be considered by the reviewing court. Under this ruling grounds 3, 5, 6, 7, 10, 12, 13, 15, 16, 18, 20 and 21 of the amendment to the motion for a new trial will not be considered by this court. All of these grounds respectively complain of the admission, over the defendant’s objection, of certain testimony, and a reference to the brief of evidence would be necessary before it could be determined whether the admission of this evidence was prejudicial error.

(a) Grounds 3 and 12 respectively complain of the admission of certain testimony as to complaints made by the plaintiff of his pain and suffering and his physical condition, but it does not in either of these grounds appear when such complaints were made—whether immediately after the railway accident (which the plaintiff alleged caused his in-. juries), or at some subsequent time. Nor does either of these grounds show to whom the complaints were made—whether to a physician, or some other person, in response to manipulations of the plaintiff’s person, or to some one else. These two grounds are so incomplete that this court can not determine whether or not such complaint's were a part of the res gestse, and, consequently, can not say that the admission of this testimony was erroneous.

5. This case has been before this court on three previous occasions (14 Ga. App. 273, 80 S. E. 688; 16 Ga. App. 594, 85 S. E. 938; 18 Ga. App. 412, 89 S. E. 428), and twice the plaintiff has recovered in the lower court. It being conceded by counsel for the defendant railway company that upon the last trial, now under review, the verdict was authorized by the evidence, and that verdict having been approved by the trial judge, and no error of law being made to, appear, we can not say that the judge of the superior court erred in overruling the certiorari sued out by the defendant.

Decided March 13, 1918.

Certiorari; from Washington superior court—Judge Hardeman. October 3, 1917.

F. II. Saffold, A. B. Lovett, W. M. Goodwin, for plaintiff in error.

0. A. Nix, J. II. Hall, Warren Roberts, A. R. Wright, contra.

Judgment on the main hill of exceptions affirmed; cross-hill dismissed.

Bloodworth and, Harwell, JJ., concur.


author: Broyles, P. J. Haravell, J.

text:
    9334.
    RICE et al. v. LOWRY, sheriff, for use, etc.
    1. Where property levied upon and seized by a sheriff is released, on a forthcoming bond, but no claim to the property is filed, the execution of the bond will .be considered as voluntary, and the bond is' a valid obligation.
    2. Where a claimant, under a forthcoming bond, secures possession of the property levied upon by the sheriff, but files no claim, and thereafter disposes of a portion of the property prior to the time of the sale, he has breached the bond,, although there has been no adjudication that the property is subject to the execution; and the sheriff, for the use of the plaintiff in fi. fa., may maintain a suit upon the bond.
    Decided March 13, 1918.
    Action upon bond; from Eulton superior court—Judge Bell. October 29, 1917.

      May son & Johnson, for plaintiffs in error.

      W. S. Dillon, W. J. Davis Jr., contra.
   Broyles, P. J.

J. I. Lowry, sheriff, for the use of the plaintiff in fi. fa., brought suit upon a forthcoming bond signed by W. W. Rice Jr. as principal, and E. B. Stuart as surety. The petition was in two counts; the first count being based on the ground that a portion of the property described had been disposed of prior to the time when it was advertised for sale; and the second count, on the ground that the property was not produced or delivered.at the time and place of sale. It was alleged in each count that the bond had thereby been breached. It was recited in the forthcoming bond that the principal thereof had interposed his claim to the property. No’claim, however, was ever filed. The condition in the bond was for the production of the property to the levying officer at the time and place of sale, provided the properly should- he found subject to the execution. The petition set forth in detail the portion of the property that was disposed of prior to the time of the sale. The defendants demurred to the petition, and set up substantially two points: (1) That the petition showed that no claim to the property had ever been made, and hence the forthcoming bond was not binding on the defendants but was null and void. (2) That no breach of the bond was shown, since there was no adjudication that the property was subject to the execution. The court overruled the demurrer, and the defendants excepted.

• The first point raised by the demurrer has been sattled adversely to the defendants’ contention, in Jones v. Kendrick, 94 Ga. 645, (21 S. E. 831), and in McFarland v. Lee, 10 Ga. App. 698 (73 S. E. 1091).

The second question raised by the demurrer is not so easily disposed of. If we could decide it as a matter of first impression, we would be inclined to hold that the terms of the condition of the bond must be followed; and that the bond wás not breached by the disposal of the property prior to the time of the sale, unless the property had been found subject to the execution. It seems, however, that the Supreme Court has definitely decided this question to the contrary. In Reynolds Banking Co. v. Southern Pacific Guano Co., 140 Ga. 498 (79 S. E. 132), and cases there cited, the ruling seems to be substantially made that where a claimant gets possession of the property levied upon under a forthcoming bond, and disposes of the property prior to the time of the sale, the bond is automatically breached, notwithstanding no adjudication that the property is subject to the execution has been made. This ruling seems to be based upon the ground that the claimant by his conduct has rendered it impossible for him to produce The property at the time and place of sale if i;he property should be found subject to the execution. In this ease, if the defendants desired to raise the question as to whether the property was subject to the execution which had been levied upon it, they should have interposed a claim and had it settled on the trial of the claim ease. The failure of the claimant to file a claim was a waiver on his part, both for himself and his surety, of such trial. Certainly the defendants should have kept the property under their control until such a claim had been filed. As said by Chief Justice Bleckley, in Anderson v. Banks, 92 Ga. 121 (18 S. E. 364) : “It is not allowable for a claimant to defeat a sale by interposing a claim and then appropriate the property to his own.use or suffer it to be appropriated by his surety on the claim bond, and then contest, not in the claim case—the very case appointed by law for the purpose—but in a suit on the bond, the right of the plaintiff in execution to sell the property. To allow this would be to overlook and disregard the object of the claim laws, that object being to facilitate the trial of the rights of property seized under execution, by a sort of intervention on the part of strangers to the execution, instead of leaving them to assert their rights in some separate and independent action. If claims are used merely to get or retain possession of property and not for the trial of rights to it, they cease to be substitutes for other actions and only give ground or occasion for some other action, which is the very thing the claim laws are designed to prevent. It would be a perversion of these laws not to hold the claimant and his surety estopped by dismissing the claim, the presént action being a breach of a bond to produce the property, and the question of breach not in any way involving the title but only the forthcoming of the property at the time and place of sale. Inability to produce it when clearly established is regarded by our law as equivalent to ’a failure to produce it.” In that case the claimant had secured-possession of the property under a forthcoming bond and had filed a claim to the property. The claim was afterward Avithdrawn by the claimant, and no new claim was filed. The property had been disposed of by the claimant prior to the time of the sale; and it was held that this conduct, under the facts of the ease, constituted a breach of the bond. It will be seen that in that case, as in the instant one, there had been no adjudication that the property was subject to the execution.

Under the above rulings the court did not err in overruling the demurrer to the petition.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.

Haravell, J.

I concur in the decision upon principle, as well as upon the authority of the case of Reynolds Banking Co. v. Southern Pacific Guano Co., (supra).


author: Harwell, J.

text:
    9344.
    WEBB v. THOMPSON.
    1, 2. The rulings of the trial judge on the admission of testimony, as complained of in the motion for new trial, are not erroneous.
    3. The verdict was authorized by the evidence, and the court did not err in overruling the motion for a new trial.
    Decided March 13, 1918.
    Complaint; from Milton superior court—Judge Pendleton presiding. September 22, 1917. (See 146 Ga. 461, 91 S. E. 480.)
    Thompson brought suit against Webb upon a promissory note, alleging that it was secured by a deed to certain land described in the petition. Webb filed a plea setting up that when his equity of redemption in the land was exposed to ’ sale by the trustee in bankruptcy of his estate, and a short time. before the sale took place, he made a verbal agreement with the plaintiff, by which the plaintiff agreed to extend the time of payment of - the note, in consideration of certain improvements which the defendant was to make on'the place. ■ The defendant further claimed that in pursuance of this agreement he bought the equity of redemption at the sale, and complied with his part of the contract, in making the improvements, until he was stopped by an injunction obtained by the plaintiff. Testimony was offered by the defendant to support his plea. The plaintiff denied that any such agreement to extend the time of payment was-made. The issue was determined by the jury in favor of the plaintiff. A motion for a new trial was overruled, and the defendant excepted.

      J. P. Brooke, J. Z. Foster, for plaintiff in error.

      G. B. Walker, George F. Gober, W. I. Heyward, contra.
   Harwell, J.

In one ground of the motion for new’ trial it is alleged that the defendant was asked the question if he, in order to carry out the contract, had sold a portion of said land in order to enable him to pay for the land; to which he answered yes; and that the court excluded this- testimony. It appears from the motion that counsel for the defendant admitted that the contract with plaintiff did not contemplate that defendant should sell any of the land; and under this admission the court did not err in excluding this testimony. '

In another ground of the motion it is complained that the plaintiff was permitted by the court to explain' a certain letter which the plaintiff had written to the defendant. The court did mot err in admitting this testimony, and there was no merit in this ground of the motion.

The court did not err in overruling the general grounds of the motion. There was a sharp conflict between the plaintiif and defendant as to the making of the alleged verbal contract extending the time of payment, but the jury decided this issue in favor-of the plaintiff. The verdict was authorized by the evidence and approved by the trial judge; and the judgment overruling the motion for a new trial is

Affirmed.

Broyles, P. J., and Bloodworthy J., concur.


text:
    9345.
    KITCHENS v. LATIMER.
    The evidence did not authorize the verdict in favor of the affidavit of illegality, based upon the ground that the mortgage in question was given in settlement of a criminal prosecution.
    Decided March 13, 1918.
    Mortgage foreclosure; from city court of Swainsboro—Judge , Kirkland. September 24, 1917.

      T. N. Brown, Alfred Herrington Jr., for plaintiff.

      Williams & Bradley, for defendant.
   Broyles, P. J.

This ease was a foreclosure of a mortgage on personalty, to which the mortgagor filed an affidavit of illegality setting up that the mortgage was void because its consideration was the suppression of a criminal prosecution against the daughter and the son-in-law of the mortgagor. The jury found in favor of the affidavit of illegality, and the trial judge overruled the plaintiff’s motion for a new trial. The only witness introduced by the defendant to sustain the allegations in his affidavit of illegality was the justice of the peace in whose court the mortgage in question was foreclosed, and who testified that when the case was called a plea of illegality was filed, in which it was alleged that the mortgage was given to stop a criminal proceeding against John and Sylvester McLeod (the son-in-law and the daughter of the mortgagor respectively) for larceny,- and that the ease was then withdrawn by plaintiff’s counsel. This witness testified also that the plaintiff’s husband swore out a warrant before him against John and Sylvester McLeod, and that he did not know what had become of the warrant. This evidence was of course entirely insufficient to sustain the affidavit of illegality. The defendant in error relies, however, on certain admissions made by the husband of the plaintiff in his testimony in behalf 'of the latter. The entire testimony of this witness follows: “I am the husband of Mrs. J. M. Kitchens, am her agent, and attend to her business. I swore out a warrant against John and Sylvester McLeod on the day the mortgage was given. I took it out before Judge A. J. G-illis and gave it to Joel Todd, the constable, to serve. The negroes were arrested by Todd and brought to Norristown. I got word somehow to come to Norristown, and when I reached there, the constable, the two negroes, and the defendant, Albert Latimer, who was the father of Sylvester McLeod, were there. After we talked awhile Latimer offered to give the mortgage, and he and I went down to the bank and got Mr. McCrary to write out the mortgage. Latimer signed it. I left the mortgage with Mr. McCrary, to have it recorded. I then paid the constable the costs on the criminal warrant under which the defendants, John and Sylvester McLeod, were arrested, and went home. The negroes then left, but I don’t- know where they went. I do know that Mr. Todd did not take them to Swainsboro to jail. This mortgage is the same as the subject-matter of'this case. The mortgage was given to satisfy the debt of John and Sylvester McLeod, due my wife for a run-bill as her croppers during the year 1914, and not to settle or stop any criminal prosecution. I did not threaten any one with criminal prosecution or promise to stop any criminal prosecution to induce the signing of this mortgage; and this mortgage was not executed as the result of such threats or promises. Albert Latimer did not owe me anything before this mortgage was given. I did not take this mortgage to stop any prosecution for larceny, and did not agree to stop any such prosecution. I had a bill of indictment found at the July term, 1915, of the superior court of Emanuel county against John and Sylvester McLeod for larceny from the house for stealing loose peas from my crib. I did.it because I was on the grand jury at this term and was under oath to present it.”

While some portions1 of this testimony might raise a strong suspicion, and even a fair inference, that the consideration of the mortgage was the suppression of a criminal prosecution, yet this-inference was directly and positively denied by other testimony of the same witness, and the last-m'entioned part of his testimony was not disputed or contradicted hy any other evidence, and was not absolutely irreconcilable with that portion of his testimony which authorized the inference mentioned. The burden of proof was upon the defendant to sustain the material allegations of his affidavit of illegality, and it is clear that he failed to do so. The verdict in his favor was therefore contrary to the evidence, and the court erred in refusing the grant of a new trial.

Judgment reversed.

Bloodworth and Harwell, JJ., conpuj.


author: Bloodworth, J.

text:
    9352.
    Raskin v. The State.
    Decided March 13, 1918.
    Accusation of unlawful possession of liquor j from city. court of Savannah—Judge Freeman. • September 29, 1917.

      Robert L. Golding, for plaintiff: in error.

      Walter G. Hartridge, solicitor-general, contra.
   Bloodworth, J.

The evidence is sufficient to authorize tire conviction under the accusation in this case, which charges that the accused “did unlawfully have, control, and possess- certain spirituous liquors.” No error of law is complained of; and the judgment must be

Affirmed.

Broyles, P. J., and Harwell, J., eoneur.


text:
    9358.
    Southern Railway Company v. Bunch.
    Decided March 13, 1918.
    Action for damages; from Bichmond superior court—Judge H. C. Hammond. November 10, 1917.
    The petition alleged, in substance, that certain boxes of toys shipped from Chicago in two separate shipments to the plaintiff at Augusta, Georgia, and of which, he was the owner, were received by the defendant as the last connecting carrier, and were held in the defendant’s warehouse at Augusta for a long period without notice to him, although it was the custom at Augusta for railroad companies receiving freight to notify consignees immediately after its arrival; that after the arrival of this freight he was told repeatedly, in reply to inquiries, at the defendant’s freight office and depot, that it had not arrived; that when finally notified of its arrival he complained to the defendant of the long delay in giving him notice, and that the goods were then valueless to him; and the defendant notified him that he could get the goods only by paying certain storage charges in addition to the freight; and after this notificatioii as to the goods in the first shipment, they were held by the defendant for several months and were finally sent to a distant countyj without notice to the plaintiff, and sold by the defendant for freight and storage charges. Paragraph 8 of the petition was as follows: “Petitioner alleges that he had no notice of the intended-sale' of said goods, nor was there any advertisement of the intended sale thereof in Richmond county. Petitioner alleges that the sale of said goods was illegal; that if. defendant had any right at all to sell said goods it should have been done in Richmond county, where stored and where petitioner resides.” As to the second shipment it was alleged, that the plaintiff agreed to pay the freight if the storage charges were remitted, that the defendant refused to remit these charges, and the plaintiff then refused to take the goods. Paragraph 10 was as follows: “Petitioner does not know what has become of said last shipment of goods, but alleges that both shipments*of goods have been converted by the defendant and taken possession of unlawfully, on account of the reasons aforesaid, and especially that the storage charges were not correct and unreasonable, the same having been accumulated through the negligence of defendant.” The petition concludes as follows: “By reason of the gross negligence-of the defendant as aforesaid, petitioner has been damaged, without fault on his part, in the sum of $450;” wherefore he prays that process may issue, etc.
   Broyles, P. J.

1. The original petition, construed (as it must be) most strongly against the pleader, is an action against the - railway company to recover for an unlawful conversion of the plaintiff’s property. The amendment allowed by the court, over tlie timely and appropriate objections of the defendant, changed the suit into one for damages for an unreasonable delay in delivering shipments. As this amend- - ment introduced a new cause of action, the court erred in allowing it.

2. The error in allowing the amendment to. the petition rendered the further proceedings in the case nugatory.

Judgment reversed.

Bloodworth and Harwell, JJ., eoneur.

The allegations as to the first shipment were amended by adding that the plaintiff refused to accept the goods and pay the freight and • storage thereon, as the goods were then valueless to him. The allegations as to the second shipment were amended by adding that the plaintiff refused to accept the goods because they were then of no value to him, and refused to pay the storage charges because they were illegal; that the freight and storage charges amounted to more than the goods were worth at that time. The plaintiff further amended by striking paragraphs 8 and 10, quoted above, and by adding: “This action is for damages for unreasonable delay in delivering the goods aforesaid.” The court allowed the amendments over the objection of the defendant that the plaintiff thereby undertook to change an action for conversion into an action for unreasonable delay, and thereby introduced a new cause of action. A demurrer to the petition as amended was overruled, and the defendant excepted, assigning error’on each of the rulings stated.

Gumming & Harper, for plaintiff in error.

Henry ■C. Roney, contra.


text:
    9362.
    Fitzpatrick Company v. Shepherd et al.

   Broyles, P. J.

1. Under section 5298 of the Civil Code of 1910, before it was amended, laborers were exempt from the process of garnishment on all of their daily, weekly, or monthly wages, whether in the hands of their employers or of other persons. Under that law, where a garnishee set up in his answer that the fund in his possession was not subject to garnishment because it was a debt due-for daily, weekly, or monthly wages of a laborer, the answer was sufficiently full; and he was discharged, unless the answer was traversed. Smith v. Johnson, 71 Ga. 748; Armour Packing Co. v. Winn, 119 Ga. 683 (46 S. E. 865); Southern Ry. Co. v. Fulford, 125 Ga. 103 (54 S. E. 68, 5 Ann. Cas. 168). However, under that code-section as amended by the act of the General Assembly, approved August 14, 1914 (Ga. L. 1914, p. 62), which is the law now in force, fifty per cent, of the excess of $1.25 per day of all wages of a laborer is subject to garnishment, and where a garnishee answers in substance merely that the fund in his possession is exempt for the reason that it is due for wages of a laborer, without stating specifically when the wages referred to were earned by the defendant, and whether they were earned as daily, weekly, or monthly wages, the answer is incomplete and is subject to exceptions. In this case, however, the plaintiff in fi. fa.' having filed no exceptions or traverse to the incomplete answer of the garnishee, the trial court did not err in discharging the garnishee and in ordering that the property which the answer admitted was in his hands be turned over to the defendant in fi. fa.

Decided March 13, 1918.

Certiorari; from Morgan superior court—Judge Park. -November 2, 1917'

M. G. Few, for plaintiff:.

Williford & Lambert, for defendants.

2. The judge of the superior court did not err in overruling the certiorari.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.


author: Bloodwoeth, J.

text:
    9431.
    Smith v. City of Atlanta.
   Bloodwoeth, J.

1. There was evidence authorizing a finding that the defendant had violated the latter part of section 1768 of the Code of the City of Atlanta, providing a punishment for keeping a “dive,” defined as follows: “a place where men or women loiter and idle, who are without means of support, or who, being without such means of support, loiter and idle away their time, and do not work; such place shall be known as a ‘dive/ ” The uncontradieted evidence showed that three lewd women roomed at the hotel kept by the defendant, and there they plied their immoral profession and received money therefor. Women whose livelihood depends solely upon immoral practices are, in the eyes of the law, without ‘ means of support. It can be clearly inferred from the evidence in this case that these lewd women were without any lawful means of support. Moreover, the evidence further shows that, in addition to these three prostitutes, two women who were without any means of support had remained at the defendant’s hotel for about four weeks.

2. There is no merit in the contention that the portion of the municipal ordinance quoted is void because covered by section 382 of the Penal' Code of 1910, which defines the offence of maintaining and keeping a lewd house; or in the contention that it is covered by section 449 of the Penal Code, which defines the offense fif vagrancy.

3. Under the facts of this case no error was committed by the recorder pro tern, in reference to the isolation of witnesses for the city. When his attention was called to the complaint of the attorney for the defendant that he had not been allowed to talk with these witnesses, the recorder promptly gave to the attorney an opportunity to • do so.

4. Questions not mentioned in the petition for certiorari and not passed upon by the judge of the superior court, and raised for the first time in the brief of the plaintiff in error, present nothing for determination by this court. Drew v. Drew, 146 Ga. 481 (91 S. E. 541); Kelly v. Fudge, 2 Ga. App. 760 (59 S. E. 19).

5. The evidence which it was sought to exclude was in each instance admissible as against the objection urged, and should not have been ruled out, even though the recorder pro tem. gave a wrong reason for admitting it.

Decided March 13, 1918.

Certiorari; from Fulton superior court—Judge Pendleton. November 23, 1917.

Roy Lewis, for plaintiff in error,

J. L. Mayson, S. D. Hewlett, contra.

G. The defendant offered no evidence and made no statement in his own behalf. The evidence authorized the judgment of the recorder, and the judge of the superior court did not err in overruling the certiorari..

Judgment affirmed.

Broyles, P. J., and Harwell, J., concur.


author: Wade, C. J.

text:
    8935.
    JOHNSON v. SIKES, administrator.
    1. A motion to set aside a verdict and judgment, for a misunderstanding between the movant and his counsel, in consequence of which no defense was interposed against the suit, was not sustainable.
    2. An allegation in such motion, that the movant (an administrator) was ready for trial, and ready, “as he believes and avers,” to show that the account sued on was not just and the movant’s intestate' did not owe the whole or any part of it, was not sufficient to indicate a meritorious defense and the nature thereof, but amounted merely to a conclusion of pleading.
    3. It was error to overrule the demurrer to the'motion.
    Decided March 14, 1918.
    Motion to set aside judgment; from Worth superior court— Judge Eve. May 12, 1917.

      Passmore & Forehand, for plaintiff.

      Perry & Williamson, J. II.. Tipton, for defendant.
   Wade, C. J.

The motion to set aside the verdict and judgment in this case is substantially based upon an alleged misunderstanding between the defendant and his counsel, in consequence of which no defense was interposed. “Where a failure to file a defense was due to the gross negligence of the defendant or of his counsel, it is not error to refuse to set aside a' default judgment and reinstate a casé, even though motion be made at the samé term. Athens Leather Manufacturing Co. v. Myers, 98 Ga. 396, 397 (25 S. E. 503). Neither is the failure of a defendant to appear and plead on account of an apparent misunderstanding between himself 'find his counsel, whereby no appearance whatever was entered, a sufficient ground for setting aside a default judgment. Moore v. Kelly & Jones Co., 109 Ga. 798 (35 S. E. 168).” Colclough v. Walker, 19 Ga. App, 23 (90 S. E. 742).

The motion to set aside alleges that “the petitioner was ready for trial of this ease, and was ready, as he believes and avers, to show to the court and jury that the account sued on by the plaintiff was not just, and that the deceased testator did not owe the whole or any part thereof; and-the petitioner now stands ready to plead and "make defense to the said suit, and will be ready to go to trial instanter upon the call of the case for trial, should trial be allowed.” Nowhere is thé exact nature of the defense to be interposed set forth or indicated in the motion to set aside the judgment, and not only is no meritorious defense set out in the motion itself, but it is even impossible" to determine therefrom how and for what reason the defendant expects “to show to the court and jury that the account sued upon by the plaintiff was not "just, and that the deceased testator did not .owe the whole or any part thereof.” In other words, nothing more than a general assertion, that the defendant “was ready, as he believes and avers,” to show that he was not indebted as alleged, appears from the motion itself. Such a motion must show that the movant “has a good and meritorious defense to the action, not merely by so alleging, but by setting forth fully the facts which constitute the proposed defense, except in cases where the judgment is absolutely void, when no defense need be shown.” Pryor v. American Trust & Banking Co., 15 Ga. App. 822 (84 S. E. 312). See also Henderson v. Swift Fertilizer Works, 16 Ga. App. 448 (85 S. E. 613), and cases there cited; Philip Carey Co. v. Sheppard, 19 Ga. App. 368 (3) (91 S. E. 444). The statement of the movant that he had a valid defense, without more, would amount to nothing but a conclusion on his part, upon which the court would be unable to act. Morris Fertilizer Co. v. Smith, 18 Ga. App. 368 (2) (89 S. E. 493).

The judge of the superior court therefore erred in refusing to sustain the demurrer to the motion to set aside the verdict and judgment in this case and in declining to dismiss said motion on demurrer.

Judgment reversed.

Jenkins and Luke, JJ., concur.


author: Luke, J.

text:
    8942.
    McRee v. Atlantic Coast Line Railroad Company.
    Decided March 14, 1918.
    Action for damages; from city court of Yáldosta—Judge Cranford. 'May 18, 1917.

      Whitaker & Dukes, for plaintiff.

      Bennet & Branch, Patterson & Copeland, contra.
   Luke, J.

1. It is not ground for a new trial to the plaintiff that the, cpurt allowed the defendant railroad company to show by him, on cross-examination, that in the course of several years preceding the burning of the house for which a recovery was sought in this case, and which burning he alleged and by circumstantial evidence sought to show was caused by fire set out by a locomotive of the defendant, several other houses at the same place were burned.

2. The evidence authorized the verdict for the defendant, and the instructions complained of contain no error that .requires a new trial.

Judgment affirmed.

Wade, C. J., and Jenkins, J., concur.


author: Wade, 'O. J.

text:
    8943.
    Cook v. Daniel.
    Decided March 14, 1918.
    Action for damages; from Marion superior court—Judge Howard. April 25, 1917.

      George P. Munro, T. B. Rainey, for plaintiff.

      John C. Butt, for defendant.
   Wade, 'O. J.

Under the liberal rule obtaining in this State, the court erred in declining to allow the proffered amendment which set up that the value of the mule damaged by the defendant’s automobile was partially and not wholly destroyed. With this amendment allowed, recovery for the value of its feed and the attention expended on the mule during the period of its convalescence from the injury was allowable in connection with a recovery for the partial depreciation of its market value, and the court therefore erred in dismissing the petition as corrected by the proposed amendment. City of Columbus v. Anglin, 120 Ga. 785, 793 (48 S. E. 318).

Judgment reversed.

Jenkins and Luke, JJ., concur.


text:
    8967.
    State Mutual Life Insurance Company v. Haynes.
   Luke, J.

Upon the agreed statement of facts as submitted to the judge, who by agreement heard the case without'a jury, the judgment in favor of the plaintiff was authorized by the evidence. The issues in this case are controlled adversely to the contentions of the plaintiff in error by the decision of this court in State Mutual Life Ins. Co. v. Forrest, 19 Ga. App. 296 (91 S. E. 428).

Decided March 14, 1918.

Action on insurance policies; from city court of Floyd county— Judge Nunn ally. May 21, 1917.

The action was on two life-insurance policies in which the plaintiff was named as beneficiary. Liability was denied on the ground that the policies had lapsed because of non-payment of premiums. The following facts appear from admissions in the pleadings and the agreed statement of facts: The policies were dated November 5, 1906, and were for $5,000 each, and provided for the payment, of premiums in advance, either annually, semi-annually, or quarterly, at the following rates: annual premium $191.70; semiannual $99.70; quarterly $50.80. Eight annual premiums were paid in advance, beginning on the date of .the policy and including payment for the year ending November 5, 1914. The insured borrowed from the insurance company $910 on each policy, or a total of $1,820, for which he executed, with the assent of the beneficiary, two loan agreements dated November 29, 1913, and paid interest in advance thereon for the remainder of the policy year ending November 5, 1914. He died February 2,- 1915. There was no payment except as stated above, unless, as was contended by the plaintiff, there was automatic payment by the application of loan value under the provisions of the policies. The insurance company contended that -at the time of the death of the insured the policies had no loan value to be thus applied, that he had borrowed the entire loan value.

The policies were identical and contained clauses as follows: “Grace in payment of'premiums. An extension of thirty days will be allowed in the payment of any premium,' except the first, and the company agrees to accept any premium, without interest charge, if tendered within thirty days of the time of default, during which thirty days the policy will remain in force.”

“Loans. After this policy has been in force two years, the company will loan thereon, as sole security, the amount stated in the table on the third page hereof, at not more than five per cent, per-annum, payable in advance. The loan shall, be made in accordance with the company’s loan agreement; the amount of loan. available at any time shall include any previous loans then unpaid, and premiums under this policy shall be paid in full up to the end of the policy year succeeding the date when the loan is obtained. The company agrees that the loan may be renewed annually, if interest be paid for one year in advance.”

Judgment affirmed.

Wade, G. J., and Jenkins, J., concur.

“Automatic” non-forfeiture clause. “If the insured shall fail to pay any premium when due, and if there is no indebtedness to the company, the insurance will automatically continue from such due date as term insurance, if premiums have been paid for three months, for 30 days; if for six months, for 40 days; if for nine months, for SO days; and for the period specified in the table on the third page hereof, if premiums have been paid for one year.

“If premiums have been paid for two or more years, the company, upon failure of the insured to pay any premium, will charge the premiums as they fall due as loans against the policy until the loan value is consumed, and this policy shall thereby continue in full force. At any time while the policy is thus sustained, the payment of premiums may be resumed, without medical re-examination, and the accumulated debits may be paid or stand as a loan against the policy.”

Six-months non-forfeiture clause. “If the insured makes written application within six months after default in payment of premiums, the company will extend this policy as a term policy for its full amount; or, upon surrender of this policy, will issue a participating paid-up policy, or will pay the cash surrender value, as stated in the table on the third page hereof under the respective heads.”

The table referred to in- the foregoing provisions is under the heading, “Table of Cash Loans- and Guaranteed Surrender Values,” and is based on each $1,000 of insurance. In this table “and under the following heads appear figures as follows: “End of policy year 7th: cash loan $182; cash value $154; participating paid-up insurance $350; extended insurance 12 years, 8 months. End of policy year 8th: cash loan $212; cash value $182; participating paid-up insurance $400; extended insurance 14 years, 2 months.” '

The loan agreements executed by the insured provided as follows: “Should the interest not be paid when due, such interest, together with interest at like rate on the increase in the amount of indebtedness, shall be added t-o the principal of the loan. Should the amount of the loan with interest additions thereto ever equal .or exceed the entire loan value of said policy, the policy shall thereupon become null'and void. . . 'This agreement will be considered cancelled without further notice should said policy be lapsed for non-payment of premium.”

The insurance company contended that the amount opposite the eighth year under the tables would hot, under the provisions as to loans, become available as a loan value until premiums should be “paid in full up to the end of the policy year succeeding the date when the loan [was] obtained.” The plaintiff contended that the loan value automatically paid the due interest charge on November 5, 1914 (the end of the eighth year), and more than a quarter’s premium, and therefore continued the policies in force up to the death of the insured;-and that if this was not the case, the six-months non-forfeiture -clause continued the policies in force notwithstanding failure to pay premium's.'

Application to the Supreme Court for certiorari to review the decision of the Court of Appeals in this case was denied.

Alex. 0. King, Maddox & Boyal, for plaintiff in err.or,

cited: State Mutual Life Ins. Co. v. Forrest, 19 Ga. App. 296; Blalock v. Empire Ins. Co., 13 Ga. App. 486.

Parker & Parker, Little, Powell, Smith & Goldstein, contra,

cited: State Mutual Life Ins. Co. v. Forrest, supra; McEachern v. N. Y. Life Ins. Co., 15 Ga. App. 222.


text:
    9052.
    Seay v. McGeakin.
    Decided March 14, 1918.
    Certiorari; from Fulton superior court—Judge Pendleton. June 6,1917. '

      Nalley & Scott, Albert Kemper, for plaintiff in error.

      Burress & Billard, contra.
   Luke, J.

There were no sufficient assignments of error in the petition for certiorari, and the judge of the superior court did not err in dismissing the same.

Judgment affirmed.

Wade, O. J., and Jenldns, J., concur.


text:
    9067.
    Branch et al. v. American Agricultural Chemical Co.
    Decided March 14, 1918.
    Mortgage foreclosure; from Worth superior court—Judge Eve. June 11, 1917.

      R. 8. Roy, for plaintiffs in error.

      Claude Payton, Pope & Bennet, contra
   Wade, C. J.

1.' Where the, defendant admits a prima facie case in favor of the plaintiff, and sets up an affirmative defense, such as a plea of confession 'and avoidance, he assumes the burden of establishing a complete defense. Civil Code (1910), § 5746; Hawkins v. Davie, 136 Ga. 550, 552 (71 S. E. 873) ; Red Cypress Lumber Co. v. Perry, 118 Ga. 876 (2) (45 S. E. 674).

(a) The execution of the note and mortgage, the basis of the instant suit, and the possession thereof by the plaintiff, being admitted, the burden was upon the defendants to prove every essential element of their defense.

2. It being admitted .that the note and mortgage were in the possession of the plaintiff, who introduced the same in evidence, the presumption arises that the plaintiff was in lawful possession, and the onus was on the defendants to rebut this presumption. See Cox v. Adams, 2 Ga. 160 (2).

3. The only question raised by the record which commands our attention is whether or not the court erred in directing a verdict in favor of plaintiff. Applying the preceding elementary principles, the court did not err in so directing, since, the onus standing as it did, a finding in favor ’of the plaintiff was demanded by the evidence.

(а) It is true that the evidence was in conflict as to whether or not there was a condition attached to the delivery of the note and mortgage to the plaintiff’s agent, but this did not make it mandatoi-y upon the trial judge to submit the case to a jury, since this was insufficient to constitute a complete defense to the suit, in the absence of proof (the burden being upon the defendants not only to prove the existence of said condition but also the breach thereof) that the condition attached to said delivery was in fact breached.

(b) The burden of showing tljat the condition attached to the delivery of the note and mortgage was breached was not carried by evidence to #that effect from only two of the three defendants, since it was' absolutely and obviously necessary that all three defendants should negative the presumption that the said condition was complied with, especially in view of direct positive evidence on the part of the plaintiff that the plaintiff had complied with said.condition.

Judgment affirmed.

Jenkins and Luke, JJ‘., concur.


text:
    9100.
    Chastain et al. v. Winn et al., commissioners, for use, etc.
    Decided March 14, 1918.
    Certiorari; from Fulton superior court—Judge Ellis. July 3, 1917.

      Frank L. Haralson, Gober & Jackson, for plaintiffs in error.

      Moore & Pom'eroy, D. K. Johnston, contra.
   Wade, C. J.

Suit was brought in the name of the commissioners of roads and revenues of Fulton county, for the use of Jones, against one. Stephens (a constable) as principal, and Chastain and Pearce as sureties, on a constable’s bond payable to the said commissioners, alleging that Stephens was insolvent, and that, in his official capacity he had collected certain funds belonging to Jones and' failed ’ and refused to pay over the same. Chastain and Pearce demurred upon the ground that the authority of the commissioners to institute or maintain the action in behalf of Jones did not appear, and no cause of action against them was set out; and each defendant filed a separate plea, admitting the execution of the bond, but denying liability thereon and all other allegations in the petition. Stephens made no appearance: Held:

(а) “Suit upon the bond of a constable may be brought in the name of any person" aggrieved by the official misconduct of the officer, against him and his sureties, without bringing against him any preliminary action to settle his liability to' the' aggrieved party for his alleged misconduct.” McClain v. Bonner, 122 Ga. 842 (3) (51 S. E. 36).

(б) It was wholly immaterial whether or not Jones, prior to the bringing of the action now under review, had brought suit a'gainst Stephens individually; and the admission of evidence touching the former suit, and of the judgment therein recovered, constitutes no ground for a reversal, in view of the undisputed testimony otherwise establishing the existence of the liability—Stephens, the principal of the bond, being a party to the action on trial and interposing no defense.

(c) The judge of the superior court did not err in overruling the certiorari. Judgment affirmed.

Jenkins and Luke, JJ., concur.


text:
    9114.
    Sikes v. Edwards.
    Decided March 14, 1918.
   Luke, J.

Upon the trial of a case of forcible entry and detainer the only issue is the possession and the force. -The question as to the title of tjie parties should not be considered. Civil Code (1910), § 5398. The issue having been properly submitted to a jury, and there being evidence to authorize the verdict rendered, it was not error .for the judge of the superior court, upon the petition for .certiorari and the answel thereto, to overrule the certiorari.

Judgment affirmed.

Wade, C. J., and Jenkins, J., concur.

Certiorari; from Biyan superior court—Judge Sheppard. July 9, 1917.

J. H. Smith, for plaintiff in error. R. F. C. Smith, contra.


author: Wade, C.- J.

text:
    9126.
    Parks v. Rheinberger.
    Decided March 14, 1918.
    Certiorari; from Fulton superior court—Judge Pendleton. June 7, 1917.'

      James & Bedgood, B. L. Chappell, for plaintiff in error.
   Wade, C.- J.

There being evidence to authorize the verdict, and no substantial merit in any of the assignments of error, the judge of the superior court did not err in overruling the certiorari.

Judgment affirmed.

Jenkins and Luke, JJ., concur.


text:
    9201.
    BOWEN v. SMITH-HALL GROCERY COMPANY.
    There being no evidence that any member of the defendant company or any of its agents or servants placed in the street the paper that frightened the plaintiff’s horses, he failed to prove his case as laid; and it was not error to grant a nonsuit.
    Decided March 14, 1918.
    Action for damages; from Whitfield superior court—Judge Wright presiding. ' August 2, 1917.

      Rosser & Shaw, G. G. Glenn, W. M. Ilenry, for plaintiff.

      Maddox, McCamy & Shumate, for defendant.
   Luke, J.

This case has been to the Supreme Court twice. 141 Ga. 721 (82 S. E. 23, L. R. A. 1915D, 617); 146 Ga. 157 (91 S. E. 32). Bowen brought suit for damages against Smith-Hall Grocery Company, a'• partnership doing business in the city of Dalton. The petition as amended contained, among other allegations, the -following; The defendants’ storehouse and place of ' business fronts on Hamilton street, the principal business street of the city,'upon which at all times' of the day there is a large amount of'travel by pedestrians and vehicles. At the time of the injury complained of there was in force in the city the following ordinance; “The proprietor of each business house must keep a covered garbage-can outside of his place of business, in which must be placed all refuse, garbage, and trasb from said place of business, to be called for by the proper city officers.” On the day of the injury the defendants, through their employes, placed upon and near the street and sidewalk in front of their place of business a large amount of trash and loose sheets of paper, without putting it in a receptacle or confining it in any way. The sheets of paper were light and were naturally liable to be blown about the street by even a slight breeze, and'naturally tended to excite and frighten even quiet and steady horses. The plaintiff, who was a capable driver, was driving two reasonably well broken, steady, and roadworthy horses along the street. The wind blew some of the paper on the horses and against their legs, which frightened them and caused them to run away, overturning the vehicle, breaking the tongue out of itj and causing the plaintiff to be violently thrown to the ground, to his serious personal injury. It was also alleged that they were negligent in placing the trash and paper where it was deposited. The Supreme Court held that the ordinance was a sanitary ordinance, and that its violation would not be negligence per se. At the conclusion of the plaintiff’s evidence the court granted a nonsuit.

The evidence did not prove the plaintiff’s ease, as laid, there being no proof that Smith-Hall Grocery Company, by its partners, servants, or agents placed the paper in the street which frightened, the plaintiff’s horses. The court therefore did not err in. granting a nonsuit.

Judgment affirmed.

Wade, G. J., and Jenhins, J*, concur.


author: Wade, C. J„

text:
    9209.
    Powell v. Wilkerson.
   Wade, C. J„

The judge of the superior court did not err in dismissing the certiorari for the reason that the petition therefor sought to review alleged error in the trial of two separate cases in a justice’s court, which were alleged to have been tried together by consent. The answer of the magistrate distinctly denied that the two cases (an illegality case and a claim ease) were tried by the jury by consent, alleging, to the contrary, "that plea of illegality was not tried by jury, that jury was- excluded from the room during the trial of illegality and had nothing whatever to do with it,” and “that counsel for plaintiff and defendant agreed to submit the claim .to a jury without being tried by the justice of the peace.” The traverse to the answer alleges that “the defendant in the court below insisted upon his illegality, but passed the same to a jury to be tried and passed upon by them,” but does not deny the distinct statement “that plea of illegality was not tried by jury, that jury was excluded from the room during the trial of illegality, and had nothing whatever to do with it.” Something more than an inferential traverse is requisite; and while it may be inferred that perhaps the plaintiff in certiorari intended to traverse this entire statement made by the magistrate, he did not in fact explicitly deny the allegation that the jury did not consider the illegality (and hence that the two cases were not tried together) ; and the traverse must be strictly construed. The certiorari seeks to review two distinct cases, one of which was not submitted to the jury by consent or otherwise.

Decided March 14, 1918.

Certiorari; from Berrien superior court—Judge Thomas. August 11, 1917.

Hendricks, Mills & Hendricks, for plaintiff in error.

J. J. Murray, contra.

Judgment affirmed,

Jenkins and' Luke, JJ., concur.


author: Duke, J.

text:
    9230.
    Robinson v. Bothwell Grocery Company.
    Decided March 14, 1918.
    Certiorari; from Richmond superior court—Judge H. C. Hammond. September 8, 1917.

      Isaac 8. Peebles Jr., for plaintiff in error.

      Oswell B, Hve, Alexander & Lee, contra.
   Duke, J.

1. A bill of sale of personalty to secure a debt, where the prin- , cipal sum does not exceed one hundred dollars, may be foreclosed in the same manner as mortgages on personal property are foreclosed, and the mortgagor may defend in the same manner as is now provided by law as to defenses to foreclosures of mortgages. Civil Code (1910), §§ 3298 and 3299.

(a) Where there is a variance between the amount stated in the bill of sale and the amount stated in the affidavit of foreclosure, the foreclosure is not void for this reason. If the amount claimed in the affidavit be too large, the defendant of an opposing creditor can contest the amount and have it reduced. Vance v. Roberts, 86 Ga. 457 (4) (12 S. E. 653).

2. The answer of the magistrate trying the ease, from whose court the cause was carried up, did not admit the truth of the petition for certiorari; and the judge of the superior court, being bound by the untraversed answer, did not err in overruling the certiorari.

Judgment affirmed.

Wade, O. J., and Jenkins, J., concur.


text:
    9267.
    Fitzgerald v. Brown, sheriff, et al.

    Decided March 14, 1918.
    Money rule; from Fayette superior court—Judge Searcy, September 17, 1917.

      W. B. Hollingsworth, for plaintiff in error.

      J. W. Culpepper, contra.
   Luke, J.

1. Tlie alleged statement of facts not being set out in the bill of exceptions, or attached thereto as an exhibit and properly identified by the trial judge, or contained in a brief of evidence approved by him and made a part of the record, what purports to be an agreed statement of facts, sent up as a part of the record, but not approved by the trial judge and ordered filed as such, can not be considered by this court. See Robinson v. Woodward, 134 Ga. 777 (68 S. E. 553); Blackman v. Garrett, 135 Ga. 226 (69 S. E. 110); Roberts v. Cairo, 133 Ga. 642 (66 S. E. 938); Silvey v. Brown, 137 Ga. 104 (72 S. E. 907).

2. Section 3 of the act of 1911 (Ga. L. 1911, p. 149) is by its terms applicable exclusively to motions for a new trial, and is not applicable to this casé, wherein there was no motion for a new trial.

Judgment affirmed.

Wade, G. J., and Jenkins, J., concur.


text:
    9281.
    BURKHALTER v. PARTIN et al.

    The charge of the court was full and fair, the evidence authorized the verdict, and the court did not err in overruling the motion for a new trial.
    Decided March 14, 1918.
    Action upon bond; from Toombs superior court—Judge Hardeman. September 25, 1917.

      E. J. Giles, W. T. Burlchalter, for plaintiff.

      I. H. Corbitt, J. J. Williams, for defendants.
   Luke, J.

Burkhalter sued the sheriff and the surety on his bond, alleging.wilfúl refusal of the sheriff to levy a certain fi. fa. as directed by him, which resulted in -the loss of the money due on the fi. fa. A verdict was returned in favor of the defendants. A motion for a new trial was made, on the general grounds, and on the grounds that the court failed to charge fully the contention of the plaintiff, and that the jury ignored the charge of1 the court.

The charge of the court was full and fair: the evidence authorized the verdict, and for none of the reasons assigned was it error to overrule the motion for a new trial.

Judgment affirmed.

Wade, C. J., and Jenkins, J., concur.


text:
    9422.
    Jones v. Advance-Rumley Thrasher Company.
    Decided March 14, 1918.
    Complaint; from Murray superior court—Judge Tarver. November 3, 1917.

      H. H. Anderson, Maddox, McCamy & Shumate, for plaintiff in error. King & Starr, contra.
   Wade, C. J.

1. The holder of a note is presumed to be such bona fide and for value. Civil Code (1910), § 4288.

2. There is nothing in the record to rebut the legal presumption above referred to; and under the testimony adduced the court properly directed a verdict in favor of the plaintiff. See, in this connection, Edwards &c. Co. v. Vidalia Grocery Co., 144 Ga. 514 (87 S. E. 675, L. R. A. 1916D, 624).

Judgment affirmed.

Jenkins and Luke, JJ., concur.


text:
    8989.
    Parker v. Bridges.
    Decided March 14, 1918.
    Certiorari; from Decatur superior court—-Judge Harrell. May 24, 1917.

      J. Q. Hale, M. K. O’Neal, for plaintiff- in error.

      W. V. Custer, contra.
   Bloodworth, J.

Sustaining a certiorari for the first time on the ground that the verdict is contrary to the evidence is in the nature of a first grant of a new trial on that ground; and where the ^evidence was conflicting and did not demand the verdict, this court will not interfere with the discretion of the court below in its grant of a new trial. Telford v. Coggins, 76 Ga. 683; Buice v. Buice, 111 Ga. 887 (36 S. E. 969); Stalnaker v. Beach, 18 Ga. App. 172 (88 S. E. 991).

Judgment affirmed.

Broyles, P. J., and Barwell, J., concur.


text:
    9175.
    YOUNG et al. v. FIRST NATIONAL BANK OF COVINGTON.
    1. “Staté statutes relating to usury and prescribing penalties for the charging, reserving, or taking of usury, have no application to negotiable instruments held by national banks. The penalty fixed by the U. S. Revised Statutes, § 5198 (U. S. Comp. St. 1901, p. 3493), against national banks, for ‘the taking, receiving, reserving, or charging’ of usury, and the remedy given by the act of Congress against national banks for taking usurious interest, are exclusive.” The foregoing rule “is applicable in all eases where a negotiable instrument infected with usury is made payable to such a bank originally, or where it has been discounted by such a bank and the bank, as holder, is endeavoring to collect the face thereof with knowledge of the usurious interest.” “A surety or guarantor of a debt to a national bank is not discharged from liability on the note because the bank charged or received usury.” Reese v. Golquitt Rational Bank, 12 0a. App. 472 (77 S. E. 320), and citations.
    2. Where a note on which usury has been charged by a national bank is renewed, the bank, in an action on the renewal note, can recover only the amount of the original loan, even though no more than the legal interest was charged on the renewal. See notes to Citizens’ National Bank of Danville v. Gentry, 56 L. R. A. 673, 683 (111 Ky. 206, 63 S. W. 454) ; Brown v. Marion Nat. Bank, 169 U. S. -416 (42 L. ed. 801) ; 21 Am. & Eng. Enc. Law (2d ed.), 393 (c).
    3. The statutory limitation of two years in the national banking act of . June 3, 1864, e. 106, 13 Stat. 99, applies only to a suit to recover the penalty of double the interest received or paid, and not to the defense of usury to defeat the recovery of interest, and begins to run from the time of payment of the usurious interest. McCarthy v. Eirst Nat. Bank, 223 U. S. 493 (32 Sup. Ct. 240, 5~6 L. ed. 523) ; 21 Am. & Eng. Enc. Law (2d ed.), 393 (d) ; note iir 56 L. R. A. 686.
    4. Where illegal interest has been actually paid to a national bank, the amount so paid can not be applied by way of set-off or payment in an action by the bank, as the only remedy in such case is that of an action of debt under the national banking act to recover twice the amount ■ of interest paid. Barnet v. Muncie Nat. Bank, 98 U.-S. 55 (25 L. ed. 212) ; Belles on National Banking Act, 223, §§ 2, 3; 21 Am. & Eng. Enc. Law (2d ed.), 394.
    5. Although payments made directly as interest will be so regarded, and can not be made use of as a set-off or counter-claim under U. S. Revised Statutes, § 5198, yet where a payment is made generally, without any direction as to the application, it will ordinarily be applied on the principal instead of on the interest, all right to which was forfeited under that section by the agreement for usury. Bank of .Cadiz v. Slemmons, 34 Ohio St. 142 (32 Am, R. 364); Note in'56 L. R. A. 685, 701; 21 Am. & Eng. Enc. Law (2d ed.), 390 (e).
    6. A stipulation for the recoyery of ten per cent, as attorney’s fees, in a note payable to a national bank, is not usurious and unenforceable, but may be enforced when the provisions of the law as to notice are complied with.
    7. The courts will not countenance devices or contrivances to evade the usury laws, but will always look to the actual nature of the transaction, and not to the form which the parties may have given to it. Where it is uncertain from the evidence whether, in a transaction by a national bank with the makers of a note due the bank, the debt was actually paid by a loan negotiated with an individual director of the bank, or whether it was in fact a renewal by the bank and an attempt to evade the usury laws by the ostensible substitution of a new creditor and a transfer of the new note' to the bank, the issue should be 'submitted to the jury, under appropriate instructions from the court. The court erred, under the facts of this case, in directing a verdict.
    Decided March 14, 1918.
    Complaint; from Newton superior court—Judge Smith. August 11, 1917.
    The First National Bank of Covington brought suit against Young and Weldon on a promissory note dated January 12, 1915, payable to C. B. Bogers or order, for the principal sum of $1091.42, and bearing interest after maturity at eight per cent, per annum, and also providing for ten per cent, attorney’s fees in case of suit thereon. The note was payable January 1, 1916, and was transferred to the First National Bank by C. B. Bogers. The petition alleged the giving of the ten-days notice as required by law, and asked for the recovery of ten per cent, attorney’s fees. The petition further alleged that Young gave to Bogers a deed to certain land to secure the loan, and prayed for a special judgment against the land. The defendants filed pleas in which they admitted the execution of the note but denied that they were indebted in, the amount alleged. Weldon alleged that he signed the note as indorser only, and denied that he was indebted to the bank, because, he alleged, the note contained usury. He claimed further that the bank was not a bona fide holder of the note, that as a matter of fact Bogers was never a party to this transaction, and that he and Young never owed Bogers any amount whatever; that the bank, by its cashier, knowing it had charged usury in the previous note renewed from time to time by the defendants, for the phrpose of evading the legal effect of this, inserted the name of C. B. Bogers as payee of the note, C. B. Bogers being the father of the cashier of the First National Bank and also one of its directors. Young admitted that he had signed the notes sued on, but denied that he was indebted in the amount alleged. He alleged that this note was a renewal of a debt made originally on January 3, 1912, and renewed each year up to and including 1915; that the original debt was $800; that in the original note, as well as in the renewals, he was charged eleven and twelve per cent, interest, and that the note sued on was a renewal of those notes and represented the original debt of $800 with the usurious interest contained in the old notes. He further alleged that while the note appears to have been given to C. B. Bogers, the latter was never known in the transaction; that he had never spoken to C. B. Rogers relative to this matter; that he could not read or write, and that the name of C. R. Rogers was never mentioned to him; that this was not a debt owing to C. R. Rogers; that the bank, knowing the usurious character of its transaction with the defendant, inserted the name of C. R. Rogers in the note in order to avoid the effect of the illegal rate of interest previously charged; that C. R. Rogers was the father of the cashier of the bank, and was also one of the bank’s directors; that C. R. Rogers never bought the note of which the note sued on is a renewal; that if any cheeks passed, it was not a bona fide transaction, but merely an attempt to avoid the effect of the usury charged. The defendants further alleged that they had made certain payments on this note, which were not credited, and also that they should have credit for certain payments made on the old notes, of which-they claim this was a renewal, which should also be deducted from the principal of the debt. They further insisted that they were not liable for attorney’s fees, that the claim for such fees was contrary to the national banking act. After the introduction of evidence the court directed a verdict against Young as principal and Weldon as surety, for the principal sum of $1004.97, and for the sum of $50.29, interest to'date of judgment, and for $105.51 as attorney’s fees, and costs, and establishing a.special lien against the land ^described.
    Defendants made a motion for a new trial, based upon 'the general grounds, and further alleging, that at the conclusion of the evidence, defendants moved the court to direct a verdict in favor of the plaintiff against defendants for the principal sum of $800 only, less the amount of credits shown upon the note sued on, and that the court refused to do this, but directed a verdict and judgment for the full amount sued for, and interest, and ten per cent, attorney’s fees; and that this was error, for the following reasons: ■that the evidence, they contend, showed without contradiction that the note sued on was a renewal of a note given for á loan of $800, and that the old note contained usury, and that this was renewed in January, 1915, by giving the note sued upon to C. R. Rogers, one of the directors of the said bank, who took the note with full knowledge of the usury charged therein, and that if the bank ever purchased it from C. R. Rogers, the bank did so with full knowledge of the usury with which it was infected; further, that the court erred in rendering judgment tor attorney’s fees, since, as movant claims, such attorney’s fees are usurious, and the agreement to pay attorney’s fees is void where sueji a debt is held by a national bank, it being beyond the charter power of a national bank so to contract for the payment of attorney’s fees; and further, because the court erred in refusing to credit upon the principal of said debt all payments made by the defendants; and because the court erred in holding that the taint of usury in the original note and in the renewals did not attach to the note sired on, but was purged by the renewal of .the last note and the giving of the note to one .of the directors of the bank; and further, because a national bank can not collect any interest whatever, upon a debt when the bank has charged or contracted to receive usurious rates of interest, but all payments made upon a usurious debt must be applied to the discharge of the principal, whether the debt be rhade payable to the bank itself, or be based upon a note discounted to the bank. The court overruled the motion for a new trial, and the defendants excepted.

      B. W. Milner, for plaintiffs in error. King '&. J ohnson, contra.
   Harwell, J.

(After stating the foregoing facts.) It is in- ’ sisted, in the first place, that the bank, being' a national bank, had no right -to recover attorney’s fees; that such recovery would be usurious and beyond its charter powers as conferred by the national banking act. There is nothing in the national banking act that prevents the recovery of attorney’s fees by a national bank, unless they are held to be usury. In Georgia, by statute, such recovery is permitted, provided the required notice is given; and there no exception is made in the case of national hanks. Civil Code (1910), § 4252. In National Bank of Athens v. Danforth, 80 Ga. 55 (8), 70 (7 S. E. 546), it was said: . “A contract to pay attorney’s fees for collecting, in addition to principal and interest, is not on its face usurious; nor does it become usurious by reducing the debt to judgment and including in the judgment ten per cent, for attorney’s fees.” See also Merck v. American Freehold &c. Co., 79 Ga. 213 (7 S. E. 265). In Fowler v. Equitable Trust Co., 141 U. S. 411 (12 Sup. Ct. 8, 35 L. ed. 794), it was said: “In Illinois a provision in a trust deed providing for the payment by the borrower, in addition to ordinary costs, of a reasonable solicitor’s fee, not exceeding five per cent., in the event of a suit to foreclose, does not of itself make the contract usurious; nor is such contract void as against public policy.” Mr. Justice Harlan, in discussing this question of attorney’s fees, said: “The loan was not therefore infected with usury, unless the provision in the trust deed providing for the payment by the borrower, in addition to ordinary costs, of a reasonable solicitor’s fee, not exceeding five per cent., for collection, in the event of a suit, to foreclose. But it it is the law of Illinois that a provision of that' character does not,. of itself, make the contract usurious.” The recovery of attorney’s fees was upheld by the Supreme Court of the United States in that case. The court did not err in holding in the instant case that a national bank may recover attorney’s fees when suing on a note which, provides for such recovery.

The headnotes state the principles of law which should govern this case. The difficulty lies in the application of those principles to the facts of the case. The general rule is that the defense of usury against a bona fide holder for value, without notice of the usury, of a negotiable promissory note, who acquires the note before maturity, is not good unless the contract reserving usury is made void by the taint of usury. Neither the statute of Georgia nor the national banking act makes a contract tainted with usury void. 39 Cyc. 1078. See the discussion of this, question by Mr. Justice Lamar in Weed v. Gainesville &c. Railroad Co., 119 Ga. 576-593 (46 S. E. 885). But the Supreme Court of Georgia holds that the defense of usury is good even against a bona fide holder of a negotiable promissory note who acquired the note before its maturity. Atlanta Savings Bank v. Spencer, 107 Ga. 629 (7), 636 (33 S. E. 878). However, in the instant case this question of law is really not pertinent, because the bank had notice of the' usury charged or received. It is not disputed that the original loan was $800, and that the bank charged the defendants a usurious rate of interest on the old notes. Moreover, this transaction in January, 1917, which resulted in the substitution of C. B. Rogers for the bank and the giving of this note to him, was brought about with full .knowledge on the part of the officers of the bank, to wit, its president and cashier. The cashier, P. J. Rogers (Phonzo Rogers), is the son of C. R. Rogers, and it is not disputed that the bank, through its officers, had full knowledge of the fact that this note sued on was given in’ renewal of the old note due the bank reserving usury. The note on which suit is brought was acquired by the bank with knowledge of the fact that the consideration of the note was a usurious debt due the bank.

With reference to the application of payments as stated in headnote 5: Under the law of this gitate, payments on a usurious debt, when not otherwise directed, will be applied according to § 3433 of the Civil Code (1910) of Georgia,—that is, first to the payment of lawful interest, and then to the principal. Haskins v. Bank of State of Georgia, 100 Ga. 216 (27 S. E. 985); Atlanta Savings Bank v. Spencer, supra. This has been held because in this State, prior to the act approved August 18, 1916 (Ga. L. 48), the taint of usury did not cause a forfeiture of the entire interest, but only the excess of interest above eight per cent.; hence any payment on a note, when not otherwise directed, was, as the law then stood, properly applied to lawful interest first, and then to the principal. Under the’ national banking act, however, and under the law of Georgia since the act of 1916, supra, the entire interest is forfeited by the taint of* usury in the contract; hence there will be no application of any payment to interest, but any payment which is made, unless it is especially directed by agreement of the parties to the payment of interest, must be applied to the principal. The writer mentions this to show that there is no real conflict in the law of this State and the law in reference to national banks as announced in the 5th headnote. Of course, if by understanding or agreement between the parties a payment is applied to the reductipn of interest on a note held by a national bank, the debtor can not plead such in reduction of the principal when sued thereon by the bank, but his remedy would be to bring a separate action for the penalty in two years after the payment of ’the interest is made.

It is insisted by the bank that when this note was taken, in January, 1913, payable to C. E. Eogers, the debt due the bank was actually paid by -these defendants, and that they can not, because of the provisions of the national banking act as stated in the 4th headnote, pléad, as against the note sued on, the forfeiture of interest because of the reservation of usury in the original notes payable to the bank. The question arises: Was the debt that was due the bank in 1915 actually paid by the giving of the note to Eogers and the substitution of the new creditor, C. E. Eogers, a, director of the bank, or was this transaction in fact only a renewal by the bank of the debt due to it, and was the substitution of Eogers as creditor an effort on the part of the bank, through its officers, to evade the charge or reservation of usury denounced by the national banking act? The statute contemplates an actual payment of the usury. First National Bank of Blakely v. Davis, 135 Ga. 687 (3) (70 S. E. 246, 36 L. R. A. (N. S.) 134). Promissory notes are not payment until themselves paid. Civil Code (1910), § 4314. If this transaction was an actual payment of the bank’s debt, then the defendants can not plead, against the notes sued on, the forfeiture of all interest included therein, because . of the usurious rate of interest charged or reserved in the old notes. The defendants insist, however, that this was simply a device or contrivance on the part of the bank, through its officers, to substitute an ostensible creditor in order to evade the usury laws; that there was no actual payment to the bank in January, 1915. They claim that C. E. Eogers was never known in the transaction; that they applied to the president of the bank to renew the debt; that he agreed to renew it, and that they did renew it with the bank by giving this note; that they had no communication with C. E. Eogers. They insist that the real truth of.the transaction is that C. E. Eogers did not lend them any money, but that the cashier simply made the note payable to C. E. Eogers, and it was immediately turned over to the bank, and that it was a renewal of the debt to the bank, and that this made a question for the jury to determine, and that the court erred in directing a verdict.

In this State “No contrivance or arrangement between the parties to any such unlawful transaction or their privies shall have the effect to discharge such forfeiture, except it be an actual and full payment of the amount feo forfeited.” Civil Code (1910), § 3440. This section has reference' to preceding sections touching the forfeiture of excess interest charged or taken or contracted to be reserved, charged, or taken under the laws of Georgia. “If from á consideration of the whole transaction it becomes apparent that there exists a corrupt intent to violate the usury laws, the courts will permit no scheme or device however ingenious, to hide the face of the usury.” 39 Cyc. 918 (4), and citations. “Any contrivance to evade the statutes against usury and to enable the lender to receive more than the legal interest, will render the transaction usurious though legal on its face, since the courts will always look to the actual nature of the transaction and not to the form which the parties have given to it.” 29 Am. Eng. Ency. Law (2d ed.), 461-2. “Where in a given case the undisputed evidence discloses a scheme or device adopted by a lender of money, from which it is palpably apparent that no other purpose was in view than an attempt to obtain more than the lawful interest on the money loaned, it is not error for the judge to refuse to submit to the jury the question as to whether there is usury in the transaction. If, however, there be doubt as to whether the transaction is a cover for usury or one bona fide entered into in the ordinary course of business, it should be left to a jury to determine from all the facts and circumstances of the case whether it was a legitimate transaction or a mere device to evade the laws against usury.” Atlanta Savings Bank v. Spencer, supra; MacKenzie v. Garnett, 78 Ga. 251; Pope v. Marshall, 78 Ga. 635 (4 S. E. 116). See also Gadsden v. Thrush, 56 Neb. 565 (4) (76 N. W. 1060, 45 L. R. A. 654).

In the national banking act it is distinctly stated that the taking, receiving, or charging of a rate' greater than is allowed by the act-shall be .deemed a forfeiture of the entire interest which the noté, bill, or other evidence of -.debt carries with it, or which has been agreed to be paid thereon. The act further provides that a penalty of double the amount of interest paid may be recovered, if suit is commenced within- a period of two years from the time the interest is paid. The inhibition, therefore, against the charging of usury .by national banks is clear and plain. Certainly the courts, in the face of this law, will not countenance a transaction which is consummated for the purpose of evading the forfeiture, though the transaction be connived at by the debtor. The debtor can not make such a transaction legal by agreeing to pay the usury. If, therefore, the arrangement made in this ease, that is, the substitution of a new creditor, to wit, a director of the bank, by the giving of a note to him and thereafter transferring this note to the bank,'was for the purpose of evading the usury law, then it will be held that the giving of this note to Eogers was simply a renewal of the debt by the bank itself, and the debtor would have the right to plead, against the note sued on, the forfeiture of the entire interest included therein, as provided by the national banking act, and also to set off against the original debt such- payments on the notes as had not by agreement of the parties been applied to the payment of interest.

It is doubtless true that a national bank might evade the usury laws by the payment of its debt by another creditor and the substitution in its place, in good faith, of another creditor. In that event the remedy of the debtor would be to bring an action against the bank for the recovery of double the interest so paid. If, therefore, in the instant ease the truth is that the debtors in good faith borrowed money from C. E. Eogers and actually paid off the note to the bank, and thereafter the note given to Eogers for the bona ñde loan made by him to the debtors was transferred to the bank by Eogers, the defendants can not plead a forfeiture by the bank of the interest included in the note, because of the provision of the national banking act that a separate action must be brought to recover interest actually paid. The bank in that event would be entitled to recover the full amount due on the note. We think, however, that this issue should have been submitted to a jury, under proper instructions from the court. This, like any other matter, can be established by circumstantial evidence, and there was sufficient evidence in this case to authorize the submission of this question to a jury.. Furr v. Keesler, 3 Ga. App. 188 (2) (59 S. E. 596).

Young 'testified: “In 1915 I asked him [the president of the bank] to renew it, and he said he would. I went there to his office and he was pretty busy, and next time I came.by he said he would take the note, that Mr. Eogers would take the note. I don’t know which Mr. Eogers it was. I had the transaction with Mr. Eogers, the cashier of the bank, Mr. Phonzo Eogers. Mr. C. E. Eogers was not there. Mr. Phonzo Eogers was the cashier of the First National Bank at that.time. I know his father, 0. E. Eogers when I see him, but he was not there. He did not have anything to do with this transaction. I never asked him anything about it at all; I never had any talk with him.” Weldon testified: “As to what relation C. E. Eogers had with this last note—none whatever that I knew anything about at the timé. P. J. Eogers (Phonzo Eogers) the assistant cashier of the bank was present.” According to the testimony' of P. J. Eogers, the cashier, it appears that he represented his father in the transaction, that his father had nothing to do with the note except through him, and made the loan through him and paid the bank’s claim, and that this note was discounted by the bank after being given to his father.

For an excellent note collating decisions construing the usury laws pertaining to national banks, see 56 L. R. A. 673, 682. It is there also stated that on a usurious contract a national bank is entitled to interest on the principal sum recovered.from the date of its judgment only.

We think, under the principles stated in the headnotes and in this opinion, that the court erred in directing a verdict for the plaintiff for the full amount sued for, and 'the judgment overruling the motion for new trial is

Reversed,

Broyles, P. J., and Bloodworth, J., concur.


author: Beoyles, JP. J.

text:
    9366.
    Simplex Machine Company v. Greenberg & Bond Company.
   Beoyles, JP. J.

1. An answer to a summons of garnishment, made at the proper term of court, is amendable. Burrus v. Moore, 63 Ga. 405; Plant v. Mutual Life Ins. Co., 92 Ga. 636 (19 S. E. 719); Dannenberg Co. v. Adler-May Co., 137 Ga. 111 (72 S. E. 906).

2.. The original answer of the garnishee in "this case was as follows: “Georgia, Eulton County. Now comes garnishee in above-stated case, and in answer to the summons of garnishment served on said garnishee says: (1) Since the service of saifl summons of garnishment said defendant has filed his voluntary petition in bankruptcy in the U. S. court in and for the Northern District of Georgia, and has been adjudicated a bankrupt; and said proceedings are now pending in said bankrupt court, and are not finally determined. (2) The account sued on by above-named plaintiff is duly scheduled in said bankrupt’s schedule with his said petition in bankruptcy, and same is a dischargeable debt, and when debtor obtains his final discharge in bankruptcy, will be discharged and relieved from liability on said account sued on, and no valid judgment can be rendered in said garnishment proceedings. Wherefore garnishee prays that said garnishment proceedings be stayed until the final determination of the question of defendant’s discharge in bankruptcy. W. J. Laney, Atty. for Garnishee.” This answer was defective for the reason that' it was not verified. It was also incomplete and insufficient in that it failed to comply with the provisions of the various code sections bearing upon the subject. There was, however, enough in the answer to amend by, and the trial judge did not err in allowing the amendment offered by the garnishee at a subsequent term of the court. The answer as amended was inepmplete and subject to exception, since it failed to comply .witli the provisions of section 5298 of the Civil Code of 1910 as amended by the act of the General Assembly, approved August 14, 1914 (Acts 1914, p. 62). No exception, however, to the amended answer having been filed, and it not having been traversed, the trial court did not err in rendering judgment in favor of the garnishee. Fitzpatrick v. Shepherd, ante, 44 (95 S. E. 530).

Decided March 14, 1918.

Certiorari; from Fulton' superior court—Judge Bell. October 3, 1917.

James J. Slaton, W. B. Hartsfield, for plaintiff in error.

Burr ess & Dillard, contra.

It follows that the judge of the superior court erred in sustaining the certiorari and in rendering judgment against the garnishee.

Judgment reversed.

Bloodworth and Harwell, JJ., concur.


text:
    9369.
    Woodall et al. v. Harris, governor.
    Decided March 14, 1918.
    Forfeiture of recognizance; from Pike superior court—Judge Searcy. October 12, 1917.

      Redding & Lester, for plaintiffs in" error.

      E. M. Owen, solicitor-general, contra.
   Broyles, P. J.

This was a rule nisi for the forfeiture of a bond given in a criminal case. The only error assigned in the bill of exceptions is upon the judgment of the court sustaining a demurrer filed - to the answer of the sureties upon the bond. It does not appear, either from the bill of exceptions or the record, that any final judgment was ever rendered. The bill of exceptions therefore can not be maintained. Byrd v. Brown, 17 Ga. App. 422 (87 S. E. 607); Vaughn V. Milner, 121 Ga. 436 (49 S. E. 287); United Glass Go. v. McConnell, 110 Ga. 616 (36 S. E. 58); Harrell v. Tift, 70 Ga. 730; Newberry v. Tenant, 121 Ga. 561 (49 S. E. 621); Hendricks v. Reid, 125 Ga. 775 (54 S. E. 747); Piedmont Co. v. Kelley, 125 Ga. 759 (54 S. E. 748); Simmons v. Scarborough, 129 Ga. 125 (58 S. E. 1037); Lyndon v. Georgia Ry. &c. Co., 129 Ga. 353 (58 S. E. 1047) ; Mertins v. Pritchard, 135 Ga. 643 (70 S. E. 328). The ruling in Haskins v. Bank, 100 Ga. 216 (27 S. E. 985), cited by plaintiff in error, that “it is not essential to the legal completeness of a bill of exceptions,' sued out in due time and assigning error upon an order striking a plea, that it should contain an exception to the final judgment in the plaintiff’s favor,” is contrary to the earlier adjudication in Harrell v. Tift, supra, and was practically overruled in Kibben v. Coastwise Dredging Co., 120 Ga. 899 (48 S. E. 330), and in Montgomery v. Reynolds, 124 Ga. 1053 (53 S. E. 512). Moreover, in the Haskins case it appeared that a final judgment therein had been rendered.

Writ of error dismissed.

Bloodworth and Harwell, JJ., concur.


text:
    9377.
    Atlantic Coast Line Railroad Company v. Mead.
    Decided March 14, 1918.
    Action, for damages; from city court of Blacksbear—Judge Mitchell. October 20, 19.17.

      Bennet, Twitty & Reese, Memory. & Memory, for plaintiff in error. Parlcer & Parlcer, James R. Thomas, contra.
   Broyles, P. J.

1. This case was tried in the city court of Blaekshear. The plaintiff had demanded in writing a trial by twelve jurors. Upon the call of the case for trial the judge caused a list of twenty-four jurors to be made up from the jurors who had been drawn and summoned to try cases at that term of court; and in this list were the names of five .jurors, three of whom were related within the prohibited degree to one Ray Riggins, who was an employee of the defendant at the time the cause of action sued on arose, and who, it was averred by the plaintiff, used to her the alleged offensive and insulting language which was the basis of the suit against the defendant company. It did not appear that the other two jurors were related within the prohibited degree to Riggins. Riggins, at the time of the trial, was not employed by the defendant company; he was, however, the principal witness for the defendant in the case. On motion of the plaintiff, and over the objection of the defendant, these five jurors were stricken for cause from the list of the jurors so made up, solely because of their relationship to Riggins. The court then directed the sheriff-to summon and have the names of other jurors substituted in the list for those so stricken. To this the defendant excepted. Held: There is no law in this State making relationship within the prohibited degree to a witness, or to an employee (much less an ex-employee) of one of the parties to a cause, ground for disqualification of a juror; and the witness in question (an ex-employee of the defendant) not being a party to the cause, and it not appearing that he was financially or otherwise directly interested in the result of the case, the court erred in striking, over objection, the names of the five jurors for cause, even conceding that all five were related within the prohibited degree to Riggins; and the verdict as rendered not being demanded by the evidence, a new trial is required. Mayor &c. of Cartersville v. Lyon, 69 Ga. 577; Hill v. Chattanooga Ry. &c. Co., 21 Ga. App. 104 (93 S. E. 1027).

2. After the defendant had made timely and appropriate objection to the court’s action in striking the jurors from the list, it was not incumbent upon it to object to the new panel of jurors by a challenge to the array. Such procedure is applicable in criminal eases only, where the jurors are “put upon the accused.” In this case the defendant had no ground to challenge the array. Fulton County v. Amorous, 89 Ga. 614 (2) (16 S. E. 201).

Judgment reversed.

Bloodworth and Harwell, JJ., concur.


author: Bboyles, P. J.

text:
    9390.
    Warner & Company v. Burkhalter.
    Decided March 14, 1918.
    Attachment and garnishment; from Tattnall superior court— Judge Sheppard. September 29, 1917.

      Collins & Stanfield, James K. Hines, for plaintiffs.

      Way & Burkhalter, for defendant.
   Bboyles, P. J.

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

(a) In the bill of exceptions, the brief of evidence, and the record sent up, there is enough to enable this court to decide the questions raised.

2. A judgment against a garnishee, duly entered, is as to him conclusive of the proposition that the plaintiff had already obtained a valid judgment against the main debtor whose effects were sought to be reached by the garnishment proceeding. And this is true in a case where an attachment has been issued against a non-resident and executed by service of summons of garnishment, and where no answer has been made by the garnishee. Holbrook v. Evansville & Terre Haute Railroad Co., 114 Ga. 1 (2) (39 S. E. 937); Warner v. Strickland, 144 Ga. 547 (87 S. E. 667). The apparently contrary ruling in Albright-Pryor Co. v. Pacific Selling Co., 126 Ga. 498 (4) (55 S. E. 251, 115 S. E. 108), was criticised and disregarded in Warner v.’ Strickland, supra, and the older adjudication in the Holbrook case, supra, approved and followed. It follows that the court erred in setting aside the judgment against the garnishee on the ground that no previous valid judgment had been rendered against. the defendant in attachment, although the motion to set it aside was made by the defendant in attachment and not by the garnishee. The garnishee was conclusively bound by the judgment against him, and, under all the facts of the case, it could not be set aside, either at his instance or at that of the defendant in attachment.

3. As the judgment previously rendered against the defendant in attachment specifically recited that the amount of the judgment' was to be levied and collected from the funds subjected by process of garnishment issued and served upon the garnishee, and not otherwise, and as the subsequent judgment against the garnishee was conclusive upon him as to the validity of the former judgment, and could not be set aside, either at the instance of the garnishee or of the defendant in attachment, it follows that, under these particular circumstances, the judgment against the defendant in attachment should not have been set aside.

4. The court erred in directing a verdict in favor of the movant, and thereafter in overruling the motion for a new trial.

Judgment reversed.

Bloodworth and Harwell, JJ., concur.