text:
    8161, 8162.
    HOME SAVINGS BANK OF COLUMBUS, GEORGIA, v. MASSACHUSETTS BONDING AND INSURANCE COMPANY; and vice versa.

    The evidence warranted the verdict, and, no harmful error of law appearing, the judge did not err in overruling the motion for a new trial.
    Decided February 16, 1917.
    Action on bond; from -Muscogee superior court—Judge R. W. Freeman. January 27, 1916.
    In the years 1911, 1912, and 1913, and for a number of years prior thereto, George H. Waddell was the treasurer of the Home Savings Bank of Columbus, Georgia. The Massachusetts Bonding & Insurance Company insured for the bank his fidelity ’as such treasurer, and issued therefor its “Schedule Bond No. S-21499,” in the amount of $5,000, to take effect on April 10, 1911. The material parts of this bond were as follows:
    “Now, therefore, for and in consideration of a stipulated premium, paid or agreed to be paid by the employer, The Massachusetts Bonding and Insurance 'Company, a corporation existing under and by virtue of the laws of the Commonwealth of Massachusetts (herein designated 'the Company’), hereby covenants and agrees to and with the employer that it will, at the expiration of three . months after proofs of loss shall have been furnished to the Company, pay to the employer the amount of any loss or damage that shall happen to the employer, in respect of any funds, property, or estate belonging to or in the custody of the employer, through the dishonesty of any of the employes, or through any act of omission or commission of any of the employes, done or omitted in bad faith, and not through mere negligence, incompetency, or any error of judgment, and whether such dishonesty or such act of omission or commission occurs in the performance of any duty or trust specially assigned to such employe or occurs otherwise; subject, however, to the following provisions and agreements:
    “1. There shall be no liability on the part of the Company unless the act or default through which such loss may happen shall, in respect of the employes originally named in the schedule, occur on or after the 10th day of April, A. D. 1911, and shall, in respect of any employe hereafter added to the schedule by notice and acceptance as hereinafter provided, occur on or after the date upon which his or her name shall have been added to the schedule, and shall, in respect of all employes, occur prior to or on the 9th day of April, A. D. 1912, or prior to or on any other date to which this bond may be continued.
    “2. There shall be no liability hereunder on the part of the Company, unless such loss or damage shall be discovered during such designated term, or within one year after the final expiry (as determined by the term herein specified and any . and all continuances) of this bond, and within one year after the cancellation or termination of this bond or of any engagement hereunder in respect of the employe causing a loss.
    ■ "3. The Company’s liability on account of any employe shall in no case exceed the amount set opposite his or her name in the schedule hereto attached, as such name and amount now appear or as they may be hereafter added to or changed upon the schedule in accordance with the provisions therefor hereinafter set forth.
    “é. If the employer requires indemnity in respect of any employe . . in the schedule named in an amount larger or smaller than therein specified, the employer shall give to the Company written notice specifying in respect of a change in the amount of indemnity, the new amount and the date from which it shall be effective, it being agreed and understood that thereby such name or names and specifications shall be deemed to be added to the schedule hereto attached, and the obligations of the employer and the Company in respect thereof shall be subject to all the provisions herein contained and in every way as though such name and specifications had formed part of the original schedule.
    “5. Whatever number of engagements may be made by the Company with the employer in respect of any employe, either by way of separate bonds, or by.acceptances as herein provided, or by continuances as herein provided, the aggregate liability of the Company for all losses under all its engagements shall not exceed a sum equal to tire amount of the largest of the engagements under which such losses occurred, nor shall the Company be liable under any specific engagement for any loss occurring under any other engagement.
    “6. The Company shall in no event be liable for . . any act or default of an employe occurring after a loss in respect of such employe shall have come to the knowledge of the employer.

      “7. The Company shall be primarily responsible to the limit of its bond in respect of any employe, for any loss sustained by the employer through the act or default of such employe, without regard to any other security or indemnity held by the employer. . .”
    “11. The employer warrants that the. following statements are true:
    ■“ (a) Each employe named in the schedule has, while in the service of the employer, discharged his or her respective duties in good faith (mere negligence or error of judgment not being considered) and with honesty, so far as the employer has knowledge.
    “(b) There is at present, so far as the employer has knowledge, no shortage in the accounts of any employe bonded hereunder, and no misappropriation by any such employe of any funds or other property belonging to, or in the custody of, the employer.
    “ (c) In so far as the employer has knowledge, no one of said employes habitually gambles, uses intoxicating liquors to excess, frequents houses of ill-fame, or is a spendthrift living beyond his or her means.
    “ (d) That the written statements made to the Company by the employer, regarding the indebtedness to the employer of the several employes named in the schedule, truthfully and correctly show the amounts of indebtedness of such employe to the employer at the time of making such statements, so far as the employer has knowledge. A copy of said statements, certified by the Company, is delivered to the employer with this bond, and receipt of same is hereby acknowledged-by the employer.
    “In case of the breach of any of the foregoing warranties in respect of any employe, then this bond shall be void in respect of such employe only, and the Company shall be relieved from all liability in respect of such employe. ■

      “12. The employer further covenants and agrees that the employer will not at any time give the Company notice of the appointment of, or request the Company to become bound hereunder, in respect of, or to renew or continue this bond or any engagement hereunder in respect of any employe who has, to the knowledge of the employer, ever been guilty of dishonesty, or who, to the knowledge of the employer, habitually gambles, uses intoxicating liquors to excess, frequents houses of ill-fame, or is a spendthrift living beyond his or her means; and that on the notice given by the employer to the Company of the appointment of any such new employe, and upon the request for any renewal or continuance of this bond or any engagement hereunder, the employer will, upon request of the Company, state truthfully in writing the amount, if any, which such employe or employes may, to the knowledge of the employer, then owe the latter by overdraft, promissory note, as endorser or otherwise; and any breach of this covenant and agreement on the part of the employer shall render any such acceptance, renewal, or continuance executed by the Company in behalf of any and every such employe void, and relieve the Company from all liability on account of every such employe.
    “A copy of every statement so made by the employer to the Company regarding the indebtedness of any employe shall be certified by the Company and delivered to the employer with the Company’s acceptance of the risk or renewal of this -bond.
    “13. The employer further covenants and agrees that if at any time during the term for which this bond is written, or during any continuance hereof, there shall come to the knowledge of the employer the fact that any employe for whom the company may be bound under this bond is dishonest, or has in bad faith, and not through mere negligence or error of judgment, done or neglected to do any matter or thing, or that any such employe habitually gambles, uses intoxicating liquors to excess, frequents houses of ill-fame, or is a spendthrift living beyond his or her means, the employer shall promptly notify the Company of such fact, and the failure so to do shall relieve the Company from all liability on account of such employe, in respect of loss or damage thereafter arising.”
    “17. The employer shall, whenever required by the Company, give all information within the employees knowledge or which can be obtained from the employer’s books or records, and shall render all assistance (not pecuniary) which will in any way aid in the apprehension, arrest, or prosecution of any employe for any criminal offense committed by such employe involving the liability of the Company, and in like manner shall aid and assist the Company in suing for or obtaining reimbursement from such employe or from the employe’s estate or from other sources any moneys which the Company may have paid or become liable to pay under this bond on account of such employe..
    “18. The employer shall give notice in writing to the Company promptly after knowledge thereof by the employer of any loss in respect of which liability of the Company is-claimed, and shall within six months thereafter furnish the company proof of such loss, and in default thereof the liability of the Company therefor shall terminate.
    “19. All notices to be given by the employer to the Company shall be by registered mail addressed to the Company at its principal office in the City of Boston, and all notices to be given by the Company to the employer shall be by registered mail addressed to the principal office of the employer.
    “20. In case the employer be a corporation, the knowledge of its board of directors or trustees or of any executive officer, such as the president, vice-president, cashier or assistant cashier of a bank, and corresponding officers of a savings bank or trust company, who shall receive a salary from the corporation and shall be active in its affairs, shall be deemed to be the knowledge of the employer, excepting that _ the knowledge of any such directors, trustees, or officers in collusion with the employe through whose act the loss may arise shall not charge the corporation.
    “21. So long as the Company and the employer agree so to do, this bond may be continued in force from year to year, and in case of such continuance the Company’s liability in respect-of the employes then in the employer’s service and for whom the Company may then be bound hereunder shall be the same as if this instrument had been originally written for a term including the period of such continuance.” (All italics are ours.)
    Accompanying the application of Waddell for this bond was a statement made by the bank, as follows:
    “'The foregoing applicant has been in the service of the undersigned employer fourteen years and-months, and the duties required have always been performed in a faithful and satisfactory manner. The accounts were last audited on. the 18th day of December, 1910, and were correct in every particular. There has never come to the notice or knowledge of the employer any act, fact, or information tending to indicate that the applicant is negligent, unreliable, deceitful, dishonest, or unworthy of confidence. As far as the employer knows, applicant’s habits are good, and the employer knows no reason why you can not safely assume the suretyship applied for. The above and foregoing statements and representations are made for the purpose of inducing the Massachusetts Bonding & Insurance Company to execute said bond. Dated at Columbus, Ga., the 18th day of March, 1911.
    “Home Savings Bank (employer), by Rhodes Browne, Pres’t.”
    On April 10, 1913, the foregoing bond was renewed for one year, and in the renewal Waddell was bonded for $10,000. The material parts of the renewal certificate are as follows:
    “In consideration of the sum of twenty-five and no/100 dollars, Massachusetts Bonding and Insurance Company, a corporation duly incorporated under the laws of the Commonwealth of Massachusetts, hereby continues in force Schedule Bond No. S-31499 in favor of Home Savings Bank, Columbus, Ga., on behalf of persons named in annexed schedule, in the positions and for the sums therein specified, for the period beginning the ninth day of April, 1913, and ending the ninth day of April, 1913, subject to all the covenants and conditions set forth and expressed in said schedule bond heretofore issued on the tenth day of April, .1911. Provided the aggregate liability of Massachusetts Bonding and Insurance Company, from the date of the issuance of said schedule bond to the date of the expiration of this certificate, for or on account of any act or acts of any one of said persons shall not exceed the sum written opposite that person’s name upon the attached schedule.”
    Before the foregoing renewal Waddell made an application for such renewal, on April 5, 1913. Accompanying this application was a statement of the bank, dated April 5, 1913, identical in form with the statement dated March 18, 1911. On March 10, 1913, the Massachusetts Bonding and Insurance Company renewed said bond in favor of the bank for the year commencing April 9, 1913, issuing a renewal certificate tlierefor. This certificate was identical in form with the first renewal certificate, except that the ■ bond was renewed for $15,000 instead of $10,000. Prior to this last renewal the bank made the following statement to the defendant:
    “To Massachusetts Bonding and Insurance Company: This is to certify, that the books and accounts of our officers and employes as per attached schedule were examined by us from time to time in the regular course of business, and we found them correct in every respect, all moneys or property in their control or custody being accounted for, with proper securities and funds on hand to balance their accounts, and they are not now in default. They have performed their duties in an acceptable and satisfactory manner, arid we Icnow of no reason why the guaranty bond should not be continued. Dated at Columbus, Ga., this-day of -- 19-.
    “Home Savings Bank of - Columbus, Ga., by Rhodes Browne, President.”
    The bank made one other statement to. the bonding company, to wit, on October 10, 1912, at which time the liability on the bond was increased from $10,000 to $15,000, to wit:
    “Oct. 10th, 1912. The Massachusetts Bonding and Insurance Company, of Boston, Mass., is hereby notified that on the respective dates shown below we made the following changes in list of officers or employees covered under its schedule bond No. S-21499R-175W. All appointments to any position and any increase in amount of security required of officers or employees appear as “additions,” all removals, retirements, or transfers of officers or employees, and any decrease in amount of security required of an officer or employee appear as ‘deductions.’ The employer (assured) knows no reason why the Company can not safely become surety for the officers or employees added, and warranty is hereby made that the books and accounts of such officers or employees are now correct in every respect, all moneys handled by them being accounted for, and that all books and accounts will be examined from time to time in the regular course of business, but at least annually. [Then follows a tabulation and schedule showing it was requested that the bond of Waddell be increased from $10,000 to $15,000.] Dated at Columbus, Ga., the l-9th day of October, 1912.
    “Home Savings Bank of Columbus, by Rhodes Browne, Pres’t.”

      During the period of the said fidelity bond the bank suffered a loss on account of acts of commission and omission- of George H. Waddell; for which it brought suit in June, 1914, for $15,000, against the bonding company, based upon the said bond and the renewals thereof. On February 15, 1915, the plaintiff ■ filed an amendment to its original petition, in order to meet certain special demurrers of the defendant, and in the amendment set forth in detail the manner, kind, and amount of the losses sustained by the plaintiff through acts of commission and omission of George H. Waddell, and alleged, that the statements which it made to defendant in connection with the application of George H. Waddell, at the time the original bond was written and when the original bond was renewed, and whatever statements were made by plaintiff to defendant, were true so far as plaintiff had knowledge, and were made honestly and in good faith, and that at the time they were made the plaintiff had no knowledge of loss or damage caused it by the said Waddell, and no knowledge that he had not been faithfully and honestly performing his duties with the plaintiff as treasurer. The plaintiff further alleged in the amendment’that about August 9, 1913, the Audit Company of the South commenced an examination of the books and accounts of the plaintiff, and that on August 12, 1913, Ehodes Browne, president of the plaintiff, first had knowledge that Waddell as treasurer was short in his accounts with the plaintiff, but that on August 12, 1913, neither the said Browne nor the plaintiff was aware of the amounts and special conditions of the' shortage, or whether it occurred during the original period of the bond and the renewals thereof or prior thereto, or whether it was a loss in respect of which the plaintiff could claim liability from the defendant; and that prior to August 12, 1913, the plaintiff had no knowledge whatever of any dishonest acts of Waddell. The plaintiff further alleged that at said time (August 12, 1913) the Audit Company of the South was unwilling and unable to report definitely to the plaintiff that said Waddell was short in his accounts, and that the Audit Company, on the night of September 20, 1913, made its first report of a definite character to the plaintiff that Waddell was short in any particular amount in his accounts with the plaintiff; and the plaintiff promptly thereafter (September 23,’ 1913) gave notice in writing to the defendant of the approximate amount of the loss caused the plaintiff by Waddell and discovered up to September 20, 1913. In the petition as amended it is alleged in detail how the losses caused through the dishonesty of Waddell'occurred.
    The defendant filed general and special demurrers to the plaintiff’s original petition, the demurrers were overruled, and exceptions pendente lite were taken, upon which the defendant’s cross-bill of exceptions assigns error. The defendant filed an answer denying all the material averments of the original petition, and on the date of the trial amended its answer by adding six pleas. The plaintiff .demurred to these pleas, and the court sustained the demurrer to the plea numbered 6, and overruled the demurrer as to the others. The plaintiff excepted pendente lite to the latter ruling and assigns error thereon; and the defendant excepted pendente lite to the ruling sustaining the demurrer to the plea numbered 6, and in its cross-bill of exceptions assigns error thereon. The defendant, on June 15, 1915, amended its amended answer, by filing four additional pleas. Pleas number 1 and 2 of this amendment were stricken by the court, and to this ruling the defendant excepted pendente lite, and in its cross-bill of exceptions assigns error thereon.
    The first amendment- to the original answer alleges in substance that at the time of the execution of the original bond and at the time of each renewal and increase in amount thereof the plaintiff made and delivered to the defendant a declaration relating to George H. Waddell, the employee whose fidelity was to be insured,'—• the statements hereinbefore quoted; that such statements were material to the risk, induced the defendant to accept the risk, and were made for the purpose of inducing the defendant to execute tlie bond and the several renewals and increases thereof; that said statements were untrue, and that if the defendant had known they were untrue it would not have accepted the risk and issued the bond and" executed the several renewals and increases thereof; that the accounts of the plaintiff had not been audited on the respective dates named in the declaration and statements made by it, and were not correct in every particular, but, on the contrary, the employee Waddell was then in default in said bank in a large sum, which fact appeared from the books of account of the bank; and that the books on their face showed that they were not correct and that the accounts kept by said Waddell were not correctly kept; that the bond and each renewal and increase thereof was therefore void; and the defendant tendered to the plaintiff the full premiums on said bond and on the renewals thereof, paid to it by the plaintiff. So much of the second amendment to the defendant’s pleas as was allowed by the court averred that if any investigations were made of the accounts of the plaintiff’s bank or of the books or accounts of the employee Waddell, they were not made with ordinary care and diligence, and did not include an examination of the accounts of Waddell with said bank; and that on certain dates stated the plaintiff, through its examining committee, did examine the books kept by Waddell, and did investigate far enough to discover that on each of the dates his accounts were not correctly kept and his books were not in balance; and that the plaintiff, at thk time of making the warranties and representations hereinbefore quoted, had knowledge and notice that said warranties and representations were false.
    On these pleadings the case went to trial, and a verdict for the plaintiff for $87.50 on the plea of tender was returned. The evidence is voluminous. On the question as to the bank’s knowledge of Waddell’s defalcations it is conflicting. While there is no direct evidence to the effect that Waddell’s dishonesty was known to the bank before or at the time of the execution of the bond or of any renewal or increase in amount thereof, yet the books of the bank were offered in evidence and were inspected by the jury. It is fairly deducible from the evidence that the bank, if it made examination of the books and accounts as claimed by it, knew their condition and had knowledge of facts sufficient to charge it with notice of Waddell’s dishonesty. His dishonesty is established beyond question, and the evidence, summed up, shows that through his dishonesty the bank lost, between April 10, 1911, and April 9, 1913, the period of the original bond, $3,057.39; during the second period $5,998.30, and during the third period $4,103.73. It is also clear that for several years before the date of the original bond Waddell had systematically extracted and stolen the funds of the bank, and that the total amount of the shortage occurring by reason of his dishonesty greatly exceeded the amount of the loss shown to have occurred during the period covered by the bond.

      Slade & Swift, A. W. Oozart, for plaintiff.

      Dodd & Dodd, Little, Poivell, Smith & Goldstein, for defendant.
   George, J.

(After stating the foregoing facts.) 1. The foregoing statement is by no means exhaustive of the facts in this case, as they appear from the record of more than 400 pages, but they are sufficient to indicate that the court rightly overruled the demurrers to the defendant’s pleas; and no reversible error appears in the court’s charge. It is undoubtedly true that ‘while the bond in this case may resemble a contract of suretyship, it is in effect a contract of insurance, to which the rules of construction peculiar to contracts of suretyship would not apply, biit to which the rules governing ordinary contracts of insurance are applicable. Hormel v. American Bonding Co., 112 Minn. 288 (128 N. W. 12, 33 L. R. A. (N. S.) 513). In John Church Co. v. Ætna Indemnity Co., 13 Ga. App. 826 (80 S. E. 1093), this court said: “Viewed as insurance contracts, the contracts of an organization writing fidelity insurance are to be governed by rules applicable to insurance companies, and when the contract is fairly susceptible of two constructions, one favorable and the other unfavorable to the indemnity company, the latter is to be adopted. It is but the familiar rule that ambiguities are to be construed most strongly against the insurer.” To the same general effect is the almost unbroken current of authority, and citation of the many cases supporting this view would be entirely useless.

In our opinion, the bond in this case and each renewal certificate constituted the entire contract between the plaintiff and the defendant, and contained the warranties and covenants required of the plaintiff, in connection with the writing of the original bond; and the terms of the bond and the renewal certificates specifically modified, qualified, and controlled the statements made by the plaintiff in connection with the original bond and the renewals, so that the said statements, by the intention of the contract, were made only so far as the plaintiff had knowledge, and were not absolute, unconditional affirmations of the representations which they contained, but only representations of the knowledge of the plaintiff. Each statement furnished the defendant by the plaintiff, after the first, must be given the construction clearly indicated in the original bond; and, as there indicated, such statements were only as to the knowledge of the plaintiff, and were not absolute and unconditional affirmations of the matters referred to therein. This construction is consistent with the intention of the parties, and is in harmony with the great weight of decided cases dealing with the question.

However, the demurrers to the pleas were properly overruled, because it is distinctly alleged in these pleas that no audit or examination of the books and accounts of the employee Waddell was made as and at the times stated in the declaration furnished the defendant by the plaintiff. It is also distinctly alleged in these several pleas that if such examinations were in fact made, the plaintiff knew of the dishonesty of Waddell, because his books on their face showed such dishonesty. It was certainly proper for the defendant to show, if it could, that no examinations were made by the bank, as stated by it to the defendant, but, if made, the bank had knowledge of Waddell’s dishonesty. We therefore conclude that there was no error in overruling the demurrer to the. pleas set out in the amendment to its original answer.

3. The plaintiff insists that a new trial should have been granted it upon the general statutory grounds, and upon 19 additional grounds, complaining of certain charges given by the judge to the jury. As already indicated, we think the verdict is supported by the evidence. The evidence was in conflict upon the material issues in the case, and, while it would have sustained a finding for the plaintiff in a substantial sum, it can not be said that the verdict is without evidence to support it. The case was well prepared, and was submitted to the jury with great skill and ability. Doubtless every material fact and circumstance was before the jury. Not only was the evidence developed in minute detail by the witnesses, both expert and ncn-expert in such matters, but the books of the bank were admitted in evidence, and the jury was authorized to find that the plaintiff either did not make examinations of Waddell’s accounts as claimed by it, or, if such examinations were in fact made, that knowledge was thereby obtained on the part of the bank of the actual condition of the books. There is no reason to suppose that the jury was friendly to the defendant and unfriendly to the plaintiff. The contrary presumption, if there be ground for speculation, might be indulged.

3. Certain charges of the court are excepted to in grounds 4, 5, 6, and 7 of the motion for a new trial, as intimating and expressing an opinion upon the facts of the case. On careful examination of the record it appears that the trial judge read to the jury, in detail, the pleadings of the parties, and also read to the jury certain stipulations between counsel. Further in the charge he undertook to apply the law of the case to the contentions of the defendant, and in making this application the charges attacked as intimating an opinion were given. We do not think that these charges are subject to the criticism made. The jury undoubtedly understood the purpose of these charges.

4. The court gave in charge to the jury sections 2479 and 2480 of the Civil Code of 1910. It is contended, in the. 8th and 9th grounds of the motion for a new trial, that in so doing the court committed harmful error against the plaintiff. Whether these sections were applicable to the facts of this case need not be considered. The court instructed the jury that these sections of the code should be applied only to that part of the application which was signed by the bank itself. The application undoubtedly included the statement made by the bank, the obligee named in the bond. No release of liability on'account of anything stated in Waddell’s application, or any such part of the application as’was made by Waddell, was pleaded, but the defendant insisted that the statements made by the bank, concerning the condition of Wad-dell’s books and accounts, and relating to the manner in which he performed his services as treasurer of the bank, were false and fj audulent. In addition the court instructed the jury that, if the bank acted in good faith in making the statements to the bonding company and disclosed to the company all the material facts within its knowledge, then such statements, without exception, hereinafter noted, if false, would not .void the bond.

5. The instructions complained of in the 10th, 12th, 13th, 16th, and 17th grounds were not, for any of the reasons assigned, erroneous. In the 11th ground exception is taken to an instruction to the effect that if the jury should find that the statement that the books of the bank were audited on the 18th day of December and were correct in every particular was a material representation, and that this statement was not in fact true, either because the books were not audited or because, being audited, they did not show that the accounts of Waddell were true in every particular, and if they should further find that the variation was a variation by which the nature or extent or character of tbn risk was changed, then the policy would be void. One ground of exception to this charge is that the court confined the plaintiff to the exact date, December 18, 1910. This exception is not well taken, because the court expressly stated to the 'jury that the variation from this statement, in order to affect this bond, would have to be material, and of such character as would change the nature, extent, or character of the risk. This charge was correct. It would not have been proper for the judge to state to the jury that it was immaterial, under the facts of the ease, whether the audit was made on the 18th or the 14th of December. He properly left it to the jury to say whether or not an examination of the accounts of Waddell was made on December 18, 1910, as represented in the statement made by the bank to the defendant, and, if not, whether, by the variation, the nature or extent or character of the- risk assumed by the defendant would be changed. It was for the jury, and not for the court, to say whether any representations inducing the defendant to execute its bond insuring the fidelity of Waddell were true or untrue, or whether the statements were material or immaterial, or whether such statements were so material as to vary the nature, extent, or character of the risk assumed by the defendant company. It is to be noted that a statement made to the defendant that the books of Waddell were on a certain date examined is a statement within the knowledge of the bank. That portion of the statement which relates to the -information derived from such examination is not necessarily within the knowledge of the bank,, and, if made in good faith by the bank, would not defeat the plaintiff’s action.

6. The charges referred to in the 14th, 15th, and 18th grounds of the motion for a new trial do not require discussion. These charges are not subject to the exceptions taken. The charges may contain certain inaccuracies of expression, but they do not contain an incorrect statement of any controlling principle of law applicable to the facts'of the case. In the 22d ground it is complained that the judge confused preponderance of evidence with proof to a reasonable and moral certainty. This criticism seems to be well founded. However, this charge did not immediately follow the contentions of the plaintiff; and since the burden in this case was upon the defendant to establish its affirmative pleas, the charge was more harmful to the defendant than to the plaintiff. In addition, the charge of the court fully explained to the jury that in the instant case the preponderance of the evidence should control.

7. The assignments of error in the 19th, 30th, and 31st grounds of the motion remain for consideration. The judge here read to the jury a portion of the statement furnished by the plaintiff to the defendant under date of October 19, 1913, asking for an increase in the amount of the bond of Waddell from ten to fifteen thousand dollars. The court thus charged in effect that if this statement was material to the risk and the bonding company believed it was true, and acted upon it and granted an increase in the amount of the bond from ten to fifteen thousand dollars, but if in point of fact the books and accounts of Waddell were not at that time correct in every respect, and there was a variation by which the nature or extent or character of. the risk was changed, the bond would be void, “in so far as the increase of the bond was concerned,” and that this would be true although the president of the bank, in making this statement, may have acted in good faith and may have believed that the statement was true; that where the insurer is induced to enter into the contract by a representation as to a material fact, the policy will be void where the representation was made wilfully, with intent to deceive, or through an innocent mistake. Further, and in the same, connection, the court charged the jury that the same rule that he had given in connection with the application to increase the liability under the bond from ten to fifteen thousand dollars would apply “as to these other matters to which I have directed your attention.” He then proceeded to remind the jury that it was alleged by the defendant that at the time of the execution of the bond and on the several occasions when it was renewed the plaintiff stated that examinations of the books of Waddell were made at certain times, and that these audits showed the books to be correct, and that the same rule applied to those “instances of defense to which I have already directed your attention, in so far as the examinations were concerned; but in those cases, as already charged you, if the examinations were in point of fact made, and the result of the audit or examination showed that the books and accounts of Waddell as treasurer were correct, then the representations would not void the policy, if the Home Savings Bank, in good faith, believed that they were correct and made the representations believing that they were correct.” The court did, however, in the same connection, leave it to the jury to say whether in point of fact the bank had examined or audited the books of Waddell. He concludes the instruction on the effect of the statement dated October 19, 1912, and made by the plaintiff with the positive statement that “the matter I referred to is the increase of the policy from ten to fifteen thousand dollars.” The concluding statement of the charge is this: “If that increase is void—if you find that to be void from ten to fifteen thousand dollars—why, then the plaintiff in no event could recover over $10,000, because that would leave the bond only $10,000.” In.our view these charges incorrectly stated the law of this ease. The statement of October, 1912, was made for the purpose of increasing the liability fixed by the terms, provisions, and conditions of the original bond, and this statement must be considered as modified by the provisions of that bond. The original bond in this case did not contemplate that statements made by the employer were to be considered as positive and unconditional affirmations of the truth of the matter therein contained, but meant that such statements were true only to the knowledge of the employer. As a general rule, it can not be said that an erroneous instruction, as this was, resulted in no harm to the losing party. . In this case, however, it is clear to the point of demonstration that the charge did not harm the plaintiff. The jury could only have understood from this charge that it related to the increase in the liability of the bond from ten to fifteen thousand dollars. Indeed, the judge clearly and repeatedly stated to the jury that this rule which he was then .giving them applied only to the increase in liability of the bond, and did not affect the original bond or any renewal thereof.

The jury found for the defendant upon its affirmative pleas, and returned to the plaintiff the amount of premiums paid by it for the bond and its renewals. This was a clear finding that the bond was void; and, inasmuch as the jury found, under substantially correct instructions by the court, that the plaintiff was not entitled to recover any amount, and that the bond was void by reason of the things affirmatively pleaded by the defendant, a reversal is not required on account of this error in the charge of the court. The court therefore did not err in overruling the motion for a new trial.

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

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


source: Caselaw Access Project

author: Wade, O. J.

license: Public Domain

text:
    8196.
    Philip Carey Co. v. Sheppard.
    Decided February 16, 1917.
    Motion to set aside judgment; from Calhoun superior court— Judge Cos. August 21, 1915.

      Henry L. Graves, Clarence J. Taylor, for plaintiff in error.

      Smith & Miller, Bachman é Simmons, contra.
   Wade, O. J.

1. The giving of a replevy bond by the defendant in attachment converted the suit from an action in rem to an action in personam, and as completely authorized the rendition of a common-law judgment against the defendant in attachment as if the action had been begun in the usual form, followed by personal service. Where, by the giving of such a bond, the defendant in attachment effected a general appearance in-the suit, even the dismissal of the attachment would not operate to dismiss the suit. Cincinnati Ry. Co. v. Pless, 3 Ga. App. 400 (60 S. E. 8). See also Camp v. Cahn, 53 Ca. 558; Bruce v. Conyers, 54 Ga. 678, 680.

2. By amendment the plaintiff struck the verdict and judgment as against the property levied upon and the surety on the replevy bond; and, conceding that the levy was defective because of insufficient description of the property, or because it failed to allege the ownership thereof in the defendant in attachment, such defects were amendable and could not affect the general verdict and judgment rendered against the defendant alone. Askew v. Melvin, 144 Ga. 348, 350 (87 S. E. 278). After judgment the main defendant can not complain that an attachment is void, though the surety on the replety bond may. Planters Bank v. Berry, 91 Ga. 264, 266 (18 S. E. 137). The defendant in attachment having in effect acknowledged service by the giving of the replevy bond, ■and the verdict and judgment being general only and against the defendant alone, the irregularities complained of furnished no sufficient ground for an affidavit of illegality.

3. The court properly refused to set aside the judgment, as it did not appear that due diligence was exercised by the movant in ascertaining or seeking to ascertain the status of the attachment proceedings and in making proper defenses thereto. “The movant must not Only show generally and inferentially, but by precise and specific averment, that he has been without fault or has exercised due diligence, or, if negligent, that his negligence was excusable;” and the motion must also set forth fully the facts relied' upon to constitute the proposed defense,. except in cases where the judgment is absolutely void. Pryor v. American Trust Co., 15 Ga. App. 822 (84 S. E. 312).

Judgment affirmed.

George a/nd Luke, JJ., concur.


author: George, J.

text:
    8204.
    SMITH v. HARRELL.
    .The verdict of the jury, approved by the trial judge, is not wihtout evidence to support it. The errors of law in admitting testimony, in charging the jury, and in failing to charge certain principles applicable to the case as made (no request to charge having been submitted), are without merit. The court did not err in overruling the motion for a new trial.
    Decided February 16, 1917.
    Rehearing denied March 2, 1917.
    Money rule; from Lowndes superior court—Judge Thomas. August 21, 1915.

      J. M. Johnson, J. G. Cranford, O. M. Smith, for plaintiff in error. Ban B. Bruce, E. E. Wilcox, contra.
   George, J.

Harrell filed his petition for a rule against Smith, an attorney at law, upon the allegation that the attorney had charged and retained as a fee one half of $2,500, collected in certain litigation for Harrell; that the amount thus retained was unreasonable, there being no agreement fixing the amount to be paid the attorney, and that $250 was a reasonable fee for the services rendered. The petition was duly answered, and the attorney claimed an express contract for fees, executed both by Harrell and an alleged copartner, the action in which the recovery was had being a joint suit in behalf of Harrell and another; that Harrell ratified the contract for fees made by his alleged copartner with the attorney; and that in the absence of agreement the amount retained by him was authorized by the services actually rendered. The answer was traversed, the issues were submitted to a jury, and a verdict for the petitioner, for $416.66 principal, was returned. The defendant’s motion for a new trial was overruled, and he excepts.

The evidence was in conflict, and, upon certain features of the case, strongly supported the contentions of the plaintiff in error. The verdict is not, however, without evidence to support it, and this court can not interfere. Five excerpts from the charge of the court are excepted to generally, and, under repeated rulings of this court and of the Supreme Court, if these charges state propositions of law which are in the abstract correct, we will not, on such an assignment of error, consider whether they are appropriate in the case. Not one of the charges complained of contains an incorrect statement of law. There are seven grounds in the motion complaining of the failure to give certain instructions of law. It nowhere appears that any request, either oral or written, was made for these instructions or any one of them. So far as they were pertinent to the issues made by the evidence, they were sufficiently covered by instructions given.

One exception to the admission of evidence is insisted upon. It appears that the court allowed a witness to say what amount, in his opinion, would be reasonable compensation for the services rendered by the attorney, based upon facts hypothetically stated. The objection to this evidence was upon the ground that “the hypothesis is not based on the facts proven.” On careful examination of the evidence, we think the question propounded was based upon the material facts proved‘in the case.

The court did not err in overruling the motion for a new trial.

Judgment affirmed.

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


author: Luke, J.

text:
    8218.
    MACON, DUBLIN AND SAVANNAH RAILROAD COMPANY v. ROBINSON.
    1. Where a switchman in the performance of his duty in connection with a switch-engine used in making up trains in interstate and intrastate transportation by the railroad company by which he was employed was run over by the engine when it was on its way to a water-tank to * get water for steam in order to continue the work of making up both interstate and intrastate trains, the Federal “employer’s liability act” was applicable.
    2. It is not ground for a new trial that the court admitted in evidence the rule or order of the interstate-commerce commission, prescribing the manner of fastening sill-steps of locomotives used in switching.
    3. The trial judge did not abuse his discretion in refusing to grant a new trial because of newly discovered evidence. The evidence alleged to have been discovered since the trial,—namely, an order of the interstate-commerce commission, extending the time within which carriers might comply with the standards prescribed in the order of the commission introduced by the plaintiff,—was dated four years before the time of the trial, and the movant—a carrier bound by orders of the commission —should have known of its existence before the trial.
    4. 5. It appearing that there was merely a decrease, and not a total loss, of earning capacity of the plaintiff in consequence of the injuries complained of, the court erred in giving in charge to the jury a rule of damages applicable to total loss of earning capacity, and in not properly instructing them as to the rule applicable where there is merely a partial decrease of sueli capacity. This error was not cured by writing off a part of the amount of damages awarded by the verdict.
    Decided February 16, 1917.
    Action for damages; from Laurens superior court—Judge Kent. September 11, 1915.

      Jlinter Wimberly, John S. Adams, Charles Aherman, for plaintiff in error,
    cited: On the contention that the plaintiff was not employed in interstate-commerce at the time of the injury: Illinois Central R. Co. v. Behrens, 233 U. S. 473 (34 Sup. Ct. 646, 58 L. ed. 1051, Ann. Cas. 1914C, 163). On assumption of risk: Seaboard Air-Line Ry. v. Horton, 233 U. S. 492 (34 Sup. Ct. 635, 58 L. ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475). As to writing off part of damages from verdict: Central Ry. Co. v. Perkerson, 112 Ga. 923 (4), 930 (38 S. E. 365, 53 L. R. A. 210); Seaboard Air-Line Ry. v. Randolph, 129 Ga. 796, 798 (59 S. E. 1110); S., F. & W. Ry. Co. v. Harper, 70 Ga. 119.

      Robert L. Berner, R. Bari Camp, Little, Powell, Smith & Gold-stein, contra,
    cited: Delk v. St. Louis & San Francisco R. Co., 220 U. S. 580 (31 Sup. Ct. 617, 55 L. ed. 590); Pedersen v. Delaware &c. R. Co., 229 U. S. 146 (33 Sup. Ct. 648, 57 L. ed. 1125, Ann. Cas. 1914C, 153); Armbuster v. Chicago &c. R. Co., 166 Iowa, 155 (147 N. W. 337); Eng v. Southern Pacific Co., 210 Fed. 92; Cousins v. Ill. Central R. Co., 126 Minn. 172 (148 N. W. 58); note in L. R. A. 1915C, 60.
   Luke, J.

Lucius Eobinson, an employee of the Macon, Dublin- & Savannah Eailroad Company, brought suit under the Federal “employer’s liability act,” alleging that while engaged as a switch-man he received an injury resulting in the loss of both legs, and that the injury was occasioned by the negligence of the company. The acts of negligence were fully pleaded. The defendant agreed in open court that “the Macon, Dublin & Savannah Eailroad Company, at the time that Lucius Eobinson was injured, was engaged in interstate commerce. That does not mean that this particular engine upon which it is alleged he was injured was at that time engaged in interstate commerce; but that shipments were made to and received from points out of the State of Georgia prior to the accident, at the time of the accident, and since the accident.” The trial resulted in a verdict for the plaintiff in the sum of $7,500. The defendant’s motion for a new trial was overruled, and to this judgment it excepted.

1. In. the motion for a new trial it is alleged that the verdict is contrary to law and without evidence to support it, “because plaintiff pleaded that he and defendant were engaged in interstate commerce at the time He was hurt, and the evidence shows that plaintiff was hurt on a switch-engine moving in the yards of the defendant and not engaged in interstate commerce.” In another ground of the motion the defendant assigns error because the court charged the jury that “the plaintiff can recover in this case even if you find from the evidence that he was guilty of contributory negligence and was more at fault than the defendant company, provided you find from the evidence that the defendant company was also negligent in one or more ways defined in the plaintiff’s petition;” the movant alleging that this charge was not applicable to the evidence, and that it assumed that the defendant was engaged in interstate commerce, whereas the evidence shows that the plaintiff was hurt while on an engine between two points in the same city and not carrying interstate traffic. The defendant admitted that it was a carrier engaged in interstate commerce at the time of the plaintiff’s injury, and the defendant’s engineer in charge of the engine testified that the switch-engine on-'which the plaintiff was working and by which he was injured had been engaged in switching cars and making up trains that were composed of foreign cars and interstate shipments, just, before the injury; that at the moment of the injury the engine and crew were on the way to -the water-tank to get water; that this water was necessary to create steam and power to run the engine with, and that it was necessary to have this water so as to be able to return to the work of switching both intrastate and interstate shipments, etc.

Ordinarily, in a suit by an injured employee against a railroad company, where he contends that his employer and himself were engaged in interstate commerce at the time of his injury, and the employer denies that they were engaged in interstate commerce, there being an issue of fact upon the question, upon which the jury would be authorized to find either way, according as they might credit the witness testifying, the court should leave that question to the jury; but where the facts are such^that they of themselves, under the rulings of the courts in the construction and application of the Federal “employer’s liability act,” remove the issue, the simple denial by the employer will not require the court to submit this issue to the jury.- In the case of Pedersen v. Delaware &c. Co., 229 U. S. 146, 151 (53 Sup. Ct. 648, 57 L. ed. 1125, Ann. Cas. 1914C, 153), Mr. Justice Yan Devanter, delivering the opinion for the court, said: “That the defendant was engaged in interstate commerce is conceded; and so we are only concerned with the nature of the work in which the plaintiff was employed at the time of his injury. Among the questions which naturally arise in this connection are thése: Was that work being done independently of the interstate commerce in which the defendant was engaged, or was it so closely connected therewith as to be a part of it? Was its performance a matter of indifference so far as that commerce was concerned, or was it in the nature of a duty resting upon the carrier? The answers are obvious. Tracks and bridges are as indispensable to interstate commerce by railroad as are engines and cars; and sound economic reasons unite with settled rules of law in demanding that all of these instrumentalities be kept in repair. The security, expedition, and efficiency of the commerce depend in large measure upon this being done. Indeed, the statute now before us proceeds upon the theory that the carrier is charged with the duty of exercising appropriate care to prevent or correct ‘any defect or insufficiency ... in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment,’ used in interstate commerce. But independently of the statute, we are of opinion that the work of keeping such instrumentalities in a proper state of repair while thus used is so closely related to such commerce as to be in practice and in legal contemplation a part of it. The contention to the contrary proceeds upon the assumption that interstate commerce by railroad can be separated into its several elements, and the nature of each determined regardless of its relation to others or to the business as a whole. But this is an erroneous assumption. The true test always is: Is the work in question a part of the interstate commerce in which the carrier is engaged? [Citing many cases.] Of course, we are not here concerned with the construction of tracks, bridges, engines, or cars which have not as yet become instrumentalities in such commerce, but only with the work of maintaining them in proper condition after they have become such instrumentalities and during their use as such. True, a track or bridge may be used in both interstate and intrastate commerce, but when it is so used it is none the less an instrumentality of the former; nor does its double use prevent the employment of those who are engaged in its repair or in keeping it in suitable condition for use from being an employment in interstate commerce.” See also Louisville & Nashville R. Co. v. Parker, 242 U. S. 13 (37 Sup. Ct. 4, 61 L. ed.) The getting of water by the engine was necessary to the use of the engine for the purpose 'of handling the interstate traffic of this defendant. The court did not err in holding that the case was governed by the Federal “employer’s liability act;” and consequently there is no merit in the above-quoted grounds of the motion for a new trial.

2. The exceptions to the ruling of the court in admitting in evidence the rule or order of the interstate-commerce commission, prescribing the manner of fastening sill-steps of locomotives used in switching, are without merit. From the plaintiff’s allegations and evidence it appeared that’the sill-step of the switch-engine, on which he was standing when he fell and received the injuries complained of, was not ” securely fastened, and turned, causing him to fall, and it was alleged that the railroad company was negligent in allowing the step to be in this condition, and in not having the engine equipped with a secure sill-step. In the motion for a new trial it is stated that the order referred to was not read to the jury or sent out with them.

3. In ground 30 of the amendment to the motion a new trial is sought upon the averment that “Since the rendition of said verdict, certain material evidence, not merely cumulative in its character, but relating to new material facts, has been discovered by this applicant, said evidence being in substance as follows: An order of the interstate-commerce commission, dated at Washington, D. C., March 31, 1911, extending the time within which carriers might comply with the standards prescribed in the order of the said commission introduced by the plaintiff.” The plaintiff was injured on October 23, 1911. The case was tried and judgment was rendered on July 31, 1915. This court can not say that the defendant has shown ordinary diligence in discovering the order which -it says is new to it. The rulings of the interstate-commerce commission are binding on the defendant, and a failure to know of a ruling .which the defendant, in its motion for a new trial, says was made nearly four years before tbe time of the trial, can not become a meritorious ground for a new trial upon the averment that the evidence is new.

4. The court having given in charge an incorrect measure of damages, as is complained of in grounds 16, 17, and 18 of the motion for a new trial, a new trial should have been granted. The evidence entitled the plaintiff to recover only, if at all, for the injury, pain, suffering, and decrease of earning capacity. Under the charge given, the jury would have been authorized to find an amount in favor of the plaintiff as if the evidence had shown a total loss of earning capacity. The court did not properly instruct as to the use of the mortality and annuity tables where there is proof of only decreased earning capacity.

5. On the day of hearing the motion for a new trial the plaintiff filed, in open court, the following motion: “Now comes the plaintiff in the above-stated case, and in view of the contention of the movant, that the charge of the court on the tables adduced by the plaintiff (mortality and annuity tables) was calculated to impress the jury with the idea that the plaintiff was entitled to recover for the total loss of earning capacity instead of for the loss of his diminished earnings, offers to and does write off of the verdict and judgment in said case the sum of $1,210.14, the same being the amount of the value of his earning capacity which survived his injury, under the evidence of the plaintiff, who testified -alone on that subject, and who testified on that point that he averaged only two days’ work in a week and made, he supposed, 75 cents a day,, and not over $1 a day. The above amount is reached on the ‘basis of $1 per day.” The court, upon that motion, entered the following order: “This action allowed and the verdict and judgment reduced in the above-stated amount. September 11, 1915.” The court, after hearing the motion for a new trial, entered the following order: “The plaintiff, through his counsel, having in open court written off from the verdict the sum of $1,210.14, the new trial is refused.” The error in the charge of the court can not •be cured by the plaintiff writing off a part of the verdict in this case. There is no way to compute accurately in money the harmful effect of the charge. The jury were instructed that they may or may not use the tables referred to in the charge. The jury may or may not-have used the tables. Neither the trial court nor this court can accurately compute separately the damages that the jury allowed for the injury, pain, suffering, and total loss of earning capacity.

The other assignments of error in the motion for a new trial are without merit. For the reasons, given the court erred in overruling the motion for new trial.

Judgment reversed.

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


author: Wade, C. J.

text:
    8219, 8220.
    SOUTHERN STATES PHOSPHATE & FERTILIZER COMPANY v. CLARK; and vice versa.

    1. Where the entry of service of a rule nisi issued on a petition to foreclose a mortgage on realty purports to be signed by one assuming to act as a deputy sheriff, and an affidavit of illegality is interposed to the levy of the execution issuing upon the rule absolute based upon such service, which alleges that the person purporting to act as a deputy sheriff was not in fact such an officer, and traverses his return, the sheriff and the person making the return as a deputy sheriff must both be made parties to the traverse; and where both are not made parties, there is no such attack upon the return as would justify, under the law, a judgment setting it aside, and on motion such a ground of illegality should be dismissed.
    (a) The sheriff and the sureties on his official bond are vitally interested in the question raised by a traverse to a return made by one purporting to act-as his deputy, and, in the absence of a proper traverse, to which not only the deputy sheriff making the return but also the sheriff himself is made a party, the return can not be brought into question.
    2. Where quarterly terms of the superior court in a particular county are provided for by law, and a-rule nisi on a petition to foreclose a mortgage on realty is granted at one term, and the first day "of the next regular succeeding term will occur within less than three months after the grant of the'rule nisi, it should be made returnable to the first- term thereafter for which lawful service can be had, or the next term but one.
    Decided February 16, 1917.
    Affidavit of illegality; from Laurens superior court—Judge Kent. October 26, 1915.

      Ira 8. Chappell, for plaintiff. J. 8. Adams, for defendant.
   Wade, C. J.

The act creating the Dublin judicial circuit (Acts of 1911, p. 81) provides that superior courts shall be held in the county of Laurens on the “4th Mondays in January, two weeks; 4th Mondays in April, two weeks; 4th Mondays in July, two weeks; 4th Mondays in October, two weeks.” As appears from the agreed statement of facts in the bill of exceptions, the Southern States Phosphate & Fertilizer Company-filed at the January-term, 1914, of Laurens superior court, its petition to foreclose a mortgage against Mrs. Essie Clark on certain realty therein described. The petition was filed on January 38, 1914, and on the same day a rule nisi was signed and issued by the presiding judge, which required the defendant to pay into court the principal, interest, etc., by the first day of the July term, 1914, of said court, or to show cause, etc., why the same should not be done. This petition and rule nisi were served personally on Mrs. Essie Clark on January 39, 1914, the entry of service thereon being as follows: “Georgia, Laurens county. I have this day served a copy of within petition and nisi personally on Mrs. Essie Clark. This January 39, 1914, J. W. Gouey, deputy sheriff.” It is further recited in the bill of exceptions that a rule absolute was granted on August 8, 1914, during the regular July term of Laurens superior court, and on September 11, 1914, a mortgage fi. fa. was issued thereon by the clerk of said court, which was duly levied by the sheriff of Laurens county on June 7, 1915. From the record it appears that an affidavit of illegality was filed by the defendant on June 17, 1915, upon the following grounds: (1) That she “was never served with any process, nisi, or copy of nisi, or notice of the pendency of the suit whereon said execution is based, nor did she waive service, nor did she appear in or defend said suit;” (3) “the said execution issued illegally and is proceeding illegally for the reason the petition asking that the mortgage be foreclosed was filed at the January term, 1914, of Laurens superior court, and the rule nisi calling upon the defendants to pay said money into court was returnable to the July term, 1914, of Laurens superior court, whereas under the law the petition asking for the foreclosure, having been filed at the regular January term, 1914, of the superior court, should have been returned to the next term of Laurens superior court, and the next term of Laurens superior court after said petition was filed and after said, rule nisi issued was the April term, 1914, of Laurens superior court, and said nisi calling upon the defendant to pay into court on the first day thereof at the April term, 1914, of Laurens superior court, whereas it called upon the defendant to pay into court on the first day thereof of the July term, 1914;” and (3) because “said execution issued illegally and is proceeding by levy upon deponent’s property illegally, for the reason the superior court of Laurens county as is at present constituted has no jurisdiction or power to foreclose a mortgage in the statutory form and in the manner and method in which the plaintiff undertook to foreclose its mortgage, ■ for the reason there are four terms of Laurens superior court, convening every three months, and it is impossible to comply with the law with reference to the foreclosure of mortgages, for the reason that the law prescribes that the rule nisi shall be personally served upon the defendant at least three months before the next term of the court after which the same is' filed or served by publication once a month for four months, and consequently there can be no service by either of the methods pointed out by law, for the reason that three full months did not intervene between either of the said courts, unless the court should adjourn on the first day, which it did not do at the January or July term, 1914.” The affidavit of illegality further stated that the entry of the sheriff showed that the defendant had been served on January 29, 1914, and this entry she traversed and declared to be untrue, but asserted (in the 5th ground) that if the entry was correct, the execution was proceeding illegally and issued illegally because “the April term of Laurens superior court, 1914, convened on the 27th day of April, 1914, less than three months from the time of the illegal service upon her of the rule nisi in said case, and the said April term is the [term of] court referred to in section 3276 of the Civil Code of 1910 as the one at which the money is directed to be paid by the defendant ‘on or before the first day of the next term immediately succeeding the one at which such rule is granted;’ and said rule having been granted at the January term, the next court'immediately succeeding was the April term, and the. service perfected upon her, if it was a service, was less than three months prior to the convening of the said April term.” The defendant further alleged that she did not owe the debt secured by the mortgage upon which the rule absolute issued, and that her traverse to the entry of the officer on the original petition and rule nisi was made at the first term after her attention was directed thereto, and since she had acquired knowledge either that, the said entry appeared or that a rule absolute had been secured.

On October 26, 1915, an amendment to the original affidavit of illegality was offered by the defendant and allowed by the court. This amendment set up that the defendant had never been legally served with the rule to foreclose the mortgage, for the reason that J. W. Couey, who purported to sign the entry of service as deputy sheriff of Laurens county, was not in fact an officer of the county of Laurens, authorized under the law to serve the same, and that the said process had never been served upon her by the sheriff of Laurens county, or by any legally authorized deputy of Laurens county, who had authority to serve the same; that the entry on the original rule to foreclose the mortgage showed “that it was served by J. W. Couey, deputy sheriff, and that at the time she filed her original affidavit she jdid not know that J. W. Couey was not a deputy sheriff authorized by law to serve processes, and for that reason she did not make the charge in her original affidavit, but that knowledge of the fact that he was not an authorized officer to serve the process came to her knowledge only to-day, and consequently she did not omit the facts set forth in this amendment for delay, nor does she now offer said amendment for delay,” but that “she could not have ascertained at the time she filed her original affidavit of illegality that the said Couey was not an officer authorized by law to serve the said process, but took it for granted that his entry of service, in which it was stated that he served it as deputy sheriff, was correct, until she ascertained to the contrary as aforesaid.” The agreed statement of facts in the bill of exceptions further recites: “that the said J. W. Couey was a regularly appointed and sworn bailiff, serving at the January term, 1914, of Laurens superior court, and at the time of said service said court was'in session; that said bailiff, J. W. Couey, was specially directed by J. J. Flanders, the regular sheriff of Laurens county, to serve this particular process on Mrs. Essie Clark.”

Counsel for the plaintiff moved to dismiss the affidavit of illegality, upon the ground that while the entry of the officer maldng the return of service had been traversed, neither the officer making the return nor the sheriff under whom he was acting had been made a party to the case. The court overruled this motion and refused to strike the affidavit of illegality upon this ground, and to this ruling the plaintiff excepted. The court then rendered judgment sustaining the affidavit of illegality on the ground that the officer making the return of service was a common bailiff of the court, and not a sheriff or sheriff’s deputy, and was without authority to serve the said process; and to this ruling the plaintiff excepted. The court further rendered judgment against the affidavit of illegality so far as related to the grounds therein stated that there could be no legal foreclosure of a mortgage on realty in a court having four terms a year, as in the superior court of Laurens county. The plaintiff thereupon brought the case to this court; and the defendant filed a cross-bill of exceptions, assigning error on the refusal of the court to sustain her affidavit of illegality for the reasons set out in the 2d, 3d, and 5th grounds thereof.

1. Where service of process is effected or a levy is made by one who assumes to act as an officer having authority to make such service or levy, the service or levy is good even though the appointment or qualification of the person purporting to act as such officer be irregular; since his acts would be those of a de facto officer. Twiggs v. Hardwick, 61 Ga. 272; Hinton v. Lindsay, 20 Ga. 746 (3, 4); Gunn v. Tackett, 67 Ga. 725; Oliver v. Warren, 124 Ga. 549, 550 (53 S. E. 100, 4 L. R. A. (N. S.) 1020, 110 Am. St. E. 188). It is quite different, of course, where the person purporting to act as an officer does not assume to act as the particular officer having authority in the particular case. Hartshorn v. Bank of Gough, 15 Ga. App. 167, 171 (82 S. E. 805). The return of one purporting to act as an officer having authority to-execute the particular process or do the particular thing stated in the return is prima facie presumed to have been made by authority, and when the record shows a valid return of service and it becomes necessary to resort to extrinsic testimony to show that there has been no service, or that the service was for any reason invalid, the return must be duly traversed; and where made by a deputy sheriff, "both the sheriff and the deputy sheriff must be made parties to the traverse.” Bell v. N. O. &c. R. Co., 2 Ga. App. 812, 816 (59 S. E. 102). "The rule that the officer making the return is a necessary party to the traverse has been announced in many cases by our Supreme Court, and also in several cases by this court. In O’Bryan v. Calhoun, 68 Ga. 215, it is said that where there is a return by the officer, ‘if1 the defendant intends to attack the verity of such return, he must take steps by filing a traverse thereto and by order to make the sheriff a party;’ and the court assigns as a reason therefor that the sheriff and his securities on his official bond have a valid interest in the question raised by the traverse to his return, and should have an. opportunity to be heard on the issue so made by the defendant. In Southern Express Co. v. National Bank of Tifton, 4 Ga. App. 399 (61 S. E. 857), it is said that where the return of the officer shows legal service, it can only be attacked by a traverse filed thereto, ‘to which the officer making the entry is a necessary party.’ In O’Connell v. Friedman, 118 Ga. 83 (45 S. E. 668), there was in the traverse no ' prayer that the officer making the entry should be made a party, and the record did not disclose that he was given any notice of the filing of the traverse; and the Supreme Court held that ‘there was therefore no error in striking the traverse.’ In Southern Railway Co. v. Gook, 106 Ga. 453 (33 S. E. 585), it was said: ‘Another ground of the motion complained of the court’s disallowing a traverse of the entry of service, which had been filed by the defendant. It does not appear from the record that the sheriff who made the entry was made a party tó this traverse or that any notice of its filing was given him. This alone was a sufficient reason for disallowing the traverse.’ In Elder v. Cozart, 59 Ga. 202, it was said: ‘It has been repeatedly ruled that the return of the sheriff is conclusive, unless traversed, and that the sheriff should be a party to the traverse, and that it must be made at the next term after notice of the entry.’ In Sanford v. Bates, 99 Ga. 145 (25 S. E. 35), it was held that the truth of ,the return of service entered upon a declaration by a sheriff ‘can not be called in question without traversing the return, and malcing the officer a party to the traverse. ... In the absence of such traverse the entry of the service is conclusive.’ ” Georgia Ry. & Power Co. v. Davis, 14 Ga. App. 790, 793, 794 (83 S. E. 387). Quoting further from the decision in the same case this court said, that “where the officer making the return is not made a party to the traverse thereof, there is no such attack made upon the return as would justify, under the law, a judgment setting it aside;’’ and further that “The statute providing for attack by traverse on an entry of service by an officer, being in derogation of the common law, as stated above, must be strictly construed, and since our Supreme Court has repeatedly declared that in order to make such a traverse good, the officer must be made a party, or otherwise the return (if valid and sufficient on its face) is conclusive, it follows that where such legal traverse is not made, the return stands as if no attack thereon was attempted, conclusive on the parties, since nothing could be done on an insufficient traverse to bring the verity of the officer’s return in question or to destroy its vital force and effect.” In Rawlings v. Brown, 15 Ga. App. 162 (82 S. E. 803), this court again held: “Where an entry of service purports to have been made by a deputy sheriff, the sheriff, as well as the deputy sheriff, should be made a party to the traverse;” and in Producers Naval Stores Co. v. Brewton; 19 Ga. App. 19 (90 S. E. 735), it was held that “When the sheriff is not made a party, as well as the deputy who made the return, ‘there is no such attack made upon the return as would justify, under the law, a judgment setting it aside.’” See also Wilkes v. Branch, 18 Ga. App. 780 (90 S. E. 722); Lamb v. Lozier, 55 Ga. 677; Sindall v. Thacker, 56 Ga. 52; Sanford v. Bates, 99 Ga. 145 (25 S. E. 35). As was held in O’Connell v. Friedman, 118 Ga. 831 (45 S. E. 668), where there is in the traverse to the return of an officer, which appears valid on its face, no prayer that the officer making the entry be made a party, and the record fails-to disclose that he was given any notice of the filing of the traverse, there is no error in striking the traverse.

In this case it does not appear from the record that either the sheriff or his deputy was in any way notified of the pendency of the traverse to the return of service. It is true that in the agreed statement of facts incorporated in the bill of exceptions it is recited that J. W. Couey, who signed the return as a deputy sheriff, was not in fact such a deputy, but was a bailiff appointed during the term of the court, and specially directed by the sheriff to serve this particular paper on the defendant Mrs. Essie Clark; but no statement of facts agreed to by the plaintiff and the defendant in the lower court could possibly affect the rights or liabilities of' the sheriff or his deputy, and consequently the recitals in the bill of exceptions could not supply the omission to make the sheriff and his deputy parties to the traverse. Section 5566 of the Civil Code provides that “The entry of the sheriff or any officer of the court, or his deputy, may be traversed by the defendant at the first term after notice of such entry is had by him, and before pleading to the merits; but this shall not deprive the defendant of his right of action against the sheriff for a false returnIn O'Bryan v. Calhoun, supra, the Supreme Court, in holding that where there is no return by an officer, “if the defendant intends to attack the verity of such return, he must take steps by filing a traverse thereto and by order to make the sheriff a party,” assigns as a reason for this ruling that the sheriff and the sureties on his official bond have a vital interest in the question raised by the traverse to his return, and should have an opportunity to be heard on the issues so made by the defendant. It is true that the plaintiff and the defendant agreed that the return of service purporting to have been .made by J. W. Couey, as a deputy sheriff of Laurens county, was not in fact made by a deputy sheriff, and that Couey had no authority to act as a deputy sheriff, but to this agreement neither the sheriff nor Couey, who purported to act as his deputy, is a party. It is clear, therefore, that upon motion the court should have stricken from the affidavit of illegality interposed the grounds setting up a lack of service, and the traverse to the return of the officer, which was valid on its face, no steps being taken or attempted to make the sheriff, or the officer making the return as his deputy, a party-to the proceeding; for since the duty devolved upon the sheriff to serve the process himself, or have it properly served by some other officer having authority to effect legal service thereon, opportunity should have been afforded him, as a party interested, to defend his official acts, and to be heard on the question whether the person shown by the record to have been specially selected by him to serve this -particular process and who had actually served it was competent to perform this duty; for if the sheriff selected “an incompetent person to perform this service, he thereby incurred liability in the event loss was occasioned to the plaintiff; and if, on the other hand, the person selected by him to discharge for him this particular duty was legally competent to act, n^ such liability arose.

■ It is therefore unnecessary, in order to determine the question raised by the main bill of exceptions, that we decide whether or not a bailiff appointed to serve the court during its session and sworn to take all'juries committed to his charge during the term to the jury-room or some other private and convenient place, etc., and to “discharge all other duties which may devolve upon” him as a bailiff, to the best of his skill and knowledge (Civil Code, § 4900), is or is not an officer who, during the term of .the court at which he was appointed to act, might, by direction of the sheriff, serve processes of the court, or serve the particular process upon which judgment was rendered in this case. Nor is it necessary to determine whether or not a sheriff might, by requesting such a bailiff to serve a particular process, thus appoint a deputy sheriff by parol (Matthis v. Pollard, 3 Ga. 1), notwithstanding he could not legally appoint a bailiff to perform the general business of his office. McGuffle v. State, 17 Ga. 497, 498. The court therefore erred, as stated above, in declining to strike the particular ground of the affidavit of illegality based upon the failure of the defendant to make the sheriff and his deputy parties to the proceedings, and in thereafter sustaining the affidavit of illegality upon the ground that the service was made by one without authority, since the sole issue upon which the court sustained the affidavit of illegality had not been brought before the court for consideration in the only manner provided by law.

. 2. Section 3276 of the Civil Code of 1910, which provides how mortgages may be foreclosed on realty, says that the person applying and entitled to foreclose sueh a mortgage “shall, by himself or his attorney, petition to the superior court of the county wherein the mortgaged property may be, which petition shall contain a statement of the case, the amount of the petitioner’s demand, and shall grant a rule directing the principal, interest, and costs to be a description of the property mortgaged; whereupon the court paid into court on or before the first day of the next term immediately succeeding the one at which such rule is granted; which rule shall be published once a month for four months, or served on the mortgagor, or his special agent or attorney, at least three months previous to the time at which the money is directed to be paid into court, as aforesaid.” It is obvious, where quarterly terms of the superior court are held, that when a rule is applied for and obtained during one term of the e<Jiirt, “directing the principal, interest, and costs to be paid into court on or before the first day of the next term immediately succeeding the one at which such rule is granted,” the rule could not be published in time for the next succeeding term, and generally it would be impossible to serve the mortgagor or his attorney “at least three months previous to the time [on or before the first day of the next term] at which the money is directed to be paid into court.” The service required must be either personal or by publication. Leaving a copy at the defendant’s residence will not suffice (Dykes v. McClung, 74 Ga. 383; Meeks v. Johnson, 75 Ga. 639, 630); nor will service by an unofficial person be legal. Falvey v. Jones, 80 Ga. 130 (4 S. E. 264).

Quarterly terms being provided for in the act creating the Dublin judicial circuit (Acts of 1911, p. 81), it is apparent that if section 3376 be construed in connection therewith, in accordance with the contention of counsel for the defendant, who is the plaintiff in error in the cross-bill of exceptions, the effect would be to repeal section 3376 of the Civil Code, so far as the statutory foreclosure of mortgages on realty in the county of Laurens was originally authorized thereunder, since it would be absolutely impossible ever to put into effect the provision of section 3376 authorizing service by publication for four months, and it would be practically impossible (except in very rare instances) to effect service of process issued under the provisions of that section three months before the first day of the next term immediately succeeding the term at which the rule nisi was granted. In the act of 1911 which created the Dublin judicial circuit there is nothing that even tends to suggest an intention on the part of the legislature to repeal any of the provisions of section 3376; and without considering whether such a general law as is embodied in that section coukl properly be repealed by an act having a local application only, it may be said that “Repeals by implication . . are not favored; and it is only in so far as a statute is clearly repugnant to a former statute, and so irreconcilably inconsistent with it that the two can not stand together, or is manifestly intended to cover the subject-matter of the former and operate as a substitute for it, that such a repeal will be held to result. The intention to repeal must be plain and unmistakable.” Johnson v. Southern Mutual B. & L. Asso., 97 Ga. 633, 633, 634 (35 S. E. 358). According to a familiar rule, where-two constructions are possible, the courts will generally so construe an act of the legislature as to give it a reasonable intendment. There was obviously no purpose on the part of the legislature to deny to the superior court of Laurens county the power to foreclose mortgages o,n realty by the statutory proceedings authorized or allowable in counties where the terms of the superior court were originally or are now held six months apart, instead of only three months apart. It appears from the agreed statement of facts in this case', and from the contentions of the defendant in her affidavit of illegality in the lower court, that the rule issued at the January term of Laurens superior court, 1914, and she was served on the 29th day of the same month. The rule in fact required the defendant to answer at the July term, 1914, but had the rule required her to answer at the next term of the court immediately succeeding the term at which the rule was granted, she would have been required thereby to answer at the April term, 1914, of the court which convened on the fourth Monday in April, or, as set forth in the affidavit of illegality, on the 27th day of April, 1914, less than three months from fhe, date when the rule was issued (January 28) or served (January 29). The law does not generally require the doing of an impossible thing, and no statute should be construed as making such a requirement, unless its terms do not admit of any other interpretation.

In Vaughn v. Farmers & Merchants Bank, 145 Ga. 338 (89 S. E. 195), it was held that “Where a rule nisi upon a petition to foreclose a mortgage upon realty was issued at the January term, 1915, of the superior court, and more than three months before the next term of the court, which convened on April 12, 1915, and at the latter term the mortgagor was required to pay the money into court, and personal service of the rule nisi was effected prior to the term at which the payment was required to be made, but too late to be due service to that term, it would go over and become returnable to the next succeeding term.” See also Ray v. Atlanta Banking Co., 110 Ga. 305 (35 S. E. 117). Since in that case the rule nisi was issued more than three months before the first day of the next term of the court, it is plain that if personal service had been promptly effected more than three months before the term at which the mortgagor was required to pay the money into court, the rule would have been returnable to the said next succeeding term, and a rule absolute could properly have been granted. The court held, however, that as it appeared that service was not effected more than three months before the next succeeding term after issuance of the rule nisi, though personal service was in fact had before that term, the case went over and became returnable to the next succeeding term. The ruling in that case, as well as the ruling in the Bay ease, supra, upon which it was based, is put upon section 5570 of the Civil Code of 1910. Applying this ruling, it would appear in the case under consideration that if the plaintiff had sought and obtained the rule nisi on a day during the January term, 1914, of Laurens superior court, which was in fact more than three months prior to the first day of the April term immediately succeeding that January term, the rule could (and perhaps should) have been made returnable to the April term; and if service was not thereafter effected at least three months before the first day of the said April term, then the case, under the holding in' the Vaughn case, supra, .would have gone over to the July term, 1914. However, as less than three months intervened between the granting of the rule nisi (January 28) and the day which was by law the first day of the next succeeding term of Laurens superior court (April 27), it would have been futile to take a rule nisi directing the defendant to appear at the April term, 1914, when neither by publication nor by personal service could she be lawfully notified of the pendency of the proceeding a sufficient length of time before the arrival of the term at which she would have been thereby directed to make payment or show cause why she should not do so.

We hold, therefore, that where the next term immediately succeeding the term of the superior court at which a rule nisi to foreclose a mortgage on realty is applied for will not regularly begin on a day more than three months from the date when the rule nisi is obtained, it is proper, in counties where quarterly sessions of the superior courts are provided for by law, that the rule should be made returnable to the second term thereafter, which in contemplation of the statute must be held to be “the next term immediately succeeding the one at which such rule is granted,” as being the “next” term at which it is legally possible to require the defendant to appear and answer. Certainly it is the first term at which the defendant could be required to answer in response to notice served upon him by publication four months, or personally at least three months, in advance of the term. Where, on the other hand, the first day of the next term immediately succeeding the term at which the rule nisi is granted is more than three months later than the day-on which such rule is granted, the rule should be made returnable to such next succeeding term, and, as said above, if not served in time for that term, the cause can be carried over to the next term thereafter. This is the only reasonable construction that can be given to section 3376, when considered in connection with the act of 1911, providing for quarterly terms of Laurens superior court. We hold, therefore, that the trial judge did not err in overruling grounds 3, 3, and 5 of the affidavit of illegality.

Judgment reversed on the main bill of exceptions, and affirmed on the cross-bill.

George and Lulce, JJ., concur.