text:
    10069.
    West, administratrix, v. Hill & Adams.
   Jenkins, J.

1. “Where attorneys retain in their hands the money of their clients after it has been demanded, they are liable to rule (and otherwise) as sheriffs are, and incur the same penalties and consequences.” Civil Code (1910), § 4954. The judge having jurisdiction of the application may grant a rule nisi thereon against the attorney subject thereto (Civil Code, § 5346) ; and upon such rule nisi being granted, the attorney should respond in writing under oath, and if such answer is not denied the rule will be discharged or made absolute according as the court may deem the answer sufficient or not; but if the truth of such answer be traversed by the movant of the rule, the issue thus made should be tried by a jury. Civil Code (1910), § 5347.

Decided April 19, 1919.

Rule; from Fulton superior court—Judge Ellis. July 24, 1918.

Mary Lou West, administratrix of the estate of J. Oscar West, employed Hill and Adams, as attorneys at law, to collect from the Southern Railway Company a claim for damages on account of the death of J. Oscar West, and signed a paper giving them authority for that purpose, a part of which is as follows: "Therefore you are directed to collect damages or any amount of money to which I am entitled as administratrix. . , either by suit or settlement, and in consideration of such services I hereby agree to pay the said Hill and Adams ten per cent, of all money collected or recovered in case of settlement without litigation after suit is filed, if litigated 25 per cent., as the case may be. The eventual and final disposition of the said business to be in accordance with the better judgment of my said attorney and with my approval.” Suit was accordingly brought by these attorneys, and on June 19, 1918/ they settled the case-for $7,500, the railway company paying them that amount in settlement. In her petition to the superior court for a rule against them,- the plaintiff sets out these facts, with a copy of the paper mentioned above, and alleges: Said Hill and Adams still have said sum of $7,500 in their possession. On June 20, 1918, petitioner made a demand on them for payment' of $6,750, being the amount collected by them less 10 per cent, to which they were entitled as a fee under their contract for services; but they refused and still refuse to pay said sum. On June 20, 1918, they mailed to her a cheek for $5,650, with a letter stating that this was her part of the money received in the settlement of the case. The petitioner alleges that under the terms of the said contract the said attorneys were to have received 10 per cent, of the sum realized from the-suit by settlement, but they withheld 25 per cent, of that sum. She has not cashed the said check, because it is marked in settlement of the case. She prays that a rule be issued requiring the said attorneys to show cause why they should not pay over the money, or in default thereof be attached for contempt.

2. Such summary remedy to enforce the paying over of money belonging to a client, wrongfully withheld by his attorney, is penal in its nature (Haygood v. Haden, 119 Ga. 463, 46 S. E. 625), and is not intended to be employed where under all the proper pleadings the question at issue is not the dereliction of the attorney in wrongfully ■ withholding funds belonging to his client, but where the issue lies wholly in the proper construction of an admitted' contract, under the terms of which the defendant might apparently have a valid and just claim to the funds sought to be recovered. 6 C. J. 711, §§ 264, 270; State of Texas v. White, 10 Wall. 483 (19 L. ed. 992). The rule is otherwise where an attorney seeks, in opposition to the explicit terms of his agreement, to withhold a sum not authorized thereby (Alfred Struck Co. v. Slicer, 23 Ga. App. 52 (97 S. E. 455), or where in withholding funds belonging to his client he acts merely upon his own honest misapprehension of the facts. Hawkins v. Smith, 56 Ga. 571 (2).

3. The court did not err in refusing to allow the movant to amend her . petition, since by the proposed amendment she sought to add to or vary by parol the terms of the unambiguous written contract, under which the respondent claimed the funds in question.

4. Since, under all the pleadings entered undei\ the rule, including the traverse to the respondent’s answer, there was no issue for determination by a jury by virtue of which the respondent could be held liable under the rule, unless the Court should construe the contract adversely to the reasonable contention relied upon by the attorney, the court did not err in dismissing such quasi-penal proceeding “without prejudice to the right of movant to sue and adjudicate the questions at issue in any court having jhrisdiction thereof.”

Judgment affirmed.

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

In their answers to the rule the respondents say that the case was litigated, and that under the contract referred to in the petition they are- entitled to 25 per cent, of the $7,500 collected in the settlement; that immediately after they had filed the suit they made an effort to settle the claim but could not procure a satisfactory settlement, and the railway company filed a demurrer and an answer to the suit, that to meet the demurrer they prepared and served an amendment .to the plaintiff’s petition, and the railway company amended its answer; that witnesses for the plaintiff were subpoenaed to attend the trial of the ease, and testimony of nonresident witnesses was taken for the plaintiff, the said Adams going to Birmingham, Alabama, for that purpose, and that the settlement was made after the case had thus become a litigated case and had been on the trial calendar of the court for several weeks. The respondents demurred generally and specially to the petition for the rule, and contended, among other things, that on a petition for a rule the court was without jurisdiction to construe a contract; that while this is a proper remedy to force an attorney to pay over money belonging to a client, it cannot be employed in an effort to collect a contested claim.

An amendment to the petition for the rule was offered, in which it was alleged: that the contract referred to in the petition was prepared by the respondents, and they stated to the petitioner, when she inquired as to what meaning would be put on the word “litigation” therein, that it meant trial, and that the meaning of the contract was that their fees in the case would be 10 per cent, of the amount received by settlement if the case was settled before trial; that being thus assured as to the meaning of the contract, she signed it with this understanding; and that afterwards interrogatories were prepared and evidence was taken, the expense of which she. paid upon the express construction placed on the contract, and upon the consideration, and the statement of the respondents, that she would not be required to pay more than 10 per cent, of the amount received if the case was settled before a trial was had before a jury. The amendment was disallowed.

The plaintiff filed a traverse to the answers, and while admitting therein that the case was settled after suit was filed, she denied that the ease was litigated. The court refused to submit the case to a jury, and sustained the demurrer to the answers, and ordered that the rule be discharged “without prejudice to the right of the movant to sue and adjudicate the questions at issue in any court. having jurisdiction thereof.” The plaintiff excepted to each of the rulings stated.

George F. Gober, D. K. Johnsion, for plaintiff.

C. T., L. C. & J. L. Hopkins, for defendants.


source: Caselaw Access Project

author: Wade, C. J.

license: Public Domain

text:
      10071.

    Young v. Standard Lumber Company.
    Decided April 19, 1919.
   Wade, C. J.

1. “Where an order for the purchase of goods is signed by the contemplating purchaser, and contains certain stipulations intended to become binding upon the purchaser, but makfes express provision that it is given subject to approval by the person to whom addressed, the order does not become binding as a contract until approved and accepted by the contemplated vendor.” Howell v. Maine, 127 Ga. 574 (50 S. E. 771).-

2. No error of law is complained of; and since, under the evidence submitted on the trial, a verdict could- have been rendered for either the defendant or the plaintiff, the finding of the jury in favor of the latter, which has the approval of the trial judge, cannot be controlled.

Judgment affirmed.

Jenkins and Luke, JJ., concur.

Complaint; from Barrow superior court—Judge Cobb. July 30, 1918.

K. Carpenter, P. Cooley, for plaintiff in error.

C. A. Johns, contra.


author: Jenkins, J.

text:
    10078.
    Young v. Holsenbeck, executor.
    Decided April 19, 1919.
    Complaint; from Barrow superior court—Judge Cobb. July 30, 1918.

      G. A. Johns, for plaintiff. Lewis C. Russell, for defendant.
   Jenkins, J.

To a suit on a promissory note the maker pleaded material alterations such as would work his discharge. While he did not profess to have a clear and distinct recollection as to what was the form of the note when signed by him eight years previously, he did swear that he did not think that the alleged material addition in question was embraced in the note at that time; and as this evidence was to some extent corroborated by his testimony that the alleged material alteration was contrary to the distinct understanding then had as to the terms of the agreement, and also by evidence of other parties relative to the physical appearance of the instrument, the verdict in his favor, which has the approval of the trial judge, will not be disturbed. Atlanta National Bank v. Bateman, 21 Ga. App. 624 (2) (94 S. E. 853).

Judgment affirmed.

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


author: Luke, J.

text:
    10085.
    Smith & Hollis v. Youngblood.
   Luke, J.

1. A landlord’s rent lien on crops raised on the rented premises is in the nature of purchase-money, and is superior to a homestead exemption set apart out of the crops. See Shirling v. Kennon, 119 Ga. 501 (46 S. E. 630), and cases there cited.

(а) In order, however, to effect a valid levy upon such crops under an ordinary‘distress warrant, it is essential that it first appear that the crops were raised on the premises, and that the affidavit provided for in Civil Code (1910)) § 3400, be of file. See Davis v. Jones, 95 Ga. 788-790 (23 S. E. 59).

(б) The failure to file such an affidavit is not -cured by filing it after the levy and interposition of a claim to the property. See Brantley v. Stephens, 77 Ga. 467. ‘

2. It was not shown by the affidavit to foreclose, or the warrant issued thereon, or the levy, that the levy was upon crops grown on the rented premises. In fact a part of the property described in the levy was “one white horse mule, smooth mouthed.” To affirm the judgment dismissing the levy in this case does not conflict with McDaniel v. West berry, 74 Ga. 380; McLaws v. Moore, 83 Ga. 177 (2-b) (9 S. E. 615), Perdue v. Fraley, 92 Ga. 780 (19 S. E. 40), or Davis v. Taylor, 103 Ga. 366 (30 S. E. 50). The court in dismissing the levy did not err for any reason assigned.

Decided April 19, 1919.

. Levy and claim; from Taylor superior court—Judge Howard.’ April 1, 1918.

C. W. Foy, for plaintiff.

C. B. Marshall, Jere M. Moore, contra.

Judgment affirmed.

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


text:
    10208.
    Five Minute Vulcanizer and Auto Supply Company v. Fleming et al.

    Decided April 19, 1919.
    Rehearing Denied May 13, 1919.
    Certiorari; from Fulton superior court—Judge Ellis. October 31, 1918.

      Walter S. Dillon, C. M. Lancaster, for plaintiff.

      A. E. Wilson, R. W. Crenshaw, for defendants.
   Jenkins, J.

1. “There must be a time averred in the writ, showing when every material or traversable fact transpires.” Thus, a demurrer, or a motion to dismiss in the nature of a demurrer, attacking a plea wherein it is sought to set up damages by reason of the breach of a contract, 'upon the ground that no time was stated when the alleged breach occurred, was properly sustained. Warren v. Powell, 122 Ga. 4 (49 S. E. 730); Cagle v. Sheppard, 1 Ga. App. 192 (57 S. E. 946) ; Mandeville Mills v. Dale, 2 Ga. App. 607 (3) (58 S. E. 1060) ; Anthony v. Dudley Sash, Door & Lumber Co., 21 Ga. App. 412, 414 (94 S. E. 634.

2. The date when the alleged breach of the contract by the plaintiff occurred was a material fact in this case, since the defendants admitted .that they had received from the plaintiff, under the contract, the amount of goods stated in the petition; and had the date been alleged, the plaintiff might have been enabled to show that at that time the, defendants had already breached the contract by a failure to pay for the goods thus delivered; and in such event the defendants would not.be entitled to recover damages from the plaintiff for a subsequent failure upon its part to comply with the contract. Branch v. Palmer, 65 Ga. 210; Savannah Ice Co. v. American Transit Co., 110 Ga. 142 (35 S. E. 280).

3. The defendants having failed to cure by an amendment the defect 'in their plea, in accordance with the order of the judge of the municipal Court, the judge did not err in dismissing the plea, and in thereafter directing a verdict for the plaintiff; and the judgment of the superior court sustaining the certiorari was therefore erroneous. This ruling being controlling, the remaining assignments of error need not be passed upon. ’ .

Judgment reversed.

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


text:
    10209.
    Jackson v. Campbell.
    Decided April 19, 1919.
    Certiorari; from Fulton superior court—Judge Pendleton. October 31, 1918.

      R. R. Jackson, for plaintiff. W. O. Wilson, contra.
   Luke, J.

1. When money is paid into court by a garnishee with an answer of indebtedness, he may be discharged if there be no traverse to his answer.

(a) A claim to such money may be filed by anyone who claims it, and the the question of title is disposed of under the rules which govern the trial of ordinary claim cases.

2. Upon the admissions of the plaintiff as shown by the answer of the trial judge whose judgment is complained of in the petition for certiorari, and the other facts appearing in the record, the judge of the superior court did not err in overruling the certiorari.

Judgment affirmed,

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


text:
    10210.
    Masters v. Southern Express Company.
    Decided April 19, 1919.
    Certiorari; from Fulton superior court—Judge Pendleton. October 29,1918.

      R. R. Jackson, for plaintiff.

      Robert C. & Philip H. Alston, Herman E. Riddell, for defendant.
   Luke, J.

1. The writ of certiorari lies for the correction of errors committed by the trial court. Accordingly, the writ may not for the first time raise a point which should have been raised before the trial court, and on which that court should- have been given an opportunity to rule at the time of trial.

2. Upon the petition for certiorari and the answer thereto no error in the trial of the case is shown. The judge of the superior court did not err in overruling the certiorari.

Judgment affirmed.

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


text:
    10211.
    Blackstock v. Jefferson Insurance Agency.
   Jenkins, J.

This was a suit upon a promissory note given by the defendant to the plaintiff in payment of a premium upon a fire-insurance policy issued to the defendant and another upon certain buildings and live stock. The defendant admitted signing the note, and that the plaintiff was the legal holder thereof, but denied liability thereon, alleging, that the note was without consideration, for the reason that the insurance policy contained the following provision: “The entire policy, unless otherwise provided hy agreement endorsed hereon or added to, shall be void. . . if the interest of the insured be other than unconditional and sole ownership, or if the subject of insurance be a building on ground not owned by the insured in fee simple;" that the title to the property covered by the policy, and the land upon which the buildings were situated, was not in the defendant; and that, by reason of this provision in the policy, he could not have collected anything thereon had the buildings or live stock been destroyed. The only portion of the policy of insurance appearing in the record is the provision quoted from. While there was no proof that the policy was fraudulently procured by virtue of false representations made by the insured, such as might prevent him from setting up such a defense, the undisputed evidence shows that the agent knew at the time the policy was issued the real facts as to ownership. Held: While ordinarily a policy of fire insurance, containing such a provision as the one above quoted, is void if the insured be not the.sole and unconditional owner of the property covered by the policy, together with the land upon which the buildings a;re situated (Phœnix Insurance Co. v. Asberry, 95 Ga. 792 (22 S. E. 717); Orient Insurance Co. v. Williamson, 98 Ga. 464 (25 S. E. 560); Williamson v. Orient Insurance Co., 100 Ga. 791 (28 S. E. 914); Palatine Insurance Co. v. Dickenson, 116 Ga. 794 ( 43 S. E. 52) ), still, even though the insured be not such sole owner, if the agent of the insurance company knew at the time of the issuance of the policy the real facts as to ownership, the policy would nevertheless be binding, since the company would be estopped, by reason of such knowledge, from setting up the non-compliance of the insured with this condition of the policy. Civil Code (1910), § 2472; Creech v. Richards, 76 Ga. 36; Phenix Insurance Co. v. Searles, 100 Ga. 97 (27 S. E. 779) ; Johnson v. Ætna Insurance Co., 123 Ga. 404 (51 S. E. 339, 107 Am. St. R. 92) ; Springfield Fire Insurance Co. v. Price, 132 Ga. 687 (64 S. E. 1074) ; Athens Mutual Insurance Co. v. Ledford, 134 Ga. 500 (68 S. E. 91). Eor this reason alone the court did not err in directing a verdict for the plaintiff.

Decided April 19, 1919.

Appeal; from Jackson superior court—Judge Cobb. Juné -22, 1919.

Ray & Ray, for plaintiff in error. P. Cooley, contra.

Judgment affirmed.

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


text:
    10212.
    Tsivis v. Condilis Company.
    Decided April 19, 1919.
   Luke, J.

The evidence demanded the verdict, and the newly discovered evidence, in view of the trial judge’s note, does not require a new trial. The court did not err in overruling the motion for a new trial.

Judgment affirmed.

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

Complaint; from city court of Savannah—Judge, Freeman. September 17, 1918.

Robert L. Colding H. Mercer Jordan, for plaintiff in error.

H. P. Gobb, contra.


text:
    10218.
    Daniels v. Booker.
   Jenkins, J.

1. A petition, is duplicitous where it seeks to join in the same count an. action for damages occasioned hy the breach or partial breach by defendant of a written contract, together with, an action on open account; and, while it may be good as against a general demurrer, it will not stand as against a special demurrer pointing out such defect. Harris v. Wilcox,. 7 Ga. App. 121 (66 S. E. 380); Hillside Cotton Mills v. Ellis, 23 Ga. App. 45 (4) (97 S. E. 459), and cases there cited.

2. After the petition in this case had been amended so as to set forth the two causes of action in separate and distinct counts, the count claiming damages was properly held by the court to set out a good cause of action under the allegations made as to performance .on the plaintiff’s p'art and partial breach' on the defendant’s part of the express terms of the written contract, whereby, it had been mutually agreed that the defendant was to cut and deliver for sawing at the plaintiff’s mill all the timber on a certain described tract of land, and the plaintiff was to remove his mill to the said tract of land and was to saw- all of the timber which the defendant had thus obligated himself to-cut and deliver. Anderson v. Hilton & Dodge Co., 121 Ga. 688 (49 S. E. 725).

3. Under the allegations of the petition as originally made, almost all of the claim entered for items owing on account was subject to demurrer on the additional ground that such items appeared to be barred under the statute of limitations. This defect was, however, cured by the .. amendment setting up such claim under a separate and distinct count, wherein additional facts were alleged, showing that the account was a mutual one, being based upon a course of mutual dealings between the parties, wherein each had extended credit to the other on the faith of the indebtedness owing on both sides. Civil-Code (1910), § 4363. While it is true that where the original petition entirely fails to set forth a cause of action, there is nothing to amend by (Davis v. Muscogee Manufacturing Co., 106 Ga. 126, 32 S. E. 30), still it cannot be said that the claim as originally made entirely failed to set forth a cause of action, but, in the absence of such additional averments, the plaintiff’s remedy was merely unavailable when properly objected to, and it was not improper to allow the details and circumstances of the particular transáctions to be amplified or varied by amendment (Eagle & Phenix Mills v. Muscogee Manufacturing Co., 129 Ga. 712 (2), 59 S. E. 804), so as to set up the additional facts showing the mutuality of the account such as would prevent the bar by limitation from attaching; especially so where the bill of particulars showing the items 6f aceount as attached to the original petition might reasonably indicate that such was the original design of the pleader. Verdery v. Barrett, 89 Ga. 349 (15 S. E. 476) ; Thornton v. Jackson, 129 Ga. 700 (3, 4) (59 S. E. 905) ; Thornton v. Nichols, 119 Ga. 50 (45 S. E. 785); Shumate v. Ryan, 127 Ga. 118, 119 (56 S. E. 103).

Decided April 19, 1919.

Complaint; from city court of Blakely—Judge Sheffield. August 22, 1918.

L. M. Rambo, for plaintiff in error. A. H. Gray, contra.

4. The defendant says, however, that the plaintiff ought not to be allowed to set up by amendment the additional facts showing the mutuality of the account, for the reason that the original petition says that the defendant breached hjs contract, by discontinuing to cut and deliver the' logs on August 1, 1913, and that paragraph 8 of the original petition, setting up the' claim on account, makes the statement that the sum sued for on aceount was due at the time the contract was breached, although the bill of particulars as attached both to the original and the amended petition shows on its face that the last items of the account accrued at a date subsequent to that alleged as the time of such breach ' and at a time within the statute; the contention being that the original claim on account' offers nothing to amend by, since, construing the ' petition against the pleader, even the last items thereof were themselves barred. The. amendment struck the original paragraph 8, and the amended count does not contain any statement that all of the items of account had accrued on the date, that the contract is alleged to have been breached. Held; ^ Even if under the original petition the specified dates of the different items would have to give way to the statements as made in different portions of the petition when taken and construed together, still it was within the province of the judge to allow the amendment striking one of such original statements, so that its only remaining effect would be that such stricken statement could still be taken and considered by the jury along with the other evidence in the ease as an admission made under the original pleadings (Lydia Pinkham Medicine Co. v. Gibbs, 108 Ga. 138, 33 S. E. 945); since the limitation laws (except certain provisions of the special act of 1869) act only upon remedies and do not extinguish rights (Comer v. Allen, 72 Ga. 1; Langston v. Aderhold, 60 Ga. 376; Lane v. Newton; 145 Ga. 810, 89 S. E. 1083), and such an amendment did not have the • effect of changing the cause of action. Ross v. Jordan, 62 Ga. 298; Cheney v. Dalton, 46 Ga. 401; Sardee v. Lovett, 83 Ga. 203 (9 S. E. 680). The judge .did not err in refusing to strike either count of the petition as amended.

Judgment affirmed.

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


text:
    10223.
    Jones v. Word & Mauldin.
    Decided April 19, 1919.
    ' Certiorari; from Fulton superior court—Judge Ellis. October 30, 1918.
    Jones owed Word & Mauldin $226.18, the amount of an open account for merchandise* running from February to July, 1917. On October 1, 1917, suit against Jones for a sum less than the amount due on the account was brought thereon in the municipal court of Atlanta in the name of Wood & Mauldin by their attorney at law, and garnishment was sued out; it being stated in the suit that it was for “balance due on account for merchandise and groceries, $126.18.” A few days later the defendant paid to the attorney who brought the suit the full amount sued for, with costs, as a settlement of the case, taking from the attorney a receipt which stated that the amount paid was in full settlement." On November 30, 1917, the plaintiffs brought suit against the defendant, in the same court, for the unpaid balance of $100 on the account. The defendant pleaded that the account sued on had been settled in full. The case was tried on an agreed statement of facts, in which it is stated that the former suit was brought by the attorney for the plaintiffs on instruction given over a telephone by Ward, one of the plaintiffs, who stated that the amount of the account was $226.18, but the attorney understood him to say $126.18, and accordingly brought suit for the latter amount, and did not know of the mistake until after the settlement with the plaintiff; that the settlement was unauthorized by the plaintiffs and has never been sanctioned or ratified by them; that the attorney had no authority to settle for less than the entire amount due, and that on learning of the ■'mistake he notified the defendant and demanded payment of the balance due. It is “ agreed, that the amount stated in this suit is correct and the balance of $100 sued for has never been paid by the defendant.” Judgment for this amount was rendered against the defendant, and he sued out certiorari, alleging that the judgment was contrary to law and without evidence to support it. The certiorari was overruled, and he excepted.
   Luke, J.

It is well settled that an attorney at law can not without special authority receive anything in discharge of his clients claim but the full amount in cash. Civil Code (1910), § 4956. Upon the agreed statement of facts the trial court did not err' in rendering the judgment complained of; and it was, (therefore, not error for the judge of the • superior court to overrule the certiorari.

Judgment affirmed.

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

Lawton Nalley, for plaintiff in error, cited:

Evans v. Collier,79 Ga. 319; Johnson v. Klassett,9 Ga. App. 733; Civil Code (1910), § 4389; Thompson v. McDonald, 84 Ga. 5; Macon & Augusta R. Co. v. Garrard, 54 Ga. 327.

Virlyn B. Moore, contra, cited:

Park’s Code, §§ 4956, 5795; Patterson y. Childs, 9 Ga. App. 646; Bell v. Kwilecki, 11 Ga. App. 9; Kaiser v. Hancoch, 106 Ga. 217; A. C. L. Railroad Co. v. Blalock, 8 Ga. App. 44 (4); Johnson v. Klassett, supra, distinguished.


text:
    10235.
    LEWIS v. STATE BOARD OF MEDICAL EXAMINERS.
    1. The writ of error in this ease was originally filed in the Supreme Court, •and, that court having by formal order transferred it to this court, the transfer of the case is equivalent to a holding by the Supreme Court that the constitutional questions which the plaintiff in error attempts to raise by the writ are not properly made. Davis v. City of Home, 23 Ga. App. 188 (98 S. E. 231).
    2. The court did not err in refusing to dismiss the written charges preferred by the board against the defendant, upon the ground that they were not filed at the proper time.
    3. While the admission in evidence of the certified copy of the plea of the defendant, the verdict of the jury, and the judgment and sentence of the court in a criminal case, standing alone, which were introduced in evidence in this case for the purpose of showing that the defendant had been convicted of a crime involving moral turpitude, was erroneous (Doggett v. Simms, 79 Ga. 253, 4 S. E. 909), this error was cured by the subsequent introduction of a certified copy of the bill of indictment upon which the said plea, verdict, and judgment were based, showing the offense with which the defendant was charged and of which he was convicted. Shaw v. Jones, 133 Ga. 446 (5) (66 S. E. 240).
    4. The mere fact that records or papers of file have been lost or destroyed is no excuse for not showing -their contents. Such office papers may, when shown to be lost or destroyed, be established instanter; but their contents may be proved, even by parol, without establishing the lost or destroyed original. Bridges v. Thomas, 50 Ga. 378; Saffold v. Banks, 69 Ga. 289; Doggett v. Simms, supra. The court did not err, therefore, in admitting in evidence a certified copy of the bill of indictment against the defendant, taken from the official transcript preserved in the office of the clerk of this court (Eagle & Phenix Mfg. do. v. Bradford, 57 Ga. 249), charging him with the offense of larceny after trust delegated; it being shown by competent evidence (Griffin v. Wise, 115 Ga. 610, 612, - 41 S. E. 1003; Hines v. Johnston, 95 Ga. 629 (3), 23 S. E. 470; Marti
      n v. Bank of Leesburg, 137 Oa. 285 (6), 73 S. E. 387, that the original bill of indictment was not of file or record in the office of the clerk of the superior court.
    5. The court did not err, there being no insistence that the judgment in the criminal case was void, in refusing to permit the defendant to. introduce evidence for the purpose of showing that he was not in point of fact guilty of an offense involving moral turpitude, of^which he had been convicted (Georgia Railroad v. Homer, 73 Ga. 251 (5) ); since the judgment of a court of competent jurisdiction can not be impeached .collaterally, but is to be taken and held as a valid judgment until it is reversed or set aside by the court rendering it. Civil Code (1910), §§ 5963, 5968.-
    Decided April 19, 1919.
    Appeal: from Carroll superior court—Judge Searcy presiding. October 21, 1918.
    The act of 1913. (Ga. Laws, 1913, p. 101) creating the State Board of Medical Examiners provides, iu section 14, that “said board may refuse to grant a license to practice medicine in this State, or may cause a licentiate’s name to be removed from the-records in the office of any clerk of court in this State, on the following grounds, to wit:” enumerating several grounds, one of which is “conviction of crime involving moral turpitude.” The act further provides that “said hoard may, upon satisfactory proof made that any licentiate has been guilty of any of the offenses above enumerated, suspend said, licentiate from the practice of medicine and call in the license of said licentiate' upon a majority vote of said hoard; provided, however, that said suspended physician shall have a right to appeal to a jury in the superior court of the county of his residence, and it shall he the duty of said board to prefer in writing the charge or charges against said physician, which shaE be tried by a jury regularly empaneled and sworn. Said physician, the defendant in said proceedings, shall he entitled to appeal to the Supreme Court. In the event of conviction by the jury of any of the charges' preferred, the license of said physician shall be revoked.” Acting under the authority of this act, the board on June 12, 1916, after hearing evidence upon certain charges against Dr. W. M. Lewis, one of which was that he had been convicted of a crime involving moral turpitude, found the charges to be true, and ordered that his license he revoked and his name removed from the records of the office of Ere clerk of the superior court of Carroll county, the county of his residence. On June 12, 1916, he entered an appeal, which was duly certified by the secretary of the board and filed in the office of the clerk of the superior court of Carroll county on June 16, 1916. In the record there is nothing to indicate that the case was called until it “came on regularly for trial at the October term, 1918, of the Carroll superior court,” at which time the board presented certain written charges against the defendant, which bore an entry of filing by the clerk of the court, dated April 8, 1918. Whereupon the defendant “moved that the court strike the purported charges from the records of the court for the following reasons: because the law requires that when an appeal is made to the superior court, the charges must be made and filed by the board; that the trial term of this ease was the October term, 1916, of the superior court, and at that time plaintiff in this case filed no charges, and that charges would have to be filed at the next term of the court to which the appeal whs returned, and that there was no case in court and [it] should be dismissed.” This motion was overruled by the court, and upon this ruling error is assigned.
    At the trial on the appeal, counsel for the board stated that he would “not rely on any of the charges made, except No. 1,” which was as follows: “That said defendant, under the name of Dr. M. W. Hancock Lewis, had preferred against him by the grand jury of Haralson superior court, in the county of Haralson, State of Georgia, at the January Term, 1914, on to wit, Jan. 20, 1914, a true bill charging him as follows: ‘The grand jurors selected,' chosen, and sworn for the county of Haralson, George W. Gentry, foreman, in the name and behalf of the citizens of Georgia, charge and accuse M. W. HaSncock Lewis with the offense of a misdemeanor, larceny after trust delegated, for that the said M. W. Hancock Lewis in the county aforesaid, on the 21st day of July in the year of our Lord (1913) nineteen hundred and thirteen, with force and arms and unlawfully, having then and there been entrusted by Effie McCalmans with $5.00 in lawful money of the United States,issued, of the value of $5.00, to be applied then and there for the use and benefit of the said Effie McCalmans, the owner thereof, as follows: he, the said Lewis, was then and there intrusted with the said $5.00 by the said Effie McCalmans to purchase her a ticket on the Southern Eailway Company from Bremen to Atlanta, at Bremen, said county, and so intrusted fraudulently converted the said $5.00 to his (Lewis’s) own use,; the said Lewis then and there intrusted with said $5.00 to purchase said ticket and return whatever of the amount remaining to'her, the said Effie McCalmans, and he, the said Lewis, after purchasing said ticket for the sum of $1.30, failed and refused to return said Effie McCalmans the balance of the said $5.00, but fraudulently converted the same, to wit, $3.70, to his own use, contrary to the laws of said State, the good order, peace and dignity thereof. J. B. Hutcheson, solicitor-general. J. M. McCalmans, prosecutor/ That on the 2nd day of December, 1914, said defendant filed a plea of not guilty to said charge in Haralson superior court, and on said date, to wit, Dec. 2, 1914, the jury trying said case returned the following verdict: ‘We, the jury, find the defendant guilty, and recommend that he be punished as for a misdemeanor/ Whereupon the court sentenced said defendant to pay a fine of $200.00 and cost of prosecution, or in lieu thereof to serve in the chain gang for the period of twelve months. Said sentence’was passed on December 3, 1914. Said Board alleges that the charge preferred against said defendant by the grand jury of Haralson county was a charge involving moral turpitude; and it charges that he was convicted of said charges, and the verdict of the jury and the sentence of the court in said case was never reversed or set aside, but stands. And ,for said reason it charges that his license should be suspended or revoked, and that his name should be removed from the records of any clerk of the court of this State.”
    Hpon making proof that the original indictment against the defendant had been lost the board proceeded to introduce in evidence a certified copy of the indictment, from the official transcript preserved in the office óf the clerk of the court, together with a certified copy of the defendant’s plea of not guilty, entered in the ■ criminal case, the verdict finding the defendant guilty, and the judgment and sentence of the court, certified to by the clerk of the court, and also introduced testimoney identifying the defendant in this case as the defendant convicted in the criminal case. The defendant testified that his license had been destroyed by fire, and introduced in evidence a certified copy of the record of the clerk of the superior court of Carroll county, which showed that Dr. W. M. Hancock Lewis procured his license to practice medicine on April 22, 1910. The defendant also offered to show "that the money given the defendant was to buy a ticket, by the prosecutrix in the case, in Haralson superior court, and that she told the defendant to keep the rest and give her father credit for it, which he did, and to show that the ease in Haralson superior court did not involve moral turpitude, and that he was not guilty.” The court refused to permit him to do this, and thereafter directed a verdict against him on charge number 1, and entered the following judgment thereon: “Wherefore it is ordered and adjudged by the court that the license of M. W. Lewis, authorizing him to practice medicine in Georgia, be and the same is revoked, and his name is ordered removed from the record of. all and any clerk of the superior court of said State. This Oct. 21, 1918.”

      Willis Smith, Buford Boykin, for plaintiff in error.

      S. Holderness, contra.
   Jenkins, J.

(After stating the foregoing facts.) Only the second headuote requires elaboration. It will be seen from an inspection of the section of the act quoted in the statement of facts that no specified time is there fixed when the board shall prefer written charges after an appeal has been entered by the defendant. It is contended by counsel for the plaintiff in error that while the act specifies no time when the written charges should be preferred, the act should be construed as requiring that such charges be preferred at the first term of the court after an appeal has been entered, and that the same rule should apply here'as in cases of an award made by arbitrators under the provisions of the Civil Cpde (1910), § 5030 et seq. It was held in Train v. Emerson, 134 Ga. 589 (2) (68 S. E. 42§) that “Where a submission to arbitrators was made under the statute (Civil Code, § 4486 et seq.) [Civil Code of 1910, § 5030 et seq.], and they made an award, but did not return it to the superior court to which it was properly returnable for eleven months, during which .time three terms of court intervened, and fourteen months thereafter the party in whose favor thfe award was made filed a motion to have a judgment nunc pro tune entered on it, there was no error in denying such motion.” There would, however, appear to be a clear distinction between the effect of such an award by arbitrators and the ’decision of the State Board of Medical Examiners. The award by the arbitrators is binding upon no one, and is.of no legal effect whatever, until properly returned and entered upon the minutes of the proper court, while the decision by the State Board of Medical Examiners is a judgment within itself, and is final unless set aside on appeal. But conceding that the written charges should have been preferred by the board at the first term of the court after the appeal had been entered, it would seem to us that the rule to be here applied would be more nearly analogous to - cases where a defendant is in default by reason of his failure to answer at the proper time, the rule being that where a case has never been marked “in default” on the docket, and no order has been taken declaring it to be “in default,” an answer to the merits of the case, filed at a term subsequent to the appearance term but before judgment is taken, will not be dismissed because not filed in time. McKenzie v. Consolidated Lumber Co., 142 Ga. 375 (82 S. E. 1062). See also Daniel v. Nixon, 21 Ga. App. 206 (93 S. E. 1013); and Buford v. Southern Cotton Oil Co., 20 Ga: App. 581, 583 (93 S. E. 318), and cases there cited. What would have been the remedy of the plaintiff in. error had the case been .called for trial at a time prior to the filing of the written charges by the board need not be determined. The evidence in this case demanded the verdict directed, and the judgment of the superior court is therefore

Affirmed.

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


text:
    10249.
    Thomas v. Scott.
    Decided April 19, 1919.
    Certiorari; from Gordon superior court—Judge Tarver. November 2, 1918.

      F. A. Cantrell, Neel, Finley & Neel, for plaintiff in error.

      A. L. Henson, contra.
   Luke, J.

1. Permissive use of a private way not over fifteen feet in .vidth may ripen into prescriptive rights thereto. See Kirkland v. Pittman, 122 Ga. 256, 259 (50 S. E. 117) and cases cited.

2. The evidence in this ease was conflicting, but the ordinary who heard the case was authorized to render judgment requiring removal of obstructions from the private way. Eor no reason assigned did the judge of the superior court err in the judgment overruling the certiorari.

Judgment affirmed.

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


text:
    10274.
    Chalman v. Dodd, trustee.
    Decided April 19, 1919.
    Certiorari; from Fulton superior court—Judge Ellis. October 30,1918. -
    Harry Dodd, trustee in bankruptcy for Randolph Rose Company, a corporation, sued Chalman in the municipal court of Atlanta, alleging that as such trustee he administered the business and affairs of the bankrupt corporation by, disposing of all its tangible assets at public sale; that as a result of such administration he obtained no money with which to pay general creditors, the proceeds having been used to pay priority claims, costs of administration, and other expenses; that the amount due unsecured creditors is more than $15,000, and he has no funds with which to pay such creditors a dividend, and it will be necessary to collect the stock subscription of . the defendant (exhibited), upon which the defendant is indebted to the plaintiff as trustee in the sum of $90 and interest, and that payment of this sum has been demanded and refused; wherefore the plaintiff prays process and judgment. The defendant demurred, on the ground that the-petition sets forth no cause of action. The demurrer was sustained and the petition dismissed. Certiorari was sued out, the certiorari was sustained, and the defendant excepted. ' In the brief of his counsel it is contended that the demurrer should have been sustained because it does not appear that there was an order of court authorizing the trustee to bring the suit; because the suit should have been brought in a court of equity, where all stock subscribers could have been made parties; because it does not appear that a call was made for the stock, subscriptions; and because it does not appear that the application and subscription for stock was made or addressed to-the Randolph Rose Company, or accepted by it. The paper referred to is headed “Installment application blank,” is addressed “Gentlemen,” and contains a subscription for stock of Eandolph Eose Company, signed with the defendant’s name, followed by the statement that all remittances are to be payable to Eandolph Eose Company, and that “the right is reserved by the company to reject any undesirable subscriptions.” Cited for plaintiff in error: 122 Ga. 558; 93 Ga. 626; 56 Ga. 231; 2 Ga. App. 291. Contra: 118 Ga. 381 (5); 119 Ga. 65 (3); 145 Ga. 717.
   Luke, J.

1. It is not necessary for a trustee in bankruptcy-to obtain an order of court authorizing him to institute suit for the collection of the debts due the estate before he may sue for the collection of such debts. See Traders Ins. Co. v. Mann, 118 Ga. 381 (5) (45 S. E. 426). Nor does it appear from the allegations of this petition that it was necessary that any other stock subscriber of .the bankrupt corporation should be joined as party defendant in the suit by the trustee. Spratling v. Westbrook, 140 Ga. 625 (1), 627 (79 S. E. 536); Chappell v. Lowe, 145 Ga. 717 (89 S. E. 777).

2. The suit was not subject to general demurrer. The judge of the superior court did not err in sustaining the certiorari.

Judgment affirmed.

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

Lowndes Calhoun, for plaintiff in error.

C. H. Calhoun, W. S. Dillon, C. M. Lancaster, contra.


text:
    10282.'
    Wilson v. Citizens and Southern Bank.
    Decided April 19, 1919.
    Rehearing Denied May 13, 1919.
    Certiorari; from Bibb superior court—Judge Mathews. December. 13, 1918.
    On the trial in the municipal court of Macon the plaintiff obtained a verdict and judgment against the bank. The judge of the superior court, on certiorari, held that the plaintiff was not entitled to recover, and sustained the certiorari and rendered final judgment in favor of the defendant.-

      Feagin & Hancock, for plaintiff.

      Hardeman, Jones, Park & Johnston, for defendant.
   Luke, J.

1. The rule of a bank in accepting deposits in its savings department, which provides that “Every effort will be made to protect depositors against fraud, but payment made to a person presenting the pass-book shall be good and valid on account of the owner unless the pass-book has been lost and notice in writing given to this bank before such payment is made,” is reasonable and binding on depositors. See Langdale v. Citizens Bank, 121 Ga. 105 (48 S. E. 708, 69 L. R. A. 341, 104 Am. St. R. 94, 2 Ann. Cas. 257). The bank will be protected in paying money to the person presenting the pass-book when it is done in the exercise of reasonable care and deligence and in good faith; especially so where the depositor has subscribed to the rule.

(a) That the depositor is not able to write his or her name, but signs it by mark, is no defense to the enforcement of reasonable rules for protection of the bank in its payment in good faith of deposits credited upon the pass-book in accordance with such rules.

2. The undisputed evidence in this case makes a question of law to be • passed upon. .It was therefore not error for the court,, in sustaining the certiorari, to render final judgment. See Pittman v. Alexander, 19 Ga. App. 475 (91 S. E. 910), and eases there cited.

Judgment affirmed.

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


author: Bloodworth, J,

text:
    10025.
    JANKO v. COMMERCIAL SECURITY COMPANY.
    Decided April 22, 1919.
    No cause of action against tlie principal for the wrongful acts of its agent, in instituting in its name a bail-trover proceeding against the .plaintiff and thereby causing his arrest and imprisonment, is^ehown by his allegations. Even if the agent’s authority to collect notes for purchase-money from purchasers of pianos included authority to institute legal proceedings to recover pianos from purchasers, it does not appear that the agent had authority to institute such proceedings against a person who, as in this ease, according to the allegations of the petition, was not a purchaser and never had in his possession, power, custody, or control the piano involved in the proceeding, and against whom the proceeding was instituted not for the purpose of recovering the piano, but maliciously. Nor does it appear that the acts in question were ratified by the principal with full knowledge of all the material facts.
    Action for damages; from Fulton superior court—Judge Pendleton. June 27, 1918.

      Castleton & Castleton, C. D. Maddox, for plaintiff, cited:
    Huffcut, Agency (2d ed.), 248, 301-2; 113 Ga. 114.

      T. B. Higdon, for defendant, cited as to agent’s authority to cause arrest:
    116 Ga. 309; 51 L. R. A. (N. S.) 471; 63 So. 644 (51 L. R. A. (N. S.) 471); 10 Wash. 47 (38 Pac. 879); 46 Tex. 35; 11 Ala. 492; 32 S. W. 142; 150 N. C. 12 (63 S. E. 159); 138 N. C. 166; 3 Ill. App. 39; 35 Ill. App. 180; 37 Ill. App. 595; 128 N. C. 345 (38 S. E. 919); 144 Fed. 578; 60 Kan. 513 (57 Pac. 98); 51 Md. 290; 55 Mo. 315; 101 Miss. 180 (57 So. 563); Fed. Cas. 2170.
   Bloodworth, J,

Janko sought to recover damages from the Commercial Security Company for alleged wrongful acts of its agent Callaway in instituting a bail-trover proceeding against him and thereby,causing his arrest'and imprisonment. Callaway, as agent, instituted the proceeding, in the name of the company, to recover a certain piano which it had sold to the plaintiff’s sister. Callaway was employed to collect for his principal from persons who had purchased pianos. Granting that it was within the scope of his authority to institute legal proceedings to recover possession of pianos from purchasers, there is nothing in the petition to show that he had any authority to institute a bail proceeding in the name of his principal against a third person who “never had such possession, power, custody, or control” of the piano sold, and where the proceeding was “not for the purpose of recovering said piano, . . but maliciously.” Civil Code (1910), § 3576; Lewis v. Amorous, 3 Ga. App. 50 (59 S. E. 338). Nor is there in the petition anything to show that the principal, “with full knowledge •of all the material facts relating to the act in question,".ratified the act of the agent in instituting the bail-trover proceeding. Therefore the court did not err in sustaining the demurrer to the petition as amended and dismissing the petition, Glass v. Brittain Brothers Co., 21 Ga. App. 634 (94 S. E, 814); Ludden & Bates Music House v. McDonald, 117 Ga. 60 (43 S. E. 425); Butler v. Standard Guaranty & Trust Co., 122 Ga. 371 (3) (50 S. E. 132); Foddrill T. Dooley, 131 Ga. 790 (1, d) (63 S. E. 350).

Judgment affirmed.

Broyles, P. J., and Stephens, J., concur:


author: Bloodworth, J.

text:
    10088.
    Parr-Wood Furniture Co. v. Roberson, Garrett & Co.
    Decided April 22, 1919.
    • Complaint; from Laurens superior court—Judge Kent. July 25, 1918.

      S. W. Sturgis,for plaintiff in error. Ira S. Chappell, contra.
   Bloodworth, J.

The motion for a new trial contains the usual general grounds only. The defendant introduced no evidence. The evidence for the plaintiff demanded a verdict in 'his favor, and the motion for a new trial was properly overruled.

Judgment affirmed.

Broyles, P. J., and Stephens, J., concur.


author: Broyles, P. J.

text:
    10091.
    HOARD v. JORDAN.
    Decided April 22, 1919.
    1. Payment of an execution in the hands of the sheriff discharges the defendant Matthis v. Pollard, 3 Ga. 1 (3).
    2. Courts will not decide moot questions. Randolph v. Brunswick Railroad Co., 120 Ga. 969, 970 (48 S. E. 396).
    3. Where the answer of the magistrate, untraversed and unexcepted to, showed that' after the certiorari was served upon him the money upon the execution levied was paid to the sheriff, the certiorari sued out by the defendant in fi, fa., complaining of the judgment overruling his affidavit of illegality, raised a moot question only, and should have been dismissed on the motion of the defendant in certiorari.
    Certiorari; from Bibb superior court—Judge Mathews. August 5,. 1918.

      Walter Before, James C. Estes, for plaintiff in error.

      Charles H. Garrett, contra.
   Broyles, P. J.

The judge of the superior court of Bibb county, at the July term, 1918, sanctioned a certiorari to review the overruling and dismissal of an affidavit of illegality filed by John Jordan in .the municipal court of the city of Macon. When the case came on for a hearing on August 5, 1918, the defendant in certiorari made a motion to dismiss the same, upon the ground • that the answer of the judge of the municipal court of the city of Macon, which was untraversed and unexcepted to, disclosed that “the judgment sought to be reviewed in said petition for certiorari had been fully paid and discharged at a date after the sanction of the petition in said case and before the same was called for a hearing.” This motion was overruled, and the' defendant in certiorari excepted. It appears from the answer of the trial judge, dated July 13, 1918 (which was untraversed and unexeepted to), that the certiorari was issued on June 13, 1918, and served upon him on the same date, and that the money on the fi. fa. in question was paid to the sheriff on June 20, 1918.

Under these facts we think the judge of the superior court erred in overruling the motion to dismiss the certiorari. This ruling is not in conflict with the decisions in Scroggins v. State, 55 Ga. 380, and Cramer v. Truitt, 113 Ga. 967 (39 S. E. 459), cited by counsel for the defendant in er-ror. In the former case it affirmatively appeared from the answer of the magistrate that he based his ruling, complained of in the petition for certiorari, on information which he obtained through a private conversation with an attorney for one of the parties, and the Supreme Court correctly held that statements of that character had no proper place ih a magistrate’s answer and should be disregarded by the judge of the superior court. In the Cramer ease it was held merely that the judge of the superior court, in deciding whether he should sanction the certiorari, erred in receiving and giving heed to a communication from the trial magistrate; the Supreme Court stating that the magistrate could be heard only through his official return, after the granting of the certiorari. In neither case was a moot question involved. In the instant ease the answer of the trial judge on the point in question was as follows: “The money on this fi. fa. was paid over to the sheriff on 20th day of June, 1918, and is now in his possession.” It does not appear in this ease how the magistrate obtained his knowledge of this fact. It certainly can no more be presumed that he received it in a private conversation with the sheriff than that he obtained it by seeing the execution (after it had been returned to the court) marked “satisfied.” At any rate, he stated in his answer, as a positive fact, that the money on the fi. fa. had been paid to the sheriff; and if this statement was incorrect or improper, the answer should have been traversed or excepted to. This not having been done, the judge of the superior court had no authority to disregard this part of the answer, although it referred to a transaction subsequent to the trial of the ease and the sanction of the certiorari. Especially is this true when the answer showed, under the authority cited in the first headnote, that the execution had been paid and the judgment satisfied. As was said by Mr. Justice Lamar in Randolph v. Brunswick &c. R. Co., supra: “Courts do not settle moot questions or deal with fictitious litigation; neither will they proceed to judgment where it is shown that the parties have settled their controversy, or that the, judgment has been satisfied. In such case the writ of error will be dismissed in the appellate court.” See also, to the same effect, 3 Cyc. 188, par. 4 and notes; 11 Corpus Juris, 186 (§ 314), 187, note 9; Kitchens v. State, 4 Ga. App. 440 (61 S. E. 736), and cases cited. The untraversed and unexcepted to answer of the trial judge clearly showed that the certiorari raised a moot question only, and the judge of the superior court erred in overruling the motion'to dismiss the certiorari. This error rendered the further proceedings nugatory.

Judgment reversed.

Bloodworth and Stephens, JJ., concur.


author: Bloodwobth, J.

text:
    10095.
    Arnold v. Mitchell.
    Decided April 22, 1919.
    Trover; from city court of Zebulon—Judge Dupree. August 31, 1918.

      James R. Davis, for plaintiff in error. James M. Smith, contra.
   Bloodwobth, J.

1. The grounds of the motion for a new trial that the court erred in allowing in evidence certain documentary evidence can not be considered, since the evidence referred to is not set forth either literally or in substance in' the motion or in an exhibit thereto. Walton v. Busby, 147 Ga. 487 (94 S. E. 562) ; Willbanks v. Byrd-Matthews Lumber Co., 146 Ga. 750 (3) (92 S. E. 281); Bank of Norwood v. Chapman, 19 Ga. App. 709 (3) (92 S. E. 225).

2. The evidence authorized the verdict, and the judgment is'

Affirmed.

Broyles, P. J., and Stephens, J., concur.


text:
    10102.
    Williams et al. v. McKnight, for use, etc.
    Decided April 22, 1919.
    Complaint; from Catoosa superior court—Judge Tarver. July 13, 1918.

      William E. Mann, W. Gordon Mann, for plaintiffs in error.

      M. L. Harris, .contra.
   Bloodworth, J.

The motion for a new trial contains no special grounds. There is evidence to support the verdict, and the motion for a new trial was properly overruled.

Judgment affirmed.

Broyles, P. J., and Stephens, J., concur.


text:
    10105.
    City of Jackson v. Crawkord.
    Decided April 22, 1919.
    Action for damages; from Butts superior court—Judge Searcy. August 17, 1918.

      C. L. Redman, W. E. Watkins, for plaintiff in error.

      H. M. Fletcher, contra.
   Broyles, P. J.

The motion for a new trial contains only the usual general grounds; the verdict was authorized by the evidence, and the court did not err in denying a new trial.

Judgment affirmed.

Bloodworth and Stephens, JJ., concur.


author: Stephens, J.

text:
    10130.
    Read Phosphate Co. v. Lumbermen's Mutual Insurance Co. et al.

    Decided April 22, 1919.
    Motion to vacate judgment; from Fulton superior court—Judge Ellis. August 15, 1918.

      C. Morris Lancaster, Walter S. Dillon, for plaintiff.

      W. D. Ellis Jr., P. Cooley, contra.
   Stephens, J.

On the facts disclosed in the record, the trial judge did not abuse his discretion in setting aside the judgment against the garnishee's.

Judgment affirmed.

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


text:
    10133.
    Prince v. Evans.
    Decided April 22, 1919.
    Action for breach of contract; from city court of LaGrange— Judge Moon. September 20, 1918.

      R. A. McGraw, J. B. Hatchett, for plaintiff.

      Lee B. Wyatt, Arthur Greer, L. L. Meadors, for defendant.
   Bloodworth, J.

1. Where a bill of exceptions recites the filing of a petition and of a demurrer thereto, that the demurrer was sustained and the case dismissed, and states that “to this ruling and to this judgment of the court on said demurrer plaintiff excepted, now excepts, and assigns the same as error, on the ground that said judgment and ruling is contrary to law,” the assignment of error is sufficient to withstand a motion to dismiss the writ of error. DuBose v. Bank of Sparta, 139 Ga. 115 (76. S. E. 864); Galloway v. Vestal, 135 Ga. 707 (2) (70 S. E. 589); Toomey v. Read, 133 Ga. 855 (67 S. E. 100); McGregor v. Third National Bank, 124 Ga. 557 (3) (53 S. E. 93); American Investment Co. v. Cable Co., 4 Ga. App. 106 (60 S. E. 1037 ) ; O’Neal v. Miller, 9 Ga. App. 180 (2) (70 S. E. 971).

2. A petition which seeks to recover damagés from a vendor of fertilizers because of his failure to deliver a portion of a lot of guano contracted for, resulting in the purchaser not having enough fertilizer for his entire farm, and the consequent failure of a portion of land cultivated by him to produce as much corn and cotton without the fertilizer as it would have done'with it,, was properly dismissed on demurrer, even though the petition alleged that the land upon which the guano furnished was used produced more than that upon which it was not used, and though all the land “received the same cultivation and attention and had the same seasons.” Such damages are too remote and are not “such as the parties contemplated when the contract was made, as the probable result of its breach.” Civil Code (1910), §§ 4394, 4395; Williams Mfg. Co. v. Schofield’s Sons Co., 21 Ga. App. 23 (2), 27 (93 S. E. 527), and cases cited. See also Leitner v. Goodwin, 60 Ga. 148 (2) ; Butler v. Moore, 68 Ga. 780 (45 Am. R. 508).

3. “In a suit for special damages alone, where the plaintiff is not entitled to recover the special damages sued, for, there can be no recovery of „ general or nominal damages.” Twin City Lumber Co. v. Daniels, 22 Ga. App. 578 (4), 587 (96 S. E. 437), and cases cited.

Judgment affirmed.

Broyles, P. J., and Stephens, J., concur.


text:
    10138.
    ROBERTS v. BANK OF LaGRANGE.
    W!here a case has been tried before a judge pr.o hae vice and by consent the verdict has been received by the regular judge of the court, the former has jurisdiction to entertain -a motion for a new' trial, to issue a rule nisi thereon, and to pass upon the motion, although when the motion was presented and when the rule was issued he was not' Upon this bench but was within the bar of the court, and the regular judge of the court was presiding therein on the trial of another case.
    Decided April 22, 1919.
    Complaint; from city court of LaGrange—B. J. Mayer, judge pro hac vice. September 3, 1918.

      Arthur Greer, for plaintiff.

      Duke Davis, Hatton Lovejoy, for defendant.
   Broyles, P. J.

This case was tried in the. city court of La-Grange before a judge pro hac vice. Before the verdict was returned the regular judge of the court resumed the bench, and by agreement he received the verdict. The losing party (the plaintiff) in due time moved for a new trial. This motion was presented to the judge pro hac vice, who was within the bar of the court, while the regular judge was presiding in the trial of another case, and the rule nisi was then and there signed by the judge pro hac vice. When the motion for a new trial came on for a hearing the defendant filed a motion to dismiss it on the following grounds: “(1) Because the order requiring respondent to show cause why a new trial should not be granted did not issue from the city court of LaGrange. (2) Because the order was not signed by the judge presiding over said court at the time the record in said case was closed. (3) Because the order requiring respondent to show cause why a new trial should not be granted was not signed by the judge presiding over the city court of La-Grange at the time the application for new trial was made. (4) Because the Honorable B. J. Mayer was without jurisdiction to sign the order requiring respondent to show cause why a new trial should not be granted at the time said order was signed, because he was not presiding as judge of the city court of LaGrange at the time said order was, signed.”

We see no substantial merit in these purely technical grounds, and, in our opinion, they were properly overruled. We do not think this holding is contrary to the ruling in Pendergrass v. Duke, 140 Ga. 550 (79 S. E. 129). That decision was in reference to the authority of a visiting judge of the superior court, holding court for one. week in the circuit of another judge, where he was succeeded the following week by a second visiting judge, to entertain a motion for a new trial presented when the second visiting judge was présiding over the court; and it was held that the first visiting judge had lost all jurisdiction over the court, and that the motion should have been presented to the second visiting judge and the rule nisi signed by him and made returnable before the first visiting judge. The authority of a judge pro hac vice to entertain a motion for a new trial in a case tried before him, where the motion was presented to him after the regular judge had resumed the bench, was not involved. While a judge pro hae vice has no general jurisdiction at all, his jurisdiction of the case which he is selected to try continues until it is finally disposed of. Under section 4856 of the Civil Code (1910), he exercises all the functions of a judge in that case. He entertains the motion for a new trial, issues the rule nisi thereon, and finally passes upon the motion. Clayton v. Wallace, 41 Ga. 368. A motion for a new- trial may be filed and a rule nisi issued thereon while the court is not in session. King v. Sears, 91 Ga. 577 (18 S. E. 830). The rule nisi may be signed by a judge of the superior court in a county other than the one in which the case was tried, where he is holding another court. Chattanooga, Rome & Columbus R. Co. v. Owen, 90 Ga. 365 (15 S. E. 853). As was- said by Warner, J., in Clayton v. Wallace, supra: “A pro tempore judge, selected under the provisions of the Code for the trial of a case, may exercise all the functions of a judge of the superior court in that case: Code 340; Henderson v. Pope, 39 Ga. 361. In such cases, the functions of such pro tempore judge extend to the hearing of a motion for a new trial in the case heard and tried before him as such pro tempore judge, although the presiding judge of the circuit may have resigned his office before the hearing of that motion; the hearing and deciding the motion for a new trial is a part of the trial of that case; such pro tempore judge derives his authority to hear and determine that special ease from the public law of the State, and not from the presiding judge of the circuit, and having acquired jurisdiction to hear and determine the case under the public law of the State, his functions as such pro tempore judge continue until he shall • have heard and decided the motion for a new trial in that case; notwithstanding the presiding judge of the circuit may have resigned his office before the hearing of that motion.” See also Gainesville Buggy &c. Co. v. Morrow, ante, 368; Butler v. Mooty, ante, 573.

Applying the principle of law underlying these rulings, we think the judge pro hae vice had authority to entertain the motion for a new trial and to issue a rule nisi thereon, although at the time he was not on the bench and the regular judge of the city court was presiding therein on the trial of another case, and although the latter judge, by consent, had received the verdict.

If there be any conflict between the decisions in the Clayton and the Pendergrass cases, supra, we are of course bound by the older adjudication. -

2. Under the facts of the case it does not appear that the judge erred in granting a new trial.

Judgment affirmed.

Bloodworth and Stephens, JJ.. concur.,


text:
    10159.
    Bishop v. Brantley.
    Decided April 22, 1919.
    Rehearing Denied. May 16, 1919.
    Complaint; from Campbell superior court—Judge Smith. August 30, 1918.
    Bishop sued Mrs. Brantley on her promissory note payable to E. B. Strickland or bearer, for $204 and interest, dated January 9, 1914. She pleaded in substance as follows: In 1911 she bargained to Strickland, a certain house and lot for $2,250, receiving from him a part of the money and his promissory notes of stated amounts for the remainder, and delivering to him her bond to make title to him to the property on full payment of the purchase-price. These notes are due' and unpaid. They were pledged by her to the Eairburn Banking Company as collateral security for a loan, aná after two of them had become due she urged Striekland to pay them, and he proposed to her to adjust the matter by surrendering to her the bond for title and the house (of which he was then in possession), she to deliver up to him his notes and _ to give to him her note for $200 and interest. She agreed to this, and in pursuance of this agreement executed and delivered to him the note on which this suit is based; and he, not having with him the bond for title, agreed to bring or send it to her and she was then to surrender his notes. He has never surrendered to her the bond for title, and she has been unable to dispose of the said place or to realize on it with the bond' outstanding. She could have disposed of it to advantage if the bond had not been outstanding. The consideration of the note sued on has totally failed because of the failure on the part of Strickland to carry out his agreement and surrender to her the bond for title. The plaintiff knew of these facts at the time he received the note. For the reason stated the note is void and the plaintiff is not entitled to recover thereon. The plaintiff demurred to the plea, on the following grounds: (1) It sets forth no legal defense. (2) It shows that the defendant is endeavoring to enforce the alleged contract in part and to rescind in part; and this she can not do. (3) It shows that the defendant did not deliver or attempt to surrender the notes to Strickland or to demand a return of her bond for title; and she is asking to be allowed to keep what she has received under the contract and to repudiate her part of it. (5) The plaintiff demurs specially to the allegations that she has been unable, to dispose of the place with the bpnd outstanding, and would have been able to dispose of it if the bond had not been outstanding.
   Bloodworth, J.

1. The motion to dismiss .-the writ of error is overruled.

2. The court did not err in overruling the demurrer to the defendant’s answer.

3. In the brief of counsel for the plaintiff' in error the ground of the motion alleging that “the court erred in denying the motion' of plaintiff’s counsel to direct a verdict for the plaintiff” is expressly abandoned; “The refusal to direct a verdict is not error in any case.” Dudley v. Isler, 21 Ga. App. 615 (2).

4. When read in connection with the rest of the charge of the court, the excerpt complained of in the motion for a" new trial is without error.

5. There was evidence to support the verdict.

Judgment affirmed.

Broyles, P. J., and, Stephens, J., concur.

The charge complained of in the motion for a new trial was as follows: “If, on the other hand, you believe from the evidence that J. C. Bishop, the plaintiff in this case, knew all about this transaction and that he is not a bona Me holder of this note for value without notice, but that he had actual notice of all these matters that the defendant contends [to be] a failure of consideration of this note, and that he knew that the note was not to be binding and valid until the bond for title was returned, and that all these matters were Imown to him at the time he purchased the note, even though he purchased it before it was due, then he would not be entitled to recover in this case, and your verdict would be for the defendant.” The exception to this charge is that it “tended to restrict the jury to only a’ part of an entire contract; the evidence showing that the defendant took charge of the property, the only thing of value, so far as the evidence discloses, that she was to receive, and that she had never surrendered or offered to surrender that to the plaintiff during the long period that had elapsed since the trade was made and the defendant gave her note and took possession of the property.”

J. J. Barge, for plaintiff, cited:

Civil Code (1910), § 4306; 62 Ga. 729; 96 Ga. 126 (1); 121 Ga. 511, 513; 142 Ga. 29 (7), 433 (3); 144 Ga. 441, 511; 143 Ga. 563 (2); 20 Ga. App. 94 (4).

J. F. Goliglitly, J. H. Longino, for defendant, cited:

1 Corpus Juris, 530, 532-3.


text:
    10161.
    Pierce v. Felts, executor.
    Decided April 22, 1919.
    Complaint; from Warren superior court—Hawes Cloud, judge pro hac vice. October 11, 1918.

      H. W. Arant, for plaintiff in error.

      M. L. Felts, E. T. Shurley, E. P. Davis, contra.
   Broyles, P. J.

There being in the bill of exceptions no exception to any final judgment, but only an exception to the judgment striking the defendant’s pleas, the bill of exceptions must be dismissed. This is true even though the record shows that the ease was finally terminated by a judgment in favor of the plaintiff. McCranie v. Shipp, 10 Ga. App. 544 (73 S. E. 701).

Writ of error dismissed.

Bloodworth and Stephens, JJ., concur.


text:
    10171.
    Middlebrooks v. Carson.
    Decided April 22, 1919.
   Bloodworth, 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.” Philip Carey Co. v. Sheppard, 19 Ga. App. 368 (91 S. E. 444). See Civil Code (1910), § 5113; Cincinnati Ry. Co. v. Pless, 3 Ga. App. 400 (1), 403 (60 S. E. 8), and cases cited; Mitchell v. Perry, 145 Ga. 233 (88 S. E. 930).

2. The court properly refused to set aside the judgment.

3. The motion to award damages against the plaintiff in error, for bringing up the case, is denied.

Judgment affirmed.

Broyles, P. J., and Stephens, J., concur.

Attachment; from Fayette superior court—Judge Searcy. September 24, 1918.

Dickson & Camp, for plaintiff in error. J. W. Culpepper, contra.


text:
    10244.
    Walters v. The State.
    Decided April 22, 1919.
    Indictment for adultery and fornication; from'Colquitt superior court—Judge Thomas. November 11, 1918.
    The woman with whom it was alleged the offense was committed testified, among other things: “He [the defendant] had sexual intercourse with me. I do not know what county it was in. I think it was in Colquitt county. Jackson is in Colquitt county. This was near Jackson. . . I think the place of the sexual intercourse was within two miles of Jackson.” “I think he is a married man. He has a wife and children. I am a single woman.” The testimony of this witness that the defendant “is a married man” and “has a wife and children” was admitted over the objection stated in the foregoing decision. Another witness testified: “I think General Walters [the defendant] is a married man. There is no point within five miles of Jackson that is outside of Colquitt county, Georgia.” Cited by counsel as to proof of marriage: 62 Ga. 406-7; 6 Ga..App. 104-5; 9 Ga. App. 827.

      Louis F. Maire, W. B. Ragan, for plaintiff in error.

      C. E. Hay, solicitor-general, contra..
   Stephens, J.

1. Upon the trial of one charged with the offense of adultery and fornication the fact of marriage of the defendant may be proved by parol testimony. Such evidence to the effect that the defendant was a married man and had a wife and children was not inadmissible upon the ground that the marriage license or a certified copy thereof was the highest and best evidence.

2. The evidence as to the venue of the alleged crime was sufficient to authorize the jury to conclude that the offense was committed within the jurisdiction of the court.

3. The verdict was supported.by the evidence, and no error of law was committed.

Judgment affirmed.

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


text:
    10251.
    Copeland v. The State.
    Decided April 22, 1919.
    Indictment for murder; from Troup superior court—Judge Terrell. November 18, 1918.

      M. U. Mooty, for plaintiff in error.

      C. E. Roop, solicitor-general, contra.
   Broyles, P. J.

1. The court did not err in instructing the jury upon the law of voluntary manslaughter or upon the theory of a mutual intent to fight, such instructions being authorized by the evidence.

2. The court having fully instructed the jury upon the law of justifiable homicide, it was not error (especially in the absence of a timely and appropriate written request) to fail to give in charge section 73 of the Penal Code.

3. The evidence and the defendant’s statement authorized the verdict of voluntary manslaughter, and the court did not err in refusing a new trial.

Judgment affirmed.

Bloodworth and Stephens, JJ., concur.


text:
    10325.
    Luke v. Gilley.
    Decided April 22, 1919.
    Trover; from city court of Nashville—Judge Christian. December 30, 1918. (Bill of exceptions signed by Judge Lovett.)

      R. A. Hendricks, for plaintiff in error.

      William, Story, J. P. Knight, contra.
   Stephens, J.

An ordinary final bill of exceptions in a case, civil or criminal, should be presented to the judge who presided in the cause, and "certified by him, except in case of his dying subsequently to the ruling complained of and before the statutory period for certifying has expired. Where, just before the expiration of a term of office of a judge of a city court, he overrules a motion for a new trial, the bill of exceptions complaining of this ruling should be tendered to him and signed and certified by him; and his successor in office has no power to sign and certify it. Civil Code, §§ 6152, 6155; Scott v. State, 5 Ga. App. 812 (63 S. E. 936). This court is therefore without jurisdiction in this ease, and the writ of error is

Dismissed.

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


text:
    9914.
    HUGHES et al. v. FEAGIN & HANCOCK.
    It is error to refuse to permit a plaintiff to dismiss his case, where no question as to recoupment, set-off, or similar counter-claim is involved, after the trial judge has announced in open court his intention to sustain a general demurrer to the plaintiff’s petition, but before an order sustaining such a demurrer has been signed: Macon, D. & S. R. Co. v. Leslie, 148 Co. 524 (97 S. E. 438).
    Decided April 23, 1919.
    Rehearing Denied Mat 13, 1919.
    Complaint; from Bibb superior court—Judge Mathews. May-25, 1918.

      Napier & Maynard, R. L. Berner, for plaintiffs.

      Hall & Grice, for defendants.
   Wade, C. J.

We would be content with what is said in the headnote, it being based entirely on a ruling made by the Supreme Court in response to a question certified to it by the Court of Appeals, were it not for the fact that no record of the Supreme Court ruling appears in the official reports of this court, since the case in which it was made was dismissed subsequently to the decision by the Supreme Court, but before this court had adopted the ruling, which we think settled an apparent conflict in numerous decisions.

The bill of exceptions in this case shows that the trial judge stated in open court that he would sustain a general demurrer interposed to the plaintiffs’ petition, and prepared an order and written opinion to that effect. Plaintiffs requested the court to refrain from signing his judgment sustaining the demurrer, as they contemplated the filing of an amendment to their petition. After-wards, and when the order and opinion of the trial judge sustaining the demurrer had not been signed, the plaintiffs stated to the court that they desired to dismiss their petition. An order allowing them to do so was taken and signed by the court, and the plaintiffs made the following entry,of dismissal on their petition: “The within petition is hereby dismissed by plaintiffs upon consent of court. This May 1, 1918. (Signed) Napier & Maynard, E. L. Berner, attorneys for plaintiffs.” Subsequently, on May 15, 1918, the defendants through their counsel filed a motion to vacate the order allowing the plaintiffs to dismiss their case, and, after hearing argument and evidence on this motion, the trial judge entered up a judgment vacating his former order of dismissal, and declared that “the opinion and judgment upon demurrer will be signed on this day in conformity with the announcement made in open court on April 29, 1918.” The plaintiffs excepted to this judgment vacating the order allowing them to voluntarily,, dismiss..their petition, and now allege it to be error, for the following reasons: “ (a) Because under the law a plaintiff is entitled to dismiss his case at any time before a judgment therein- is rendered by the court against him, and this he may do either in term or vacation. (&) Because under the law plaintiffs had the right to dismiss their case at any time, provided said dismissal did not prejudice any rights of the defendants, and under the facts 'the defendants acquired no rights under and by virtuejrof the oral announcement of the judge from the bench, or his unsigned judgment sustaining said demurrer and dismissing said case, (c) The judge had no right to set aside a dismissál of a petition voluntarily made by the plaintiffs, as a plaintiff has a right to dismiss his case, and there is nothing that the judge can do to prevent it, unless the defendants claim some affirmative rights like a set-off or recoupment.”

The question presented for decision is, therefore, whether the trial judge erred in refusing to permit the plaintiffs to voluntarily dismiss their petition after he had announced in open court his intention to sustain the defendant’s demurrer, but when a judgment to that effect had not been prepared and properly signed. Under the-answer of the Supremé Court to-the question certified to it by this court in the Leslie case, supra, it is apparent that the lower court erred in not permitting the plaintiffs to voluntarily dismiss their petition. The certified question referred to was whether it is “error to permit a plaintiff to dismiss his case after the trial judge has announced in open court the direction of a verdict for the defendant, and while the verdict is being written, but before it is actually signed?” The Supreme Court answered this question in the negative, it being held that “the court did not err in permitting a plaintiff to dismiss his case after the trial judge had announced in open court the direction of a verdict for defendant, and while it was being written, but before it was actually signed.” That ruling was based upon section 5548 of the Civil Code (1910) and the cases of Freeman v. Brown, 115 Ga. 23 (41 S. E. 385),; Lytle v. DeVaughn, 81 Ga. 226 (7 S. E. 281)arid Swilley v. Hooker, 126 Ga. 353 (55 S. E. 231.

The defendants in error rely upon the case of City of Macon v. Joiner, 19 Ga. App. 11 (90 S. E. 734), and the numerous Supreme Court decisions there cited or referred to, to sustain the ruling of the trial judge in the instant ease. The opinion rendered in the Leslie case, supra, itself shows that the Supreme Court took under consideration the more important of, these cases, for it was there said: “Much might be said in favor of a contrary holding, based upon rulings made in the. cases of Merchants’ Bank of Macon v. Rawls, 7 Ga. 191 (50 Am. D. 394); Brunswick Grocery Co. v. B. & W. R. Co., 106 Ga. 370 (33 S. E. 93, 71 Am. St. E. 349); Meador v. Dollar Savings Bank, 56 Ga. 605; Peeples v. Root, 48 Ga. 593. These are some of the cases cited in the brief of counsel for the plaintiff in error. But upon the whole we think the conclusion reached is the correct one.” There is no conflict, however, between the ruling made in City of Macon v. Joiner, supra, and the ruling of the Supreme Court in the Leslie ease, supra, on the exact question at issue and decided in the former case. It is true that in that case this court adopted as a headnote an excerpt from a decision of the Supreme Court which broadly held that “the plaintiff’s right to dismiss cannot be exercised after the verdict, or a finding by the judge which is equivalent thereto [italics ours], has been reached, if he has acquired actual knowledge of the verdict or finding, whether the same has been 'published or not,” But from an examination of that ease it will be ascertained that the facts were as follows: “The evidence in said case was introduced by both the plaintiff and the defendant in the due course of procedure, after which time the defendant in said case moved to direct a verdict in favor of the defendant, for the reason that the evidence introduced by the plaintiff failed to make out a case against the City of Macon. The motion was sustained, and his honor directed a verdict for the defendant. After the foreman of the jury had signed the verdict-as directed by the court, and after the plaintiff in' said case was informed as to what the verdict would be, but before the signed verdict had been read by the defendant’s eoun-' sel, the said plaintiff in said ease moved to dismiss his suit, which motion the court sustained; to which ruling the. defendant excepted and now excepts, and assigns the same as error.” It will be observed that in the case now under consideration the judge had merely announced his purpose to sustain a demurrer, and while the losing parties had knowledge of his intention and the “finding by the judge” was thus published as to them, the decision had not been entered in writing and signed by the proper official,' as-was true in the Joiner case, supra. In that case it was said: “This was not a mere oral decision by the judge from which no appeal could be entered, but the decision had been entered in writing and signed by the proper official, and, so far as the plaintiff was concerned, had been duly published.” This last 'quotation clearly emphasizes the difference between the 'Leslie case and the Joiner case, and indicates why the last-named case is not authority for the ruling, of the trial judge in declining to allow the losing parties to dismiss their case after the oral announcement of his purpose to sustain the demurrer. In other words, the headnote in the Joiner case, quoted from a decision of the Supreme Court, supported by .other decisions of that court, laid down a proposition broader than necessary to support the ruling of this court; and while the later ruling by the Supreme Court in the Leslie cose restricts that broader rule, it nowise conflicts with what is said in the opinion in the Joiner cáse, or with the decision actually made therein. In the Joiner case the court had not only directed the verdict, but the verdict had actually been signed by the foreman of the jury, and the verdict so signed was known to counsel for the plaintiff before he interposed his motion to withdraw the case.

The action of the trial judge in vacating the order dismissing the case, which was originally 'granted on motion of the plaintiffs, cannot be adjudged mere' harmless error where, after the case had been reinstated over objection, a general demurrer was sustained to the petition; for not only were the plaintiffs thereby denied an essential rightto which they were entitled under the law, but the ruling on the demurrer constituted affinal judgment against-them unless reversed, and effectually .disposed of the case as set out in the petition. . -

The ruling made by the Supreme Court in the Leslie case, supra, being on all fours with the question presented by the record in this case, is controlling.

; Judgment reversed.

Jenkins and Luke, JJ.,.concur.


text:
    9926.
    Brooke v. Cartersville Chero-Cola Bottling Co.
   Wade, C. J.

Tills was a suit against a corporation for the recovery of commissions, based upon an alleged oral agreement, by the terms of which the general manager of the corporation agreed to pay the plaintiff, as a real-estate broker, for his services in selling its entire plant. The evidence adduced on the trial failed to show that the manager had ever been authorized by the corporation to make a .sale of its stock or of its entire physical property, or that the corporation subsequently ratified the unauthorized act of its manager in agreeing to pay plaintiff for effecting the sale of the property. Ware v. Atlanta Coffee Mills Co., 16 Ga. App. 749, 750 (86 S. E. 47); Nunez Gin & Warehouse. Co. v. Moore, 10 Ga. App. 350 (73 S. E. 432) ; Swindell v. Bainbridge State Bank, 3 Ga. App. 304, 370, 371 (60 S. E. 13) ; Trust Co. of Georgia v. Wallace, 143 Ga. 214 (3) (84 S. E. 538); Ludden & Bates Music House v. McDonald, 117 Ga. 60 (43 S. E. 425). The evidence demanded a verdict in favor of the defendant, and the trial judge did not err in directing such a verdict.

Decided April 23, 1919.

Reheabing Denied May 13, 1919.

Complaint; from Bibb superior court—Judge Mathews. May-25, 1918.

Napier & Maynard, R. L. Berner, for plaintiff.

Hall & Grice, contra.

Judgment affirmed.

Jenkins and Luke, JJ., concur.


text:
    9963.
    Ward-Truitt Co. v. Nicholson et. al.

   Jenkins, J.

1. The exception to the refusal to admit in evidence a carbon copy of a certain letter written by the plaintiff to one of the defendants is without merit; no notice to produce the original having been given by the plaintiff to the defendant, and it not being shown that the original was lost. Civil Code (1910), §§ 5828, 5829, 5837, 5838; McAdam v. Weikel &c. v. Spice Co., 64 Ga. 441; Frost v. Powell, 10 Ga. App. 95 (72 S. E. 719). The too broad general statement made in Lewis v. Phillips-Boyd Publishing Co., 18 Ga. App. 181 (89 S. E. 177), was in a case iri which reference was actually liad to a notice given for attorney’s fees. The" general rule governing notice to produce papers in the hands of the opposite party must apply where, as in this ease, the proffered carbon copy of the letter could not properly be taken as a duplicate original, and where the letter is such as could • not be taken either as an instrument in the. nature of a notice or as one which, from the very nature of the action, the defendant must necessarily have known that he would be charged with possessing. See Savannah Bank & Trust Co. v. Purvis, 6 Ga. App. 275, 278 (65 S. E. 35) ; Greenleaf on Evidence, § 561.

2. A ground of a motion for a new trial as to the admissibility of testimony must be complete within itself (Owens v. Nichols, 139 Ga. 475 (5), 77 S. E. 635), and not such as to require the reviewing- court to refer to the brief of evidence or other parts of the record in order to determine the question. Peeples v. Butler, 21 Ga. App. 310 (94 S., E. 278.). Under the rule stated, a ground that the court erred in permitting a witness to testify, “I stated a while ago about having a conversation -with. Mr. Truitt; he was a member of the firm of Ward-Truitt Company; he told me this debt had been paid off, the title from Nicholson, and it had been settled,” because “it was not shown that Mr. Truitt had any authority to make any such statement as a member of the corporation, and was not clothed .with any such power,” can not be considered. So far as appears from the recitals in this ground of the motion, the person referred to by the witness was a member of a firm or partnership, and any statements or admissions made by him as such, and with reference to matters connected with the business, would be binding upon the partnership. Civil Code (1910), § 3180; Sankey v. Columbus Iron Works, 44 Ga. 228, 236; Merchants & Farmers Bank v. Johnston, 130 Ga. 661 (61 S. E. 543, 17 L. R. A. (N. S.).969, 14 Ann. Cas. 546).

Decided April 23, 1919.

Complaint; from city court of Carrollton—Judge Beall. May 27, 1918.

Boykin & Boykin, for plaintiff.

J. J. Rees, Griffith & Mathews, for defendants.

3. The motion for a new trial complains that a certain deed purporting to be a conveyance by the plaintiff, and offered by the defendant, was admitted in evidence over the objection of the plaintiff that its execution had not been proved; but since the plaintiff itself admitted the execution i of the deed, this ground of the motion is without merit.

4. There was sufficient evidence to authorize the verdict, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

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


text:
    9999.
    Cook v. Ryals.
    Decided April 23, 1919.
    Complaint; from Talbot superior court—Judge Howard. June 20, 1918.

      A. P. Persons, for plaintiff in error. Love & Fort, contra.
   Wade, C. J.

Under the issues actually involved in this case, the excerpts from the charge of the court which are complained of contain no error requiring a reversal; and there being evidence to support the verdict, the judgment overruling the motion for a new trial, must be

Affirmed.

Jenkins and Luke, JJ., concur.


text:
    10023.
    SHEERER v. QUEEN INSURANCE COMPANY OF AMERICA.
    Decided April 23, 1919.
    Under the terms of the fire-insurance policy sued on, it was invalidated by the procurement of an additional policy on the same property for an amount in excess of that permitted by endorsement on the first policy; and the evidence demanded the verdict which the court directed in favor of the defendant.
    Action on insurance policy; from Pulton superior court—Judge Pendleton. June 27, 1918.

      J. F. Golightly, for plaintiff. King & Spalding, for defendant.
   Wade, C. J.

Sherrer sued the Queen Insurance Company of America on a policy of fire insurance for $1,200. The defendant set up that the policy sued on was invalidated by the procurement of an additional policy by the plaintiff on the same property for an amount in excess of that permitted by endorsement on the first policy, it being stipulated in the contract of insurance that “this entire policy, unless otherwise provided by agreement endorsed herein or added hereto, shall be void if the insured now has, or shall'hereafter make or procure, any other contract of insurance, whether valid or not, on the property cóvered in whole or in part by this policy.” The policy sued on contained an express written endorsement permitting $1,200 additional insurance. On the trial it was shown that additional concurrent insurance to the extent of $1,600 was procured by the insured,—viz., a policy of $1,300 in the Citizens Eire Insurance Company of Baltimore, Md., and a policy of $300 in the same company, both issued subsequently to the policy sued- on. Plaintiff contends, however, that the defendant is estopped from asserting that this additional insurance of $1,600 voided the policy sued on, because the defendant had notice, at the time this policy was issued, that the insured had $1,300 additional insurance, of which the $1,300 policy above referred to was a renewal, and .-the $300 additional insurance was merely substituted for a policy of $800 issued by the defendant prior to the date of the policy sued on. The evidence submitted on the trial as to whether there was a waiver on the part of the defendant in regard to the $1,300 additional insurance, as well as to whether there ever was in fact an $800 policy issued by the defendant, is not altogether satisfactory and is in some particulars irreconcilable. The trial judge directed a verdict for the defendant, and the plaintiff excepted.

The trial judge did'not err in directing a verdict'for the insurance company. Even if the evidence were sufficient to show a waiver on the part of the defendant as to the $1,300 additional insurance, the undisputed evidence clearly shows that the taking out by the plaintiff of the $300 policy after the issuance of- the policy sued upon was a violation of the warranty against additional insurance in excess of $1,200; for the $300 policy together with the $1,300 of insurance raised the aggregate of the insurance on the property not only to an amount exceeding by $400 that allowed by.the terms of the policy sued upon, but also to an amount exceeding that covered by the waiver. The $300 policy was obtained by the plaintiff without the knowledge or consent of the defendant, and cannot be considered merely a renewal of the $800 insurance (if in fact that policy was ever issued by the defendant), as it was issued by an entirely different company from the company which the plaintiff claims issued the $800 policy, and was for a lesser amount.

Judgment affirmed.

Jenkins and Luke, JJ., concur.