text:
    11067.
    Louisville & Nashville Railroad Co. v. Howard.
    Decided March 11, 1920.
    Action for damages; from McDuffie superior court — Judge Henry C. Hammond. October 20, 1919.

      Cumming & Harper, for plaintiff in error,
    cited 101 Ga. 747. John T. West, contra, cited: 101 Ga. 747, 748; 113 Ga. 335; 114 Ga. 312, 314; 128 Ga. 438, 441; 130 Ga. 375; 113 Ga. 134.
   Smith, J.

Though there was evidence to show that the fire which damaged the plaintiff’s property was discovered between 25 and 30 minutes after the passing of the train, from the engine of which the plaintiff insists sparks were emitted which caused the fire, there is no testimony to show that the sparks were coming from the engine at the time it passed the property, or that it caused the fire, other than the following: that the wind was blowing in the direction of the burned house from the track, that the fire in question occurred about midnight, and that there had been no fire in or near the house, which was a high two-story dwelling, since about 10 or 11 o’clock in the morning, and that the fire was first seen on the top of the roof. This was not, under the decisions made in Seaboard Air-Line Ry. v. Jarrell, 145 Ga. 688 (89 S. E. 718), and Gainesville &c. Railroad Co. v. Edmondson, 101 Ga. 747 (29 S. E. 213), enough to authorize the jury to find that the engine of the defendant caused the fire by the emission of sparks, there being uncontradicted proof to show not only that the engine which passed on the night of the fire was properly equipped with an approved spark-arrester, but that it was handled in a skilful and proper manner. '

Judgment reversed.

Jenkins, P. J., and Stephens, J., concur.


source: Caselaw Access Project

author: Stephens, J.

license: Public Domain

text:
    11167, 11168.
    Southeastern Mutual Fire Insurance Company v. Davison.
   Stephens, J.

1. Before a writ of certiorari can properly issue, unless applied for in forma pauperis, it must appear from the record that the bond required by the Civil Code (1910), § 5185, has been duly approved by the judicial officer before whom the case was tried in the first instance. Dykes v. Twiggs County, 115 Ga. 698 (42 S. E. 36); Daniel v. Citizens Loan & Guarantee Co., 23 Ga. App. 684 (99 S. E. 226). Approval of the bond by a commercial notary public will not suffice.

2. Where the writ of certiorari has issued, it is proper, upon the call of the case for trial, to dismiss the petition, upon motion of the defendant in certiorari, upon the ground that the certiorari bond has not been approved by the proper officer, when it nowhere appears from the record that the certiorari bond has been approved by the judicial officer before whom the case was tried.

Decided March 11, 1920.

Certiorari; from Fulton superior court — Judge Humphries. October 27, 1919.

W. D. Mills, J. S. James, for plaintiff in error.

Judgment affirmed in both eases.

Jenkins, P. J., and Smith, J., concur.


author: Smith, J.

text:
    10759.
    DIXON v. HYDE.
    Decided March 18, 1920.
    Rehearing denied April 7, 1920.
    An accounting between partners being involved in this suit, the city court of Savannah was without jurisdiction of the suit.
    Complaint; from city court of Savannah — Judge Freeman. June 6, 1919.

      Osborne, Lawrence & Abrahams, for plaintiff in error,
    cited: 111 Ga. 654; 8 Ga. App. 738 (5); 122 Ga. 283; 124 Ga. 103; 119 Ga. 381, 384-5; 114 Ga. 622; 20 R. C. L. 954.

      Hitch & Denmark, contra,
    cited: 30 Cyc. 464; 111 Ga. 654; 114 Ga. 662; 119 Ga. 381.
   Smith, J.

On June 4, 1917, James M. Dixon, W. C. Peeples, and E. A. Hyde entered into a general copartnership under a written agreement. The business to be conducted was that of wholesale and retail dealers in lumber. Dixon furnished the capital and he was to receive 7 per cent, interest on all capital furnished by him in cash, and then the net profits were to be divided, a half to Dixon, one fourth to Peeples, and one fourth to Hyde. The partnership was to commence on May 1, 1917, and continue only so long as it was agreeable to all parties, any one of them to have the right to terminate it upop 24 hours notice. In the event of dissolution Dixon was to have the option of buying the interest of Peeples and Hyde, either or both, at the book value. If he refused to do this, Peeples and Hyde, either or both, would have the same option of purchasing Dixon’s interest. If this value could not be agreed upon, the matter was to be referred to statutory arbitration. Peeples voluntarily withdrew from the partnership in September, 1917. Hyde and Dixon continued the business until February 11, 1918, without any agreement. On that date they executed an agreement adopting the original co-partnership agreement with the modification that Dixon was to receive 60% of the net profits and Iiyde 40% of the net profits. On February 14, 1919, Hyde withdrew, and he thereafter brought suit against Dixon, seeking to recover his share of the net profits between September, 1917, and February 11, 1918, and also the book value of Ms interest from the latter date to the time that he withdrew from the partnership. The petition set out the contract and all of the above facts fully, and alleged a certain amount as the book value of the interest of Hyde, and also a fixed amount as his share of the net profits for the period of time between the withdrawal of Peeples and the agreement between Dixon and Hyde. To this petition both general and special demurrers were filed, the general demurrer insisting that the city court of Savannah did not have jurisdiction of the subject-matter of the suit, because it involved an accounting between partners. Hpon a careful review of the petition as amended it is apparent that this contention is well taken, and the court erred in overruling the general demurrer. See Paulk v. Creech, 8 Ga. App. 738 (5), 742 (70 S. E. 145), and cit. This ruling renders it unnecessary to pass upon the questions raised by the special demurrers.

Judgment reversed.

Jenkins, P. J., and Stephens, J., concur.


text:
    10864.
    Kirkland et al. v. Addison, constable, for use, etc.
    Decided March 18, 1920.
   Stephens, J.

I. Although the bill of exceptions recites that there was an amendment to the motion for a new trial, it does not specify such amendment as being a part of the record and material to a clear understanding of the errors complained of, and there does not appear in the record sent to this court any amendment to the motion for a new trial. This court, therefore, can consider only the original motion for a new trial, which contains only the general grounds.

2. This being a suit against the principal and the surety on a forthcoming bond given by the defendant in fl. fa., in which the plaintiff seeks to recover damages for a breach of the bond, and the evidence showing a failure of the defendant to produce the property at the time and place of sale after due advertisement, and a resulting damage therefrom to the plaintiff, the verdict for the plaintiff was not contrary to law for any reason insisted’ upon under the general grounds.

Judgment affirmed.

Jenkins, P. J., and Smith, J., concur.

Appeal; from Haralson superior court — Judge Irwin. July 1, 1919.

J. S. Edwards, for plaintiff in error.

Griffith & Matthews, contra.


author: Jenkins, P. J.

text:
    10890.
    EVANS v. LOTT.
    Decided March 18, 1920.
    Where a person sells personal property under an express warranty, talcing in payment a purchase-money note which recites the consideration for which the note is given, if the purchaser should subsequently, without reference to the contract of warranty, merely make an independent swap or exchange with the seller, whereby he receives other property for that originally purchased, the transaction would not in law amount to a rescission of the original contract of sale, so as to avoid the note given to the seller by the purchaser. In such a transaction the consideration given by the purchaser for the new property arises by virtue of the exchange whereby the seller receives back the original property sold by him, and the reason why the purchaser owned that property to trade with comes from his having given to the seller his note therefor. But where, as in this case, a person sells to another personal property under an express warranty, taking from the seller a purchase-money note which recites that it is given as purchase-money for the property bought, and where subsequently the purchaser, acting under the contract of warranty, reports defects in the property bought by him and offers to return it, and where the seller, recognizing his contract of warranty, assents to and actually accepts a return of the property, the latter transaction amounts to a complete rescission of the former contract of purchase and sale, with the result that the note previously given for the purchase-money of the original property becomes null and void. The fact that subsequently to such return and acceptance of the property the parties to the contract may have agreed to the substitution of other property in lieu of that originally purchased would not operate to revive the validity of the note which had become invalid upon the rescission of the original contract under which it was given.
    Complaint; from city court of Douglas—-Judge Frier. August 27, 1919.
    Lott sued Evans on a promissory note for $175. The defendant admitted the execution of the note, and pleaded that the note was without consideration, for the reason that after its execution the contract under which it was given was rescinded. It appears that there have been three transactions between the parties to this litigation. In the first Evans gave to Lott his note for $100 as boot in a horse-swap; in the second horse-swap, in which Lott received back the horse first received by Evans, Lott received an additional $75 boot, and surrendered to Evans his first note, taking a new note for $175. In this note it was stated that it was given as purchase-money for a described horse, it being the second horse referred to. In the second transaction Lott expressly warranted the soundness of the horse thus turned over to Evans. In connection with the third transaction the plaintiff, Lott, testified in part as follows: “I am the plaintiff in the above case, and I remember the transaction for which the note sued upon was given. The note has not been paid, and is just, true, and unpaid. This note did not figure in the last horse-swap between Mr. Evans and myself. It was given in a former horse-swap between myself and Mr. Evans as boot. I did not take back the mule described in the note sued upon. I swapped Mr. Evans another mule for the one described in the note sued upon. (Cross-examination.) The note sued upon shows to be for the purchase-price of a black mare mule about six years old, weighing about 1000 pounds, named Minnie. In about two or three weeks after this trade and after the note was given, the defendant brought the mule back and stated that there was something wrong with her. I don’t remember just what complaint he made. It seems to me like he stated that she was a little thick-winded. I do not remember whether there was any complaint made as to her eyes or not. I don’t think there was. However, I would not swear positively what the complaint was. He stated that I had guaranteed the mule and that he was not satisfied with her. I told him all right, turn her in my lot; and this was done. I do not remember what time of the day this was,'—■ cannot say what time in the morning the mule was brought back and turned in the lot, or what time of the day it was when we finally swapped mules. But he got another mule from me during the same day for the one brought back. It was a different mule from the one described in the note.” The defendant, in his evidence, made the following statement: “ I told Mr. Lott, when I carried the mule back, that he had stated to me, unless the mule was sound and all right, that she was not my mule and I would not have to keep her. When I told him that she was going blind and I did not want her, his reply was, ‘Well, turn her in the lot.’ ”
    The jury returned a verdict in favor of the plaintiff. The defendant made a motion for a new trial, which was overruled; and to this judgment the plaintiff excepted.

      T. A. Wallace, for plaintiff.

      E. L. Grantham, for defendant.
   Jenkins, P. J.

(After stating the foregoing facts.)

There is really very little actual conflict' in the evidence as given by the plaintiff and the defendant in this case. The evidence for the plaintiff as given on direct examination would, we think, have been sufficient to have sustained his case as laid; but upon going into details as to the transaction, in his evidence given on cross-examination, the plaintiff makes it to plainly appear that the horse described in the 'note was brought back to him (the seller), under and in accordance with his contract of warranty; that the defendant, on bringing it back to him, stated that it had been guaranteed, and that he was not satisfied with the animal; that he then told the defendant, “All right," to turn her in the lot; and that this was done. It thus appears, from the plaintiff’s own evidence, that the last transaction was not an independent horse-swap, but that, in accordance with the terms of the warranty included in the contract of sale of the second mule, the defendant, acting under his rights under that contract, returned the mule, and the plaintiff, in recognition of his duty under that contract, accepted it; all of which necessarily amounted to a complete rescission of the contract of sale as previously made; and, this being true, the note given in furtherance an'd in consideration of that sale no longer remained valid. Under the evidence of both the plaintiff and the defendant, the defendant owes for the third horse, but the seller failed in the third instance to take a note therefor as he did in the second instance. See Fisher v. Whitehurst, 14 Ga. App. 218, 219 (2) (80 S. E. 536). Under this view of the law, there could have been no valid recovery in the suit on the note; and it is unnecessary to consider any of the other assignments of error.

Judgment reversed.

Stephens and Smith, JJ., concur.


text:
    10894.
    Jones v. Fuller.
   Jenkins, P. J.

1. On May 17, 1919, Jones sued Puller for the alleged breach by the defendant of his contract for the transfer and sale of a certain lease, basing his claim on the following instrument of writing: “Calhoun, Ga., 12/16/1918. Received of Hugh B. Jones ten ($10.00), being payment on purchase-price of five-year lease on P. L. Hicks building on Court street. The consideration being two hundred fifty ($250.00) dollars; ninety ($90.00) dollars more cash to be paid on - delivery of rental contract with P. L. Hicks at a rental of $30.00 per month, and a note for one hundred fifty dollars due in six months from date. [Signed] W. B. Fuller.” The plaintiff in his petition alleged: that it was understood and agreed that he was to have possession of the building on January 1, 1919, and that on or about December 19, 1918, he tendered to the defendant the sum of $90 in cash and his promissory note for the balance of the purchase-price, due six months after date, in accordance with the terms of the agreement; that the defendant has breached his contract of sale, in that he has failed and refused to deliver to the plaintiff the rent contract specified;. that the plaintiff has been damaged in a named sum representing the difference in the reasonable rental value of the said premises and the amount stipulated to be paid under the said bargained lease. The defendant demurred to the petition, on various grounds, and the demurrer was sustained by the trial judge and the petition dismissed. The plaintiff excepts to this ruling. Held: The quoted agreement must be taken to relate to a sale or transfer by the defendant to the plaintiff, for a stated consideration, of a certain existing lease, and it is in substance stated in the contract of sale that the lease which thus constitutes the subject-matter of the sale is one executed by P. L. Hicks to the defendant for a period of five years, of what is known as the P. L. Hicks building, located on Court street in Calhoun, Georgia, and that the lease thus bargained calls for a payment to Hicks of a monthly rental of $30. As thus construed, the lease constituting the subject-matter of the sale was. sufficiently set forth, in the written instrument sued on, to take the transaction without the operation of the statute of frauds, so as to withstand a demurrer to the suit as brought.

(а) The place where the contract is dated may properly be considered in connection with the other descriptive marks embodied in the contract, in determining what particular property was involved in the bargained contract of lease. Singleton v. Close, 130 Ga. 723 (61 S. E. 722) ; Morton v. Murden, 117 Ga. 72 (43 S. E. 786).

(б) In a ease where, under the statute, a sale or transfer of property is required to be in writing, while it is necessary that the contract relied on shall designate the particular property embraced in the transfer (in this ease the lease), together with the contract price and the terms of sale, still where particular property is thus designated, and the writing furnishes within itself the means whereby the designated property can be thus actually identified, then the doctrine which holds that to bo certain which can be made certain is applicable, and it is permissible to employ parol evidence for such purpose, as well as to explain ambiguities in the terms of the instrument, if by so doing the actual terms of the contract are not impaired. Douglas v. Bunn, 110 Ga. 163 (35 S. E. 339); Horton v. Murden, 117 Ga. 72 (3) (43 S. E. 786) ; Singleton v. Close, 130 Ga. 722 (2) (61 S. E. 722); King v. Brice, 145 Ga. 65 (1) (88 S. E. 960) ; King v. Brice, 18 Ga. App. 178 (89 S. E. 175).

Decided March 18, 1920.

Action on contract; from city court of Floyd county—Judge Nunnally. August 26, 1919.

Maddox & Doyal, for plaintiff.

Nathan Harris, for defendant.

(o) While the date when the identified and bargained five-year lease was to commence was not itself stated in the contract, this was such an ambiguity relating to an existing fact as might be shown by parol. Simpson v. Sanders, 130 Ga. 265, 271 (60 S. E. 541).

(d) The time when the balance of the purchase-price for the lease was to be paid by the plaintiff, and the delivery of the lease was to be made by the defendant, not being specified in the contract of sale, a reasonable time, not extending beyond the date set for the beginning of the lease, would be allowed for performance.

2. The contract sued on, taken in connection with the allegations of the petition, was not wanting in mutuality. See Perry v. Paschal, 103 Ga. 134 (7) (29 S. E. 703) ; Ellis v. Bryant, 120 Ga. 890 (48 S. E. 352) ; Sivell v. Hogan, 119 Ga. 168 (46 S. E. 67). The measure of damages for the alleged breach was correctly laid. Kenny v. Collier, 79 Ga. 743 (2) ( 8 S. E. 58) ; Williams Wagon Works v. Gunn, 14 Ga. App. 158 (80 S. E. 668). The petition having set forth a cause of action, the court erred in dismissing the suit on demurrer.

Judgment reversed.

Stephens and Smith, JJ., concur.


text:
    10900.
    Metropolitan Life Insurance Co. v. Hand.
   Jenkins, P. J.

This court cannot say, as a matter of law, that the jury was not authorized to find the verdict rendered, since it is supported by the sworn testimony of the plaintiff, which they had a right to accept and believe. The fact that in a criminal proceeding the beneficiary named in the policy sued on had been convicted of voluntary manslaughter, for the felonious killing of his wife, who was the assured named in the policy, would not prevent the jury in this proceeding from accepting his sworn testimony to the effect that such killing by him was accidental and unintentional.

The'refusal of the trial court to admit in evidence a certified copy of the indictment, verdict, and sentence in the criminal case, in support of the coroner’s verdict (which latter was admitted in evidence under the terms of the policy), was not erroneous Cottingham v. Weeks, 54 Ga. 275; Tumlin v. Parrott, 82 Ga. 732 (2) (9 S. E. 718); Seaboard AirLine Railway v. O’Quin, 124 Ga. 357 (3) (52 S. E. 427, 2 L. R. A. (N. S.) 472) ; Powell v. Wiley, 125 Ga. 823 (1) (54 S. E. 732).

Decided March 18, 1920.

Action on life-insurance policy; from city court of LaGrange-—• Judge Moon. August 27, 1919.

Battle & Hollis, for plaintiff in error.

M. U. Mooty, contra.

Nor was error committed in allowing testimony tending to show the general good character of the plaintiff, although unimpeached; since the nature of the action, and the affirmative defense set up thereto by the defendant, necessarily involved the same. 'Civil Code (1910), § 5745; German American Mutual Life Association v. Farley, 102 Ga. 720 (5) (29 S. E. 615).

The trial judge did not abuse his discretion in reopening the case in order to permit the plaintiff to introduce an additional witness to testify concerning one of the issues in the case.

Judgment affirmed.

Stephens and Smith, JJ., concur.


text:
    10903.
    Wooten v. Doss.
   Jenkins, P. J.

1. Wooten sued J. L., N. C., J. C., and F. C. Doss, alleging, that he bought certain land from J. L. and F. C. Doss, through their attorneys in fact, J. C. and P. C. Doss, under representations to the effect that the property was free of liens, whereas in fact there existed at the time of the purchase a mortgage lien upon the purchased property, which the plaintiff found it necessary to pay, and actually paid, in order to protect his title; that he is entitled to be subrogated to all the rights of the mortgagee under the mortgage, and he asks judgment against each of the defendants. The record as amended shows that -the mortgage referred to was executed by the said attorneys in fact under an ordinary power of attorney specifically authorizing them, as such attorneys in fact, to execute a bond for title or deed of conveyance to the land mentioned, and to sign receipts for the purchase-money paid therefor. No authority to create a lien on the property is made to appear. Defendants demurred to the suit on various grounds, and upon the demurrer being sustained, the action was dismissed. Held: It appearing that the mortgage was executed without legal authority, under the allegations of the petition it did not constitute a valid lien on the property as against the plaintiff, and therefore it was not incumbent upon the plaintiff to discharge the same, as he alleges in his petition it was necessary for him to do. The fact- that, after the filing of this suit, one of the defendants, who had owned an interest in the land, signed a cancellation of the power of attorney referred to, in which cancellation he referred to the previous grant of authority as including the right to create mortgages, would not aifect the rights of the plaintiff in this suit, or operate to thus subsequently endow the suit with a' valid cause of action which did not exist at the time it was instituted.

Decided March 18, 1920.

Complaint; from Floyd superior court — Judge Nunnally presiding. August 22, 1919.

F. W. Copeland, Maddox & Doyal, for plaintiff.

W. B. Mebane, Barry Wright, Harris & Harris, for defendant.

Judgment affirmed.

Stephens and Smith, JJ., concur.


author:
Smith, J.
      Stephens, J.

text:
    11053.
    JONES et al. v. FUNSTON.
    Decided March 18, 1920.
    1, 2. Under rulings made by this court when this case was previously before it, the only question left for determination on the new trial was as to the value of the cow recovered in'the trover suit; and the trial judge did not err in rejecting the amendment by which the defendants attempted to set up that after the rendition of the judgment in that suit the cow died by the act of God.
    3. The certiorari bond sued on in this case was not rendered inadmissible as evidence by the fact that the surety thereon was also surety on the bail-trover bond in the case in which the certiorari was sued out.
    4. Although no plea of the defendants remained in the ease, they had the right to cross-examine the plaintiff’s witnesses and to introduce evidence for the purpose of rebutting the evidence introduced by the plaintiff as to the value of the cow. Evidence offered to show that no demand was made for the cow before suit was properly excluded.

      5. Exception to the refusal of a nonsuit will not be considered, exception being taken also to the overruling of a motion for a new trial in which the verdict for the plaintiff is complained of as unsupported by evidence.
    6. In the absence of a plea by the defendants, refusal to allow their counsel to open and conclude the argument to the jury was not error.
    Action on certiorari bond; from city court of Hinesville — Judge W. C. Hodges. September 24, 1919.

      N. J. Norman, for plaintiffs in error.

      Ben A. Way, S. B. Brewton, contra.
   Smith, J.

1. When this case was last before the Court of Appeals it was held: “Where the facts are charged to be within the knowledge of a party, or where from all the circumstances such knowledge is necessarily • presumed, and lie fails to answer altogether, or makes an evasive answer, the charge is to be taken as true. Civil Code (1910), § 5637. (2) 'The surety on a bond given by a defendant in an action of trover for the eventual condemnation money is bound by the judgment against the defendant, and cannot, after judgment, raise any question which could have been raised by the principal before judgment. Waldrop v. Wolff, 114 Ga. 610 (40 S. E. 830); Jackson v. Guilmartin, 61 Ga. 544; Thomas v. Price, 88 Ga. 533 (15 S. E. 11); Holmes v. Langston, 110 Ga. 861 (36 S. E. 251); Hogan v. Scott, 146 Ga. 126 (90 S. E. 863); Johnston v. Sheppard, 22 Ga. App. 207 (95 S. E. 743). 2 (3) ‘ An oral motion to strike a plea can be made at any time before the verdict, if the motion is in the nature of a general demurrer. Kelly v. Strouse, 116 Ga. 872 (43 S. E. 280); Cooney v. Sweat, 133 Ga. 511 (66 S. E. 257, 25 L. R. A. (N. S.) 75). Blount v. Radford, 16 Ga. App. 95 (2) (84 S. E. 591); Civil Code (1910), § 5629. (4) Applying the principles stated above, the court did not err in sustaining the oral motion to strike the plea as amended. (5) Wien this case was first before this court (22 Ga. App. 410, 95 S. E. 1003) it was held: ‘ Where personal property is recovered in a bail-trover action, and no alternative judgment is rendered, and thereafter the defendant sues out a writ-of certiorari, giving the usual condemnation bond, and at the hearing the certiorari is dismissed for want of legal notice, and judgment is rendered against the plaintiff and his surety on the certiorari bond for the cost of the proceeding only, suit on that bond may thereafter be instituted against the principal and his surety for the value of the property recovered in the original trover action, to be ascertained by proof, where the property itself cannot be found to answer the judgment therefor, or has been destroyed or has ceased to exist. See, in this connection, Civil Code, § 5205/ This ruling is therefore the law of the case, and in a suit on the certiorari bond, the property itself not having been produced to answer the judgment, it was a condition precedent to a recovery that the value of the property recovered in the original suit be ascertained by proof. This is true even though the pleas were stricken. See Civil Code (1910), § 5657; Palmer v. Ingram, 2 Ga. App. 200 (2) (58 S. E. 362); Lamb v. McElwaney, 143 Ga. 490 (3) (85 S. E. 705), and cases cited. No proof of the value of the property having been submitted, the judgment must be reversed.” Jones v. Funston, 23 Ga. App. 706 (1-5) (99 S. E. 237). Eor a full statement of the facts in this case see the statement of facts there made.

2. Under the foregoing rulings the only question left for determination on the new trial was the value of the cow, the property recovered in the trover suit; and the court did not err (as contended in the 4th ground of the motion for a new trial) in rejecting the amendment by which it was attempted to set up the defense that the cow “died after the rendition of the judgment in the trover suit, by the act of God, without fault on the part of the defendants or either of them, and could, not be delivered as directed in the judgment on the trover suit.”

3. The court did not err (as contended in the 5th ground of the motion for a new trial) in allowing the plaintiff to introduce in evidence the certiorari bond. The fact that the same person was surety on the bail-trover bond and also on. the certiorari bond would not make this evidence inadmissible, and the defendants could not take advantage of the fact that the same person was surety in both bonds.

4. It was error for the court to exclude the evidence offered by the defendants, tending to rebut the evidence of the plaintiff, as to the value of the cow. The defendants had the right to cross-examine witnesses for the plaintiff, and also to introduce evidence as to the value of the property. Pittman v. Colbert, 120 Ga. 341 (1) (47 S. E. 948), and cit. The court did not, however, err in excluding the evidence offered by the defendants tending to show that no demand had been made for the cow prior to the bringing of this suit.

5. An assignment of error on the overruling of a motion for a nonsuit -will not be considered, if the case proceeds to verdict and if the defendant excepts to the overruling of a motion for a new trial, based upon the general grounds.

6. The court did not err in denying to defendants’ counsel the right to open and conclude the argument before the jury, as there was no plea in the case, and under the law the defendants had no right to -open and conclude the argument.

Judgment reversed.

Jenkins, P. J., concurs. Stephens, J., concurs specially.

Stephens, J.

I concur in all except the conclusions reached in paragraph 3. I concur in the ruling there announced in so far as it holds that the certiorari bond' was properly admitted in evidence. The suit being based upon this bond, the bond was necessarily relevant to the issue and was properly admitted in evidence. I am not prepared to hold that the certiorari bond is a binding obligation upon the surety therein irrespective of- the fact that the surety had already entered into the same obligation in another bond given in another branch of the same case. Besides, I do not think it necessary to decide this question in passing upon the 5th ground of the motion for a new trial.


text:
    11130.
    COPELAND v. PYLES.
    Decided March 18, 1920.
    A recovery in trover by the plaintiff in this case as sole heir of her deceased husband was unauthorized, it appearing that the property in question was subject to administration for the purpose of paying indebtedness of the decedent.
    Trover; from city court of Cairo — Judge Bigsby. November 24, 1919.
    From the evidence it appeared that the bond for title to the deceased husband of the plaintiff, the value of which she sought to recover in this action, showed an agreement on his part to pay $1,500 for the land described therein, and that only $200 of this amount had been paid.

      Ledford & Christopher, for plaintiff in error.

      J. Q. Smith, contra.
   Smith, J.

Mrs. Bosa Lee Pyles brought an action of trover against T. S. Copeland seeking to recover certain furniture and also a bond for title, all of which she alleged was in the possession of the' defendant. The petition alleged that the furniture and the bond for title had been the property of her deceased husband and that she, as the sole heir at law of her said deceased husband, was now the true owner of the property. The jury found in favor of the plaintiff $762, and upon the hearing of a motion for a new trial, based on the general grounds only, the court below passed an order granting a new trial unless the plaintiff would write off $262, the admitted value of the furniture. ■ The plaintiff wrote off this amount, and the motion for a new trial was then overruled. While a bond for title is personalty and trover will lie for the recovery thereof (see in this connnection Coursey v. Curtis, 18 Ga. 237, 238; Long v. McIntosh, 129 Ga. 661 (59 S. E. 779, 16 L. R. A. (N. S.) 1043, 12 Ann. Cas. 263); Birmingham Fertilizer Co. v. Cox, 10 Ga. App. 699 (73 S. E. 1090); Civil Code (1910), § 3646; 38 Cyc. 2098), the evidence submitted on the trial of this case failed to show any title whatever in the plaintiff except a claim of title as the sole heir of her deceased husband; and since the title to personal property vests in the administrator of a deceased person for the purpose of paying debts and distribution, and not in the heir at law (Park’s Ann. Code, § 3929), and the case does not come within the statutory provisions which authorize a widow who is sole heir of her deceased husband to take possession of his estate without administration, "upon payment of his debts” (Park’s Ann. Code, § 3931, par. 1), the verdict was contrary to law, and the judgment of the court below overruling the motion for a new trial must be

Reversed.

Jenkins, P. J., and Stephens, J., concur.


author: Smith, J. Smith/ J.

text:
    11133.
    Salios v. Swift.
    Decided March 18, 1920.
    Rehearing denied April 7, 1920.
    Eviction; from Elbert superior court — Judge Hodges. November 6, 1919.
   Smith, J.

It is the duty of the judge in the trial of a case before a jury to instruct them clearly and fully as to all the material and substantial issues in the case, and then to instruct them in the same manner as to the law applicable to these 'issues. In the instant case, while the judge, in his charge to the jury, did state the contentions of the parties, and did in stating those contentions quote section 5385 of the Civil Code (1910), he failed to instruct the jury as to what constituted a tenancy at sufferance and a tenancy at will. The failure of the court to instruct the jury fully and clearly as to these contentions and the law applicable thereto was error; and therefore the judgment overruling the motion for a new trial must be

Reversed.

Jenkins, P. J., and Stephens, J., concur.

Upon an affidavit of Swift under the Civil Code (1910), § 5385, a warrant was issued for the eviction of Salios from a certain storehouse as a tenant holding over and beyond his term. A counter-affidavit was filed in which the defendant contended that his term of rent had not expired, that no legal démand was made upon him before the issuance of the warrant, that no notice was given to him as required by law, and that he did not hold the premises from the plaintiff. On the trial, (as appears from the charge of the court) the plaintiff contended, that the defendant was a tenant at sufferance, and therefore it was not necessary to give him the two-months written notice required of a landlord to terminate a tenancy at will (Civil Code, § 3709), and further contended that the two-months notice was in fact given. The defendant contended that he was a tenant at will, and that two-months notice was not given. The trial having resulted in a verdict against the defendant, he made a motion for a new trial, on various grounds, one of which is indicated in the foregoing decision. In the judgment overruling the motion the trial judge, among other things, said: “Yiewing the defendant as a tenant at will, it appears, from the undisputed testimony in the case, that the two-months notice contemplated by section 3709 of Park’s Code was given the defendant. Where the statute uses the term ‘month’ and does not define it, the courts adjudge that lunar months are intended. Dudley, 107. A lunar month is 28 days. 38 Cyc. 311. The lunar month is composed of 28 days only. By the law of England a month means ordinarily in common contracts, as in leases, a lunar month; a contract, therefore, made for a lease of land for 12 months would mean a lease for 48 weeks only. Bouvier’s Law Dictionary, Vol. 2, p. 187, citing 2 Bl. Com. 141. The testimony of the plaintiff, which is undisputed, shows that he became the owner of the property in question on July 2, 1919, and that he gave the defendant written notice that the store would not be for rent to defendant after August 31, 1919.” In the motion for a rehearing in the Court of Appeals it was contended that Salios “was neither a tenant at will nor a tenant at sufferance, and there was no evidence to warrant a charge on either or bothand the following cases were cited: Purlell v. Farris, 137 Ga. 323; Willis v. Harrell, 118 Ga. 906; Moore v. Morrow, 28 Cal. 551.

Grogan & Payne, for plaintiff in error.

Z. B. Rogers, contra.

ON MOTION ROE REHEARING.

Smith/ J.

The affidavit of the plaintiff alleged that the defendant was holding over and beyond his term of rental. Thus the plaintiff evidently treated -the defendant as a tenant at sufferance. On the trial of the case the plaintiff testified that the defendant had entered upon the premises on December 1, 1913, under a written lease for three years, with -the privilege of extending it two years on giving ninety-days notice. He testified further that this ninety-days notice was not given, and that the defendant was allowed to remain in possession of the pi'femises the other two years, which brought it to August 31, 1918. When this time expired nothing was said about a lease of the property, but the defendant was allowed to stay on, paying rent monthly. He further testified that on July 2, 1919, he gave the defendant notice that he could not occupy the property after August 31, 1919. This evidence tended to show that the plaintiff treated the defendant as a tenant at will, and undertook to give him the two-months notice required by law to be given a tenant at will. The defendant in his answer contended that his term of rental had not expired, and that he had not received the two-months notice required by law. He testified that the notice served on'him was served on the 3d day of July, and the warrant was sworn out on the 1st day of September. This evidence was supported by other witnesses. So the question was whether the defendant was a tenant at will or a tenant at'sufferance; and if a tenant at will, there was a sharp conflict as to whether he had received two-months notice to vacate. In the case of English v. Ozburn, 59 Ga. 393, it was held that under the law a month meant a calendar month, whether the month had 28 days, 30 days, or 31 days. In the case of Weed v. Lindsay, 88 Ga. 686 (15 S. E. 836, 20 L. R. A. 33), Chief Justice Bleckley held that a tenant at will was entitled to two-months notice before he was subject to eviction, and in his opinion he, construed the two-months notice to be 60 days. See also Hammond v. Clark, 136 Ga. 313, 322 (71 S. E. 479, 38 L. R. A. (N. S.) 77). In the case under review, therefore, it was an issue as to whether the defendant was a tenant at sufferance or a tenant at will, and it was also an issue, if he was a tenant at will, as to whether he had been given the two-months notice required by law before the warrant to dispossess him issued on September 1, 1919. The judge in the court below, in his opinion, incorporated in the record, evidently construed the tenancy to be one of a tenant at will, and held that 28 days constituted a month. We cannot agree with him in this holding; and as the above issues were in the case, it was error for him to fail to instruct the jury as to what constituted a tenant at sufferance and a tenant at will.

The Georgia decision cited by the trial judge, in support of the view that the term “months” in the statute is to be construed as meaning lunar months (Dudley, 107), was rendered before the adoption of the act of 1838 (Cobb’s Dig. 536), which provided that “in all cases whatsoever, where time is required to be computed by the month or by months, the computation shall be by the calendar month and not by the lunar month.” The Civil Code, § 5, in prescribing the meaning to be given' to certain words “in all statutes, unless a different meaning is apparent from the context,” declares that “ Month means a calendar month citing the act of 1838, supra.

Rehearing denied.

Jenkins, P. J., and Stephens, J., concur.


text:
    11139.
    Happ Brothers Company v. Montgomery.
    Decided March 18, 1920.
    Appeal from Webster superior court — Judge Littlejohn. November 1, 1919.

      M. A. Walker, for plaintiff in error.

      J. F. Souter, contra.
   Smith, J.

The motion for a new trial being based upon the general grounds only, and the evidence, though conflicting, being sufficient to support the verdict, this case falls within the well-settled rule that under such circumstances the verdict, which has the approval of the trial judge, will not be. controlled.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.


text:
    11144.
    MILLER v. KEYS COMMISSION COMPANY.
    Decided March 18, 1920.
    1. The agreement alleged in the plea of set-off was too vague and indefinite, and the court did not err in striking the plea.
    2. No sufficient defense was set up by the plea that the note sued on was without consideration and was obtained by duress.
    Complaint; from city court of Camilla — Judge Burson. September 22, 1919.

      Peacock & Gardner, for plaintiff.

      J. J. Hill, for defendant.
   Smith, J.

1. C. M. Keys Commission Company brought suit against Dan Miller upon a promissory note. To this suit the defendant filed an answer denying that he was indebted to the plaintiff upon the note, but admitting that it was past due and unpaid. He further insisted that he was not indebted to the plaintiff in any amount, but that on the contrary the plaintiff was indebted to him, that on or about September, 1917, the defendant being in the business of buying and selling cattle, he. having at that time several cars of cattle bargained for, the plaintiff through its representative persuaded him to let the plaintiff pay for, take them, and resell them, agreeing to guarantee the defendant a profit over and above the purchase-price, the amount of the guarantee being indefinite, but that the defendant would realize a nice profit on the cattle; that he relied upon said guarantee and allowed the plaintiff to take over and pay for six cars of cattle; that the plaintiff paid for the cattle and shipped them away. The defendant further alleged, that the said cars of cattle were worth a reasonable profit over and above the purchase-price, amounting to at least $450; that he had never been paid anything in the way of profit on said cattle, and asked for a judgment against the plaintiff for his set-off. This defense was too vague and indefinite, and the court did not esr in striking it. See Jones v. Americus Automobile Co., 15 Ga. App. 453 (83 S. E. 642).

2. The defendant further pleaded, that shortly after this transaction he moved to Jacksonville, Florida, and became connected in business with certain persons there, and became interested in certain property; that shortly after he settled at Jacksonville the plaintiff sent a claim against him to an attorney, said claim being for the amount of the note sued for, and that said attorney threatened to institute court proceedings, and was about to institute court proceedings and hold up defendant’s property and' put him out of business, and that all this was done for the purpose of extorting money or a note from the defendant, which he did not owe and which the plaintiff knew he did'not owe, and that this was done for the purpose of offsetting what the defendant was due the plaintiff from the sale of cattle; that under these circumstances he gave the note and that he alleges that there was no consideration for the note, and he owed plaintiff nothing, that the note was obtained by duress, and he prayed for a judgment against the plaintiff for $450, besides interest. The court did not err in striking this defense, which sought to set up duress and total want of consideration. See Williams v. Buchanan, 17 Ga. App. 466 (1) (87 S. E. 605), and cit.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.


text:
    11153.
    Pierce et al. v. Smith.
    Decided March 18, 1920.
    Appeal; from Pulaski superior court — Judge Graham. September 11, 1919.
    Application for certiorari was denied by the Supreme Court. The heirs at law of M. T. Hodge, deceased, were his three sisters and the children of his two deceased brothers. One of the sisters — Mrs. Elizabeth Smith—was selected in writing by the children of the deceased brothers for appointment as administratrix of his estate, and she applied to the court of ordinary for appointment as such. The other two sisters filed a caveat to the application, and named D. R. Pierce as their choice for appointment as administrator. The judgment of the judge of the superior court, on appeal from the court of ordinary, was that Mrs. Smith was legally entitled to be appointed as administratrix, and that the caveat be overruled and she be appointed as such. To this judgment the caveators excepted. It was contended on their part that only those distributees of an estate who are equally related in degree to the decedent are entitled to vote in a contest over the appointment of an administrator, under subsection 3 of section 3943 of the Civil Code (1910), which provides that “If there be several of the next of kin equally near in degree, the person selected in writing by a majority of those interested as distributees of the estate, and who are capable of expressing a choice, shall be appointed.”
   Smith, J.

In a contest as to' the selection of an administrator, where the decedent left no children, but left several sisters and the children of two deceased brothers as his heirs at law, the children of a deceased brother would together have one vote in the selection of the administrator. See Civil Code (1910), §§ 3931, 3943, subsections 2 and 3; Mattox v. Embry, 131 Ga. 283, 287 (62 S. E. 202).

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.

H. F. Lawson, for plaintiffs in error.

H. E. Coates, contra.


text:
    11164.
    City of Atlanta v. Gulf Paving Company.
   Smith, J.

1. A municipality may incur liability for a legitimate expense without creating a debt within the meaning of article 7, section 7, paragraph 1, of the constitution of this State (Civil Code of 1910, § 6563), provided there be, at the time of incurring the liability, a sufficient sum in the treasury which may be lawfully used to pay the liability incurred, or if a sufficient amount to discharge the liability can be raised by taxation 'during the current year. Tate v. Elberton, 136 Ga. 301 (71 S. E. 420); City Council of Dawson v. Dawson Waterworks Co., 106 Ga. 696 (32 S. E. 907) ; City of Waycross v. Tomberlin, 146 Ga. 504 (5) ; Gulf Paving Co. v. Atlanta, 149 Ga. 114 (3) (99 S. E. 374).

(a) The mere “appropriation” by the County of Fulton of money for the purpose of paving a street within the corporate limits of the City of Atlanta would not be such a provision by the city for paying the cost of the improvement as would authorize it to incur a liability therefor. See Tate v. Elberton, supra.

2. The evidence on the trial of this case showed that the City of Atlanta, desiring to repave a portion of a street within the city limits on the basis of assessments against abutting-property owners for part of the cost of the improvement, and against the property of the street-car company which occupied the street, for a part of the cost of the improvement, and without any provision for payment of the balance of the cost of the improvement, except that the board of commissioners of roads and revenues of the county of Fulton had promised to appropriate a specified amount for that purpose, advertised for bids to make the improvement, and in the advertisement provided that each bidder should deposit $1,000, conditioned to enter into a- contract to make the improvement in the event the bid should be accepted, and that upon failure to enter into the contract the deposit should be forfeited to the city as liquidated damages. The plaintiff filed a bid and deposited ■with the city a check for $1,000, conditioned as above mentioned. The bid was accepted, and after notice of acceptance a demand was made upon the bidder to execute the contract to do the paving. The bidder declined upon the ground that the city had not provided means with which to pay for the work, and the defendant thereupon claimed and cashed the deposited check as a forfeiture. The documentary evidence introduced showed that at the time the contract in question was entered into, the city by solemn ordinance, which has never been repealed or amended, had appropriated to other purposes than the paving of the designated streets every dollar it could raise from any and all lawful sources of revenue, including the whole amount which it was authorized under its charter to raise by taxation. The promise by the County of Eulton to appropriate an amount to help pay the cost of paving the street was never canned out. Held, that, applying to these facts the principles announced above, the evidence demanded a verdict in favor of the plaintiff, who was seeking to recover the amount deposited with the city and which the city had claimed and converted to its own use; and the court did not err in directing such a verdict.

Decided May 18, 1920.

Action for money had and received; from Fulton superior court ■—-Judge Bell. October 22, 1919.

J. L. Mayson, J. M. Wood, for plaintiff in error.

Anderson, Rountree & Crenshaw, contra.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.


author: Smith, J,

text:
    11181.
    Savannah Electric Company v. Falcone.
    Decided March 18, 1920.
    Action for damages; from city court of Savannah ■— Judge Freeman. October 28, 1919.
    See same case, 24 Ga. App. 69.
   Smith, J,

1. The motion for a new trial in this ease being based on the usual general grounds only, and there" being some evidence to support the verdict, which has the approval of the trial judge, this court will not interfere.

2. 3STot being fully convinced that the case was brought to this court for delay only, the request of the defendant in error that damages be awarded against the plaintiff in error, as provided in section 6213 of the Civil Code of 1910, is denied.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.

Osborne, Lawrence & Abrahams, for plainiff in error.

M. H. Bernstein, F. P. McIntire, contra.


text:
    11201.
    Empire Cotton Oil Company v. Penny.
    Decided March 18, 1920.
    Complaint; from Crisp superior court — Judge Gower. November 18, 1919.
    The Empire Cotton Oil Company sued Mrs. Penny on an account for fertilizer alleged to have been sold and delivered to her in February, April, and May, 1913. In her answer she denied that the fertilizer was bought by or for her, and alleged that it was furnished to her deceased husband, J. E. Stephens, and that the debt in question was his debt, and not hers. On the trial the plaintiff offered in evidence, as an admission of the defendant, a transcript of testimony given by her on a former trial, which the official stenographer of the court testified was “a correct statement of what Mrs. Penny testified on that occasion,” although he could not, without his notes, remember what she testified, or that she testified. The court ruled that the witness could refresh his recollection from tbe notes and testify from bis recollection, but could not read to the jury tbe notes or tbe transcript. Tbe transcript itself was admitted in evidence after tbe defendant had been introduced as a witness for the plaintiff and had testified, the plaintiff then offering the transcript both as an admission of the defendant and for the purpose of impeaching testimony given by her on the pending trial, but the court admitted it for the purpose of impeachment only, and ruled that it could not be" used for the purpose of proving anything else. In this former testimony the defendant stated, in substance, that she was formerly the wife of J. E. Stephens, who died in October, 1913; that for ten or twelve years and until his death she and her deceased husband lived together on her farm; that she inherited the farm from her father’s estate and the title was in her name; that during these ten or twelve years he managed the farm for her, with her knowledge and without objection from her, malring purchases of supplies and fertilizer and looking after the business generally; that she did not know where the fertilizer for the 1913 crop came from until after his death, when Mr. Lashley came out to see her about the debt, at which time she paid the plaintiff $100 on the account for the fertilizer for that year; that the $100 was proceeds of the 1913 crop gathered after the death of Mr. Stephens; and that Mr. Stephens never paid any rent for the farm; also that he managed and looked after that crop and farm for himself and was not her agent. “I suppose the crop of 1913 was his; I had nothing to do with it; it was his crop; he worked it and cultivated it with my permission and consent.”
   Smith, J.

1. In the trial of a ease a witness may refresh his memory by-referring to a memorandum made by him at the time of the transaction, but after thus refreshing his memory he must testify from his recollection as thus refreshed. This is true where a court, reporter, who had taken down the evidence of a witness in a former trial of the case, testified that he could not, independently of his notes of such testimony, testify as to what the witness had sworn ; and it was not error to refuse to permit him to read to the jury his notes. Albany Phosphate Co. v. Hugger, 4 Ga. App. 781, 782 (62 S. E. 533).

2. A transcript of the evidence introduced on a former trial of the same case between the same parties, when properly authenticated, is admissible in evidence on another trial, not only for the purpose of impeaching one of the parties to the case who is a witness, but also for the purpose of proving admissions made by such witness. The court having admitted such transcript in evidence, it was error to confine the evidence to impeachment alone. It was a question of fact for the jury to determine whether or not the husband was the agent of his wife in the purchase of the fertilizer included in the account sued on; and the action of the judge in granting a nonsuit was error.

Judgment reversed.

Jenkins, P. J., and Stephens, J., concur.

C. H. Jones testified that he was cashier and acting manager for the plaintiff in 1913; that the sum charged in the account sued on was due and the value of the fertilizer was substantially as set forth in the account; that he remembered the shipment.of fertilizer to Mr. Stephens and the giving of notes for it; that he could not testify as to whether the plaintiff company knew at that time that the farm referred to belonged to Mrs. Stephens; he did not know it personally; “Mr. Lashley handled the fertilizer sales and passed on the credits, and he made the sale to Mr. Stephens.” There was no testimony in addition to that of the witnesses mentioned above. The court granted a nonsuit, and the plaintiff excepted to that judgment and to the rulings stated above.

J. T. Hill, J. L. Wimberly, for plaintiff,

cited: On admissibility of testimony: 64 Ga. 406 (5); 76 Ga. 623 (2); 6 Ga. 365 (2), 373; 30 Ga. 378; 111 Ga. 815 (3). As to agency of husband, etc.: 123 Ga. 302; Park’s Code, § 3596.

Pearson Ellis, for defendant,

cited: 115 Ga. 109; 129 Ga. 522 (5); 139 Ga'. 816 (6); 145 Ga. 689; 2 Ga. App. 269 (2); 123 Ga. 302 (distinguished).


text:
    10713.
    Ryle v. Macon News Printing Company.
    Decided April 7, 1920.
   Stephens, J.

1. While, in a suit by a servant against the master to recover for injuries alleged to have been caused from a defective machine operated by the master, it ordinarily must appear that the servant did not know of such defect in the machine and by the exercise of ordinary care could not have known thereof, yet, as was held in the case of King v. Seaboard Air-Line Ry., 1 Ga. App. 88 (58 S. E. 252), “A servant may recover from his master for an injury occasioned by a dangerous instrumentality negligently maintained by the master, although it appear that the servant was not ignorant of the existence' of such dangerous instrumentality, if it is shown that at the time of the injury the servant was rendered oblivious or otherwise incapable of exercising his information as to the existence of the dangerous thing on account of the engrossing character of the work at hand.”

2, Where the engrossing work involves the use of the dangerous instrument itself, and it does not appear that the plaintiff had any duty to claim his care and attention other than the doing of the very work by which he was injured, and that no other engrossing work claimed his attention so as to distract it from an appreciation of what was involved in the act he was about to attempt, it cannot be said that “ the servant was rendered oblivious or otherwise incapable of exercising his information as to the existence of the dangerous thing.” Moreover, in the King case, supra, the “engrossing work” was such as diverted the servant’s attention away from the danger, instead of, as in the instant case, fixed it upon the danger itself. See, in this connection, Brown v. Rome Foundry Co., 5 Ga. App. 142 (62 S. E. 720).

3. It appearing from the petition in this ease that the servant had actual knowledge of the defect alleged to have been the proximate cause of the injury, and it not appearing that the servant was rendered oblivious of the danger by reason of his work, the trial court properly dismissed the petition on general demurrer.

Judgment affirmed.

Jenkins, P. J., and Smith, J., concur.

Action for damages; from city court of Macon — Judge Guerry. June 19, 1919.

The material allegations in the petition are: that the plaintiff was employed by the defendant as foreman in charge of its printing-press, -and in case the web of the paper should break while running through the press it was his duty to catch the end of the web and lead the web or feed it into the press until caught up by the rollers and carried by them through the press; that the operation of the press is controlled by a clutch, and when the clutch is engaged the press is in motion, and when disengaged the press is stationary; that on or about March 18, 1918, while he was working at the press, the web of the paper broke, and, in accordance with his custom and practice, he signalled to a fellow servant to stop the press, but, on account of a defective clutch, the press failed to stop, and in attempting to feed the broken switch into the press the plaintiff suffered an injury to his hand. The petition alleges, that the “cause of said injury was a defect in the clutch,” and that “while petitioner had brought to his notice, previous to his injury, that the clutch did not work properly, at the time he was injured his duty and work were so absorbing in the interest of the defendant that they required all of his undivided attention, and that he was prevented from being conscious of and from realizing and from noting the fact that occasionally prior thereto the clutch on said press had not worked perfectly.”

J. M. Hancock, Feagin & Hancock, for plaintiff.

P. F. Brock, for defendant.


text:
    10747.
    Bellinger v. Jones et al.

   Jenkins, P. J.

1. “Tlie 'first grant of a new trial will not be disturbed by tlie Supreme Court, unless tlie plaintiff in error shows that the judge abused his discretion in granting it, and that the law and facts require the verdict notwithstanding the judgment of the presiding judge.” Civil Code (1910), § 6204.

2. In granting the new trial the presiding judge passed the following order; “This was a proceeding brought against the defendants as intruders, and the burden was on the plaintiff not only to establish his right to possession, but also to show that the defendants acquired possession in bad faith. Bad faith, as applied to this case, means that when the defendants took possession they must have known, or at least had reasonable grounds to suspect, that the plaintiff’s title and right of possession was superior to theirs. In other words, they must have taken possession with knowledge or reasonable grounds to suspect that their title was bad. It appears, from the evidence, that both parties have a deed, the general description in which may include the land in dispute. The defendants claim under a deed dated in 1902, and the description in that deed is sufficient to cover the few acres in dispute between the parties. While the preponderance of evidence seems to indicate that the predecessors in title of the plaintiff had been in the uninterrupted possession of this tract for many years prior to his purchase, a careful examination of the evidence fails to disclose any testimony which would authorize a finding that when the defendants took possession of the land they knew the facts in reference to this prior possession of plaintiff’s predecessors in title. Constructive knowledge is not sufficient to show bad faith. There must be actual knowledge. There is no such a thing in the law as constructive bad faith. There being no evidence, as I construe it, to authorize a finding that the defendants had such actual knowledge of the plaintiff’s title as would charge them with bad faith, and the fact that they took possession in the plaintiff’s absence not alone being sufficient for this purpose, I am constrained to grant a new trial, on the ground that the verdict is without evidence to support it.” The trial judge did not err in granting the new trial for the reason assigned. See Nichols v. Chandler, 46 Ga. 479.

Decided April 7, 1920.

Eviction; from city court of Albany — J. E. Pottle, judge pro hac vice. June 11, 1919.

S. B. Lippitt, for plaintiff.

Milner & Farkas, for defendants.

Judgment affirmed.

Stephens and Smith, JJ., concur.


text:
    10755.
    Grubbs v. Elrod, next friend, etc.
    Decided April 7, 1920.
   Stephens, J.

1. Even though a physician or surgeon may be skilled in his profession, he is nevertheless under a duty to exercise reasonable care and skill in the performance of an operation, and his failure to do sq is' a tort for which a recovery may be had. Akridge v. Noble, 114 Ga. 949; Hinkle v. Smith, 12 Ga. App. 496.

2. The petition set out a cause of action, and the general and special demurrers thereto were properly overruled.

Judgment affirmed.

Jenkins, P. J., and Smith, J., concur.

Action for damages"; from city court of Americus — Judge Harper. June 30, 1919.

In the petition as amended Mrs. Blanche Elrod, as next friend of her minor daughter Mary Elrod, alleged, in substance, that Dr. L. E. Grubbs, the defendant, was a skilled physician and specialist treating the eye, ear, nose, and throat, and holding himself out to the public as skilled in such treatment, when the petitioner employed him to remove the tonsils of the said Mary, who was then eight years of age; that the removal of tonsils is not a dangerous or serious operation by one skilled in his profession, and a physician in the exercise of ordinary skill and diligence would not in removing tonsils from the throat injure other parts of the body; that in removing the tonsils of the said Mary the defendant carelessly ■ and negligently and without the use of reasonable skill broke or pulled out by the root one of her front permanent teeth and broke off a part of a tooth adjoining the one so removed, and, in addition to the injury to the teeth, badly bruised and injured her mouth, causing her great pain and suffering, and that the injury to the teeth injured and damaged her for life, greatly disfiguring her mouth; that the defendant knew or should have known that the tooth, after it was knocked or pulled out, could be successfully' replanted and that in a short time nature would firmly" reset it in its original socket and it would have discharged its natural functions; that instead of so resetting and replanting the tooth, as he was in duty bound to do in the exercise of proper medical skill, he threw it away, and thus precluded the possibility of replanting and resetting it in its socket; and in so doing he was negligent, failing to bring into exercise reasonable care and medical skill; that all of said injury and damage “was the result (a) of unskillful discharge of duty he owed said Mary Elrod, (&) in failing to exercise ordinary skill and diligence in performing said operation;” and that by reason of the foregoing facts the defendant injured and damaged the said Mary Elrod in the sum of $5,000, in that her face is permanently disfigured and because of the unnecessary pain and suffering endure'd by her because of such unskilful acts.

In the demurrer it is contended that no cause of action is set out; that the petition does not show how or in what manner the defendant failed to exercise ordinary care in performing the operation, and that the allegations as to such failure are merely conclusions of the pleader.

Shipp & Sheppard, for plaintiff in error,

cited Civil Code (1910), § 4427.

Maynard & Williams, J. J. James, contra,

cited Abridge v. Noble, 114 Ga. 949.


text:
    10757.
    Central of Georgia Railway Co. v. Hartley.
   Jenkins, P. J.

1. Hartley sought to recover damages for alleged personal injuries claimed to have been inflicted by the operation of the defendant’s cars while he was driving a buggy over a public street and railway crossing in the City of Tennille. Various charges of negligence, ■which it is alleged occasioned the injury, are brought against the defendant, including a violation of the “blow-post law” then of force, an allegation that the defendant’s train was being moved at the time and place of the accident at an excessive rate of speed, to wit, twenty-five or thirty miles per hour, failure to keep a proper lookout, failure to give a proper signal, and a violation of a valid municipal ordinance limiting the speed of trains within the city to eight miles per hour. The defendant denied each of the acts of negligence charged against it, and further contended that the proximate cause of the injury was the negligence of the plaintiff himself. It also demurred to the petition, both generally and specially; and to the overruling of the demurrers exceptions are taken. The evidence was in sharp conflict upon practically every issue raised by the petition and the answer. The jury found for the plaintiff in the sum of $7,500, and the refusal of the trial judge to grant a new trial is complained of. Held:

1. The court did not err in overruling the general demurrer to the petition. Ordinarily, issues relating to negligence, including contributory negligence,— that is, negligence on the part of the defendant as well as on the part of the plaintiff,— are questions which lie peculiarly within the province of the jury to determine. As a general rule, not only is it incumbent upon the jury to say whether the particular conduct charged against the defendant is proved, but, except as to allegations relating to negligence per se, it is their further duty to determine whether or not such acts, if proved, were negligent; and if so, it then becomes their final duty to solve any issue made as to whether or not such proved acts of negligence on the part of the defendant- constituted the proximate cause of the injury. While it is true that where a petition indisputably shows on its face that the plaintiff is not entitled to recover, and the question is made by general demurrer, it is the duty of the court to dismiss the action, still the application of this rule cannot properly be invoked except in cases so plain as will in no wise admit of a reasonable contrary interpretation. Harris v. Central Railroad, 78 & Ga. 525, 536 (3 S. E. 355); Central of Georgia Railway Co. v. Larsen, 19 Ga. App. 413, 417 (1) (91 S. E. 517) ; Southern Cotton-Oil Co. v. Gladman, 1 Ga. App. 259, 260 (8) (58 S. E. 249).

2. The court did not err in overruling tlie special demurrer' to the petition.

(a) The petition showed that a certain engine and cab were left standing upon the defendant’s sidetracks near the crossing, so as partially to obstruct the petitioner’s view of the approaching train. The fact thus alleged is not charged by the petition, as amended, to be an act of negligence on the defendant’s part, but is stated merely as inducement and explanation, descriptive of the locality and environment of the injury. See Southern Railway Co. v. Grizzle, 124 Ga. 735 (4), 740 (53 S. E. 244, 110 Am. St. R. 191). . Since it is not necessary to set forth and describe in detail the whole environment relating to the transaction at the time of the injury, in order to admit evidence of the same for the purpose of showing how the alleged negligence of the defendant occasioned the injury (Atlanta Street Railroad Co. v. Walker, 93 Ga. 462, 463, 464, 21 S. E. 48), the defendant could not properly complain that the ownership of the cab and engine and their exact location and their distances from the crossing were not precisely set forth in the petition.

(b) The remaining grounds of the special demurrer to the petition are without merit, and are not specifically argued in the brief of counsel for the plaintiff in error.

3. The court did not abuse its discretion in overruling the defendant’s motion for a continuance.

(a) The defendant’s claim agent, who swore that it was his duty to prepare the evidence for the defendant, testified on the motion for continuance that he had had a conversation with one Lanigan soon after the accident had occurred, about eighteen months previously; that Lanigan, while not present at the time of the alleged injury, professed to have come upon the scene a few moments thereafter; that he had then noted the position of the engine and cab standing upon the sidetrack; that there was nothing to obstruct a view of the approaching train from one entering upon the crossing; that he had made certain measurements showing the distance of the rear end of the train from the crossing over which it had passed; that the absent witness, who was an employee of aji allied railway company, had at that time promised to attend court without a subpoena; that he had recently discovered that the witness had removed from the State, and had lately refused to attend the court; that no subpoena had been issued for him. There was a counter-showing to the effect that the absent witness had moved from the county about four months previously. The record shows that this evidence related to facts as to environment and distances about which there was practically no dispute, that an expert civil engineer testified for the defendant concerning these facts, and that tlie defendant put in evidence a detailed map or drawing definitely outlining the entire sitúation and locality. See Civil Code (1910), §§ 6715, 5721; Moon v. Wright, 12 Ga. App. 659, 660 (5) (78 S. E. 141); Macon & Birmingham Railway Co. v. Anderson, 121 Ga. 666 (4) (49 S. E. 791).

4. While rulings have been made to the effect that, in a case such as this, a plaintiff cannot prove, by a general statement, the amount of his damage (McCrary v. Pritchard, 119 Ga. 876, 47 S. E. 341; Foote & Davies Co. v. Malony, 115 Ga. 985, 987 (3), 42 S. E. 413; Smith v. Eubanks, 72 Ga. 280, 287), this rule would not preclude such a plaintiff from testifying, subject to the right of cross-examination, to the annual value of his personal services prior to the injury, and to the value of such services subsequent thereto, especially where, as in this case, the witness goes into full details as to the facts upon which his opinion- ia based. City Electric Railway Co. v. Smith, 121 Ga. 663 (49 S. E. 724); Jennings v. Stripling, 127 Ga. 778, 784 (56 8. E. 1026) ; Central Railroad v. Coggin, 73 Ga. 689 (5); Southern Railway Co. v. Dean, 128 Ga. 366 (57 S. E. 702); Chattanooga, Rome & Columbus R. Co. v. Huggins, 89 Ga. 494, 495 (3) (15 S. E. 148).

6. Eor the reasons stated above in paragraph 2 (a)', there was no error in admitting the evidence complained of in the third, fourth, and fifth grounds of the amendment to the motion for a new trial.

6. “ Ordinary care ” is, as contended by the plaintiff in error, a variable term, depending upon the circumstances surrounding the particular case, but it was not error for the judge to make use of the expression that “ the standard of ordinary care is invariable,” since it is clear that the jury were authorized and directed to apply the standard given them, to wit, that care which every prudent man exercises under the same or similar circumstances,” to the particular facts of the instant case. Central Railroad & Banking Co. v. Ryles, 84 Ga. 420 (11 S. E. 499) ; Harris v. Central Railroad, 78 Ga. 525, 536 (3 S. E. 355).

7. Upon its being shown that an injury had been occasioned to the plaintiff by the running of the locomotives or cars of the defendant railroad company, a presumption of liability arose against the defendant in respect to the negligence charged, unless the company should make it appear that its agents had exercised all ordinary and reasonable care and diligence, the presumption in all cases being against the company. Civil Code (1910), § 2780. The court, therefore, did not err in giving in charge the excerpt complained of in ground 8 of the motion for a new trial.

8. The use by the court of the word “ defendant,” instead of “ plaintiff,” in charging the jury to the effect that the plaintiff could not recover if he failed to exorcise ordinary care to avoid the consequences of the defendant’s negligence, “ if any was then existing or could have been reasonably apprehended to have been in existence on the part of the defendant,” was but a manifest slip of the tongue, which could not reasonably have been misleading; and besides, if harmful at all, it must have militated against the rights of the plaintiff, and not of the defendant. Elsewhere in his charge the judge twice gave ta the jury this same principle of law, clearly ^pd cqrrecjtly.

9. The excerpts from the charge complained of in grounds 11 and 12 of the motion for a new trial could not be reasonably taken to be an expression of opinion as to whether there had been, or would be, pain and suffering on the part of the plaintiff, growing'out of the alleged injury; nor can it reasonably be said that the charge complained of in ground 11 prevented the jury from finding damages for decreased earning capacity only.

10. The charge upon the subject of the impeachment of witnesses by contradictory statements is in conformity with the law of the code (Civil Code (1910), §§ 5881, 5884), and there is nothing in the excerpt complained of which could reasonably be said to have excluded from the consideration of the jury the alleged contradictory statements previously made in writing by the witness and introduced by the defendant, especially as the judge in another portion of his charge called special attention to this document as evidence admitted for their consideration.

11. The grounds of defense relied' upon in this case do not set up any unusual, special, or peculiar state of facts, nor do they invoke the application of any principle, or principles, of law other than those which might ordinarily apply to any such suit of like general character. The charge as given by the trial judge was clear, fair, and exhaustive, fully covering every correct statement of law embodied in the various requests to charge. Appellate courts, in discussing cases, frequently make use of language which, though embodying sound principles of law, is not intended to be adjusted to the requirements and proprieties of a charge to be given to juries. Western & Atlantic Railroad Co. v. Jarrett, 22 Ga. App. 313 (96 S. E. 17). While the evidence is sharply-conflicting and the case is closely contested upon almost every phase of the issues made by the pleadings, the verdict is nevertheless abundantly sustained upon every one of the vital contentions. The case, therefore, does not properly fall within the ruling made in Metropolitan Street Railroad Co. v. Johnson, 90 Ga. 500 (16 S. E. 49), to the effect that in that close and doubtful case it was error to refuse the charge there indicated, which was precisely adjusted and specifically bore upon the one vital issue where the pressure of that case centered. In this case the pressure of the contest was not thus confined, it was not close in the sense that there was lacking abundant evidence to justify the finding; and besides, in this ease the trial judge not only stated but amplified the statement of the principle referred to, and thus, in our opinion, not only made clear the rule but the application of the rule.

12. There is no merit in the exception seeking to set up relationship by marriage between the plaintiff and one of the jurors. While marriage will relate the husband by affinity to the blood relations of the wife, it will not relate the husband to those merely related by marriage to the wife. Central Railroad & Banking Co. v. Roberts, 91 Ga. 513, 517 (18 S. E. 315) ; Baldwin v. State, 120 Ga. 188, 190 (2) (47 S. E. 558).

13. The plaintiff’s case, including the venue, was abundantly supported by the evidence. Under the evidence this court is unauthorized to say that the amount of the finding was excessive. Realty Bond & Mortgage Co. v. Harley, 19 Ca. App. 186 (91 S. E. 254).

Decided April 7, 1920.

Action for damages; from Washington superior court — Judge Hardeman. June 21, 1919.

Evans & Evans, W. M. Goodwin, Lovett & Powell, for plaintiff in error.

R. R. Arnold, Jordan & Harris, contra.

Judgment affirmed.

Stephens and Smith, JJ., concur.


text:
    10784.
    Seaboard Air-Line Railway Co. v. Greene.
    Decided April 7, 1920.
    Action for damages; from city court of Springfield — Judge Shearouse. June 24, 1919.

      Anderson, Cann, Cann & Walsh, for plaintiff in error.

      Seabrook & Kennedy, contra.
   Jenkins, P. J.

In conformity with the recent ruling of the Supreme Court (Ash v. Peoples Bank of Oliver, 149 Ca. 713, 101 S. E. 912), to the effect that writs of error do not lie from the city court of Springfield to the Court of Appeals, the writ in this case must be dismissed.

Writ of error dismissed.

Stephens and Smith, JJ., concur.


text:
    10863.
    Cheney v. Bank of Bremen.
   Jenkins, P. J.

1. “ When an admission is given in evidence, it is the right of the other party to have the whole admission and all the conversation connected therewith.” Civil Code (1910), § 5783. “In all cases where the personal representative of the deceased or insane party has introduced a witness interested in the event of a "suit, who has testified as to transactions or communications on the part of the surviving agent or party with a deceased or insane party or agent, the surviving party or his agent may be examined in reference to such facts testified to by said witness.” Civil Code (1910), § 5858 (6). The evidence which in this case thus forms the basis of the other testimony objected to by the plaintiff was given by the plaintiff himself, and in answer to a question by his own counsel; and while the plaintiff’s counsel subsequently, during the cross-examination, moved to exclude ■ the original testimony of the plaintiff, on the ground that it was not responsive to the question of his counsel, the court did not err in refusing to exclude such evidence as thus given by the plaintiff, when the motion to exclude was not promptly made. The first and second grounds of the amendment to the motion for a new trial are therefore without merit. See Birmingham, Lumber Co. v. Brinson, 94 Ga. 517 (1) (20 S. E. 437); also, as bearing upon the admissibility of the testimony of the cashier concerning the transaction had with the decedent, Ullman v. Brunswick Title Guarantee &c. Co., 96 Ga. 625 (1), 628 (24 S. E. 409); Rosser v. Georgia Pacific Ry. Co., 102 Ga. 164, 166 (1) (29 S. E. 171); Maxwell v. Imperial Fertilizer Co., 103 Ga. 108 (29 S. E. 597) ; Cody v. First Nat’l Bank, 103 Ga. 789 (3) (30 S. E. 281) ; Holston v. Sou. Ry. Co., 116 Ga. 656 (43 S. E. 29); Bank of Southwestern Georgia v. McGarrah, 120 Ga. 944 (5) (48 S. E. 393).

2. “Acquiescence or silence, when the circumstances require an answer or denial or other conduct, may amount to an admission.” Civil Code (1910), § 5782. Thus, in a suit by a decedent’s administrator against a bank for the recovery of a deposit claimed to be due the estate, where it appears that the decedent’s pass-book had been written up, showing the payment of the item in dispute and that the account stood balanced, which pass-book had been delivered to, and was accepted by, the decedent, several years prior to his death, and retained in his possession up to the time of his death, it was not error for the judge to instruct the jury that a failure of the depositor to make objection or complaint as to the statement thus rendered could be accounted as an admission on his part as to the correctness of the statement.

3. The only issue of fact on the trial of this case-was whether the payment made by the cashier to the decedent on a certain check from his admitted deposits was in the sum of $11.50 or $1150. The check under which the payment was made was in form as follows:

" Bremen, Ga., Oct. 25, 1906.
“Bank of Bremen.
“Ray to cash or order, $1150.00 “Eleven & 50/100........Dollars.
“I. N. Cheney, M. D.”

The judge correctly charged the jury that in construing the instrument the words written into the body of the check would control the figures written in the margin, but that the real issue for their determination was the question as to which amount was actually, paid thereon. He elsewhere chai’ged them, however, that the burden of proof rested on the plaintiff depositor. Held-. Since the amount of the deposit is undisputed, the burden of proof to show payment shifted to the defendant-bank, but in view of the facts set forth in the preceding -paragraph, taken together with the clear and convincing evidence in favor of the defendant, which is substantially undisputed, save by the written portion of the check itself, the charge in reference to the burden of proof cannot properly be taken as reversible error. 2. Michie, Banking, 1343; Anderson v. Leverich, 70 Iowa, 741 (30 N, W, 39); Nat. Bank v, Tacoma Mill Co., 182 Fed. 1 (104 C. C. A. 441). See Lazenby v. Citizens Bank, 20 Ga. App. 53 (2) (92 S. E. 391).

Decided April 7, 1920.

Complaint; from Haralson superior court — Judge Irwin. July 1, 1919.

I. N. Cheney Jr., H. J. McBride, fox plaintiff.

Griffith & Matthews, for defendant.

Judgment affirmed.

Stephens and Smith, JJ., concur.


text:
    10884.
    Southern Railway Company v. Hunt.
    Decided April 7, 1920.
    Certiorari; from Hall superior court — Judge J. B. Jones. July 26, 1919.

      E. A. Neely, C. R. Faulkner, J. O. Adams, Ed. Quillian, for plaintiff in error.

      W. N. Oliver, contra.
   Stephens, J.

While the transferee of an “order notify” hill of lading, after paying the draft attached and obtaining possession of the bill of lading and thus acquiring the legal title to the goods mentioned therein, may maintain a suit against the carrier for any shortage in the shipment, occasioned subsequently to the transfer of title and before delivery to him, where such shortage is traced to the carrier, yet where in such a suit the bill of lading does not appear in evidence, and there is no evidence of any admission upon the part of the carrier as to the amount of goods received by it from the consignor, or other evidence tending to prove the amount of goods in the possession of the carrier and delivered to the transferee, the latter, although proving title to the goods shipped and received, fails to prove any loss or damage to the shipment accruing after he had obtained title thereto.

Judgment reversed.

Jenkins, P. J., and Smith, J., concur.


text:
    10912.
    Lester v. Bank of Adrian.
   Jenkins, P. J.

1. Misrepresentations as to an existing and material fact, amounting to fraud, when made either by a principal or through his agent, whereby another is induced to enter upon an obligation in writing, may, as between the parties, be alleged and proved, if not inconsistent with the writing, not as being an attempt to add to or vary the terms of the written instrument, but as a means of showing its invalidity. Loyless v. Hesse Envelope & Lithographing Co., 10 Ga. App. 660 (74 S. E. 90) ; Civil Code (1910), § 4623; Clark on Contracts, 2d ed.), paragraphs 227-8.

Decided April 7, 1920.

Complaint; from city court of Dublin-—-Judge Flynt. September 10, 1919.

' Tbe Bank of Adrian, for the use of the payees, sued the maker on the last of a series of five promissory notes. The contention that the holder of the note was a bona fide purchaser was admittedly not made. The consideration of the note was for the part purchase of a certain tract of timber described in a contemporaneous written instrument of sale. The defendant pleaded fraud in the procurement of the note, in that the plaintiff had guaranteed that the premises contained at least 200,000 feet of available timber, whereas not more than 25,000 feet existed; and that in order to effect the sale and induce the signing of the notes, the plaintiff falsely and fraudulently represented that the land was ordinarily dry swamp land, and that, although it was then temporarily covered with water, such condition was unusual and would not continue longer than a period of two or three days, whereas in fact, as the plaintiff then knew, the land was not dry swamp land temporarily overflowed, but stood continually under water, so as to prevent the removal of the timber bargained for. There was no demurrer to the plea. The trial judge refused to admit testimony offered in support of the allegations of fraud, and directed a verdict for the plaintiff.

S. P. New, for plaintiff in error.

2. The court erred in refusing to admit in evidence the testimony offered under the plea whereby it was sought to establish fraud in the procurement of the note, and in thereafter directing a verdict for the plaintiff.

See Daniel v. Burson, 16 Ga. App. 39, 41 (84 S. E. 490).

Judgment reversed.

Stephens and Smith, JJ., concur.


text:
    10918.
    Davisboro Fertilizer Co. v. Wyatt.
    Decided April 7, 1920.
   Jenkins, P. J.

There were sufficient facts, necessarily within the knowledge of the trial judge, to have justified the reinstatement of the claim of the defendant in error, and no abuse of discretion appears. See Maddox Coffee Co. v. McHan, 22 Ga. App. 198 (2) (95 S. E. 736).

Judgment affirmed.

Stephens and Smith, JJ., concur.

Levy and claim—motion to reinstate claim; from city court of Sandersville—Judge Jordan. August 1, 1919.

A. R, Wright, for plaintiff.

M. L. Gross, contra.


text:
    10982.
    11006.
    Tillman v. Groover et al. Dubberly et al. v. Tillman.
    Decided Apkil 7, 1920.
    Action for damages; from city court of Eeidsville — J. Y. Kelley, judge pro hac vice. September 1, 1919.

      A. S. Way, for plaintiffs in error.
   Jenkins, P. J.

1. “ It is not only the right but the duty of a reviewing or appellate court to raise the question of its jurisdiciton in all cases in which there may be any doubt as to the existence of such jurisdiction.” Welborne v. State, 114 Ga. 793, 796 (40 S. E. 857, 859).

2. “ A city court which, under the act creating it, is provided with a trial jury composed of- less than twelve jurors is not the kind of city court which, under the constitution, can grant new trials, and from which writs of error could lie to the Supreme Court.” Ash v. Peoples Bank of Oliver, 149 Ga. 713 (101 S. E. 912) ; Ga. L. 1915, p. 117.

3. The constitutional amendment fixing the jurisdiction of the Court of Appeals does not intend “to confer jurisdiction in cases which could not be brought by writ of error to the Supreme Court before the creation of the Court of Appeals,” Ash v. Peoples Bank of Oliver, supra.

Writ of error dismissed.

Stephens and Smith, JJ., concur.


text:
    10983.
    Lang v. Hall.
   Stephens, J.

1. A bill of exceptions which does not complain of a judgment finally disposing of the case, or of a judgment which would have been final if rendered as contended for, will not operate to confer any jurisdiction upon this court. Where a trial judge has certified a bill of exceptions which complains of a ruling sustaining a demurrer to and striking a defendant’s plea, which is not a final judgment, the case still remains within the jurisdiction of the trial court. Where the case thereafter proceeds to trial and a final judgment is rendered therein, a bill of exceptions duly tendered, bringing such final judgment to this court for review, will not be dismissed upon motion of the defendant in error, based up.on the ground that the trial judge lost jurisdiction of the case by certifying to the first, bill of exceptions.

Decided April 7, 1920.

Complaint; from Gordon superior court — Judge Tarver. August 26, 1919.

Lang & Lang, for plaintiff in error.

A. L. Henson, contra.

2. Where the trial judge certifies a bill of exceptions which excepts to a judgment not final, and which would not have been final if rendered as contended for, it is not error for him thereafter and within the time allowed by law after the rendition of the judgment complained of to pass an order amending such certificate and ordering that such bill of exceptions operate and be filed as exceptions pendente lite. Where a proper assignment of error is made in this court upon such exceptions pendente lite, the same will be here considered.

3. It is no defense to a claim for attorney’s fees in a suit upon a promissory note that, before the filing of the suit and before' the giving to the defendant of the ten-days notice required by statute, the payee had already brought suit on the note against the defendant, and that such suit was pending at the time of service upon the defendant of the statutory notice required, but had been dismissed by the plaintiff prior to the filing of the second suit. Bacon v. Hanesley, 19 Ga. App. 69 (3) (90 S. E. 1033).

4. " In a sale of land there is no implied warranty of title.” Civil Code (1910,) § 4193. In a suit upon a promissory note a plea which alleges that the note sued on was executed by the defendant in payment of the balance due the plaintiff on the purchase-money of certain land which the defendant had purchased from the plaintiff, and which further alleged that there was a defect in plaintiff’s title to* the land, which was afterwards discovered by the defendant, in that the plaintiff had acquired title to only four-fifths interest in the land and never acquired title to the whole estate, and where it nowhere appears that the plaintiff obligated himself to make title or expressly warranted the title to the land, such plea set forth no defense and was properly dismissed on demurrer.

5. This being a suit upon a promissory note, and it being undisputed that the defendant had received the statutory notice of the plaintiff’s intention to bring suit and claim attorney’s fees, it was not error for the court, after having properly dismissed defendant’s plea, to direct a verdict for the plaintiff.

Judgment affirmed.

Jenkins, P. J., and Smith, J., concur.


text:
    11199.
    Central of Georgia Railway Company v. Hartley.
    Decided April 7, 1920.
    Action for damages; from Washington superior court — Judge Hardeman. November 24, 1919.
    The action was for damages on account of the death of the plaintiffs husband, a farmer 48 years of age. The verdict was for $15,000. There was evidence to the effect that he made about $2,200 a year net from his farm, that he was in good health and his services were worth that sum.

      W. M. Goodwin, Evans & Evans, for plaintiff in error.

      Reuben R. Arnold, Jordan & Harris, contra.
   Jenkins, P. J.

This case is controlled in nearly every particular by the rulings this day made in Central of Georgia Railway Co. v. Hartley, ante, 110, -which was a suit by another plaintiff growing out of the same transaction. In the instant case the judge did not abuse his discretion in overruling the motion for continuance. Nor do we feel justified in holding that the amount of the verdict is excessive. Por none of the reasons assigned do we feel authorized to set the verdict aside.

Judgment affirmed.

Stephens and Smith, JJ., concur.


text:
    11251.
    Sikes v. McDilda.
    Decided April 7, 1920.
    Trover; from city court of Reidsville-—-Judge Cowart. December 3, 1919.

      Elders & DeLoach, for plaintiff in error.

      W. T. Burkhalter, S. B. McCall, contra.
   Jenkins, P. J.

For the reasons given in Tillman v. Groover, ante, 118, the writ of error in this case must be

Dismissed.

Stephens and Smith, JJ., concur.


text:
    10736.
    Foundation Company v. Brannen.
   Stephens, J.

The petition alleged that on the 27th day of June, 1918, the plaintiff was employed by the defendant “at a salary of $200.00 per month, by the month,” and further alleged that “ on the 28th day of December, 1918, defendant notified plaintiff that his services would terminate on the 1st day of January, 1919, but plaintiff, at request of defendant, continued to work for defendant until the 6th day of January, 1919, upon which date he was discharged by defendant and was paid the sum of $39.54.” Held-. The petition declares upon a contract of employment by the month at a fixed monthly salary, the contract continuing for an indefinite period of time, with the right in either party to terminate it at the end of any month; and it was a question of fact for the jury whether or not the plaintiff, in continuing to work for the defendant, was acting under the original contract. The trial judge properly overruled the demurrer to the petition. See, in this connection, Civil Code (1910), § 3133; Odum v. Bush, 125 Ga. 184 (53 S. E. 1013) ; Webb v. McCranie, 12 Ga. App. 269 (77 S. E. 175).

Decided April 8, 1920.

Complaint; from city court of Savannah — Judge Freeman. June 7, 1919.

Stephens, Barrow & Heyward, for plaintiff in error.

Lee Cotton, contra.

Judgment affirmed.

Jenkins, P. J., and Smith, J., concur.


text:
    10985.
    Mooty, administrator, v. Butler.
   Jenkins, P. J.

'1. Under the provisions of the act approved August 21, 1911 (Park’s Code, § 6090 (a)), no question as to the filing of the brief of evidence can be entertained by the reviewing court, where the judge has finally passed on the merits of the motion for a new trial, unless the question was first raised and insisted on before the trial judge. Charleston & Western Carolina Ry. Co. v. McElmurray, 12 Ga. App. 441 (78 S. E. 258) ; Collins v. State, 12 Ga. App. 655 (77 S. E. 1079) ; Chicago & Northwestern Railway v. Elliott, 16 Ga. App. 388 (85 S. E. 615). A bona fide effort to brief the evidence being manifest in this case, this court will not hold that it so fails to comply with the requirements of law as to prevent its being treated as a brief of the evidence.

2. This was a suit for damages growing out of an alleged malicious prosecution. The verdict in the criminal case found the defendant (the plaintiff in this suit) not guilty, and also found that the prosecution was malicious. The judge trying the damage suit instructed the jury that “ as a matter of law that verdict is conclusive as to the question of malice, but is not conclusive as to the question of probable cause.” The jury found for the plaintiff damages in a named sum. The trial judge granted a new trial, and the plaintiff excepted. Held:

(a) This court declines to hold as a matter of law that the evidence de- . manded a finding that the criminal prosecution was without probable cause. Such would be the effect of holding that the grant of the new trial Was an abuse of discretion.

Decided April 8, 1920.

Action for malicious prosecution; from city court of LaGrange — h. L. Meadors, judge pro hac vice. September 24, 1919.

M. U. Mooty, for plaintiff.

Duke Davis, E. T. Moon, for defendant.

(6) The verdict was properly set aside for the reason that the excerpt quoted from the charge is deemed erroneous. Although the defendant in the damage suit was the prosecutor in the criminal proceeding, and while under the Penal Code the prosecutor can be compelled to pay the cost when a jury finds the prosecution to be malicious, still it cannot be said that the real parties in the criminal case and in the damage suit were identical, or that the issues were the same either in scope or as to attendant results. The defendant in the criminal case, not being sworn, was not subject to the penalties relating to witnesses, and was not subject to the right of cross-examination, nor was the conduct of the criminal case under the direction and control of the prosecutor. See Metropolitan Life Ins. Co. v. Hand, 25 Ga. App. 90 (102 S. E. 647), and cit.

Judgment affirmed.

Stephens and Smith, JJ., concur.