text:
    10727.
    Douglas v. Brooke et al.

    Decided November 26, 1919.
    Rehearing denied December 10, 1919.
   Smith, J.

1. Where the judgment complained of recites that the motion (which was a motion to set aside a judgment) is overruled “after hearing evidence and argument,” and the assignment of error in the bill of exceptions is that “to the order of the court setting aside said judgment plaintiff then excepted, now excepts, and assigns the same as error,” and “to the said decree of the court plaintiff then excepted, now excepts, and assigns the same as error,” the exceptions are too general and indefinite to present any question for consideration by this court or to furnish grounds for reversing the judgment, since such a case does not involve the mere exercise of the discretion of the trial judge (as in the grant or refusal of a temporary injunction), and issues of both fact and law were determined by the judgment, and it is impossible for this court to know from the exception taken whether the judgment on the law or on the facts is complained of. C. & W. C. Ry. Co. v. Cottonseed Oil Co., 22 Ga. App. 337 (2), 340 (96 S. E. 586), and numerous cases cited in the opinion.

2. The other assignments of error contained in the bill of exceptions complain of judgments on demurrers, motions to strike answers, and verdicts, all of which had been finally passed upon and adjudicated more than thirty days prior to the date of the tender of the bill of exceptions, and therefore cannot be considered by this court. Civil Code (1910), § 6152; Crawford v. Goodwin, 128 Ga. 134 (57 S. E. 240); First National Bank v. Taylor, 138 Ga. 119 (74 S. E. 783); Grant v. Southern Bell Telephone &c. Co., 145 Ga. 298 (89 S. E. 364).

3. All this will appear from an examination of the entire record; and it further appears from the note of the judge contained in the bill of exceptions that on the trial of the ease before the jury on November 21, 1918, when the court was discussing the matter of sending the entire case to an auditor, the plaintiff in open court abandoned all the issues that had theretofore been raised as to demurrers, motions to strike, and what he calls a plea tq the jurisdiction, and agreed that the ease might be tried on its merits, including the cross-bill of the'defendant Brooke. After a verdict which set up an indebtedness to the plaintiff and provided that upon the payment of certain sums by the defendant Brooke the finding should be a full satisfaction of the findings against both the defendants J. W. Lyle and J. P. Brooke, and four days after the adjournment, the plaintiff entered up a judgment for the several sums of money set out in the verdict, but omitted any mention of the other parts of the verdict, and this judgment was entered on the minutes. The plaintiff filed no motion for a new trial, nor did he except to the verdict until more than 60 days had expired, and then only after a motion had been made by the defendant Brooke to set aside the judgment entered in behalf of the plaintiff and enter a decree in accordance with the verdict did he file his bill of exceptions. His failure to make a motion for a new trial and his entering a judgment in his behalf constituted an acceptance by him of the result of this trial by the jury, and cannot be taken advantage of by him.

4. It follows that the writ of error in this case must be

Dismissed.

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

Motion to set aside judgment; from Cobb superior court—Judge Morris. May 10, 1919.

Application for certiorari was denied by the Supreme Court.

Lee Douglas, for plaintiff in error.

George F. Gober, H. B. Moss, contra.


source: Caselaw Access Project

author: Stephens, J.

license: Public Domain

text:
    10321.
    Wilcox v. Bank of Hazlehurst.
    Decided November 28, 1919.
    Rehearing denied February 10, 1920.
    Affidavit of illegality; from city court of Hazelhurst—Judge Christian presiding, November 29, 1918.

      8. D. Dell, for plaintiff in error, J. Marie Wilcox, contra.
   Stephens, J.

1. Where a surety was sued jointly with his principal, and service had upon him, and he was informed by the plaintiff that it was not necessary for him to file a defense, or employ counsel, as the plaintiff did not intend to enforce the judgment against him, but that the judgment was being obtained for the surety’s protection, and, relying upon the promise of the plaintiff, the surety failed to file any defense and suffered judgment to go against him, he could not in an affidavit of illegality urge such ground as a defense to the enforcement of the judgment. The instant case is distinguishable from Monroe v. Security Mutual Life Ins. Co., 127 Ga. 549 (56 S. E. 764), relied on by plaintiff in error. In that case it was held that “A defendant may resist the levy of an execution by affidavit of illegality, by showing an agreement between the plaintiff and himself, entered into contemporaneously with or prior to the rendition of the judgment, whereby it was stipulated, upon a sufficient consideration, that the judgment might be subsequently discharged upon performance of certain acts by the defendant, and by showing that the defendant has performed those acts, since the judgment, conformably to the terms of the agreement.” In the instant case there was no agreement, “entered into contemporaneously with or prior to the rendition of the judgment, whereby it was stipulated, upon a sufficient consideration, that the judgment might be subsequently discharged upon the performance of certain acts by the defendant,” and there was no showing that the defendant had performed any act since the judgment conformably to the terms of the agreement. There was a mere voluntary promise on the part of the plaintiff that he would not enforce a judgment against the defendant, and a statement that it would not be necessary for the defendant to file any defense. It does not appear that the defendant, in consequence of such promise and representation of the plaintiff, performed any act subsequent to the judgment, but he merely suffered judgment to go against him.

2. The remaining assignments of error are without merit.

3. It not being plainly apparent that this writ of error was sued out for delay only, the motion of the defendant in error for damages is denied.

Judgment affirmed.

Jenlcins, P. J., and Smith, J., concur.


author: Smith, J.

text:
    10400.
    BROWN et al. v. LOUISVILLE AND NASHVILLE RAILROAD COMPANY.
    The petition was subject to general demurrer, since it was an attempt to join in a single suit a cause of action arising ex contractu with one growing out of a tort. Such a practice is not permissible.
    Decided November 28, 1919.
    Action for damages; from Cherokee superior court—Judge Morris. .February 14, 1919.

      J. H. Boston, J. Z. Foster, for plaintiffs.

      T). W. Blair, Howell" Brooke, for defendant.
   Smith, J.

This is a suit by the executors of the estate of James B. Brown against the Louisville & Nashviile Bailroad Company for damages. The material portions of the petition as amended are as follows: “The defendant is in possession of a certain tract of land belonging to said estate, which is occupied and used by it as a right of way and on which its railroad track is located. . . The defendant acquired its possession of said land from the Atlanta, Knoxville & Northern Bailway Company, which held under the Marietta & North Georgia Bailroad Company. The Marietta & North Georgia Bailroad Company acquired its possession of said land first from Harriet F. Brown, a life-tenant in said land, by virtue of a parol agreement entered into between J. B. Brown . . and said Marietta & North Georgia Bailroad Company; whereby the said Marietta & North Georgia Bailroad Company obtained from said life-tenant, Harriet F. Brown, the right to use said strip of land for the purpose of a railroad right of way during the life of the said Harriet F. Brown. . . Harriet F. Brown died in 1888, and the said J. B. Brown then became a life-tenant in said land, under the provisions in said deed set forth in exhibit A. Afterwards said land was held by the Marietta & North Georgia Bailroad Company under the deed of J. B. Brown, life-tenant, to said railroad company, which was executed on January 16, 1891, whereby said Brown conveyed said right of way to said railroad company for and during his natural life only. . . On June 8th, 1900, the said J. B. Brown acquired the remainder interest in said land from John W. L. Brown, the remainderman. James E. Brown died on March 2, 1915. The defendant held the possession of said land continuously ever since the death of the said James B. Brown, using and occupying the same as a right of way and operating its trains upon said track thereon without any warranty or authority whatever, and without the authority or consent of the plaintiffs or either of them. A large and valuable body of river-bottom land . . is greatly injured and damaged . . for the following reasons: The direct way of ingress and egress to said land has been destroyed by the use of said track by defendant, and by reason thereof the only ingress and egress to said land is a roundabout way of more than two and -one half miles. . . By reason of the above facts this body of land so cut off has been damaged materially, in that it is removed to a distance of two miles and a half by the only available way out at present, whereas if the direct route to town were open, this property would be less than one half mile distant from the business portion, and, by reason of this, said land so cut off by the railroad is depreciated in value $20 per acre, or in the total amount of $2,000. The balance of said land lying on the eastern side of said railroad, consisting of two hundred acres, by reason of the facts above stated, is damaged in the amount of $10 per acre . . by reason of its depreciation in value on account of defendant. The value of said tract of land occupied by defendant is $3,000, and the rental value thereof is now, and has been from March 2, 1915, of the value of $2,500 per annum. The defendant damaged the remaining portions of said body of land which now lie on each side of said tract occupied by defendant, by reason of said occupancy and use of defendant and by reason of the facts before set forth, in the sum of $4,000. By reason of the facts aforesaid plaintiffs sue for the following items of damage, to wit: (1) The damage resulting from the loss of said tract now held by defendant, to wit, $3,300, which was the value of said land on March 2, 1915, together with interest on said sum from said date, on which date, the life-estate, which was the only interest the defendant had ever held in said land, terminated and the title thereto immediately vested in the estate of the said J. B. Brown. (2) The damage done to the remaining portions of said body of land, lying on each side of said tract, subsequent to the termination of said life-estate interest therein, on March 2, 1915, by reason of defendant's said occupancy and use of said tract as a right of way since said date, resulting in the division of said body of land, by reason of said maintenance and use of said tract, after the acquirement of the title by tbe said estate, whereby said tract together with said portions on each side thereof constituted one continuous body of land, but since said acquirement, by reason of said occupancy by defendant, said body of land has been damaged, by reason of the division thereof, by the maintenance of said tract, as a right of way, and the operation of trains thereon, by defendant, since said acquirement of the title thereof by said estate.”

“A demand for damages caused by a trespass on land cannot, under section 3261 of the code, be joined with a demand for the use and occupation of such land.” McLendon v. Atlanta & West Point R. Co., 54 Ga. 293 (2), 295. “Giving to the plaintiff’s petition the construction for which they insist, it results that ‘this action is of a very anomalous character,’ being neither more nor less than an attempt to join in a single suit a cause of action arising ex contractu with one growing out of a tort pure and simple— a practice which, under the express provisions of our code, is not permissible.” Allen v. Macon &c. Railroad Co., 107 Ga. 838, 848 (33 S. E. 696). Applying the rulings made in these cases to the petition in the case under review, we find that it is of the same anomalous character pointed out by the Supreme Court in the Allen ease, supra. It seeks a recovery for the value of the land occupied by the railroad company, as well as damages to the adjacent tracts resulting from the building of the road. This is a misjoinder- of causes, and not permissible under our practice; and therefore the trial judge did not err in sustaining a general demurrer and dismissing the petition.

Judgment affirmed.

Jenlcins, P. J., and Stephens, J., concur.


text:
    10558.
    Todd v. Jackson.
   Smith, J.

1. The newly discovered evidence offered in support of the motion for a new trial being of such a character as probably would, if credited by the jury, produce a different result upon another investigation, the trial judge erred in overruling the motion. Although newly discovered evidence may be somewhat cumulative of testimony previously introduced, and impeaching in its character, the real ultimate criterion is the probability of a different result. Mitchell v. State, 6 Ga. App. 554 (4), 558 (65 S. E. 326); Nolan v. State, 14 Ga. App. 824 (82 S. E. 377), and cit.; Paden v. State, 17 Ga. App. 112 (86 S. E. 287).

2. The court erred in giving to the jury the following charge complained of in the defendant’s motion for a new trial: “Evidence has been submitted showing you the value of cotton at the time or times that it was sold by the defendant in this case. You look to the evidence and see what [was] the value of cotton at the time it was sold, and if you find for the plaintiff he would be entitled to recover whatever you find his interest in the cotton was worth, based upon the price it was worth at the time it was sold.” If the cropper was entitled to recover at all, the measure of damages would be the market value of his share of the crop at the time of the breach of the contract or at the time of the demand made by him upon the landlord for a settlement.

Decided November 28, 1919.

Foreclosure of lien; from city court of Newnan—Judge Post. April 7, 1919.

Jackson, a cropper of Todd, foreclosed a laborer’s lien for a sum which he contended’ was due for his share of the crop made by him on the defendant’s land. The defendant filed a counter-affidavit, denying indebtedness, and on the trial of the issue the verdict was in favor of the plaintiff. The instruction quoted in paragraph 2 of the foregoing decision relates to cotton which the plaintiff contended was a part of his share of the crop.

A. H. Freeman, W. G. Post, for plaintiff in error.

IT. L. Stallings, contra.

Judgment reversed.

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


author: ¿/mith, J.

text:
    10585.
    CHARLES W. TWAY COMPANY v. HEDENBERG.
    1. “An agreement by a creditor to receive less than the amount of his debt cannot be pleaded as an accord and satisfaction, unless it be actually executed by the payment of the money, or the giving of additional security, or the substitution of another debtor, or some other new consideration.” Civil Code (1910), § 4329.
    2. A check for less than the amount claimed by the creditor is not payment of the debt until it is itself paid, or unless expressly so agreed. Parker-Fain Grocery Go. v. Orr, 1 Ga. App. 631 (57 S. E. 1074); Watt-Harley-Holmes Hardware Go. v. Day, 1 Ga. App. 646 (57 S. E. 1033); Edwards Bottling Works v. Jarnagin, 11 Ga. App. 162 (74 S. E. 1004) ; Kirby Planing Mill Go. v. Titus, 14 Ga. App. 1 (80 S. E. 18).
    3. This ease was tried by a judge of the municipal court of Atlanta without a jury, and the ease was taken by certiorari to the superior court, and the judge of the latter court sustained the certiorari and granted a new trial. This was, under the law, the first grant of a new trial, and unless the judgment in the municipal court was absolutely demanded by the evidence, this court will not interfere with the discretion of the judge of the superior court in ordering a new trial. See Ferry v. Mattox, 118 Ga. 146 (44 S. E. 1005); Taylor v. Mutual Benefit Industrial Life Association, 20 Ga. App. 236 (2), (92 S. E. 1012) ; Oochran v. Minter, 10 Ga. App. 337 (73 S. E. 551).
    Decided November 28, 1919.
    Certiorari; from F.ulton superior court—Judge Bell. March 21, 1919.

      Lee M. Jordan, for plaintiff in error.

      King & Spalding, John A. SiMey, Neufville & Neufville, contra.
   ¿/mith, J.

On December 4, 1917, a contract was entered into between Charles L. Hedenberg and the Charles W. Tway Company, by the terms of which Hedenberg was to have the exclusive sale of Haynes automobiles within a certain territory. The contract was to expire by its own limitation on June 30, 1918. Hedenberg deposited or paid to the Tway Company $500 for this exclusive right to sell Haynes automobiles in the territory named in the contract. One section of the contract provided that the whole contract might be canceled by either party by giving 10-days written notice to the other party, and if the contract should be canceled by Hedenberg, the Tway Company should not be required to pay any part of the said $500, but if canceled by the Tway Company it should return to Hedenberg such proportion of the $500 as the unexpired term of the contract bore to the whole term. There was written into the contract another provision as follows: “It is understood and agreed that the deposit will be returned at expiration of contract.” Some 16 days before the expiration of the contract Hedenberg gave notice to the Tway Company of(the cancelation of the contract, and demanded that the $500 deposit be paid back to him. Prior to this notice of cancelation the Tway Company had allowed Hedenberg a commission of .$271.25 upon a disputed claim as to the commissions on three automobiles sold by one Thompson. Upon receiving the letter of Hedenberg canceling the contract the Tway Company wrote Hedenberg a letter denying his right to the return of the $500, but offering to refund it less the brokerage or commission of $271.25, referred to above. This letter was dated June 25, 1918. Hedenberg on June 26th, 1918, replied that unless he received a check for the $500 in the very near future he would have to put his claim in the hands of an attorney for collection. On June 28, 1918, the Tway Company again wrote to Hedenberg, enclosing a cheek for $228.75, and rising the following language: “We enplose you herewith our check No. 1604 in the sum of $228.75, and this, together with the credit of $271.25 recently paid you, makes full payment of any claim you might profess to have for $500. In doing this, however, we do not waive any rights we have under the former existing contract, and this tender is made as an offer of complete settlement, and does not in anywise release any claim we have.” Hedenberg retained the check, but did not indorse it or cash it. Afterwards he sued the Tway Company in the municipal court of Atlanta for the $500, with interest, and the defendant filed a general answer. The ease was tried before a judge of the municipal court without a jury. During the trial the Tway Company amended its answer by adding a plea of accord and satisfaction. The judge of the municipal court found in favor of the defendant. There was conflict in the testimony as to the right of Hedenberg to retain the commission of $271.25, and the evidence showed that while Hendenberg retained the check without indorsing or cashing it, the Tway Company, prior to the filing of the plea of accord and satisfaction, stopped payment of the check.

It is not necessary to add anything farther to what is said in the headnotes.

Judgment affirmed.

Jenhins, P. J., and Stephens, J., concur.


text:
    10910.
    Swicord et al. v. Grady County.
   Stephens, J.

1. Where it was sought by certain tax-payers of a county to set aside a judgment validating an issue of bonds by the county upon the ground that the judgment was obtained by fraud upon the part of those representing the county, and the petition alleged in substance the following: that the hearing on the validation proceeding was set for August 9, 1919, at 5 o’clock p. m.; that petitioners had employed attorneys to file objections to said validation; that one Johnson, who was clerk of the board of county commissioners of said county, came to petitioners’ attorneys on the morning of the date set1 for the validation proceeding, requesting said attorneys not to file objections to said validation until he could confer with the county attorney and others with a view of adjusting all differences, and that the hearing for validation would be continued, if necessary; that a committee including the county attorney was appointed to confer with the petitioners and to continue the hearing for the validation if necessary; that said committee, including the county attorney, advised petitioners and their attorneys of their appointment and asked for a conference, expressing themselves in favor of continuing the hearing for validation; that but for the interference of said committee the petitioners would have immediately proceeded to the court-house, and filed their objections to the validation of said bonds; that the said county attorney excused himself from said meeting, leaving petitioners and their attorneys under the belief that he would return and attend said meeting; that instead of returning, the said county attorney proceeded to the court-house and secured an ord,er and judgment validating said bonds; and it not appearing that the county attorney made any misrepresentation as to any fact or facts concerning said hearing, or the postponement thereof, or waived the filing of any objections, or promised to continue the hearing, and it appearing from the petition that the petitioners knew of the time legally set for said validation proceeding, and the only conclusion to he drawn being that through their laches and negligence they failed to file objections, held, that the petition does not allege facts sufficient to show such fraud as would warrant the setting aside of the judgment.

Decided November 28, 1919.

Motion to set aside judgment; from Grady superior court-judge Harrell. September 1, 1919.

S. P. Cain, J. M. Sellers, for plaintiffs.

E. D. Rivers, R. C. Bell, for defendant.

2. The petition is further defective in that petitioners fail to allege and set out a legal defense to the validation proceedings. A petition which alleges that thé petitioners then had and now h'ave a good and meritorious defense to such proceedings, and were ready to file their objections and are now ready to do so, and now show to the court that the required vote of the qualified voters of the county did not, vote in favor of the issuance of the bonds, and that voters were permitted to vote in the election who were not qualified voters of the county, and that, with such votes discarded, a majority of the qualified voters of the county did not vote at the election held to validate the bonds, fails to set out a legal and valid defense. The petition is defective in that it fails to set out in what manner, the alleged illegal voters were not qualified to vote in the election.

3. Furthermore, the petition, properly construed, is a statutory motion to set aside a judgment; and, it not affirmatively appearing that it was made during term time, the petition was bad as against a demurrer excepting thereto upon such ground. Lovett v. Tickers, ante, 407; Bedgood v. Floyd, 20 Ga. App. 617 (93 S. E. 218).

4. The trial eourt did not err in sustaining the demurrer and dismissing the petition.

Judgment affirmed.

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


author: Bloodworth, J.

text:
    10291.
    DAY & COMPANY v. GRAYBILL.
    In an action by a servant against a master for injury from a fall alleged to have been caused by the turning of a loose and insecure board of a step when the plaintiff stepped upon it in descending the steps of a building in which she was working for the defendant, where it did not appear from the petition that the defendant knew of this condition of the step, and where the petition alleged that the plaintiff was “daily and constantly using said steps when working in and about” the premises, no cause of action was stated; it appearing from the allegations of the petition (construed, as they must be, most strongly against the plaintiff) that the plaintiff had opportunities equal to those of the defendant of knowing of the defect in the step. The eourt erred in overruling the general demurrer to the petition.
    Decided December 9, 1919.
    Action for damages; from Fulton superior eourt—Judge Pendleton. December 12, 1918.

      W. 0. Wilson, for plaintiffs in error.

      Westmoreland, Anderson & Smith, contra.
   Bloodworth, J.

Mrs. Estelle Graybill sued W. A. Day & Company for damages resulting from a fall as she descended a pair of steps in the building where she worked for the defendant. A general demurrer to the petition was overruled and the defendant excepted. The 8th paragraph of the petition is as follows: “It is averred, that defendant had negligently allowed the tread of the bottom step to become loose and insecure, which was unknown to the plaintiff, nor had she equal means with the master for ascertaining this fact, nor had she been warned of this defective condition of said steps, and that when she stepped on the same the board turned under her foot and threw her as alleged; that defendant was negligent in allowing the steps to get out of repair, making it unsafe for employees to use the same, and negligent in not inspecting same and warning plaintiff of the defective condition of the said steps, which could have easily been ascertained by inspecting same; negligent in not having it repaired and placed in good order, so that it could be used for the purpose and intent, especially when defendant knew that plaintiff and other employees were daily and constantly using said steps when working in and about the store.” Further than is stated in this paragraph, there is no allegation of knowledge of the master of the condition of the steps. While the plaintiff alleges in this paragraph that she did not have equal means with the master of ascertaining the defective condition of the steps, the allegations in the latter part' of the same paragraph show that she was “daily and constantly using said steps when working in and about the store.”

The allegations in the petition must be construed most strongly against the pleader, and, so construing them, the latter part of the paragraph quoted above shows that the plaintiff had at least equal means with the master of knowing the defective condition of the steps. If the servant “had equal means with the master of discovering the danger, any injury resulting to him would be the result of his own fault.” McDonnell v. Central Railway Co., 118 Ga. 86, 89 (44 S. E. 840). “If both the plaintiff and the defendant had equal opportunities of discovering this patent defect in the appliance on the day the accident occurred, then the defendant would not be liable for an injury resulting therefrom.” Stewart v. Seaboard Air-Line Railway, 115 Ga. 628. In the case of Ludd v. Wilkins, 118 Ga. 525, 526 (45 S. E. 429), the injury to the plaintiff’s husband was alleged to have been caused by the slipping of a plank. In the opinion it was said: “Let it be conceded that it was negligence on the part of defendant not to have had the plank fastened in some way. It is apparent from the testimony that the plaintiff’s husband had equal means with the defendant of knowing that the plank was not fastened, and by the exercise of ordinary care could have discovered this fact. Upon one who brings a suit against a master for injuries to a servant it is incumbent to show not only negligence on the part of the master, but due care on the part of the servant; and it must appear that the servant injured did not know and had not equal means of knowing all that which is charged as negligence to the master, and by the exercise of ordinary care could not have known

thereof. Civil Code, § 2612 [now § 3131]; Daniel v. Forsyth, 106 Ga. 568 [32 S. E. 621], and cases cited; Winship Co. v. Burger, 110 Ga. 296 [35 S. E. 120]; DeLay v. Ry. Co., 115 Ga. 934 [42 S. E. 218].” From the above it is apparent that the petition in this case fails to set forth a cause of action against the defendant, and the court erred in overruling the demurrer to the petition. See Taylor v. Virginia-Carolina Chemical, Co., 4 Ga. App. 705 (62 S. E. 470); Williams v. Atlantic Coast Line Railroad Co., 18 Ga. App. 120 (89 S. E. 158), and cit.

Judgment reversed.

Broyles, C. J., and Luke, J., concur.


author: Broyx.es, C. J.

text:
    10402.
    Barwick v. Stevens Hardware Company.
    Decided December 9, 1919.
    Action for malicious prosecution; from Laurens superior court —Judge Kent. January 31, 1919.
    A joint action for damages against the Stevens Hardware Company, a corporation, and against H. G. Stevens, president, and H. C. Tharpe, secretary and treasurer of the company, was filed on October 20, 1917, by J. W. Barwick, who in his petition alleged, in substance, that on September 14, 1916, the defendants appeared before a named justice of the peace of Laurens county, Georgia, and falsely, maliciously, and without reasonable or probable cause, charged the plaintiff with a misdemeanor, and caused the said justice to issue a warrant for his arrest, and caused him to be arrested, imprisoned, and carried before the said justice, who, on October 25, 1917, examined him and bound him over to the superior court of said county; that “the defendants have not persisted his said complaint, but have deserted and abandoned the same, and said prosecution is now fully determined and ended;” and that by reason of the facts alleged the plaintiff was injured and damaged in the amount sued for.. By amendment the plaintiff alleged, that the said prosecution was instituted and the warrant sworn out by said Tharpe under the advice and direction of said Stevens, president of the Stevens Hardware Company, for the purpose of collecting an alleged indebtedness which the Stevens Hardware Company held in the shape of a draft payable to it, signed by the plaintiff, and that the prosecution was so instituted when “the said defendant” knew that the plaintiff had violated no criminal law of Georgia. It was further alleged that the prosecution “was abandoned by the plaintiff, in that they failed to appear and prefer an indictment before the superior court of said county at the term following the trial had in .the commitment court described in plaintiff’s petition, or at any subsequent term thereof, nor did they prefer an accusation in the city court of Dublin against said plaintiff.”
    The defendants demurred on the following grounds: (1) No cause of action is set forth. (2) It does not appear that the prosecution has ended. The allegation that it has ended is a mere conclusion. (3) There is a misjoinder of parties; it is not shown that there was any concerted action or common intent on the part of the defendants, and 'there is no allegation of any fact which would justify the conclusion that there was joint liability. (4) The prayer for judgment against the Stevens Hardware Company is not justified, it not being alleged that the company had any connection with, or that its officers acted for, the company in the prosecution of the plaintiff.
   Broyx.es, C. J.

The petition as amended failed to set forth a cause of action, and the court did not err in sustaining the general .demurrer interposed and in dismissing the suit.

Judgment affirmed.

Blbodworth, J., concurs. Luke, J., disqualified.

Hightower & Burch, W. A. Dam-pier, for plaintiff,

cited: Clark v. Douglas, 6 Ga. App, 490; Burdick on Torts, 490; Pickard v. Bridges, 7 Ga. App. 463; Flint v. State, 12 Ga. App. 169; Page v. Citizens Bkg. Co., 111 Ga. 73; Civil Code (1910), §§ 4439-40, 4444, 4451; Stewart v. Mulligan, 11 Ga. App. 660-1.

J. S. Adams, for defendant,

cited: Park’s Code, § 4446; Brantley v. Rhodes-Haverty Co., 131 Ga. 276; Marable v. Mayer, 78 Ga. 710; McDaniel v. Nelms, 96 Ga. 366; Horn v. Sims, 92 Ga. 421; Fulton Gro. Co. v. Maddox, 111 Ga. 260; Clement v. Orr, 4 Ga. App. 117; Garrett v. Foy & Adams Co., 21 Ga. App. 613, and cit.; Gibbs v. Bank, Id. 653 (3); Henderson v. Francis, 75 Ga. 178 (5); Pye v. Gillis, 9 Ga. App. 397; Lindsey v. West, 6 Ga. App. 284 (2); Luke v. Hill, 137 Ga. 159; Towns v. West, 16 Ga. App. 300; Page v. Citizens Bkg. Co., 111 Ga. 73; So. Ry. Co. v. Gresham, 114 Ga. 184; Wilde v. L. & N. R. Co., 116 Ga. 309; Glass v. Brittain Bros. Co., 21 Ga. App. 634.


author: Luke, J.

text:
    10571.
    May v. Graham.
    Decided December 9, 1919.
   Luke, J.

The evidence and the assignments of error in this case have been carefully examined. The verdict was not contrary to the evidence, and the rulings upon the admissibility of evidence were not harmful. Civil Code (1910), § 4504. The case was fully and fairly submitted to the jury. For no reason assigned do we find that it was error to overrule the motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Bloodworth, J., concur.

Action for slander; from city court of Eastman—Judge Griffin. April 5, 1919.

G. W. Atwill, for plaintiff.

D. D. Smith, for defendant.


text:
    10586.
    WESTCHESTER FIRE INSURANCE CO. v. BELL.
    The provision in the insurance policy in question, which insured against loss or damage by fire to a certain building in a city, that the insurer should not be liable for “loss caused directly or indirectly . . by order of any civil authority, . . or (unless fire ensues, and, in that event, for damage by fire only) by explosion of any kind,” should be construed in the light of the section of the code'which declares that “a loss or injury may occur from fire without the actual burning of the articles or property; as, a house blown up to stop a conflagration” (Civil Code of 1910, § 2470) ; and this provision of the policy afforded no defense to an action on the policy, where the plaintiff sought to recover for damage to window-glasses and plastering of the insured building, caused by concussion from the explosion of dynamite in a neighboring building in which the fire department of the city had placed it for the purpose of blowing up the building in order to stop the progress of an approaching conflagration.
    Decided December 9, 1919.
    (Certiorari was granted by tbe Supreme Court.)
    Certiorari; from Eulton superior court—Judge Bell. April 21, 1919.

      King & Spalding, Daniel MacDougald, for plaintiff in error,
    cited: Hustace v. Ins. Co., 175 N. Y. 292 (L. R. A. 651, 57 N. E. 592); Germania Fire Ins. Co. v. Roost, 55 Ohio, 581 (36 L. R. A. 236); Eppone v. Ins. Co., 99 App. Div. 221 (90 N. Y. Supp. 1035); Miller v. Ins. Co., 41 Ill. App. 395; Phœnix Ins. Co. v. Adams, 127 S. W. (Ky.) 1008; Hall v. Ins. Co., 115 Tenn. 513 (112 Am. St. R. 870, 92 S. W. 402, 5 Ann. Gas. 777); Metropolitan Casualty Ins. Co. v. Bergheim, 21 Colo. App. 527, 122 Pac. 812; Caballero v. Ins. Co., 15 La. Ann. 217; 4 Joyce, Ins. § 2586; note to Wheeler v. Phœnix Ins. Co., 38 L. R. A. (N. S.) 476; 14 Ruling Case Law, 1218, see. 398; Civil Code (1910), § 2476; City Fire Ins. Co. v. Corliss, 21 Wend. 374 (34 An. Dec. 258); Greenwald v. Ins. Co., 3 Phila. 323.

      McKlreafh & Scott, contra,
    cited: Civil Code (1910), § 2476; 4 Joyce Ins, (2d. ed.), §§ 2585, 2592; Ins. Co. of North America v. Leader, 121 Ga. 260, 266.
   Luke, J.

Bell brought suit in the municipal court of Atlanta against the insurance company,.alleging: that the defendant had issued a fire insurance policy on a certain building; that after the issuance of the policy a great conflagration broke out in the city of Atlanta, which spread over a vast area and threatened to destroy the whole city; that the fire became so great as to get beyond the control of the fire department of the- city, and, in order to stop the conflagration and prevent its further progress, it became necessary for the fire department to resort to the use of dynamite to blow up the buildings in the path of the fire and prevent the total destruction of all buildings beyond those so blown up, and in the execution of this necessary plan the fire department placed a-charge of dynamite in a building near the house of the plaintiff, and between the said house and the approaching conflagration; that the explosion of said charge of dynamite produced such a concussion in and against said house so insured as to break window glasses and destroy plastering. The plaintiff sought to recover the cost of repairing the damage. The plaintiff obtained judgment for the amount sued for; certiorari was sued out by the defendant, the certiorari was overruled, and the defendant excepted.

The insurance company urges the following part of the insurance contract as a complete defense to the action, to wit: “This company shall not be liable for loss caused directly or indirectly by invasion, insurrection, riot, civil war or commotion, or military or usurped power, or by order of any civil authority, or by theft, or by neglect of the insured to use all reasonable means to save and preserve the property at and after a fire, or when the property is endangered by fire in neighboring premises, or (unless fire ensues, and, in that event, for the damage by fire only) by explosion of any kind, or lightning, but liability for direct damage by lightning may be assumed by specific agreement hereon.” The only question presented for consideration necessarily is whether the explosion in an adjoining building, in which the explosive was placed in the manner in which it was and for the purposes for which it was so placed, is such an explosion as it is expressly contracted that the company would not be liable for. We have examined the authorities that may be used as precedents for holding that such an explosion as occurred in this case is specially excepted by the contract. We are convinced that the explosion contemplated in the contract here is an explosion resultant from accident or from the fire itself. The Civil Code (1910), § 3476, provides that “A loss or injury may occur from fire without the actual burning of the articles or property; as, a house blown up to stop a conflagration, or goods removed in imminent danger, or damage by water used to extinguish the flames.” The present contract of insurance must be construed ifi the light of this section. When the dynamite was placed under a near-by building with the intent of destroying it for the purpose of arresting the conflagration, and the charge was of sufficient force not only to blow the building up under which it was placed, but to injure other buildings, the liability of the insurance company extended to the other buildings, upon which it carried a policy of insurance, just the same as its liability would have arisen if the policy in this case had covered the building under which the charge of dynamite was so placed.

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

Judgment affirmed.

Broyles, G. J., and Bloodworth, J., concur.


author: Broyles, C. J.

text:
    10600.
    PELHAM & HAVANA RAILROAD CO. v. WALKER.
    1. On the trial of an action against a railroad company for damage to the plaintiff’s fish-pond from water and mud flowing into it in consequence of the placing of a fill across a stream and the construction of certain ditches in the building of the railroad, by which .rain-water was diverted from its natural 'course of drainage and into the pond, where .the evidence was uncontradicted that, prior to the. construction of the railroad, the land on which it was constructed adjacent to the fishpond was conveyed to the> railroad, company by a deed of the plaintiff, in which it was stipulated that the land should, be used only for the purpose of a common carrier, andHliat the grantor reserved the privilege of raising the water in his fish-pond, and where there was no charge of negligence, nor any evidence that the railroad was improperly or negligently constructed or maintained, or could have been constructed in some other way that would Sot have caused the alleged damage, a verdict, for the defendant was proper, and no other verdict would have been authorized.
    2. The^first grant of a new trial is error where the evidence, together with all reasonable deductions and inferences therefrom, construed most strongly in favor of the losing party, demands the verdict returned,
    Decided December 9, 1919.

      Action for damages; from Grady superior court—Judge Worrill presiding. April 3, 1919.

      M. L. Ledford, J. A. Pope, for plaintiff in error.

      J. Q. Smith, contra.
   Broyles, C. J.

The plaintiff sued the defendant railroad company for damage to his fish-pond, which was adjacent to the railroad’s right of way, and alleged that the defendant in building its railroad put in a fill across a stream just above the fish-pond, and constructed the road in a “cut,” with a ditch on both sides of the roadbed, and that this construction diverted the rainwater from its natural course of drainage and conveyed it into the fishpond (which was abundantly stocked with fish), thereby causing the waters of the pond to become polluted with mud, destroying the fish and permanently impairing the value of the pond. No negligence of any character was charged against the defendant. Upon the trial it was shown by undisputed evidence that the plaintiff, prior to the construction of the railroad, had by deed conveyed to the defendant the land upon which the railroad was subsequently constructed, adjacent to the fish-pond. In the deed it was expressly stipulated that the land should be used for no other purpose than that of a common carrier. The deed also recited that the grantor “reserves the privilege of raising the water in his fish-pond, which is adjacent to the right of way.” There was no evidence to show that the defendant had negligently or improperly constructed the railroad, or that it could have been constructed in some other way that would not have caused the alleged damage, or that the defendant negligently or improperly maintained its roadbed and right of way.

Under these facts the verdict for the defendant was the only possible legal result (see, in this connection, Southern Marble Co. v. Darnell, 94 Ga. 331, 31 S. E. 531; Vandiver v. Byrd-Matthews Lumber Co., 146 Ga. 117, 90 S. E. 960), and the errors in the charge of the court were harmless. The verdict having been demanded by the evidence, the court erred in granting a new trial, although it was the first grant thereof.

Judgment reversed.

Bloodworth, J., concurs; Luhe J., disqualified.


text:
    10612.
    Dubberly v. Eason, guardian.
    Decided December 9, 1919.
    Eviction; from city court of Blackshear—W. A. Milton, judge pro hac vice. March 30, 1919.

      W. W. Bennett, for plaintiff in error.

      Memory <& Memory, contra.
   Bloodworth, J.

1. The city court of Blackshear has jurisdiction to hear determine an issue formed by a counter-affidavit to a warrant issued against one as a tenant holding over. Acts 1911, p. 211; Dorough v. Morris, 21 Ga. App. 477 (1), 478 (94 S. E. 641), and cases cited.

2. The verdict is supported by evidence, no error of law appears, the judgment is approved by the trial judge, and is

Affirmed.

Broyles, C. J., and Luke, J., concur.


text:
    10644.
    Central of Georgia Railway Co. v. Jones, adm’x.
    Decided December 9, 1919.
    Action for damages; from city court of Houston county— Judge Riley. May 19, 1919.

      R. O. Jordan, for plaintiff in error.

      Emmett Houser, Thomas S. Felder, contra.
   Broyles, C. J.

1. A general demurrer to a petition is equivalent to a motion to dismiss the petition, and where such a demurrer is filed after the allowance of an amendment to the petition, the sole question raised by the demurrer is as to the sufficiency of the petition as amended. The right so to amend is not thereby questioned. O’Shields v. Ga. Pac. Ry. Co., 83 Ga. 621 (10 S. E. 268, 6 L. R. A. 152).

2. A general demurrer to the entire petition after it has been amended is properly overruled if any count of the petition sets out a cause of action. Hay v. Collins, 118 Ga. 243 (44 S. E. 1002); Hudson v. Hudson, 119 Ga. 637 (46 S. E. 874).

3. Whether the instant case was an action under the State law or under the Federal “employer’s liability act,” it did not abate upon the death of the plaintiff, but survived to his personal representative.

(a) Under the State law it did not abate. Civil Code (1910), §§ 4421, 5617.

(5) Under the Federal “employer’s liability act” as amended April 5, 1910, it did not abate. 36 Stat. 291 (8 Fed. Stat. Ann. (2d ed.) 1378, U. S. Comp. St. § 8665); U. S. Rev. Stat. § 955 (6 Fed. Stat. Ann. (2d ed.) Ill, and cases cited, U. S. Comp. St. § 1592).

4. Under the above rulings and the pleadings in the instant case the court did not err in overruling the general demurrer to the amended petition.

Judgment affirmed.

Luke and Bloodworth, J.J., concur.


text:
    10712.
    Bell v. The State.
    Decided December 9, 1919.
    Accusation of larceny; from city court of Americus—Judge Harper. June 21, 1919.

      Hixon & Face, for plaintiff in error.

      Zach. Childers, solicitor, contra.
   Broyles, C. J.

1. There is no merit in the motion of the State’s attorney to dismiss the bill of exceptions, and it is accordingly denied.

2. Where, after a plea of guilty has been entered and judgment and sentence pronounced in a criminal case, the defendant at the same term of the court files a written petition in which he asks that the judgment and sentence be vacated and that he be allowed to withdraw his plea of guilty and to enter a plea of not guilty, on the grounds that he entered his plea of guilty under a misapprehension of the facts of the case, and that he is really not guilty of the offense to which he pleaded guilty, and where the facts stated in his petition sustain these allegations, it is error for the trial judge to dismiss the petition on general demurrer.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


text:
    10793.
    Newcomb Hotel Company v. Corbett.
    Decided December 9, 1919.
    Action for damages; from city court of Savannah—Judge Freeman. June 7, 1919.
    Lula L. Corbett sued the hotel company for damages on account of alleged conduct of servants and agents of the defendant toward her while she was a guest in its hotel. The petition alleges, in substance, that shortly after her arrival in the City of Savannah on a given date she became a guest of the hotel; that she retired to her room for the night, and several hours later the telephone bell in her room rang; she got out of bed and answered the call, and a voice said, “Some one wants to talk to you;” she waited a reasonable length oí: time, returned to her bed, and in a few minutes was again called over the telephone in her room, and a voice at the telephone said, “Is that you?” (calling a name she did not understand), and then said, “This is Mabel, when are you coming home?” whereupon she told the person speaking (whom she did not know) to ring off and not to disturb her. Shortly afterwards there were repeated raps upon her door; she thought a mistake had been made, and paid no attention to the raps, and a voice from without said, “This is the house detective. Open the door.” She said, “Leave that door, I will not open it. I have retired and am now undressed.” “Don’t disturb me.” She telephoned to the night clerk on duty at the desk of thet hotel and told him, “if he had a house detective or any one else, to send them up to her room door, as there was some one at her door trying to get in.” She again retired and heard men talking in the hall. There was another rap upon her door, which she did not answer, and the door of her room was opened by a pass-key, and she was surprised to see the man who claimed to be the house detective, accompanied by a police officer of the City of Savannah, who was in full uniform, standing at the door, flashing a light upon her. She was outraged at-their conduct and demanded what they meant by intruding on her privacy, and the police officer replied, “We expected to. find a man in this room, but we have made a mistake.” He asked her name, and she told him, and he said he had seen the name on the book downstairs. She ordered the men out of her room, after first telling them to search it to see if there was any man present. She was “shocked to the extreme, and, as a result of the treatment she received, was in a highly nervous condition.” It was the duty of the defendant, in operating its telephone exchange, not to have allowed her to be thus disturbed at that unreasonable hour of the morning. No communication could be had through the telephone in her room without passing through an exchange in the office of the hotel, where connections were made with telephones in the other rooms of the hotel, as well as outside in the city; and thus the servants and agents of the defendant had direct supervision over all telephone calls going to her room and to the other rooms of the hotel. She •conducted herself in a proper and ladylike manner, and was entitled to the protection of the defendant during the time she was a guest at the hotel. In paragraph l1? it is alleged, that the telephone calls to her room, the raps upon her door, and the action of the police officer were all caused by the servants and agents of the defendant, and that she is unable to state their names, for want of sufficient information. It is further alleged, that the presence of the police officer at her door was caused by the servants and agents of the defendant (whose names are unknown to her), who conducted the officer to her room and then entered her room as stated above, having informed him that acts of immorality were being conducted in the room, which charge was false. She “therefore shows that she has been injured and damaged in the sum of twenty thousand dollars.” By amendment it is alleged, that the person rapping at her door was the house detective of the defendant, who was then and there acting within the scope of his authority and in obedience to his master’s orders; that the police officer was accompanied to the plaintiff’s room by the house detective, who was then and there acting within the scope of his authority and in obedience to his master’s orders; and that the servants and agents referred to in paragraph 17 were the night clerk in charge of the desk at the hotel, the telephone operator operating the telephone exchange inside the hotel, and the house detective.
   Broyles, C. J.

The amended petition, properly construed as a whole, was not subject to any ground, either general or special, of the de° murrer interposed, and the court properly so ruled.

Judgment affirmed.

Luke and Bloodworth, JJ., concu/r.

The defendant demurred generally and on numerous special grounds. In the demurrer it is contended that the petition is duplicitous, in that it does not show whether the action is intended to be brought on a breach of contract or a breach of duty, and, if on a breach of duty, whether for a slander or an interference with the privacy of the plaintiff. It is also contended that the petition fails to show that the acts of the alleged servants and agents were within the scope of their employment and done under their master’s authority;'that the allegations as to their authority are merely statements of a conclusion. The court overruled the demurrer, and the defendant excepted.

Edward 8* Elliott, for plaintiff in error,

cited: 116 Ga. 309 (2); 78 Ga. 733; 6 Ga. App. 470; 10 Ga. App. 169; 144 Ga. 695; 12 Ga. App. 214; 20 Ga. App. 546; 142 Cal. 681 (65 L. R. A. 88); 111 Ga. 814; 108 Ga. 37; 127 Ga. 194 (7); 126 Ga. 404 (3); 100 Ga. 213; 106 Ga. 460; 12 Ga. App. 318; 4 Ga. App. 131 (4); 127 Ga. 805 (3); 131 Ga. 375-7; 133 Ga. 414 (3); 142 Ga. 415; 12 Ga. App. 364; 128 Ga. 567, 573; 21 Ga. App. 368 (5a); 136 Fed. 161 (66 C. C. A. 469, 69 L. R. A. 653).

Robert L. Golding, Oliver & Oliver, contra,

cited: 193 N. Y. 397 (21 L. R. A. (N. S.) 860, 86 N. E. 527); 88 Kan. 58 (42 L. R. A. (N. S.) 830, 127 Pac. 612); 54 Ga. 635, 638-9; 77 Ga. 409; 100 Ga. 213; 113 Ga. 414; 126 Ga. 404; 14 Ga. App. 311-12 (1,2); 10 Ga. App. 693 (3); 9 Ga. App. 375; 130 Ga. 742.


text:
    10806.
    Walker v. The State.
    Decided December 9, 1919.
    Indictment for burglary; from Fulton superior court—Judge Humphries. July 12, 1919.
    Application for certiorari was denied by the Supreme Court.

      8. O. Crane, Claude D. Rowe, for plaintiff in error.

      John A. BoyJcin, solicitor-general, E. A. Stephens, contra.
   Luke, J.

The jurisdiction of the judges of the superior courts is coextensive with the limits of the State. A superior-court judge may preside in any county of the State, upon the invitation of the judge of the superior court of the county. Accordingly, where the judge of the superior courts of the Southern circuit was requested by one of the judges of- the superior court of Pulton county to preside in that court, a plea of guilty to an indictment therein, and the sentence upon the plea, will not be set aside and treated as a nullity on motion of the defendant, upon the ground that the invited judge was without authority of law to preside in that court, or that the court was being held contrary to law and without authority of law. See Park’s Ann. Code, §§ 4866-69; Bone v. State, 86 Ga. 108 (2) (12 S. E. 205); Burge v. Mangum, 134 Ga. 307 (67 S. E. 857); Pendergrass v. Duke, 144 Ga. 839 (88 S. E. 198). Por no reason assigned was it error to overrule the motion.

Judgment affirmed.

Broyles, O. J., and Bloodworth, J., concur.


text:
    10809.
    Gardner v. Commercial City Bank.
    Decided December 9, 1919.
    Complaint; from city court of Amerieus—Judge Harper. June 8, 1919.

      Shipp & Sheppard, for plaintiff in error.

      Wallis & Fort, contra.
   Broyles, C. J.

The motion for a new trial contained only the usual general grounds; there was an acute conflict in the evidence as to whether the defendant executed the note sued upon, but the finding of the jury that she did was authorized, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Dulce and Bloodworth, JJ., concur.


author: Beoyx.es, C. J.

text:
    10821.
    Farmers State Bank v. Singletary, survivor.
    Decided December 9, 1919.
    Complaint; from Early superior court—Judge Worrill. July 26, 1919.
    Application for certiorari was denied by the Supreme Court.

      Park & Stone, for plaintiff in error.

      Pottle & Hof mayor, contra.
   Beoyx.es, C. J.

In this case substantial justice seems to have been done; the verdict was authorized by the evidence; no reversible error of law appears to have been committed upon the trial; and for no reason assigned in any of the grounds of the motion for a new trial did the court err in overruling the motion.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    10826.
    Atlanta, Birmingham & Atlantic Railway Co. v. McRae.
    Decided December 9, 1919.
    Action for damages; from city court of Greenville—Judge Sevill. July 1, 1919.
   Broyles, C. J.

1. Under the pleadings and the evidence, no ground for reversal is presented by the exceptions to the charge of the court as to the measure of damages for the burning of the houses on the plaintiff’s premises. See, in this connection, Empire Mills Co. v. Burrell Engineering, etc., Co., 18 Ga. App. 253(2), 256 (89 S. E. 530), and cit.; Harrison v. Kiser, 79 Ga. 588 (8), 595 (4 S. E. 320); Central R. Co. v. Murray, 93 Ga. 256(4), 257 (20 S. E. 129); Louisville & Nashville R. Co. v. Kohlruss, 124 Ga. 250, 251 (52 S. E. 166); 33 Cyc. 1389, 1391-2; 4 Suth. Dam. § 1018; Louisville & Nashville R. Co. v. Home Ins. Co. (Ky.), 142 S. W. 398, and cit.

2. It does not appear that the verdict is excessive.

3. There was ample evidence to authorize the jury to find that the plaintiff’s property was destroyed by a fire caused by burning sparks emitted from a locomotive of the defendant company. As to whether the company was negligent or not, the great preponderance of the evidence was in its favor, but there was some slight evidence which authorized the jury to find that the presumption of the defendant’s negligence, which arose upon proof that the fire was occasioned by sparks emitted from one of its engines, had not been completely rebutted by the evidence introduced by the defendant. And as that finding was approved by the trial judge, this court is without authority to interfere.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

McEae sued the railway company for damages in the sum of $1,455, on account of the destruction of certain property of the plaintiff by fire alleged to have been caused by sparks emitted from a locomotive. The petition gave an itemized statement of the property, including a dwelling house valued at $1,200, and outhouses, fences, and other improvements of value stated, the whole amounting-to the sum sued for. The trial resulted in a verdict against the railway company for $850. The defendant moved for a new trial, on the grounds that the verdict was contrary to law and the evidence, and excessive, and that the court erred in certain instructions to the jury as to the measure of damages, and in not giving in charge the correct measure of damages. The motion was overruled, and the movant excepted. In the brief of counsel for the plaintiff in error it was admitted, that “the evidence, though circumstantial, would authorize $ finding that sparks from the engine set fire to the house,” but it was contended that the evidence for the defendant rebutted any presumption of negligence in the condition or operating of the engine.

1. As to damages the court charged the jury as follows: “If you find the defendant is liable for this fire, then you go forward and determine what damages Mr. McEae sustained by reason of the fire; take all the evidence and determine that. He sued in the aggregate for $1,455. He says he had a house with a seven-foot hall and with a front porch and back porch attached to the same,—four-room dwelling house. He must show you the market value of that house at the time of the fire. If he has shown the railroad company is liable, he would then be entitled to recover whatever the value of that house is shown to be at the time it was destroyed by the fire. He says he had one smoke-house of the value of $70. Well, gentlemen, the same thing as to that. He must show how much he was damaged, the market value. If he has shown that and has shown you what his damages were, he would be entitled to recover whatever the evidence shows the damages were on this occasion, and the measure of damages is the market value of the property at the time the property was destroyed by the fire, if the railroad company was liable.” In. the motion for a new trial it was contended that these instructions were erroneous, “because all of the damages sued for in this ease are to the improvements on the lot, which were, as a matter of law, of the freehold; and the amount which the plaintiff was entitled to recover, if any, was the diminution in the market value of the premises, or corpus" or freehold; the value of the house was not the correct measure of damages.”

2. In the motion for a new trial it was contended that “in no event was the market value of the buildings and improvements burned, with interest, equal to the amount of the verdict.” The plaintiff testified that he built the dwelling house in April, 1905, at a cost of about $950, and it was burned in June, 1917, and at the time of the burning nothing was decayed about it but the roof, and it was then worth at least $800 or $900. He further testified that the price of lumber was lower in 1905 than when the house was burned, and, taking into consideration the price of lumber at the time of the burning, he would say that the value of the dwelling house at that time “would have been $1,200 or $1,400.” Values of other improvements burned were stated, aggregating about $150 or more. A witness who stated that he was a builder and contractor testified: “When Mr. McEae’s house was burned . . the dwelling and everything around it I considered worth $1,000. . . I consider the house burned was worth $1,000. . . I testified that the market value of this house was $1,000. I based that estimate on just the lumber and labor it would take to build a house like it.” To replace everything “would cost now $1,360, about $1,360 in 1917, I think.” Witnesses for the defendant testified that “the fair market value of that place at the time the house was burned was . . about $600,” and that the fair market value of the house at that time was $400 to $600.

3. It was testified that the fire which .burned the houses was seen just after the train passed, that it was “puffing more than usual when it passed,” and that “it seems that the steam was -kinder low when they were switching in there, and fire kinder red, and caused a lot of fire and smoke and sparks to fly; the sparks were about as big as your thumb,” and “went right to the house.” Later the witness who made this statement as to the size of the sparks testified that he did not examine them, that he saw the live coals and the flame around them, but would not attempt to tell the actual size of the cinders or- sparks. Tw engineer and the fireman of the locomotive and the engine-inspector of the defendant testified as to the condition of the engine and the spark-arrester. It was testified that the netting and other appliances used to prevent the escape of sparks from the engine were of the best make known and were in good condition when the train passed the plaintiff’s property on the day of the fire; that they were of the kind in general use on railroads; that there was no way to prevent entirely the escape of sparks from the engine when in operation, and that it was being operated in the usual manner. It was further testified that sparks as large as the end of the thumb or of the little finger could not have got through the spark-arrester if it was in good condition.

Brandon & Hynds, McLaughlin & Jones, Hatton Lovejoy, for plaintiff in error,

cited as to the sufficiency of the evidence: 12 Ga. App. 233, 236; 101 Ga. 747, 752; 108 Ga. 165; 114 Ga. 712; 115 Ga. 664; 117 Ga. 883. Measure of damages: 124 Ga. 250; 129 Ga. 526, 531 (5); 87 Ga. 605 (2); 93 Ga. 256 (4).

N. F. Culpepper, contra,

cited: 113 Ga. 335; 4 Ga. App. 439; 93 Ga. 257 (4); 114 Ga. 638 (3); 12 Ga. App. 239, and cit.


text:
    10833.
    Bacon, administrator, v. Dannenberg Company.
   Broyles, C. J.

1. A general agency exists where there is a delegation of authority to do all acts in connection with a particular trade or business, and in such a case the principal is bound by the acts of his agent within the apparent scope of his authority. Foster v. Jones, 78 Ga. 150 (1 S. E. 275).

2. - “Whenever a general agency has been established for any purpose, all persons who have dealt with the agent have a right to assume that his authority to deal with them in behalf of his principal continues, until notice, express or implied, has been conveyed to them that the agency has been revoked. It follows, that until notice has been brought home to them, the aets of the agent within the apparent scope of his authority will be binding upon the principal, even though the agent may assume to act in his representative capacity after Ms authority to do so has been revoked.” Burch v. Americus Grocery Co., 125 Ga. 153 (53 S. E. 1008).

3. Private instructions or limitations not known to persons dealing with a general agent are not binding upon such persons. Park’s Ann. Code, § 3595.

4. Where one holds out another as his agent, and by his course of dealing indicates that the agent has certain authority, and thus induces a thirh person to deal with his agent as such, he is estopped to deny that the agent has any authority which, as reasonably deducible from the conduct of the parties, the agent apparently has. Armour Fertilizer Works v. Abel, 15 Ga. App. 275, 280 (82 S. E. 907); Germain Co. v. Bank, 14 Ga. App. 88, 93 (80 S. E. 302).

Decided December 9, 1919.

Complaint; from city court of Hazelhurst—Judge Knox. July 5, 1919.

W. A. Wooten, A. P. Bell, for plaintiff in error.

Roberts & Smith, Hardeman, Jones, Parle & Johnston, contra.

5. A merchant whose agent purchases goods on credit is liable for their purchase price, where he receives and retains the goods and accepts the benefit of the contract, whether or not the agent had the authority to make the purchase. McDowell v. McKenzie, 65 Ga. 631; Haney School Furniture Co. v. Hightower Baptist Institute, 113 Ga. 289 (38 S. E. 761); Sutton v. Farmers Warehouse Co., 11 Ga. App. 340 (75 S. E. 336).

6. Under the particular facts of this case there is no substantial merit in either of the first two special grounds of the motion for a new trial.

7. The 3d special ground of the motion for a new trial complains of the refusal of the court to exclude certain testimony. Some of this testimony was clearly admissible, while another portion of it was as clearly inadmissible, but the motion having been to reject all of it, the court did not err in overruling the motion. Fricker v. Americus Improvement Co., 124 Ga. 165 (9) (52 S. E. 65).

8. The documentary evidence, the admission of which is complained of in the 4th special ground of the motion for a new trial, not being set out, either literally or in substance, in the ground of the motion, or attached thereto as an exhibit, this ground can not be considered.

9. When the principles of law enunciated in the first five preceding paragraphs are applied to the facts of this case, a verdict for the plaintiff is demanded. While there was some conflict in the evidence as to whether the agent was authorized' by his principal to purchase the goods, and as to whether he bought them for his principal or for himself, individually, these issues of fact, under all the other undisputed facts of the case, were not material and did not require a submission to the jury. It follows that the court did not err in directing a verdict for the plaintiff.

Judgment affirmed.

LuJce and Bloodworth, JJ., concur.


text:
    10836.
    Bell, administrator, v. Johnson.
   Broyles, C. J.

This was a suit against an administrator, for damages on account of failure of the decedent to keep his promise to make a deed to the olamtiff to a certain tract of land, the consideration being “additional compensation for services rendered during last fifteen years and one dollar in hand paid.” The petition, properly construed (most strongly against the plaintiff), shows that no services were contemplated, but that all of the services had been rendered and fully paid for, and that the decedent’s statement to the plaintiff, that he was going to deed the land to her as additional compensation for her “services rendered during the last fifteen years,” was a mere voluntary promise, without any valid consideration to support it, and was therefore unenforceable. It follows that the court erred in overruling the general demurrer to the petition.

Decided December 9, 1919.

Action for damages; from Decatur superior court—Judge Harrell. July 19, 1919.

T. 8. Hawes, for plaintiff in error.

W. V. Custer, J. R. Wilson, contra.

Judgment reversed.

Luhe and, Bloodworth, JJ., concur.


text:
    10844.
    Williamson v. Donalsonville Oil Mill.
    Decided December 9, 1919.
    Action for damages; from Decatur superior court—Judge Harrell. July 19, 1919.

      John R. Wilson, T. 8. Hawes, for plaintiff.

      E. K. Wilcox, M. E. O’Neal, for defendant.
   Broyles, C. J.

This was a suit for damages for the homicide of the plaintiff’s husband, who at the time of his death was an employee of the defendant corporation. The alleged negligence of the defendant consisted in not furnishing to the deceased a safe place in which to work. The petition, construed most strongly against the plaintiff, shows that the plaintiff’s husband had at least equal means with the defendant of knowing that the place in which he worked was unsafe, and that he voluntarily continued, and without objection, in the master’s service. It follows that it was not error to dismiss the petition on general demurrer.

Judgment affirmed.

Luhe and Bloodworth, JJ., concur.


text:
    10921.
    Jenkins v. The State.
   Bloodworth, J.

1. “In the absence of evidence to the contrary, it maybe inferred that a liquor called for and delivered and paid for as whisky is whisky, and therefore an intoxicating liquor.” Tompkins v. State, 2 Ga. App. 639 (58 S. E. 1111); Lewis v. State, 6 Ga. App. 779 (65 S. E. 842).

Decided December 9, 1919.

Accusation of sale of liquor; from city court of Dawson—Judge Edwards. September 5, 1919.

R. R. Marlin, Parles & Paries, for plaintiff in error.

W. PL. Gurr, solicitor, contra.

2. The special ground of the motion for new trial complains that the court erred in allowing in evidence the following: “I found some whisky there the next day. It was not in her house. It was in a car at the house. A man named Daniel of Eufaula had charge of the ear.” This testimony was objected to as “illegal and irrelevant.” The court did not err in admitting it, as the fact stated therein was a circumstance which the jury would be authorized to consider in connection with the other evidence in determining as to the guilt of the accused. Cole v. State, 120 Ga. 485 (1) (48 S. E. 156); Craig v. State, 9 Ga. App. 233 (1) (70 S. E. 974).

3. There was ample evidence to support the verdict, which has the approval of the trial judge; no error of law appears, and the judgment is

Affirmed.

Broyles, O. J., and Luke, J., eoncur.


text:
    10926.
    Wright v. The State.
    Decided December 9, 1919.
   Broyles, C. J.

1. Under repeated rulings of the Supreme Court and of this court, a special ground of a motion for a new trial must be complete within itself, and it will not be considered by the reviewing court when, in order to determine whether the assignment of error therein is well taken, it is necessary to refer to the brief of the evidence or to some other portion of the record. Under this ruling the first two special grounds of the motion for a new trial can not be considered.

2. The defendant was indicted in June, 1919, for a misdemeanor, and was charged with having, controlling, and possessing intoxicating liquors on the 10th day of May, 1919. The statute of limitations for a misdemeanor being only two years, the inadvertent charge of the court, that if the jury believed beyond a reasonable doubt that the offense as charged in the indictment was committed at any time after the first day of May, 1917, and prior to the date of the finding of the indictment, that would be sufficient proof of the allegation in the indictment as to the particular date upon which the offense was committed, was error; but the error was harmless, since the proof showed that the charge against the defendant was based entirely upon a single transaction which occurred in May, 1919. See, in this connection, Adams v. State, 22 Ga. App. 252 (2) (95 S. E. 877).

3. There was ample evidence to support the verdict, and the court did not err in overruling the motion for a new trial.

Judgment affirmed:'

Luke and Bloodworth, JJ., concwr.

Indictment for possession of liquor; from DeKalb superior court —Judge Smith. September 2, 1919.

E. G. Buchanan> for plaintiff in error.

George M. Napier, solicitor-general, contra.


author: Beoyles, O. J.

text:
    10932.
    Bush v. The State.
    Decided December 9, 1919.
    Indictment for murder; from Terrell superior court—Judge Worrill. September 1, 1919.

      B. B. Jones, for plaintiff in error.

      B. T. Oastellow, solicitor-general, B. B. Arnold, contra.
   Beoyles, O. J.

1. Under the facts of the case, the excerpt from the charge of the court excepted to in the first special ground of the motion for a new trial contains no reversible error.

2. In the absence of a timely and appropriate written request, the judjje did not err in failing to charge section 73 of the Penal Code (1910), he having fully instructed the jury upon the law of justifiable homicide, including the doctrine of reasonable fears.

3. The jury having returned a verdict of voluntary manslaughter, it is unnecessary to decide whether the excerpt from the charge of the court upon the law of murder, excepted to, was inaccurate.

4. The charge upon the law of voluntary manslaughter, including the theory of a mutual intent to fight, was authorized by the evidence.

5. The 5th special ground of the motion for a new trial complains of the following excerpt from the charge of the court: “Should you believe at the time of the altercation between the deceased and the defendant that led up to or terminated in the death of the deceased that the defendant was armed with a gun.” This isolated fragment of a sentence from the charge of the court is too incomplete to be considered.

6. The remaining special ground of the motion for a new trial is too general and indefinite to raise any question for the consideration of this court.

7. The verdict was authorized by the evidence, and the court did not err in refusing to grant a new trial.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    10933.
    Spencer v. The State.
    Decided December 9, 1919.
    Indictment for manufacture of liquor; from Terrell superior court-—Judge Worrill. September 1, 1919.

      R. R. Jones, for plaintiff in error.

      B. T. Castelloiv, solicitor-general, R. R. Arnold, contra.
   Luke, J.

The evidence in this ease amply warranted the conviction of the defendant. For no reason assigned was it error to overrule the motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Bloodworth, J., concur.


author: Bloodwortii, J.

text:
    10934.
    Patterson v. The State.
    Decided December 9, 1919.
    Indictment for murder—conviction of voluntary manslaughter; from Cobb superior court—Judge Morris. September 13, 1919.
    Application for certiorari was denied by the Supreme Court.

      Clay & Giles, F. S. Chalmers, Harvey Hill, for plaintiff in error.

      John T. Dorsey, solicitor-general, William Butt, contra.
   Bloodwortii, J.

The judge did not err in charging on voluntary manslaughter or in failing to charge on involuntary manslaughter; the requests to charge, as far as legal and pertinent, were covered by the charge given; there is evidence to support the verdict, and it having been approved by the trial judge, this court will not set it aside.

Judgment affirmed.

Broyles, O. J., and Luke, J., concur.


text:
    10935.
    Williams v. The State.
    Decided December 9, 1919.
    Indictment for possession of intoxicating liquor; from Brooks superior court—Judge Thomas. September 5, 1919.
    According to the evidence for the State, the defendant, when arrested at the railroad-station in Thomasville, on the charge of having whisky in his possession, had in his arms a package containing about ten half-pints of whisky, and was standing among several suit-eases filled with pints and half-pints of whisky, one of which was marked “Moses Williams, Thomasville, Ga.” The defendant had a minor son of that name, and was then living near Thomasville. The only person near him when the officers first saw him on that occasion was his brother Arch Williams. A train had just passed and several passengers had alighted and gone off. The suit-cases against which the defendant was standing were between the main line and a side-track of the railroad. When told of the charge against him the defendant said, “You have got me. Can’t we settle it in some way?” And he proposed that the officers take the whisky and let him go. He did not deny to the officers that he owned the suit-cases; he said nothing about them. Two of the suit-eases, including the one marked with the name Moses Williams, were introduced in evidence, over the objection of the defendant that they had not been identified as belonging to him, and were irrelevant and immaterial. These two suit-cases were the physical evidence referred to in the first paragraph of the foregoing decision.
   Broyles, C. J.

1. The court did not err in admitting the physical evidence as complained of in the special ground of the motion for a new trial. This evidence was a circumstance in the case and was admissible for what it was worth.

2. The evidence amply authorized the defendant’s conviction, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

Bonnet & Harrell, for plaintiff in error.

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


text:
    10942.
    Johnson v. The State.
    Decided December 9, 1919.
    Indictment for larceny; from Cobb superior court—Judge Morris. September 13, 1919.

      Charles M. Brown, W. E. Roberts, Clay & Giles, for plaintiff in error.

      John T. Dorsey, solicitor-general, William Butt, contra.
   Luke, J.

This ease is here upon the sole assignment of error that the verdict is contrary to the evidence. The ease is very weak, but there is some evidence to support the verdict. Where • a verdiet with some evidence to support it meets with the approval of the trial judge, and no error-of law is shown, this court can not set the verdict aside.

Judgment affirmed.

Broyles, O. J., and Bloodworth, J., concur.


text:
    10951.
    Cutts v. The State.
    Decided December 9, 1919.
    Indictment for manufacture of intoxicating liquor; from Terrell superior court—Judge Worrill. September 22, 1919.
    IF. H. Gwrr, for plaintiff in error.

      B. T. Castellow? solicitor-general, B. R. Arnold, contra.
   Bloodworth, J.

1. When considered in the light of the entire charge and of the facts, and of the qualifying note of the trial judge to the first ground of the motion for a new trial, the motion points out no error which would require the grant of a new trial.

2. The evidence authorized the conviction, the verdict is approved by the presiding judge, no error of law is pointed out, and the judgment is

Affirmed.

Broyles, p. J., and Luke, J., concur.


text:
    10952.
    Garrett v. The State.
    Decided December 9, 1919.
    Indictment for manufacture of liquor; from Terrell superior court—Judge Worrill. September 22, 1919.

      Yeomans & Wilkinson, for plaintiff in error.

      B. T. Gastellow, solicitor-general, R. R. Arnold, contra.
   Broyles, C. J.

1. The court did not err in admitting the testimony complained of in the 1st special ground of the motion for a new trial. Under the facts of the case it was legal and relevant.

2. The excerpt from the charge of the court, excepted to, is not erroneous for any reason assigned.

3. The evidence authorized the verdict, and the court did not err in refusing to grant a new trial.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    10963.
    Baynes v. The State.
    Decided December 9, 1919.
    Indictment for manufacture of intoxicating liquor; from Jasper superior court—Judge Park. September 24, 1919.

      A. S. Thurman, for plaintiff in error.

      Doyle Campbell, solicitor-general, contra.
   Broyles, C. J.

The motion for a new trial contained only the usual general grounds; the verdict was amply authorized by the evidence; and the court did not err in declining to grant a new trial.

Judgment affirmed.

Luke and Bloodworth, JJ., ■concur.


text:
    10965.
    MASSIE v. THE STATE.
    1. A sufficient retraction of an incorrect instruction to the jury was made where, immediately after the instruction had been given, counsel interrupted the charge of the court and called attention to the error, and thereupon the judge gave a correct instruction covering the same matter, although he did not expressly state that the incorrect instruction was withdrawn.
    2. Refusal to allow the jury to view the premises at which a disorderly house was alleged to have been kept by the defendant was not cause for a new trial.
    3. Perjury of a witness is not ground for a new trial, unless it appears that the witness wilfully and corruptly swore falsely, and was duly convicted thereof, and that the verdict rendered could not have been obtained without his testimony. Civil Code (1910), § 5961.
    4. The evidence authorized the verdict.
    Decided December 9, 1919.
    Accusation of keeping disorderly house; from city court of Brunswick—Judge Krauss. September 6, 1919.

      Frank H. Harris, B. W. Durden, for plaintiff in error.

      F. M. Scarlett, solicitor, contra.
   Bloodworth, J.

The 4th ground of the motion for new trial, complains that the court erred in giving an erroneous charge to the jury, and states that “immediately counsel for defendant called the attention of the court that the charge was erroneous, and thereupon the court charged” the correct law. We think that when the judge immediately after he was interrupted by counsel with the statement that the charge was erroneous, and evidently because of the suggestion of counsel, corrected his charge by giving to the jury what is conceded by counsel to be a correct charge, the erroneous charge was retracted as effectively as if the judge had expressly stated to the jury that he had withdrawn it. The jury as intelligent men must have known that the charge given immediately after the interruption was substituted for the incorrect charge to which counsel objected, and they could not have been misled or confused by the erroneous charge.

Error is assigned upon the refusal of the judge to grant the request made by counsel for plaintiff in error that the jury be allowed to “view the premises” where the alleged disorderly conduct was carried on. In his brief counsel for the plaintiff in error cites the case of County of Bibb v. Reese, 115 Ga. 346, 349 (41 S. E. 637), as supporting his contention. In the opinion in that case it is stated: “It seems that at common law this right of the judge to permit the jury to view the premises existed only in real and mixed actions, and did not extend to personal actions and criminal eases without the consent of both parties.” It will thus be seen that at common law the right of the judge to allow the jury to view the premises did not extend to “criminal cases without the consent of loth parties.” There is no claim that such consent was given in this case, nor that there is in Georgia a statute allowing the jury to inspect the premises. At common law, even where the judge could allow the jury to visit and view the premises, whether he did so or not was entirely in his discretion. It is therefore clear that no reversible error is shown by this ground of the motion.

The 7th ground complains that the verdict is the result of perjury on the part of certain witnesses for the State. Before a verdict can be set aside in consequence of perjury, it must appear that the perjury was “corrupt and wilful,” and that the person charged with such perjury “shall have been thereof duly convicted,” and that the verdict “could not have been obtained and entered up without the evidence of such perjured person.” Neither of these is shown in this ground. It is therefore without merit. Civil Code (1910), § 5961; Munro v. Moody, 78 Ga. 127 (2) (2 S. E. 688).

The 6th ground of the motion is but an amplification of the general grounds. “There was some slight evidence authorizing the verdict; and the verdict having been approved by the trial judge, under the repeated and uniform rulings of this court and of the Supreme Court a reviewing court is powerless to interfere. When the verdict is apparently decidedly against the weight of the evidence, the trial judge has a wide discretion as to granting or refusing a new trial; but whenever there is any evidence, however slight, to support a verdict which has been approved by the trial judge, this court is absolutely without authority to control the judgment of the trial court.” Bradham v. State, 21 Ga. App. 510 (94 S. E. 618), and cit.

Judgment affirmed,.

Broyles, G. J., and Luke, J., concur.


text:
    10966.
    Morrow v. The State.
    Decided December 9, 1919.
    Indictment for sale of intoxicating liquor; from Gordon superior court—Judge Tarver. August 30, 1919.

      M. B. Eubanks, for plaintiff in error.

      J. M. Lang, solicitor-general, contra.
   Broyles, C. J.

1. Where several rulings are complained of in a bill of exceptions in a criminal case, and where no exceptions pendente lite were filed, the reviewing court can consider only those rulings that were made within twenty days of the tendering of the bill of exceptions. Regopoulas v. State, 115 Ga. 232 (1) (41 S. E. 619). Under this ruling the assignment of error in the bill of exceptions upon the overruling of the defendant’s plea in abatement can not be considered.

2. The other assignments of error, not having been argued in the brief of counsel for the plaintiff in error, are treated as abandoned.

Judgment affirmed.

LuJce and Bloodworth, JJ., concur.


text:
    10975.
    SAVAGE v. THE STATE.
    A moot case only was presented by the motion for a new trial of a defendant convicted in a criminal ease and • sentenced to pay a fine and costs, where, after the trial judge had signed the usual certificate to the motion and an order granting a rule nisi thereon and a supersedeas, and before the filing of the motion, the fine and costs were paid and the defendant was discharged from imprisonment. The trial judge therefore did not err in dismissing the motion for a new trial, on motion of counsel for the State, based on these facts.
    Decided December 9, 1919.
    Motion for new trial; from city court of Floyd county—Judge Nunnally. September 26, 1919.
    In the bill of exceptions it was contended that the person who paid the fine for the defendant had no right to do so; that neither the defendant nor another person had the right to pay the fine without the consent of the court; that the judgment was superseded pending the motion, and the paying of the fine was contrary to law.

      W. B. Mebane, for plaintiff in error.

      J. F. Kelly, solicitor, contra.
   Bloodworth, J.

The bill of exceptions in this case shows: "that on 'the 12th day of September, 1919, in said [city] court said defendant was convicted of the offense of selling by false weights and measures, and sentenced by the court to pay a fine in the sum of $100 and costs; that on the 12th day of September, 1919, after said conviction, his honor W. J. Nunnally, judge as aforesaid, signed and certified a motion for new trial in said case, and on the 15th day of September, 1919, said motion for new trial was duly filed in the office of the clerk of said city court; that on the 26th day of September, 1919, a brief of the evidence in said case, an amended motion for new trial and the charge of the court were filed in the office of said clerk; that on the 26th day of September, 1919, the State filed a motion to dismiss said motion for new trial, on the ground that one Charlie Gillam had paid the fine of said defendant; that on the filing of said motion and on said 26th day of September, 1919, the defendant by his counsel moved to dismiss said motion of the State, on the ground that same was not sworn to, and said motion was by the court overruled, and thereupon the State offered in evidence the testimony of Charlie Gillam, as follows: ‘On Saturday morning, September 13, 1919, after the defendant was convicted, I went over to the jail and the defendant told me he wanted to get out, and I asked him if he wanted me to pay him out, and he said that he did. He never promised to work for the company, but I went and paid out the $100 and costs, and he went on down to the ice plant with me and worked about an hour that day and also a little while on Monday.’ J. J. Lovelace, superintendent of the ice company, testified as follows, regarding the payment of the fine of the defendant: ‘On Friday evening, the day the defendant was sentenced, that was the 12th of September, the defendant sent for me to come to the jail and see him. I went over to the jail and the defendant told me he wanted me to pay his fine, and that he would work for the ice company till he had worked out the fine. I told him that I would pay the fine, and told him that I did not want him to drive the wagon any more, but that he could do other things about the company. The next morning, Saturday morning, I gave Mr. Gillam a check for the fine and costs, and told him to go and get the negro out, which he did.’ The defendant submitted to the court' his testimony by affidavit as follows: ‘that he has not paid the fine imposed upon him by the court in said case, nor has he authorized anyone else to pay said fine, nor has he consented to, assented, or authorized any person to pay said fine, and if same has been paid rt has been paid -without his consent or knowledge. He says that he has filed his motion for new trial in said case, and also a proper bond as is required by law, and that he has been advised and believes that he has been wrongfully and illegally convicted of said offense, and that he has good cause for a writ of error in said cased That upon hearing said evidence the court sustained said motion on the part of the State and dismissed said motion for new trial of the defendant; to which ruling on the part of the court in dismissing said motion for new trial of the defendant the defendant then and there excepted, and now excepts and assigns same as error.” As will be seen from the above, when the fine and costs were paid, no motion for a new trial had been filed, and the accused obtained his release from the jail because of such payment. The payment of the fine and costs satisfied the sentence, and any question sought to be raised' by the motion for a new trial is moot. The court properly dismissed the motion for a new trial. See, in this connection, Johnson v. Harris, 13 Ga. App. 618 (79 S. E. 588).

Judgment affirmed.

Broyles, G. J., and Luke, J., concur.


author: Broyles, O. J.

text:
    10978.
    Dowdell v. The State.
    Decided December 9, 1919.
    Accusation of larceny; from city court of Oglethorpe—Judge Greer. September 29, 1919.
    Jim Dowdell was charged with the larceny of seed-cotton, alleged to have been stolen from the gin-house of R. H. Stubbs. On the trial Stubbs testified: “In this gin-house I had stored several bales of loose seed-cotton; it was packed in stalls. The cotton in some of these stalls was picked the first of the cotton season, and remained there without being ginned. It was clean and not discolored. . . On the morning of the 16th of December, 1918, I noticed cotton scattered about in front of the gin-house and along the path leading from the gin-house across the field to the road. I went in the gin-house and found that some of my seed-cotton was missing, some from out the stall in which the cotton which had been picked the first of the season was stored. I followed this path across the field and found cotton all along on the ground and hanging on the bushes on the side of the path. I followed the path to the road and then up the road a good ways, about a mile or more in all. I found cotton on the ground as far as I went. I then went back to the house and phoned the sheriff about it and asked him to come and bring his dogs. The sheriff . . arrived in a little while with his dogs; he turned the dogs loose around the gin-house; at first they ran about and went off in several directions for short distances; finally they struck a trail along the path I had followed, and followed it to the road, where we saw where a wagon had been loaded and turned around, and some wagon-tracks and cotton in the road. . . The cotton which I missed was short-staple cotton, Toole variety, . . white cotton, picked the first of the season; this cotton belonged to me and I missed about 400 pounds of it, value about $40. The defendant, Jim Dowdell, lived about five miles from the gin-house. The sheriff put the dogs in his car and we all followed the wagon-tracks, and the horse was shod all around, and they went to Jim Dowdell’s house, where we found Jim and a wagon and a horse in the lot, shod all around, and several sacks of cotton stacked on his front porch. I don’t remember how many sacks of cotton there were on his porch,—about eight or ten. We examined this cotton and we found that some four sacks of it was just like the cotton I had missed from the gin; it was white seed-cotton, short staple and Toole variety. It looked just like my* cotton. I would swear that it was the cotton which I missed out of my gin-house. . . We found, tracking across the field, that some which had dropped out on some weeds and trash had been picked up, and in the mouths of the sheets we found handfuls of cotton with the same sort of trash on it, and the rest of the cotton on his porch was colored, like it had been picked late in the year and after being rained on. . . I don’t know of anybody else that plants the Toole variety cotton in my section of the country. I don’t think anybody else does but me, but would not say for certain.”
   Broyles, O. J.

1. The evidence connecting the defendant with the larceny charged was entirely circumstantial in its character, and under all the facts of the case—especially the abundant unimpeaehed testimony supporting the theory of his innocence—was not sufficient to exclude every reasonable hypothesis save that of his guilt. The court, therefore, erred in overruling the motion for a new trial.

Judgment reversed,.

Luhe and Bloodworih, J.J., concur.

The sheriff’s testimony as to what occurred after he took his dogs to the gin-house was substantially the same as that of Stubbs. He testified that the dogs were bloodhounds, trained to follow the tracks of human beings, and were very reliable; that he had run 'them' a great deal; that when Jim Dowdell came from his house out in the yard where they were, these dogs went to him immediately and reared up on him and barked, and “about that time some of Jim’s dogs came from around the house and scared” these dogs away. He further testified: “Jim told me that it was all his cotton, and that he did not steal any of it. He said he had just come back from Mr. Methvin’s store, which is about seven miles from where Jim lives. Mr. Stubbs lives about five miles from Jim’s toward the other way. Jim lives between Mr. Stubbs and Methvin’s store, and it is about twelve miles from E. H. Stubbs’ house to Methvin’s store. Jim Dowdell said that he left his house long before light, and was at Mr. Methvin’s store at snnup. . . I put him in the car and carried him to Methvin’s store, and when we got there Mr. Steve Eoach, a white man, who clerks at Methvin’s store, said that Jim reached the store that morning in the buggy about sunup or a little before, that he came in a buggy and came after a wagon to move his things.” No additional testimony was introduced for the State.

Several witnesses testified that ten or twelve sacks of cotton were on the defendant’s porch when the sheriff came there, and that some of the cotton had been picked about the first of the season, when it was white and clean. It was testified that all of it had been there at least several days before the sheriff came, and that all the cotton belonged to the defendant. Steve Eoach testified that Jim Dowdell came to Methvin’s store, about five or seven miles from where Jim lived, about sunup on the morning of December 16, 1919, and that he told Stubbs and the sheriff this on the same day, when they brought the defendant to "the store. It was testified that on the preceding night the defendant was at a house several miles from where he lived, and left there in a buggy about one o’clock in the morning and went directly to his home. This was stated also in the defendant’s statement at the trial; and he said that after arriving at home he remained there until he went in his buggy to Methvin’s store. He stated that all the cotton on the porch had been grown on his farm. It was testified that the sheriff sicked the dogs on him when they ran up to him.

Eixon & Pace, for plaintiff in error;

cited: 22 Ga. App. 115, 552, 791-2.

John B. Guerry, solicitor,

cited: 3 Ga. App. 609.