text:
    10560.
    Patterson v. The State.
   Luke, J.

1. A substance made of corn meal and molasses, designed for the purpose of, and to be used for, distilling whisky, and commonly called “still beer,” or simply “beer,” which is alcoholic and will produce intoxication if drunk to excess, and which is in such a physical state that it can be and. actually is drunk as a beverage (and where similar substances have been drunk), is a beverage in the sense in which the latter term is used in the act approved March 28, 1917, making it an offense against the criminal laws of this State for any person to “distill, manufacture or make any alcoholic, spirituous, vinous, malted or mixed liquors or beverages, any part of which is alcoholic.” Pamph. Act, Ex. Sess. 1917, see. 23, p. 18. Evidence, therefore, that the defendant made a substance or liquid as above described (though not an ordinary “beverage”) is sufficient to authorize his conviction of the offense of making alcoholic liquors in violation of that act, under an indictment generally chai’ging a violation of all the offenses prohibited by the act.

Decided October 9, 1919.

Indictment for manufacture of intoxicating liquor; from Gwinnett superior court—Judge Cobb. February 13, 1919.

M. D. Irwin, T. J. Shackelford, for plaintiff in error.

W. 0. Bean, solicitor-general, contra.

2. Evidence that the defendant had escaped from jail, where he had been confined awaiting trial on the charge for which he was being tried, is sufficient to authorize the judge to charge the jury the rule of law governing the weight to be given evidence of flight on the part of the defendant as tending to establish his guilt.

3. The charge of the court is not subject to the objection that it contained any expression or intimation of opinion as to what had been proved, or that it did not fairly submit to the jury the contention of the defendant.

4. The court fully and properly instructed the jury upon the subject of reasonable doubt, and the instruction thereon set out in the motion for a new trial was not error for the reason assigned.

5. The grounds of the motion for a new trial not argued in the brief of counsel for the plaintiff in error are treated as abandoned.

6. None of the excerpts from the charge of the court complained of required a new trial.

Judgment affirmed.

Broyles, G. J., and Bloodworlh, J., concur.


source: Caselaw Access Project

author: Luke, J.

license: Public Domain

text:
    10594.
    BENTON TRADING COMPANY v. BAILEY.
    It not appearing that the alleged promise of the defendant to pay to the plaintiff the amount of the plaintiff’s execution against another was in writing, or that the promisor was, by mutual agreement of the plaintiff, the debtor, and himself, substituted for the debtor, and the original debtor released, the court did not err in sustaining the demurrer to the plaintiff’s petition, from which it appeared that the defendant bought from the debtor certain property under an agreement to take up the liens against it, and promised the plaintiff to pay off the execution if the plaintiff would not levy on the debtor’s property, and that, relying on this promise, the plaintiff did not levy, and thereafter the defendant in execution became insolvent.
    Decided October 9, 1919.
    Complaint; from Miller superior court—Judge Worrill. April 39, 1919.

      M. E. O’Neal, N. L. Stapleton, for plaintiff,
    cited: Holcomb v. Mashburn, 10 Ga. App. 783, and cit.; Clark on Contracts, 98, 100; Sext v. Geise, 80 Ga. 698; Civil Code (1910), § 3333 (3); Stovall v. Hairston, 55 Ga. 1; Vason v. Beall, 58 Ga. 507 (3); Wooten v. Wilcox, 87 Ga. 474.

      W. I. Geer, for defendant,
    cited: Civil Code (1910), § 3333; Davis v. Tift, 70 Ga. 53 (3); Bedingfield v. Lamb, 19 Ga. App. 486, and cases cited in the following decision.
   Luke, J.

Benton Trading Company brought suit against Bailey alleging that it owned an execution against Spooner; that Bailey notified it and its attorney that he had purchased practically all the real estate and personal property of Spooner, and that undeT the terms of the purchase he was to assume all liens against the property and pay to Spooner the remainder of the purchase-price; that he did not wish the plaintiff to levy the execution on Spooner’s property; that if they would wait for awhile he would pay the fi. fa. in full; that subsequently he did pay $400 on the execution, and that, relying on Bailey’s promise to pay the execution, the plaintiff did not levy the fi. fa., that Spooner thereafter became insolvent; and by reason thereof the plaintiff was damaged in an amount equal to the balance due on the execution. The defendant demurred, upon the grounds: that the petition set forth no cause of action; that it did not appear that the promise to pay was in writing; that the petition failed to show that the plaintiff was prevented from levying the fi. fa.; and that there was no agreement between the three persons and concurred in by them whereby Spooner was released and Bailey accepted as the debtor.

It was not error for the court to sustain the demurrer and dismiss the suit. In every such case, in order to take the transaction out of the operation of the statute of frauds, it must appear that the person substituted for the debtor was, by agreement between the creditor, the debtor, and himself, substituted for the original debtor, and the latter released from the obligation. See Palmetto Mfg. Co. v. Parker, 123 Ga. 798 (51 S. E. 714); Fields v. Bullington, 20 Ga. App. 102 (92 S. E. 653).

Judgment affirmed.

Broyles, O. J., and Blood-worth, J., concur.


author: Broyles, O. J.

text:
    10614.
    Vaughn-Carlton Company v. Studebaker Corporation of America et al.

    Decided October 9, 1919.
    Trover; from Colquitt superior court—Judge Thomas. April 10, 1919.
    Application for certiorari to review this decision was denied. A report of facts in this case appears in 22 Get. App. 684. On the last trial the court directed a verdict in favor of the plaintiff, and the defendant again brought the case to this court, on direct exceptions to the directing of the verdict and to certain rulings on the trial. At the trial the defendant moved to dismiss the case, on the ground that there was no allegation or proof of demand for the property before suit. The defendant sought to prove by the vice-president of the defendant company that at the time of the purchase of the property by the defendant, he did not know of the printed conditions retaining title in the plaintiff which were on the back of the order signed on the part of the purchaser. The contentions argued in the brief of counsel for plaintiff in error were that the court erred in not sustaining the motion to dismiss, and in excluding the proffered testimony. It was contended by opposing counsel that in view of the defendant’s answer to the suit, in which the defendant admitted possession of the property and asserted title, it appeared that a demand would have been unavailing, and it was therefore unnecessary.

      Shipp & Kline, D. P. Starr, for plaintiff in error.

      P. Q. Bryan, contra.
   Broyles, O. J.

1. None of the assignments of error is meritorious.

2. It appearing that this writ of error was prosecuted for the purpose of delay only, the petition of the defendant in error that ten per cent damages be awarded against the plaintiff in error is granted.

Judgment affirmed, with damages.

Luke and Bloodworth, J.J., concur.


author: Bloodworth, J.

text:
    10619.
    Towns v. Wells.
    Decided October 9, 1919.
   Bloodworth, J.

1. Tile petition as amended set forth a cause of action, and the demurrer thereto was properly overruled.

2. The motion for a new trial contains the general grounds only, there is evidence to support the verdict, which has the approval of the trial judge, and a new trial was properly .refused.

Judgment affirmed.

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

Complaint; from city court of Floyd county—Judge Norm ally. April 34, 1919.

The action was against the alleged father of a two-year-old girl, by her grandmother, for the value of necessaries and care of the child. The petition alleges: Since the birth of said child, notwithstanding that it is the duty of said father to support said child, he has abandoned the child and failed and refused to support it, and has failed and refused to furnish it with the necessities of life. Petitioner is the grandmother of said child, and if she had not taken charge of the child and provided it with necessities of life, and cared for it, the child would have died. The mother of the child has deserted and abandoned the child. Upon the abandoning of the child by the defendant, he left the child in the possession and custody of plaintiff, where it has remained ever since. Petitioner has supported the child since its birth, and provided it with necessities of life since that time, and the father of the child has not paid her for such service. The care, support, and necessaries of life furnished the child by petitioner are reasonably worth $15 a month, and the defendant is justly indebted to petitioner in that sum for 35 months, beginning January 30, 1916, to wit, in the sum of $375. A general demurrer to the petition was overruled. The defendant in his answer admitted that since the birth of the child he had refused to support it, and had not paid anything towards its support; he denied that he was its father. The only evidence on the trial was the testimony of the plaintiff. Her testimony supported the allegations of fact in her petition. The verdict was for the plaintiff.

Harris & Harris, for plaintiff in error.

W. B. Mebane, contra.


author: Bloodwoeth, J.

text:
    10621.
    Parks v. The State.
   Bloodwoeth, J.

1. “While it is the duty of a judge in the trial of a criminal ease to state the contentions of both the State and the defendant, still, in the absence of a request for more definite instructions, a statement by the court that the grand jury has returned an indictment against the defendant, charging him with the offense of murder, and that to this the defendant has filed a plea of not guilty, which makes the issue for them to try, sufficiently presents the issue.” Faison v. State, 13 Ga. App. 180 (79 S. E. 39). And see Wilensky v. State, 15 Ga. App. 360 (83 S. E. 276). There was no request in this case. Besides, the “contention” of the defendant which he alleges that-the judge failed to charge was based upon declarations that another was the guilty party. The Supreme Court has held that “On the trial of one of two persons jointly indicted, the declarations of the other that he alone committed the offense with which they are charged are not admissible in evidence in favor of the accused on trial.” Robinson v. State, 114 Ga. 445, 447 (40 S. E. 253), and eit. See also Daniel v. State, 65 Ga. 199.

Decided October 9, 1919.

Indictment of possession of intoxicating liquor; from Forsyth superior court—Judge Morris. May 10, 1919.

H. B. Moss, for plaintiff in error.

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

2. There is some evidence to support the verdict, the trial judge, who has a broad discretion, has refused a new trial, and so do we.

Judgment affirmed.

Broyles, G. J., and Lulce, J., concur.


author: Broyles, C. J.

text:
    10629.
    Vogt v. Bridges.
    Decided October 9, 1919.
    Certiorari; from Fulton superior court—Judge Bell. April 7, 1919.

      Chambers & Diclcey, for plaintiff in error.

      Lcmton Nalley, contra.
   Broyles, C. J.

1. There is no merit in the motion to dismiss the bill of exceptions; and accordingly it is denied.

2. Under the facts of the case the judge of the superior court did not err in overruling the certiorari.

Judgment affirmed.

Lulce and Bloodworth, JJ., concur.


author: Bloodwouth, J.

text:
    10307.
    BATEMAN v. SMALL & THARPE.
    1. “One able to read, who executed a written contract without reading it, can not avoid liability thereon because he signed without knowing the oontents of the contract, when his so doing was not induced by any action or representation amounting to fraud on the part of the person with whom he was dealing.”
    2. The question raised by the bill of exceptions in this case having been often decided, both by the Supreme Court and this court, adversely to the contentions of the plaintiff in error, the statutory damages (Civil Code of 1910, § 6213) are awarded the defendant in error.
    Decided October 10, 1919.

      Complaint; from city court of Houston county—Judge Eiley. November 18, 1918.

      Feagin & Hancock, for plaintiff in error.

      Hardeman, J ones, Park & J ohnsion, contra.
   Bloodwouth, J.

Small & Tharpe sued Bateman for the balance due on a promissory note given for the purchase-price of two mules, and containing, among other provisions, the following: “And the subscriber hereby agrees to pay the within obligation although the property should die or become damaged or destroyed, whether by accident or otherwise. . . It is further understood and agreed that said Small & Tharpe do not guarantee the health, soundness, working qualities . . of the within described property, and it is further understood and agreed that should said live stock herein described be not suited to the purpose for which bought, then the undersigned does hereby agree that........will within ten days from the above date return the same to said Small and Tharpe at their place of business in Macon, Ga., in the same physical condition as when purchased, who hereby agree to accept the same and cancel this indebtedness, and upon failure of the undersigned to return the property herein purchased and described within ten days from above date, then the said undersigned waives any claim for damages or failure of consideration as against this contract and likewise any defect in any of said property.” Defendant filed pleas which were stricken upon motion. The only portion of the pleas actually discussed in the brief of plaintiff in error is the following from the original plea: “The plaintiffs presented to defendant for his signature the note prepared by them on a blank form which they carried in their pocket, telling defendant they had fixed the note as agreed, and for him to sign. Defendant relied on the plaintiffs, had full confidence in their statements, and did not read the note he signed, as it was in very fine print and long, and defendant’s eyesight was impaired, rendering it very difficult for him to read the fine printing in which the note was.” The plea Was amended as follows: “That the note and contract signed by this defendant and upon which said suit is based was in very fine print; that by reason of his defectial [defective?] and impaired eyesight this defendant did not and could not read same, all of which was well known to the plaintiff; that the said written contract is different from the oral agreement and representation made to him by said plaintiffs, and this defendant did rely upon said plaintiff to make the said contract signed by him to contain the contract as made between said plaintiff at the time said contract was made and the writing upon which this suit is based was signed by defendant, and said written contract was signed by defendant believing that same did contain the oral contract as made between the parties as it was represented to him by said plaintiffs; that he did not read said writing before signing same for the reasons above set forth, but did rely upon the representations made to him by plaintiffs that said writing did set up and contain the contract as made between plaintiff and defendant.” Plaintiff demurred generally and specially.

The demurrer was properly sustained. It will be noted that in the original plea the defendant admitted his ability to read the note, though he said he could do it with difficulty. In the amendment he asserts that by reason of his defective eyesight he could not read the note. Pleadings are construed most strongly against the pleader, and where a plea contains both an admission and a denial, the admission and not the denial must prevail. McNatt v. Citizens & Southern Bank, 20 Ga. App. 759 (93 S. E. 271); City of Moultrie v. Schofields Sons Co., 6 Ga. App. 464 (65 S. E. 315). See also Southern Ry. Co. v. Hobbs, 121 Ga. 428 (49 S. E. 494). In this connection attention is directed to the following quotation from the opinion in Hanes v. Farmers & Merchants Bank, 20 Ga. App. 130 (92 S. E. 896) : “The additional statement that the defendant did not have his spectacles with him, and therefore could not read at the time the notes were signed, was not sufficient, under the authorities cited in the other case, to alter the rule.” There is nothing in the record to show that the defendant made any effort to read the note and found that he could not do so, or that at the time that he signed it there existed an emergency which would excuse his failure to read, or that his failure to read was brought about by any “misleading artifice or device perpetrated by the opposite party amounting to actual fraud such as would reasonably prevent him from reading it.” On the contrary, it clearly appears that he signed the note on presentation, without apprising himself of its contents otherwise than by accepting statements with reference thereto made by the representative of the opposite party, and between whom and the defendant there existed no confidential or fiduciary relation. See Twyman v. Avera Loan &c. Co., 23 Ga. App. 136 (98 S. E. 239), and cases) cited. “Where one who can read signs a contract without apprising himself of its contents, otherwise than by accepting representations made by the opposite party, with whom there exists no fiduciary or confidential relation, he cannot defend an action based on it, on the ground that it does not contain the contract actually made; unless it should appear that at the time he signed it some emergency existed as would excuse his failure to read it, or that his failure to read it was brought about by some misleading artifice or device perpetrated by the opposite party, amounting to actual fraud such as would reasonably prevent him from reading it.” Tinsley v. Gullett Gin Co., 21 Ga. App. 512 (2), 516 (94 S. E. 892). See also cases cited in the opinion. “One able to read who executed a written contract without reading it cannot avoid liability thereon because he signed without knowing the contents of the contract, when his so doing was not induced by any action or representation amounting to fraud on the part of the person with whom he was dealing.” Barnes v. Slaton Drug Co., 21 Ga. App. 580, 582 (94 S. E. 896). See also cases cited in the opinion. “If one cannot read a contract which he is about to execute, it is as much his duty to procure some reliable person to read and explain it to him before he signs it as it would be to read it himself if he were able to do so, and his failure to obtain a reading and an explanation of it is such gross negligence as will estop him from repudiating it on the ground that he was ignorant of its contents.” Chicago &c. Ry. Co. v. Belliwith, 83 Fed. 437 (28 C. C. A. 358). “Where suit was brought for a sum alleged to be due upon a plain and unambiguous contract in writing, and the only evidence submitted by the defendant was to the effect that he could f just read and write a little bit/ annelid not read the contract, that the nature of the written contract was misrepresented to him and he thought that he was signing an entirely different contract from the one he did sign, but nothing was done to prevent him from reading it or having it read to him, it was not error for the trial judge to direct a verdict against him for the amount appearing to be due under the contract. Sloan v. Farmers & Merchants Bank, 20 Ga. App. 123 (92 S. E. 893), and cases cited.” Miller v. Walker, 23 Ga. App. 273 (97 S. E. 869). The party signing this note may have been very indiscreet, but for this alone the law will not relieve him. “Folly is not always fraud.” “A party who can read must read, or show legal excuse for not doing so. Fraud which would relieve a party who can read must be fraud which prevents him from reading.” Stoddard Manufacturing Co. v. Adams, 122 Ga. 802 (50 S. E. 915). The principle announced in the above cases shows that the plea in this case was properly stricken.

The defendant in error requested that we award, the statutory damages of ten per cent, against the plaintiff in error for bringing this case to this court for tire purpose of delay only. As was held in the case of Miller v. Walker, supra, “The questions raised by the bill of exceptions in this case having been so often decided, both by the Supreme Court and this court, adversely to the position of the plaintiff in error, the statutory damages (Civil Code of 1910), § 6213) are awarded the defendant in error.”

Judgment affirmed, with damages.

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


author: BLOonwoirai, J.

text:
    10317.
    ATLANTIC COAST LINE RAILROAD COMPANY v. STOVALL-PACE COMPANY.
    1. The motion to dismiss the writ of error, on the ground that there is no sufficient assignment of error, is overruled.
    2. In a consignee’s suit against the last connecting carrier, for loss of goods shipped over the lines of connecting carriers from another State into this State, where the suit was not expressly based upon Federal or State statute, and where it was alleged that the defendant received the goods in good order from its connecting carrier and did not deliver them to the plaintiff, a demurrer to the petition, on the ground that “under the interstate-commerce act the original carrier is alone responsible,” was properly overruled. The allegations were sufficient to show that the loss was caused by negl^ence of the defendant.
    3. The ground of the motion for a new trial as to the admission of a designated letter in evidence over objection is not in proper form for consideration.
    4. There being no proof of the value erf the lost goods, the verdict in favor of the plaintiff is without evidence to support it.
    Decided October 10, 1919.
    Action for damages; from city court of Richmond county—Judge Black. December 21, 1918.
    The motion to dismiss the writ of error was on the ground that the bill of exceptions “does not assign error on any final judgment in the ease, and this court has no jurisdiction to entertain the same, the only error assigned being on the verdict of the jury and not on the judgment rendered on such verdict.” The bill of exceptions assigns error on the judgment overruling the defendant’s motion for a new trial, and also assigns error on exceptions pendente lite to the overruling of the demurrer to the plaintiff’s petition.

      W. K. Miller, for plaintiff in error. J, J. J ones, contra.
   BLOonwoirai, J.

The motion to dismiss the bill of exceptions is overruled.

Stovall-Paco Company brought suit against the Atlantic Coast Line Railroad Company, the last of certain connecting carriers, for the loss of a certain box of goods shipped from East Dedham, Mass., to Augusta, Ga., alleging that “the defendant received the goods described in paragraph 3 of plaintiff’s complaint, from its connecting carrier, the said goods being in good order, but that said defendant has never delivered said goods to petitioner.” A demurrer to the petition alleged in part that the petition should be dismissed “because under the interstate-commerce act the original carrier is alone responsible.” The plaintiff did not expressly declare upon the State or Federal statute, but merely pleaded the facts relied on to show liability against the last connecting carrier. The allegations were sufficient to show that the loss was caused by negligence of the defendant, “The wrong here complained of was committed by the defendant, not by the initial company, and the plaintiff is not excluded from suing the wrongdoer.” The demurrer was properly overruled. Southern Railway Co. v. Morris, 147 Ga. 729 (95 S. E. 284); Western & Atlantic Railroad Co. v. White Provision Co., 142 Ga. 246 (2) (82 S. E. 644); Cincinnati &c. Ry. Co. v. Quincey, 19 Ga. App. 167 (91 S. E. 220); Atlantic Coast Line R. Co. v. Thomasville Live Stock Co., 13 Ga. App. 102 (78 S. E. 1019).

The amendment to the motion for new trial, filed on December 21, 1918, cannot be considered by this court, for two reasons: (a) “A ground of a motion for new trial based upon the admission of evidence should state what objection was made thereto when it was offered at the trial, and should affirmatively show that the objection was then urged; otherwise no question is raised for determination.” Hixon v. Myers, 144 Ga. 408 (2) (87 S. E. 475); Whiddon v. Salter, 144 Ga. 77 (2) (86 S. E. 243). (b) “Grounds of a motion for a new trial which arc incompléte, and cannot be uifderstood without resorting to an examination of the brief of evidence, fail to present any question for decision. Head v. State, 144 Ga. 383 (87 S. E. 373); Sims v. Sims, 131 Ga. 363 (63 S. E. 193).” Smiley v. Smiley, 144 Ga. 546 (87 S. E. 668); Daniel v. Schwarzweiss, 144 Ga. 81 (86 S. E. 339).

Plaintiff urges that a new trial should be granted on the general grounds, because no value of the lost box of goods was shown. An examination of the evidence reveals the fact that this contention is true; and for this reason the verdict is without evidence to support it, and the judgment must be

Reversed.

Broyles, G. J., and Dulce, J., concur.


text:
    10320.
    CARMICHAEL v. FIRST FARMERS BANK et al.

    1. Service of the bill of exceptions being waived in accordance with the Civil Code (1910), § 6160 (3), the motion to dismiss the writ of error is denied.
    2. It was too late to object to the intervention and to move to strike the intervenor as a party at a term of the court subsequent to the term at which, under an order of the court, the intervenor was made a party defendant and its pleadings were filed.
    3. It was not error to direct a verdict for the defendant, where, under the pleadings and the evidence, no other legal verdict could have been rendered.
    Decided October 10, 1919.
    Trover; from Butts superior court—Judge Searcy. January 11, 1919.

      W. E'. Watkins, for plaintiff.

      Little, Powell, Smith & Goldstein, H. M. Fletcher, for defendants.
   Bloodworth, J.

The provisions of the Civil Code (1910), § .6160, par. 3, as to waiver of service of a copy of the bill of exceptions, were complied with, and the motion to dismiss the bill of exceptions is denied.

J. B. Carmichael brought an action of bail-trover against the First Farmers Bank to the August term, 1916, of the superior court. The Chippewa Bank filed an intervention, and prayed that it be made a party defendant. On August 31, 1916, the following order was passed: “It is ordered by the court that the Chippewa Bank be made a party defendant to above-stated suit, and that this its answer be filed as a part of the pleadings and record in said case.” At the February term, 1917, the plaintiff filed objection to the intervention, and moved to strike the intervenor as a party. This motion came too late and was properly overruled. Pettis v. Campbell, 47 Ga. 596; Life Association of America v. Ferrill, 60 Ga. 414 (2); Ansley v. Jordan, 61 Ga. 484 (7), 488 (7).

Under the pleadings and the evidence no other verdict than one in favor of the defendant could have beendegally returned, and the court did not err in so directing.

Judgment affirmed.

Broyles, C. J., and Lulce, J., concur.


text:
    10328.
    COLLIER v. HOLLAND, administrator.
    The recovery of the commission sued for as compensation for procuring a purchaser and bringing about the sale of land sold by the defendant was authorized by the evidence.
    The alleged newly discovered evidence was merely cumulative and impeaching in its nature, and did not require a new trial.
    Decided October 10, 1919.
    Complaint; from Morgan superior court—Judge Park. January 1, 1919.

      Albert G. Foster, for plaintiff in error.

      Williford & Lambert, contra.
   Bloodworth, J.

In the order overruling the motion for a new trial the judge said: “In my opinion no error of law ivas committed by the court in the trial of said case, and under the following decisions, to wit: Hardin v. Stansel, 13 Ga. App. 22 [28 S. E. 681], Graves v. Hunnicutt, 8 Ga. App 99 [68 S. E. 558], Doonan v. Ives, 73 Ga. 295 (3), Mousseau v. Dorsett, 80 Ga. 566 [5 S. E. 780], Hill v. Wheeler, 2 Ga. App. 349 [58 S. E. 502], the evidence authorized the verdict rendered. As to the newly discovered evidence of Pleas. M. Todd as set out in the amended motion for new trial, it is only cumulative in its nature, and movant contended in his testimony that the facts set out in the affidavit of Todd were correct. It could only be regarded as evidence corroborating movant and impeaching in its character, and under section 6086 of the Civil Code (1910) and authorities in connection therewith, does not authorize the granting of a new trial. Under the evidence in this case the jury was authorized to reach the conclusion that the plaintiff, J. H. Holland, was the procuring cause that brought about the sale, and under the principle that £a laborer is worthy of his hire,’ especially where movant at the time the sale was being closed said to the plaintiff £I will treat you right about it,’ I overrule the motion for new trial.”

So far as appears from the motion for a new trial, we agree with the trial judge that “no error of law was committed by the court in the trial of said case.” Not one of the several grounds of the motion shows any cause which requires the grant of a neiv trial.

Judgment affirmed.

Broyles, G. J., and Lulce, J., concur.


text:
    10333.
    Harris v. Cohutta Banking Company.
    Decided October 10, 1919.
    Complaint; from Murray superior court—Judge Wright presiding. January 6,1919.

      A. W. Fite, Maddox, McCamy & Shumate, for plaintiff in error.

      Little, Powell, Smith & Goldstein, W. F. Mann, H. H. Anderson, B. N. Steed, G. N. King, W. G. Martin, contra.
   Bloodworth, J.

The case of Leonard v. Cohutta Banking Co., 21 Ga. App. 777 (95 S. E. 113), was based on a note given for stock in the Cosmopolitan Life Insurance Company. The same is true in this ease. The issues raised by the pleas in the Leonard case are largely the same as those in this case, though each has some pleas not common to the other. As far as the issues in the two cases are the same they are settled by the opinion in the Leonard case, and there is nothing additional in the pleas in this case that would authorize us to render a different opinion; and we hold that the court did not err either in its rulings on the pleadings or in directing a verdict for the plaintiff. See also Hemphill v. Cohutta Banking Co., 23 Ga. App. 809.

Judgment affirmed..

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


text:
    10419.
    THOMAS v. HINES, director-general, etc.
    Under the allegations of the petition, the injury to the plaintiff when he stepped on a broken bolt between the rails of the track where he was at work in the railroad company’s repair yard gave no cause of action against the company.
    Decided October 10, 1919.

      Action for damages; from Chatham superior court—Judge Meldrim. January 37, 1919.
    Application to the Supreme Court for certiorari in this case was refused.
    Thomas sued the Central of Georgia Eailway Company for injuries alleged to have been received when he stepped on a broken draft bolt in the railway company’s repair yard while engaged with a gang of employees of the company in pulling car-wheels on a track for the purpose of moving them. By amendment the director-general of railroads of the United States government was substituted for the railway company as defendant. In addition to the facts stated in the following opinion the petition alleged, that it was the duty of employees of the defendant, who were employed for that purpose, to keep obstructions removed from the ground upon which the plaintiff and other employees were working, so that employees who did not have time or opportunity to look out for obstructions while engaged in their work might not be injured thereby; that the defendant company, in the exercise of proper care, ought to have known of the presence of the draft bolt upon the track, and should not have permitted it to remain there; that it was not the plaintiff’s duty to inspect the ground, and he assumed, as he had a right to assume, that those portions of the plant by which his safety would be affected were in proper condition and had been properly inspected by the defendant company and were in a safe and suitable condition for use; that the defendant company was guilty of negligence in failing to maintain a safe place of work; that the employees employed to remove bolts and obstacles were negligent in failing to do so; that the employee who dropped, placed, or permitted the bolt to Temain on the ground was negligent, and that the company was negligent in failing to inspect the premises and discover and remove the bolt. It was alleged that the plaintiff himself was without fault; that he did not see the bolt and had no opportunity of seeing it, as his back was turned to it, and he had no reason to apprehend the presence of the bolt or any other obstruction, because the defendant had other employees whose duty it was to remove such obstructions.

      Oliver & Oliver, for plaintiff,
    cited, in addition to cases cited in the following opinion: Ga. Railroad v. Hunter, 9 Ga. App. 382, 384; 12 Ga. App. 294; S. A. L. Ry. v. Bishop, 132 Ga. 71; Walker v.
      A. & W. P. R. Co., 103 Ga. 820, 823-7; Austin v. Appling, 88 Ga. 54 (2); East Tenn. &c. Ry. Co. v. Smith, 90 Ga. 559; Hubbard v. Macon Ry. Co., 5 Ga. App. 223 (2); Green v. Babcock Lumber Co., 130 Ga. 469, 472; Blackstone v. Cen. Ry. Co., 105 Ga. 380; So. Ry. Co. v. Diseker, 13 Ga. App. 799 (5), 807, 817; So. Cot. Oil Co. v. Gladman, 1 Ga. App. 259; King Mfg. Co. v. Walton, 1 Ga. App. 403; Syms v. Cen. Ry. Co., 17 Ga. App. 699, and cit.; S. A. L. Ry. v. Pierce, 120 Ga. 230; 122 Ga. 664; Pullman Co. v. Martin, 92 Ga. 161; Ga. R. Co. v. Rayford, 115 Ga. 937.

      Laivlon & Cunningham, for defendant,
    cited: A., B. & A. Ry. Co. v. Smith, 23 Ga. App. 198; Boney v. Dublin, 145 Ga. 339, 342; Thomas v. Granite Co., 140 Ga. 459-62; Zipperer v. S. A. L. Ry., 129 Ga. 387; So. Ry. Co. v. Taylor, 137 Ga. 704; Kilgo v. Rome Soil Pipe Mfg. Co., 16 Ga. App. 737; Lee v. Cen. R. Co., 86 Ga. 231; East Tenn. &c. Ry. Co. v. Reynolds, 93 Ga. 570; Butler v. Atlanta Buggy Co., 10 Ga. App. 178, 180.
   Bloodworth, J.

Judge Meldrim, in his order sustaining the demurrer to the petition in this case, says:

“In the view which I take of this ease I do not deem it necessary to decide the issues raised by the demurrer, except the ground that the petition fails to set out a cause of action. It appears that the defendant railway had repair-yards in which there were tracks known as 2 and 3. On track No. 2 there was a bad-order car, from which it was necessary to remove a pair of wheels and ‘'carry them to the wheel-press, get a new pair from the wheel-press, and carry them back to the car to be placed under the car/ The gang of men of which plaintiff was a member having removed the old wheels and taken them to the wheel-press, and the new wheels having been moved down to No. 3 track to a place nearly opposite the out-of-order car, it became necessary to move the wheels from No. 3 track on to No. 2 track, and then to be rolled under the ear. As plaintiff stepped inside of track No. 2 he stepped on a broken bolt. This bolt was iron, round, 3/4 inches in diameter and from 8 to 12 inches long. It rolled, caused his foot to give way, he fell and the wheel ran on his foot, crushing it. The place where the accident occurred was fin the freight repair track department5 in the yards of the defendant.

“1. The place where the accident ooeurred was in a railway-yard, where repair work was going on, and when [where?] the work in its progress necessarily changes the character for safety of the place. The rule of a reasonably safe place to work does not, therefore, apply.

“2. The plaintiff had just before the accident passed through that part of the yard, and over or very near the draft bolt, when he removed the wheels from under the ear on No. 2 track and took them to the wheel-press. The bolt was inside of No. 2 track. The out-of-order car was on that track. The old wheels were taken out of that car on No. 2 track. The new wheels were put in that car on the same track. The bolt was there when plaintiff removed the old wheels, or it got there in some way in the brief interval of removing one pair of wheels and putting in the new pair. This is highly improbable. The clear conclusion is that this broken bolt was in the repair yard, between the rails of No. 2 track, when plaintiff removed the old wheels, and that he did not notice it. That he had equal opportunity with the master to have seen it goes without saying. He simply stepped back over the rail of No. 2 track, on the bolt, without looking, and the wheel rolled on his foot. It is a physical impossibility to keep a repair yard, where work is going on,^free from bolts, nuts, and the like. If the plaintiff did not see the bolt when he went by it, it is not reasonable to suppose that the master would have seen it. To have inspected a repair yard and to have removed from between repair tracks a broken bolt would have required the most extraordinary care, and this is not required of the master. While it is the duty of the master to inspect, and while this is a continuing duty, yet nevertheless there must be a reasonable time for inspection and time to remedy an evil after its discovery. There is not the slightest suggestion as to how the bolt got there, or how long it had been there.

“Plaintiff relied on the case of Fenelon v. Railway, 143 Ga. 26 [84 S. E. 57]. The report of the case is meagre, but it does appear that in that case the bolt had been allowed to remain partly on a rail, in violation of a rule of the company. In the instant ease there is no averment as to the violation of a rule. In the Fenelon case it appears that the accident was at night, and it does not appear that Fenelon had equal opportunity with the master to have known of the defect. In the instant case the plaintiff had equal opportunity with the master of seeing the bolt. Plaintiff also relies on Southern Ry. Co. v. Puckett, 16 Ga. App. 552 [85 S. E. 809]. By reference to page 554 of that case it will be seen that certain rules were introduced, and it was because of the violation of these rules that the defendant was held liable. A reference to the Puckett case shows that there is no real similarity in the facts of that ease and the instant case. The other two cases cited by counsel for plaintiff are 224 U. S. 571 [37 Sup. Ct. 703, 61 L. ed. 1321, Ann. Cas. 1918 B, 69], which is the Puckett case, decided in the 16 Ga. App. [supra], and affirmed, and the case of Railroad v. Thompson, 236 Fed. 1 [149 C. C. A. 311]. In the latter ease it appears that the plaintiff was injured by stepping on a piece of slag the size of a eocoanut. The rule of the company ‘required that the yard should he kept clear of such slag.’ The ease is essentially different from the one at bar. In my opinion, no cause of action is shown, and the general demurrer is sustained.”

Without committing ourselves to all that the careful and capable judge has written in the above order, we are clearly convinced that his conclusion is correct.

Judgment affirmed.

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


author: Bdoodworth, J.

text:
    10423.
    Burkhalter v. Conley et al.

    Decided October 10, 1919.
    Rehearing denied November 5, 1919.
    Certiorari; from Tattnall superior court—Judge Sheppard. February 7, 1919.
    The signature “W. T. Burkhalter, indorser,” under the signature "W. L. Strickland,” appeared on the back of a promissory note signed by J. F. Burkhalter as maker, upon'which the persons named were sued in a justice’s court by the payee, L. P. Conley. W. T. Burkhalter filed an answer, admitting that the plaintiff was entitled to a judgment against the defendants, but praying that the judgment be "only against this defendant as indorser and against J. F. Burkhalter and W. L. Strickland as principal debtors so far as the rights of this defendant are involved;” it being alleged that he signed the note after it had been executed by the other defendants and at their request, as indorser for both of them, so indicating on the note, and so stating to them at the time of turning it over to them. On the trial it was admitted that the plaintiff was entitled to a judgment for the amount sued for. W. T. Burkhalter testified, that after having refused to indorse a note for J. F. Burkhalter to buy an automobile from W. L. Strickland, who was an automobile agent and salesman, Strickland came to him and asked him to indorse a note to be made payable to L. P. Conley for $500, so that J. F. Burkhalter would have money enough to buy an automobile, stating that he (Strickland) would sign the note with him (W. L. Burkhalter); whereupon he stated to Strickland that he would not indorse the note for J. F. Burkhalter, but would indorse if, for Strickland; that Strickland replied that this would be satisfactory, and two or three days later returned with the note sued on, bearing the signatures of J. F. Burkhalter and Strickland, and asked him to indorse it; whereupon he indorsed it “and limited his liability thereon by writing immediately after his name the word ‘indorser/ ” and J. F. Burkhalter and Strickland accepted it and negotiated it for value to both of them, Strickland receiving commissions on the sale of the automobile; that he (W. T. Burkhalter) got nothing. Strickland testified that “he did not remember W. T. Burkhalter telling him that he would not indorse the note sued, on for J. F. Burkhalter; that he understood that both he and W. T. Burkhalter were jointly liable to the plaintiff on the note; that he (Strickland) was surety on the note;” that the $500 was paid to the automobile company on the machine bought, and he got commissions on the sale. The plaintiff testified that J. F. Burkhalter and Strickland came to him and wanted to borrow the $500 to aid J. F. Burkhalter to buy an automobile from Strickland. The plaintiff and Strickland, and other witnesses, testified to a statement of J. F. Burkhalter, made when W. T. Burkhalter was not present, that W. T. Burkhalter would indorse the note for him. This testimony was admitted over the objection that it .was hearsay. One of these witnesses testified that the plaintiff turned over to him a check for $500, with instruction to turn it over to J. F. Burkhalter when W. T. Burkhalter indorsed the note. This was done. Payments by Strickland, credited on the note, reduced it to the amount sued for.
   Bdoodworth, J.

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

Judgment affirmed..

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

The verdict was “for the plaintiff,” and the court entered judgment thereon against all the defendants. W. L. Burkhalter sued out certiorari, contending that the verdict and judgment were unauthorized, because they made him a joint obligor with the other defendants; that the verdict and judgment should have been against J. F. Burkhalter as principal, W. L. Strickland as surety, and W. T. Burkhalter as indorser. It was contended also that the court erred in admitting the testimony objected to.

The judge of the superior court, in his judgment overruling the certiorari, said: “The main question to be determined is whether or not W. T. Burkhalter, who signed on the back of the note, after his name, the word ‘indorser/ limits his liability, or whether such indorsement makes him a surety only. After carefully reading the authorities cited by both parties, the court is of the opinon that the word ‘indorser/ following ‘W. T. Buckhalter/ on the note does not change the nature of the liability, and may be treated more as surplusage, the note being made by J. F. Burkhalter as maker to L. P. Conley, and indorsed on the back by W. L. Strickland and W. T. Burkhalter, indorser, and the suit being in the name of the original payee against J. F. Burkhalter as maker, and W. L. Strickland and W. T. Burkhalter as sureties. 61 Ga. 112; 26 Ga. 223; 4 Ga. 266. Under the act of December, 1826, persons who sign on the back of a note made by one party to another, or order, were made liable as sureties or joint promisors. The case at bar seems to fall well within that rule, and the mere limitation in the term ‘indorser’ would not change the real status, if as a matter of fact the indorsement of W. T. Burkhalter, along with Strickland, was to add strength to the paper and not to negotiate title. . . Whatever may have been the understanding between Mr. Strickland and Mr. Burkhalter, it could not affect the rights of Mr. Conley in the suit.” The court held that error in admitting hearsay testimony was not material.

II. H. Mders, W. T. Burlchalber, for plaintiff in error,

cited: Civil Code (1910), §§ 4275, 4279, 4268 (1), 5752, 5788, 3538, 3541; 103 Ga. 508; 79 Ga. 736 (1); 97 Ga. 772 (2); 99 Ga 303 (1); 112 Ga. 476 (1); 116 Ga. 8, 830 (1), 933; 101 Ga. 226 (1); 7 Cyc. 828; 32 Cyc. 21 (B); 4 Am. & Eng. Enc. L. (2d ed.), 477-8, par. 5.

B. Q. Beasley, contra,

cited: Civil Code (1910); §§ 3538, 3541; 90 Ga. 307, 309; 61 Ga. 112 (2), 114; 26 Ga. 223; 112 Ga. 476; 97 Ga. 127 (4); 62 Ga. 73 (2); 79 Ga. 736 (1).


text:
    10457.
    Tatum v. Padrosa.
    Decided October 10, 1919.
    Eviction; from Glynn superior court—Judge Highsmith. February 22, 1919.

      E. H. Williams, for plaintiff in error.

      Max Isaac, contra.
   Luke, J.

1. A contract creating the relation of landlord and tenant for a time longer than one year by parol agreement has the effect of creating only a tenancy at will. Civil Code (1910), § 3693. In order to terminate a tenancy at will it is necessary that the landlord give to the tenant two months notice. Civil Code (1910), § 3709. A purchaser of realty from a landlord during the term of a tenant at will is entitled, upon notice as prescribed by law, to terminate the tenancy, and thereafter to dispossess the tenant. See Willis v. Harrell, 118 Ga. 906 (45 S. E. 794).

2. Where it is shown that a paper which would afford evidence material to the issue is in court, in the possession of a witness, it is the duty of the judge to require its production instanter, unless it appear that the evidence sought is privileged. In this case the alleged error of the judge in directing that certain papers be produced was cured; for the record shows that when the judge directed the production of the papers, counsel for the defendant, who had objected to their production, waived the objection, by stating in open court: “I have no objection to showing them [referring to the papers]. We have no secrets.” See Rylee v. Bank of Statham, 7 Ga. App. 489 (67 S. E. 383).

3. Upon the issue made by the filing of a counter-affidavit to a summary proceeding to evict a tenant, the only question to be determined is tenancy or no tenancy, and no question as to the landlord’s title is involved. See Patrick v. Cobb, 122 Ga. 80 (49 S. E. 806).

4. The court did not err in refusing to permit the plaintiff to reopen the case after both sides had closed and arguments had been made by both parties. Especially was it not harmful to the defendant, the party excepting to the refusal.

5. The charge of the court fully and fairly submitted the issue; the evidence authorized the verdict; and for no reason assigned did the court err in overruling the motion for a new trial.

Judgment affirmed.

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


text:
    10481.
    Grow v. Solomon.
   Broyles, O. J.

The original deed, or timber lease, which was the basis of an action for breach of warranty af title to standing timber, contained the following description of the timber: “all of the timber of every description except (oak and hickory) now, standing or growing in or on the swamp and flat creek lands of Spring Creek, where the same runs through 169 acres off of the south side of lots of land 149 one forty-nine, and one seventy-one (171) in the thirteenth district (13th) of Miller County, Georgia, except such timber as may be on thirty-one (31) acres of lots of land in the southeastern corner of said lot number 149, belonging to Mrs. Eliza Stanton, . . Also excepting that portion of lot 171 included under fence J. S. Bush.” Held: This description is too indefinite and uncertain, even when aided by the extrinsic documentary evidence attached to ■ the petition, to afford any means of identifying the exact body of timber which the maker of the deed intended to convey. The deed, therefore, did not pass title to any of the timbei:, and the suit should have been dismissed on the general demurrer interposed. See, in this connection, Huntress v. Portwood, 116 Ga. 351 (42 S. E. 513); Crawford v. Verner, 122 Ga. 814 (50 S. E. 958) ; McSwain v. Ricketson, 129 Ga. 176 (58 S. E. 655); Youmans v. Moore, 144 Ga. 375 (87 S. E. 273).

Decided October 10, 1919.

Action for damages'; from Miller superior court—Judge Worrill. March 27, 1919.

P. D. Rich, W. I. Geer, for plaintiff in error.

N. L. Stapleton, contra.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


author: Bboyles, C. J.

text:
    10525.
    Pynetree Paper Company v. Wilkinson County Bank.
    Decided October 10, 1919.
    Complaint; from Wilkinson superior court—Judge Park. April 9, 1919.

      Strozier & Moore, for plaintiff in error.

      G. II. Carswell, contra.
   Bboyles, C. J.

1. The holder can not sue the drawee on a promise made to accept an existing bill, where the promise was made to the drawer of the bill after it had passed into the hands of the holder, and where the money sued for was paid or advanced by the holder before the promise was made, and not upon the faith of the promise. 8 Corpus Juris, 315, 316, § 485, and authorities cited in note 74; Lugrue v. Woodruff, 29 Ga. 648, 650; 7 Cyc. 766; Parrish v. Taggart-Delph Lumber Co. 11 Ga. App. 772 (76 S. E. 153); Coolidge v. Payson, 2 Wheat. 66 4 L. ed. 185); Exchange Bank v. Rice, 107 Mass. 37 (9 Am. R. 7); Carr v. National Bank, 107 Mass. 45 (9 Am. R. 6).

2. The amended petition, construed as a whole and most strongly against the pleader, clearly shows that the only money advanced by the plaintiff bank to the drawer of the draft was paid before the promise of the drawee to accept the draft was made, and that it was not paid on the faith of the promise. The petition, therefore, failed to set out a cause of action, and the court erred in overruling the general demurrer.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


author: Bloodwokth, J.

text:
    10542.
    LOVELL et al. v. FRANKUM.
    Although the verdict in favor of the plaintiff was not by its terms a verdict against Ellis Lovell alone, his codefendant, Mrs. Lovell, was eliminated from the ease by the instructions of the trial judge in accordance with the ruling of the Supreme Court in the same case, and by the plaintiff in dismissing the ease as to her under the order of the trial judge on the motion for a new trial; and, the verdict as against Ellis Lovell being authorized by the evidence,.a new trial was not requii’ed, and the judgment refusing a new rrial is affirmed.
    Decided October 10, 1919.
    Action on contract; from Habersham superior court—Judge J. B. Jones. May 28, 1918.

      J. G. Edwards & Sons, for plaintiffs in error.

      McMillan & Erwin, contra.
   Bloodwokth, J.

Erantum sued Ellis Lovell and Mrs. Ellis Lovell. A trial of the case resulted in a verdict for the plaintiff, and the case was taken to the Supreme Court on exception to the refusal to grant a new trial. It is reported in 145 Ga. 106, 108 (88 S. E. 569). The first headnote of the decision of that court is as follows: “The testimony did not authorize an instruction on the theory that the contract for breach of which the suit was brought was executed by both defendants;” and in the opinion the court said: “We have carefully examined the evidence, and nowhere does it appear that the wife joined with the husband in making the contract with the plaintiff, or that he or any one else was authorized as her agent to make such a contract.” The judgment was reversed and a new trial ensued. On the second trial the judge charged the jury as follows: “This suit was brought by Mr. Erankum against the defendants, Mr. Lovell and his wife. You can’t find a verdict against her. She is eliminated from the case. It is just a matter of whether Mrs. Lovell—I mean Mr. Lovell—is liable for the debt.” But in charging the jury as to the form of the verdict, the judge told them that if the plaintiff was entitled to recover, the form of the verdict would be, “We, the jury, find for the plaintiff so many dollars principal and so many dollars interest, with cost of suit.” The verdict of the jury was as follows: “We, the jury, find for the plaintiff, principal $400.00, interest for five years and two months $36.15, and cost of suit.” The defendants moved for a new trial, and in the motion it was alleged that the judge erred in instructing the jury on the form of the verdict, and in not expressly limiting the finding to a verdict against Ellis Lovell. On the hearing of the motion the judge passed the following order: “The within motion, as amended, coming on to be heard this day by consent, it appearing that the court, in instructing the jury, expressly eliminated a recovery against Mrs. L. C. Lovell, counsel for plaintiff only signed up a judgment against Ellis Lovell, but the verdict being general, and Mrs. Lovell appearing in the pleading as one of the defendants, so, to make the pleading comply with the direction of the court, it is ordered and adjudged that if the plaintiff will in 5 days from this hearing dismiss the name Mrs. L. C. Lovell as a party defendant, the motion is overruled and a new trial be refused; unless this is done, a new trial is granted and the verdict of the jury set aside. Before signing this order plaintiff dismissed the case against Mrs. L. C. Lovell; so a new trial' is refused.”

Under the decision of the Supreme Court in this case, which is referred to above, and in the light of the charge of the court, and under this order, Mrs. Lovell is eliminated from the ease; and as the evidence is ample to support a verdict against Ellis Lovell, the judgment refusing a new trial is

Affirmed.

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


text:
    10544.
    MURPHY v. RUGELY.
    Failure to comply with a parol promise, alleged to have been made by the vendor’s agent when and before the written contract of sale was signed, that he would fill in with dirt the lot sold to the defendant (which was low and swampy), and that the defendant would not have to pay for the lot if it was not so filled in, constituted no defense to the vendor’s suit for unpaid purchase-money; the written contract being unambiguous and apparently intended to embrace the whole contract between the parties, and it not being contended that the alleged parol promise was omitted from the writing by fraud, accident, or mistake, or was wrongfully, fraudulently, or deceitfully made. The court erred in not sustaining the demurrer to the answer in which the defendant attempted to set up such a promise.
    Decided October 10, 1919.
    Complaint; from Colquitt superior court—Judge Thomas. April 8, 1919.
    Application for certiorari to review this decision was denied by the Supreme Court.

      James L. Dowling, Erie B. Aslcew, for plaintiff in error,
    cited: Civil Code (1910), § 4268 (1); Wellmaker v. Wheatley, 123 Ga. 201; Chattanooga &c. Ry. Co. v. Warthen, 98 Ga. 599; Bald Mountain Portland Cement Co. v. McGuirk, 23 Ga. App. 629; Browne, Parol Ev. 44, sec. 31.

      Shipp & Kline, D. P. Stan-, contra,
    cited: Thrasher v. Cobb Read Estate Co., 12 Ga. App. 718; Printup v. Rome Land Co., 90 Ga. 180.

   Broyles, C. J.

Parol evidence is inadmissible to add to or vary an unambiguous written contract. Civil Code (1910), § 4268 (1). The written contract in the instant case was unambiguous and apparently contained all of the agreement between the parties, and could not be varied, or new terms added to it, by proof of a promise made, when and before it was signed, by the agent of the vendors of the- property sold to the defendant, that he would fill in with dirt the lot (which was low and swampy), and that the defendant would not have to pay for the lot unless it was so filled in. If at the time of purchasing the lot the defendant desired it filled in, he should have had a stipulation to that effect embodied in the writing. If he had done this, and the vendors had failed to comply with the stipulation, such failure would have constituted a good ground of defense to the present suit. But having signed a contract which contained no such stipulation and which.was unambiguous, he could not show by parol evidence the oral agreement to fill, in the lot, without pleading that this agreement was omitted from the writing by fraud, accident, or mistake. A mere promise by the agent of the vendors that the lot would be filled in, and that the defendant would not be required to pay for it unless it was so filled in, and the failure to fill it in after the "written contract was executed, would not constitute a fraud upon the purchaser or afford him any ground for avoiding payment, there being no contention that anything was omitted from the writing that was intended to be inserted therein. Chattanooga R. Co. v. Warthen, 98 Ga. 599 (3-4), 617, 618 (25 S. B. 988). Furthermore, in the instant case there was no allegation in the defendant’s plea that the oral promise about filling in the lot was wrongfully, fraudulently, or deceitfully made. In this respect the case is distinguished from Printup v. Rome Land Co., 90 Ga. 180 (15 S. E. 764), and Thrasher v. Cobb Real Estate Co., 12 Ga. App. 718 (78 S. E. 254), relied on by the defendant in error. Moreover, in each of those cases the only writings were a bond for titles and purchase-money notes, and it was not manifest that those writings were intended to speak the whole contract (Civil Code, § 4268, par. 1), while in the instant case there was a detailed and unambiguous contract of sale, executed by both parties and apparently intended to speak the whole contract between them.

It follows from what has been said that the defendant’s answer. failed to set up a good defense to. the suit, and that the court erred in not sustaining the demurrer interposed. The error in the judgment on the demurrer rendered the further proeedings in the case nugatory.

Judgment reversed.

Luke and Bloodworlh, JJ., concur.


text:
    TOMPKINS v. THE STATE.
    Refusal to continue the ease because of the absence of leading counsel can not in this case be held to have been an abuse of discretion.
    The evidence authorized the conviction of the accused.
    Decided October 10, 1919.
    Accusation of possession of intoxicating liquor; from city court of Wrightsville—Judge Blount. April 24, 1919.

      B. T. Rawlings, B. E. Moye, for plaintiff in error.

      O. S. Glaxton, solicitor, contra.
   Bloodworth, J.

1. There is no merit in either of the two motions to dismiss the bill of exceptions.

2. In the motion for a new trial it is alleged that the court erred in refusing to continue the case on account of the absence of leading counsel for the defendant. To the motion for a new trial the trial judge attached the following note: “This ease had been continued several times at the instance of defendant’s side. At the November term, 1918, the defendant and one of his counsel, Judge Rawlings, were absent, and the bond of defendant was forfeited. On February 10, 1919, about 10 o’clock, a. m., the time this ease was set for trial, the same was called, and the motion for continuance made on account of the absence of Judge Rawlings; the same was then set for 1.30 o’clock, to give defendant an opportunity to communicate with and have Judge Rawlings present. At the time set no showing was made that any effort had been made by defendant to procure the presence of Judge Rawlings, and the case proceeded to trial.” When considered in the light of the above qualifying note, and the counter-showing made by the State at the hearing of the motion for a new trial, this court cannot say, as a matter of law, that the judge abused his discretion in refusing to further continue the case.

3. “Where there is some evidence from which the guilt of one accused of crime can be legitimately inferred, it is entirely within the province of the jury to draw that inference.”

Judgment affirmed.

Broyles, O. J., and Luhe, J., concur.


text:
    10618.
    Towns v. The State.
    Decided October 10, 1919.
    Accusation of abandoment of child; from city court of Floyd county—Judge Nunnally. April 24, 1919.

      Harris & Hcuris, for plaintiff in error.

      J. F. Kelly, solicitor, contra.
   Broyles, C. J.

1. On the trial of one for the abandonment of his minor child it is not error to exclude testimony offered by the defendant to the effect that his wife, pregnant with her unborn child, abandoned him, despite his entreaties for her to stay and live with him. Moore v. State, 1 Ga. App. 502 (57 S. E. 1016); Parrish v. State, 10 Ga. App. 836 (74 S. E. 445).

2. Where the absent father has for two years immediately preceding the finding of the accusation against him failed and refused to provide for his dependent child, the time when the original separation took place is entirely immaterial. The continuing dependency of the child vitalizes the offense, and the fact that the absence, and even the dependency, began more than two years prior to the accusation affords no ground for the interposition of the statute of limitations. Phelps v. State, 10 Ga. App. 41 (72 S. E. 524); Campbell v. State, 20 Ga. App. 190 (92 S. E. 951).

3. The evidence authorized the conviction of the accused, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Luhe and Bloockoorth, JJ., eoneur.


text:
    10630.
    Wilder Manufacturing Company v. Elder.
   Bloodworth, J.

A trial by jury was waived, and this case was submitted to one of the judges of the municipal court of Atlanta, and he passed upon the case without the intervention of a jury. There is a sharp conflict in the evidence. The judge who tried the case saw and heard the witnesses. The judge of the superior court overruled the petition for certiorari, thus approving the finding of the judge of the municipal court. We cannot say that the judge of the superior court erred in his ruling, and the judgment is

Decided October 10, 1919.

Certiorari; from Fulton superior court—Judge Bell. April 10, 1919.

Little, Powell, Smith <& Goldstein, for plaintiff in error.

George Westmoreland, Bell & Bilis, contra.

Affirmed.

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


text:
    10634.
    Fletcher v. State of Georgia et al.

    Condemnation; from city court of Albany—Judge Clayton Jones. May 12 1919.

      Pottle & Hofmayer, for plaintiff in error.

      S. B. Lippitt, solicitor, contra.
   Broyles, C. J.

1. Where a proceeding to condemn an automobile is instituted under the provisions of section 20 of the prohibition act approved March 28, 1917 (Ga. Laws, Extr. Session, March, 1917, p. 16), and the defendant fails to file any defense within thirty days from the filing of the petition, but where no judgment by default is entered by the court until after the defendant has filed his answer, it is error to dismiss the defendant’s answer, filed upon the calling of the case, upon the ground that it was filed too late. See, in this connection, Civil Code, § 5653; Gordon v. Hudson, 120 Ga. 698 (48 S. E. 131); Pennsylvania Casualty Co. v. Thompson, 123 Ga. 240 (2), 241 (51 S. E. 314); Albany Pine Products Co. v. Hercules Manufacturing Co., 123 Ga. 270 (51 S. E. 297).

2. The error in striking the defendant’s answer rendered the further proceedings in the case nugatory.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


text:
    10642.
    Durham v. The State.
    Decided October 10, 1919..
   Bloodworth, J.

The motion for a new trial in this case contains the usual general grounds only; there is some evidence to support the verdict, which has the approval of the judge who tried the ease, and this court will not interfere.

Judgment affirmed.

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

Accusation of riot; from city court of Floyd county—Judge Nunnally. May 5, 1919.

Harris & Harris, for plaintiff in error.

J. F. Kelly, solicitor, contra.


text:
    10654.
    Lemmons v. The State.
    Decided October 10, 1919.
    Conviction of manslaughter; from Fulton superior court—Judge Humphries. May 33, 1919.

      Harvey Hill, James E. Garst, for plaintiff in error.

      John A. Boylcin, solicitor-general, E. A. Stephens, contra.
   Broyles, O. J.

The verdict was amply authorized by the evidence, and none of the grounds of the amendment to the motion for a new trial shows cause for setting it aside.

Judgment affirmed.

Luke and Bloodworlh, JJ., concur.


text:
    10659.
    Norton v. Anderson.
    Decided October 10, 1919.
    Garnishment; from Cobb superior court—Judge Morris. May 10, 1919.

      H. B. Moss, for plaintiff in error.

      Q. M. Dobbs, Herbert Olay, contra.
   Luke, J.

The only question raised by the exceptions in this ease is whether the evidence authorized the verdict. Upon a careful examination of the evidence we cannot say that the verdict was without evidence to support it. The trial judge having approved the verdict, it was not error to overrule1 the motion for a new trial.

Judgment affirmed.

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


text:
    10661.
    Parker v. The State.
   Broyles, O. J.

1. The court properly charged the law of circumstantial evidence.

2. The defendant was charged with the violation of a rule and regulation of the State veterinarian approved by the commissioner'of agriculture, to wit, Regulation 16, paragraph 3 of Bulletin 14, Series A, which prohibited the sale of hogs exposed to, or infected with, hog cholera. The defendant’s main contention,' supported by his statement and by the testimony of witnesses, was that he did not know that the hogs sold by him were infected with, or had been exposed to, hog cholera. It was therefore reversible error for the court, even in the absence of a timely and appropriate written request, to fail to submit to the jury this contention of the defendant, with instructions that if they found this contention to be true the defendant should be acquitted.

Decided October 10, 1919.

Accusation of misd ueanor; from city court of Dublin—Judge Flynt. May 19, 191,/.

George H. Oar swell, J. 8. Adams, for plaintiff in error.

T. E. Hightower, solicitor, contra.

Judgment reversed.

Luke-and Bloodworth, JJ., concur.


text:
    10662.
    Brown v. The State.
    Decided October 10, 1919.
    Conviction of manslaughter; from Bibb superior court—Judge Mathews. May 21, 1919.

      John B. Cooper, W. A. McClellan, W. 0. Cooper, Jr., for plaintiff in error.

      John P. Boss, solicitor-general, contra
   Bloodwoeth, J.

The second ground of the amendment to the motion for new trial is not referred to in the brief of counsel for plaintiff in error, and will be treated as abandoned.

2. When read in connection with the entire charge, there is no error in any of the excerpts from the charge of which complaint is made.

3. As far as legal and pertinent, the principle embraced in the request to charge was fully covered in the charge given. Besides, it does not appear that the request was made before the jury retired “to consider of their verdict.”

4. The evidence supports the verdict which.has the approval of the trial judge, and this court will not disturb it.

Judgment affirmed.

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


text:
    10663.
    McGee v. The State.
   Luke, J.

Where, upon the trial of one charged with possessing intoxicating liquors in violation of law, the testimony disclosed that in a barn, of which two persons had equal possession, control, and dominion, liquor was found, and there was nothing more shown than joint occupancy, control, and dominion over the barn, it was error harmful- to the defendant, who was away from home at the time of the seizure of the liquor and denied ownership or knowledge of the presence of the liquor in the barn, for the court, in charging upon circumstantial evidence and possession, power, custody and control over the barn in which the liquor was found, not to allude to the joint occupancy, possession, power, and control of the barn; for one might have power over, custody, and control with another of a house, and yet not know of hidden liquors stored therein. See Hall v. State, 65 Ga. 36 (3); Shropshire v. State, 69 Ga. 273; Moncrief v. State, 99 Ga. 295 (25 S. E. 735); Lunceford v. Mayor &c. of Washington, 17 Ga. App. 730 (88 S. E. 212). For the reasons given the court erred in overruling the motion for a new trial.

Decided October 10, 1919.

Indictment for misdemeanor; from Harris superior court— Judge Howard. May 17, 1919.

J. B. Burnside, T. H. Shanks, for plaintiff in erior.

C. F. McLaughlin, solicitor, contra.

Judgment reversed.

Broyles, C. J., and Bloodworth, J., concur.


text:
    10666.
    Darby v. The State.
    Decided October 10, 1919.
    Conviction of manslaughter; from Toombs superior court— Judge Hardeman. April 29, 1919.

      Charles W, Sparks, Hines, Hardwick & Jordan, for plaintiff in error.

      Walter F. Grey, solicitor, contra.
   Broyles, C. J.

1. The grant or refusal of an extraordinary motion for a new trial, based upon the ground of newly discovered testimony, rests largely in the sound discretion of the trial judge; and this court will not interfere with the exercise of that discretion, where the newly discovered evidence is largely impeaching and cumulative in character, and where it does not appear that such an extraordinary state of facts was shown by the affidavits submitted upon the hearing of the extraordinary motion as would probably produce a different result if a new trial should be granted. Rogers v. State, 129 Ga. 589 (59 S. E. 288); Thomas v. State, 19 Ga. App. 242 (91 S. E. 287).

2. It does not appear from the record that the trial judge, in overruling the extraordinary motion for a new trial, abused, or failéd to exercise, the discretion vested in him.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    10668.
    KEITH v. SIMPSON et al.

    Under the evidence, the transfer which the trustee in bankruptcy sought to set aside, by which, within four months prior to the filing of the petition in bankruptcy, the bankrupt’s brother was substituted in his place as purchaser of land under a bond for title from another, was a bona fide sale, in which there was no purpose to defraud creditors; and, this being the only conclusion that could be reached from the evidence, the court did not err in directing a verdict for the defendants.
    Decided October 10, 1919.
    Petition to set aside sale; from Cobb superior court—Judge Morris. May 10, 1919.

      George F. Gober, Rowell Broolce, for plaintiff,
    cited: Rem. Bkr. §§ 1493-4; Moore, Fraudulent Conveyances, 1182, sec. 5; Id. 718, sec. 56; Collier, Bkr. 956; 1 Loveland, Bkr., § 67 (c); 130 Fed. 1012; 133 Fed. 878; 134 Fed. 628; 145 Fed. 466; 146 Fed. 109; 147 Fed. 438; 174 Fed. 891; 202 Fed. 250-1; 83 U. S. 489.

      E. W. Coleman> for defendants,
    cited: Bkr. Act of 1898, §§ 70, 67.
   Luke, J.

Keith, as trustee in bankruptcy of J. W. Lindsey, sued him and T. N. Lindsey and Simpson, seeking to set aside an alleged preference. The evidence showed that J. W. Lindsey bargained for the purchase of a tract of land for $700, giving therefor one note for $100 and one for $600. When the $100 note matured he was unable to pay it, and borrowed the money from T. N. Lindsey, his brother, and paid the note. Being unable to pay the $600 note, he negotiated a trade with T. N. Lindsey whereby his bond for title was surrendered to Simpson, the vendor, who returned his notes and executed a new bond for title to T. N. Lindsey, and accepted T. N. Lindsey’s note for the $600; and T. N. Lindsey paid for J. W. Lindsey an additional sum of $335. The value of the land was $1,000. Within four months of this transaction J. W. Lindsey was adjudged a bankrupt. The evidence failed to show that T. N. Lindsey knew that J. W. Lindsey was insolvent or otherwise involved than hereinbefore pointed out. At the conclusion of the evidence the court directed a verdict for the defendant.

There was no fraud shown, and inasmuch as the only conclusion that could be reached from the evidence was that the sale was bona fide and not for the purpose of defrauding creditors, it was not error to direct a verdict for defendant.

Judgment affirmed.

Broyles, C. J., and Bloodworth, J., concur.


text:
    10331.
    Odum v. The State.
    Decided October 14, 1919.
    Indictment for seduction; from Bacon superior court—Judge Summerall. November 18, 1918.

      J. Mark Wilcox, for plaintiff in error.

      A. B. Spence, solicitor-general, M. B. Dickerson, contra.
   Luke, J.

(a) “Newly-discovered evidence which is merely cumulative or impeaching in its character will not constitute a good ground of a motion for a.new trial.”

(6) “Though the witness sought to be impeached by newly discovered evidence was the only witness against the prisoner upon a vital point in the ease, if the sole effect of the evidence would be to impeach the witness, a new trial will not be granted.”

(c) “Whether an extraordinary motion, based upon the ground of newly discovered testimony, should be granted or refused rests largely in the sound discretion of the court.”

The only effect of the alleged newly-discovered evidence in this case would be to impeach the chief witness for the State and show that she was not a virtuous woman. This was a matter in issue when the case ivas tried by the jury. The alleged newly-discovered evidence is both impeaching and cumulative, and under the above rulings this court cannot say that the trial judge abused his discretion in overruling the extraordinary motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Lulce, J., concur.


text:
    10428, 10491.
    BIRD et al. v. TALIAFERRO COUNTY et al.

    The county treasurer’s term of office expired before the first day of January, 1917, and he was not entitled on that day to receive from the tax-collector taxes collected in the preceding month, or to receive commissions on taxes so collected and in the hands of the collector on that day, the treasurer’s office having been abolished by the act of August 12, 1915 (Ga. L. 1915, p. 363), which provided that the act should “not become operative until on and after January 1st, 1917,” and that the county commissioners should at their regular meeting in January of that year.select a bank to act as depository of the county funds. The allowance of such commissions by the county commissioners in a settlement with the treasurer on January 2, 1917, was unauthorized, and the commissioners were not estopped from proceeding to collect them back from him. It was proper for the court to direct that execution proceed against him for the amount stated therein and interest at 7 per cent. The “recommendation” of the judge to the commissioners, that, for reasons stated, a credit of the amount of these commissions be allowed by them on the execution, does not require consideration by this court.
    Decided October 14, 1919.

      Affidavit of illegality; from Taliaferro superior court—Judge Walker. February 36, 1919.
    It was contended on the part of Bird that he was still treasurer on January 1, 1917; that his term as fixed by law extended into that day; that he continued to hold office until his successor was elected and qualified as provided in the act of 1915, supra, and that he could not, by the failure of the tax-collector to pay over taxes collected in December, be deprived of commissions thereon. Counsel for Bird cited: Act of 1915, supra; Civil Code (1910), §§ 113, 564, 361, 587, 1311, 1314, 6599; 107 Ga. 363; 117 Ga. 388, 391; 114 Ga. 734; 33 Am. & Eng. Ene. L. (3d ed.) 397 (b) 410, 411; 133 Ga. 737, 730; 134 Ga. 387; 109 Ga. 837 (3); 53 Ga. 344 ; 38 Cye. 318; 4 Words & Phrases, 3983; 145 Ga. 881-3 (7); 11 Cyc. 443 (d), 443; 39 Cye. 1435 (e).

      Alvim G. Goluche, Davison & Lewis, for Bird et al.

      Samuel H. Sibley, J. A. Beazley, contra.
   Bloodworth, J.

Without the intervention of a jury and on an agreed statement of facts, this case was submitted to Judge Walker, who rendered the following judgment: “I find, as a matter of law, that the term of office of Mr. Bird as county treasurer expired with the last minute of the last hour of December 31, 1916, the act of 1015 [Ga. L. 1915, p. 363] having abolished the treasurer’s office of said county, to take effect at said time; and therefore that he was not treasurer on January 1, 1917. Not being treasurer on January 1, 1917, I find that Mr. Bird was not entitled to receive from the tax-collector of said county the county taxes collected by said collector during December, 1916, which said tax-collector was bound to deliver on the first Monday in January, 1917, which was January 1, 1917, to the proper officials or treasury of said county. I find that in view of the foregoing facte the county commissioners, in their settlement with Mr. Bird on January 3, 1917, were not authorized to allow him commissions on said taxes which were in the hands of the tax-collector on January 1, 1917. Said commissioners being without authority in law to pay said Bird said commissions on said taxes in their said settlement with him, had on January 3, 1917, they may proceed to collect back from him the commissions on said taxes which were illegally allowed him in said settlement, and their said settlement does not estop them from so doing. I find, as a matter of law, that Mr. Bird is not entitled to commissions on the sum of money he advanced from his own funds to pay county warrants, but because I know same to be a practice followed in a large number of counties in Georgia,—for the treasurer to finance the county from his own funds when county funds become exhausted,—and because it works no hardship on the county to pay commissions on said funds to the officers making such advances, as they would have to -pay commissions later to the officer handling such county warrants with county money, I recommend that the commissions on said sum of $2194.88, in the amount of $54.87, be credited by the county on the fi. fa. which I herein later authorize to proceed. ,1 find that since Mr. Bird had a settlement with the county commissioners on January 2, 1917, and on that date paid them all they demanded of him at that time, he is not a defaulter within the meaning of the law placing a penalty of 20 per cent, interest on defaulting treasurers, and that the county is not entitled to 20 per cent, interest, but is entitled to 7 per cent, interest on said sum of $186.73. In view of these findings of law, it is the judgment of the court that the fi. fa. proceed for the collection of the sum of $186.73, with seven per cent, interest thereon from-. It is the recommendation of the court, for the reason above set out, that said fi. fa. for said amount of $186.73 be credited with the sum of $54.87, being the amount of commissions which might have been earned in handling said sum of $2,194.88, which Mr. Bird used out of his own funds to help finance the county.”

We construe this judgment to mean that the execution proceed for $186.73, with seven per cent, interest thereon, and that what is said in reference to the $54.87 is only a recommendation. This being true, we are not called upon to consider the recommendation.” We agree with the judge in his finding of law, that the execution should proceed for $186.73, with interest thereon at seven per cent.

Judgment on loth lilts of exceptions affirmed.

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


text:
    10449.
    Brooks v. The State.
    Decided October 14, 1919.
    Conviction of manslaughter; from Thomas superior court— Judge Thomas. February 8, 1919.

      Eldon L. Joiner, for plaintiff in error.

      Clifford E. Hay, solicitor-general, contra.
   Luke, J.

The court did not err in charging the jury on voluntary manslaughter, or in the failure to charge on involuntary manslaughter in the commission of a lawful act without due caution and circumspection; there is evidence to support the verdict, and the judgment is

Affirmed.

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


text:
    10541.
    Bowman v. The State.
    Decided October 14, 1919.
    Conviction of manslaughter; from Sumter superior court—Judge Littlejohn. April 5, 1919.

      John A. Fort, for plaintiff in error.

      Jule Felton, solicitor-general, contra.
   Luke, J.

In the light of the qualifying notes of the trial judge, and when the entire evidence is considered, there is nothing in either of the two grounds of the amendment to the motion for a new trial which would authorize this court to set aside a verdict supported by the evidence and approved by the trial judge.

Judgment affirmed.

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


text:
    10606.
    Ward v. The State.
   Luke, J.

The evidence in this case fully authorized, if indeed it did not demand, the verdict of manslaughter.

The charge given by the court on the law of manslaughter was required. See Trice v. State, 89 Ga. 742 (15 S. E. 648). The court did not err in charging the'jury as follows: “In every ease of an unlawful killing malice will be presumed, wheze no considerable provocation appears and all the circumstances of the killing show an abandoned and malignant heart. If one shoots another without any reason, and, although you may not be able to show that he made up his mind to do so with any degree of deliberation, if he shoots another without any known reason, and all the circumstances show that he did so wantonly, without any reason, without any provocation, the law implies malice in a ease of that sort.” See Harrell v. State, 22 Ga. App. 104 (95 S. E. 537), and case cited. The defendant had a fair trial, was ably represented, and no error appears which authorizes a new trial.

Decided October 14, 1919.

Indictment for murder; from Bibb superior court—Judge Mathews. April 22, 1919.

John B. Cooper, C. M. Cunningham, W. 0. Cooper Jr., for plaintiff in error.

John P. Boss, solicitor-general, contra.

Judgment affirmed.

Broyles, G. J., and Blood/worth, J., eoneur.


text:
    10626.
    Booth v. The State.
    Decided October 14, 1919.
    Indictment for arson; from Sumter superior court—Judge Little-john. May 3, 1919.

      Hixon & Pace, for plaintiff in error.

      Jule Felton, solicitor-general, contra.
   Bboyles, C. J.

1. The court’ did not err in excluding as hearsay the testimony set out in the first ground of the amendment to the motion for a new trial.

2. The defendant in a criminal case can not impeach a witness voluntarily called by him, except where he can show to the court that he has been entrapped by the witness by previous contradictory statements. Penal Code (1910), § 1050. This rule applies where the defendant voluntarily calls as a witness one who has been subpoenaed by the State as a witness, but who has not been put upon the stand. And in such a case it is not error for the judge, after the defendant has examined the witness, to refuse to allow the defendant to contradict the witness’s testimony where there is no contention that he-(the defendant) was entrapped by the witness by previous contradictory statements. This is true even though the judge may have inadvertently suggested this procedure to the defendant’s counsel.

3. There is no substantial merit in any of the other grounds of the amendment to the motion for a new trial.

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

Judgment affirmed.

Lulce and Bloodworth, JJ., eoneur.


text:
    10633.
    Etter v. The State.
   Luke, J.

The defendant was indicted and tried for the offense of assault with intent to murder, and was convicted of the offense of shooting at another. By motion for a new trial she assigned error upon the court’s failure to charge the jury the law of circumstantial evidence, and upon the charge on the defense of alibi. The person alleged to have been shot having testified positively that the defendant shot her, and the State’s case not depending wholly upon circumstantial evidence, it was not error (there being no request so to do) to fail to charge the law as to circumstantial evidence. See Nobles v. State, 127 Ga. 212 (56 S. E. 125). The charge on alibi was full and in accord with Ransom v. State, 2 Ga. App. 826 (59 S. E. 101), and cases cited. Por n'o reason assigned (there being evidence to authorize the verdict approved by the trial judge) was it error to overrule the motion for a new trial.

Decided October 14, 1919.

Conviction of sbooting at another; from Walker superior court— Judge Wright. May 2, 1919.

O. N. Chambers, Rosser & Shaw, for plaintiff in error.

C. H. Porter, solicitor-general, contra.

Judgment affirmed,.

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


author: Broyles, G. J.

text:
    10660.
    Oglesbee v. The State.
    Decided October 14, 1919.
    Conviction of manslaughter; from Tattnall superior court— Judge Sheppard. April 29, 1919.

      H. II. Elders, Oliver & Oliver, for plaintiff in error.

      J. Saxton Daniel, solicitor-general, contra.
   Broyles, G. J.

1. The alleged newly discovered evidence upon which the special ground of the motion for a new trial was based is both cumulative and impeaching in its character, and is not such evidence as would probably produce a different result if a new trial were granted.

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

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    10670.
    Steele v. The State.
   Broyles, C. J.

1. Section 412 of the Penal Code penalizes any disturbance of a congregation of persons lawfully assembled for divine worship, either during the service or while they are dispersing after the conclusion of the service, and until all. of the congregation have left the church building and the church grounds. Brown v. State, 14 Ga. App. 21 (80 S. E. 26); Minter v. State, 104 Ga. 743 (30 S. E. 989).

2. In the instant ease the evidence authorized the jury to find that the congregation of persons disturbed by the defendant was lawfully assembled for divine service, and that the disturbance occurred before all of the congregation had left the church grounds.

Decided October 14, 1919.

Accusation of disturbing divine worship; from city court of Sparta—Judge Moore. June 7, 1919.

John C. Leiois, Sam II. Wiley, for plaintiff in error.

B. L. Meiriti, solicitor, contra.

Judgment affirmed.

Luloc and Bloodworth, JJ., concur.


text:
    10677.
    Smith v. Cherokee Fertilizer Company.
    Decided October 14, 1919.
    Rehearing denied November 4, 1919.
    Complaint; from city court of Houston county—Judge Riley. May 28, 1919.
    Application for certiorari was denied by the Supreme Court.

      Feagin & Hancock, for plaintiff in error.

      Walter DeFoor, James C. Estes, contra.
   Luke, J.

1. If one who has several different demands against another accepts payment of one or more and gives a receipt therefor, there being at the time no mention of the other demands, a mere recital in the receipt that it is in full payment of all claims to date is without consideration so far as relates to an unsettled note signed by the party making the payment and another which was not mentioned nor in the minds of the parties at 'the time of such settlement, and the signing of the receipt does not estop the holder of the unsettled demand from asserting that demand; nor does the signing of the receipt render it incumbent upon the holder of that demand to refund the money received upon the settlement as to the disputed claims. See Armour v. Ross, 110 Ga. 403 (7), 415 (35 S. E. 787).

2. The undisputed evidence in this case is that Cherokee Fertilizer Company had a suit pending against Smith for several thousand dollars and a settlement of that case was had between the parties and the case marked settled upon Smith’s paying certain money and delivering certain stock to Cherokee Fertilizer Company. The payment was made and received in full settlement of that claim. Subsequently the present suit was instituted upon a note signed by Smith and another-, which was not mentioned by either of the parties at the time of the settlement. In fact the attorneys representing both parties testify that neither of them knew about this note. The defendant Smith pleaded that there was a full settlement because of the receipt referred to. Upon the facts the court did not err in directing a vrdict for the plaintiff for the amount of the note sued upon.

Judgment affirmed,.

Broyles, O. J., and Bloockoorth, J., eoneur.


text:
    10679.
    Mann v. The State.
    Decided October 14, 1919.
    Indictment for shooting at another; from Appling superior court —Judge Highsmith. May 10, 1919.

      W. W. Bennett, for plaintiff in error.

      A. V. Sellers, solicitor-general, contra.
   Bloodwoeth, J.

1. When considered in the light of the facts of this case and the entire charge of the court, the judge did not err in reading to the jury § 95 of the Renal Code of 1910, including the words “provocation by words, threats, menaces, or contemptuous gestures shall in no case be sufficient to free the person killing from the guilt and crime of murder.” Price v. State, 137 Ga. 71 (7), 74 (72 S. E. 908).

2. The presiding judge was satisfied with the finding of the jury; and this court is not authorized to interfere where there are any facts to support the verdict, and no error of law appears.

Judgment affirmed.

Broyles, C. J., and Luhe, J., concur.


text:
    10685.
    Miller v. Swilley.
    Decided October 14, 1919.
    Affidayit of illegality; from city court of Cairo—Judge Eigsby, May 26, 1919.

      B. B. Terrell, for plaintiff in error. S. P. Gain, contra.
   Luke, J.

I. A levy of an attachment upon realty, which recited: “By virtue of the within attachment issued from the justice’s court of the 753 district, G. M., I have this day levied upon the following property, 250 acres of land being lot No. 47 in the 19th District of said State and county, as the property of the defendant,” was sufficient as against the objection that it did not show in what manner the property was seized or levied upon. Hiles Carver Co. v. King, 109 Ga. 180 (34 S. E. 353).

2. In an illegality case the only issue to be determined is that specifically raised by the affidavit of illegality. Miller v. Perkerson, 128 Ga. 465 (57 S. E. 787).

3. Upon the question of notice of the levy of the attachment the evidence authorized the jury to find that the non-resident defendant had notice.

4. An affidavit to obtain an attachment against a non-resident is sufficient when the affidavit shows that the defendant is a non-resident of Georgia.

5. Eor no reason assigned did the court err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, C. J., a/nd Bloodworth, J., concur.


text:
    10688.
    Tate v. The State.
    Decided October 14, 1919.
    Accusation of misdemeanor; from city court of Macon—Judge Guerry. June 10, 1919.

      Wallace Miller, for plaintiff in error.

      Will Gunn, solicitor, contra.
   Broyles, C. J.

1. A motion to quash an accusation is merely a demurrer to the accusation. Thomasson v. State, 22 Ga. 499.

2. An accusation is not demurrable for any matter dehors the pleadings and the record. Jackson v. State, 64 Ga. 344.

3. Under the above rulings the court did not err in striking the motion to quash the accusation.

Judgment affirmed.

Luhe and Bloodioorth, JJ., concur.


text:
    10689.
    ELDERS v. THE STATE.
    It was proper in this case to charge the jury on voluntary manslaughter.
    Decided October 14, 1919.
    Indictment for murder—conviction of manslaughter; from Colquitt superior court—Judge Thomas. May 22, 1919.

      W. F. Way, for plaintiff in error.

      C. F. Hay, solicitor-general, contra.
   Bloodworth, J.

The plaintiff in error was tried for murder and convicted of voluntary manslaughter. The only ground of the motion for a new trial which is argued in the brief of counsel for the plaintiff in error is that one which alleges that the court erred in charging the jury on voluntary manslaughter. In Cain v. State, 7 Ga. App. 24, this court said: “It is well settled by repeated rulings of the Supreme Court and this court that on a trial for murder, if there is anything deducible from the evidence or the defendant’s statement that would tend to show manslaughter, voluntary or involuntary, it is the duty of the court to instruct the jury fully on the law of manslaughter. Crawford v. State, 12 Ga. 142 (6); Jackson v. State, 76 Ga. 473; Wynne v. State, 56 Ga. 113; Bell v. State, 130 Ga. 865 (61 S. E. 996); Strickland v. State, 133 Ga. 76 (65 S. E. 148); Pyle v. State, 4 Ga. App. 811 (62 S. E. 540). In the Crawford case, supra, the court strongly expresses itself on the subject as follows: ‘When a defendant is put upon trial for murder, and there is any doubt as to the grade of homicide of which he is guilty, it is the duty of the court clearlv and distinctly to instruct the jury as to the law, defining the several grades of homicide as recognized by the Penal Code, and then leave it to the jury to find from the evidence of what particular grade he is guilty/ In Jackson v. State, supra, the court uses still stronger language, and holds that ‘where there is evidence sufficient to raise a doubt, however slight, upon the point whether the case is murder or manslaughter, voluntary or involuntary, the court should instruct the jury upon these grades of manslaughter as well as murder/ ” Under these rulings as applied to the facts of this case, the trial judge did not err in charging on voluntary manslaughter.

Judgment affirmed.

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


text:
    10690.
    Burns et al. v. Royster Guano Company.
    Decided October 14, 1919.
    Affidavit of illegality; from city court of Milieu—Judge Delde. April 22, 1919.

      A. S. Anderson, Thomas L. Hill, for plaintiffs in error.

      Brinson & Hatcher, contra.
   Luke, J.

This is the second appearance of this case in this court (Proctor v. Royster Guano Co., 21 Ga. App. 617, 94 S. E. 821); and it is here now on exception to the dismissal of an affidavit of illegality, in which the execution issued upon the judgment in question was attacked on the ground that “it does not appear that the said E. S. Royster Guano Company is either an individual trading under said name, or is a copartnership composed of named individuals, nor is a corporation under the laws of any State of America,” etc. The petition shows that the suit proceeded in the name of “E. S. Royster Company, a corporation.” The judgment is regular, and the execution issued and proceeded in accordance with the judgment. There is no merit in the affidavit or illegality, and the court'properly dismissed it.

Judgment affirmed.

Broyles, 0, J., and Bloodworth, J., concur.


text:
    10694.
    Raburn v. The State.
    Decided October 14, 1919.
   Luke, J.

The special grounds of the motion for new trial are without merit. There is evidence to support the verdict, and a new trial was properly refused.

Judgment affirmed.

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

Accusation of intoxication on highway; from city court of Carrollton—Judge Beall. May 26, 1919.

Leon Hood, for plaintiff in error.

Willis Smith, solicitor, contra.


author: Ltjke, J.

text:
    10697.
    Eichholz v. LaRoche.
    Decided October 14, 1919.
    Certiorari; from Chatham superior court—Judge Meldrim. May 17, 1919.

      Osborne, Laivrence & Abrahams, for plaintiff in error.

      George S. Cargill, W. R. Hewlett, contra.
   Ltjke, J.

The judgment, although authorized, was not demanded by the evidence. Therefore the sustaining of the certiorari, upon the assignment of error that the judgment was without evidence to support it, will not be disturbed, for the reason that the judgment sustaining the certiorari for the first time was in the nature of a first grant of a new trial. See Parker v. Bridges, 22 Ga. App. 58 (95 S. E. 321), and cases there cited.

Judgment affirmed.

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