text:
    9412.
    BELTON v. THE STATE.
    1. That the evidence on the trial of one charged with receiving stolen goods does not show the precise term. of court at which the principal entered a plea of guilty does not, under the facts of this ease, afford any reason for the grant of a new trial.
    2-6. The verdict against the accused was manifestly right, and there was . no error that requires a reversal of the judgment refusing a new trial.
    Decided March 6, 1918.
    Accusation of receiving stolen goods; from city court of Swainsboro — Judge Kirkland. November 16, 1917.

      Williams S Bradley, for plaintiff in error.

      Alfred Herrington Jr., solicitor, contra,.
   Harwell, J.

1. The plaintiff in error was tried under an accusation charging bim with the .offense of receiving stolen goods, and was found guilty. The trial judge overruled his motion for a new trial, and he excepts.

t. The fourth ground of the motion is to the effect that the accusation charges that the principal thief had pleaded guilty at the July term, 1917, of the superior court, and that there was no proof that the plea was entered at that term; and the fifth ground complains that the court charged the jury that if they found that a plea had been entered by the principal thief, it was at the July term, 1917, of the superior court. The accusation against the principal thief was preferred at the July term, 1917, of the superior court, a plea of guilty was entered thereon by the principal, and the defendant in this case was tried at the August term, 1917, of the city court, and the judge was doubtless correct in his statement that if the jury found the plea had been entered, it was at the July term, 1917, of -the superior court. At any rate the plea of guilty on the accusation, though not dated, was necessarily entered at some time in July or August prior to the trial in the instant ease. One of the material facts which the State must prove, where the offense charged is that of receiving stolen goods, is the guilt of the principal thief. The evidence should show that the principal was convicted or pleaded guilty before the trial of the receiver of the stolen goods, unless the principal is unknown and that fact is alleged. When the principal thief is unknown, and the alleged receiver of the stolen goods is on trial, every fact, including of course the time of the theft, essential to the conviction of the principal, must be proved, as well as that the party on trial received .the stolen goods, within the statute of limitations, with knowledge that they were stolen; but when the principal thief has been convicted or has pleaded guilty before the trial of the receiver of the stolen goods, as in the instant, case, it is not essential,'in order to sustain the conviction, to prove the exact date or term of court when the principal entered a plea of guilty. Licette v. State, 75 Ga. 253; Wright v. State, 1 Ga. App. 158 (57 S. E. 1050).

We think, therefore, that neither of the grounds above referred to affords a reason for the grant of a new trial. The statement of the court that the plea of the principal, if entered, was at the July term, if erroneous, was not such harmful error, under the facts of this case, as to require the grant of a new trial.

2. The sixth ground complains that the judge, in his charge to the jury, failed to state, that, to the accusation preferred, the defendant had entered his plea of not guilty. It appearing that the court charged the jury that, the State "having.preferred the charge set out in the accusation, the defendant having entered his plea of not guilty of that charge, the matter is one wholly of fact for your determination,” there is no merit in this ground of the motion.

3. There is no merit in the seventh ground, which complains that, the charge of the court, that the jury “must be convinced beyond a reasonable doubt that he knew, at the time that he purchased or received these goods from Charley Luke Brinson, that they had been stolen,” was erroneous because of the use of the word “purchased.”

4. There is no merit in the eighth ground, which complains of the charge of the court on the subject of reasonable doubt because the court failed to instruct the jury therein that such a doubt might arise from the defendant’s statement as well as from the testimony, the facts and circumstances,' or the lack of testimony. Wilburn v. State, 8 Ga. App. 28, 29 (68 S. E. 460).

5. It is complained in the motion for a new trial that the court erred in charging on confessions, because, it is insisted, there was no evidence to authorize a charge on confessions. From the testimony as it appears in the record, and from the defendant’s statement at the trial, we are not prepared to say that this was error. If, however, there was any error in this portion of the charge of the court, the verdict against the defendant was so manifestly right that it affords no reason for the grant of a new trial. Where the evidence demands a verdict, an error in the charge will not require the grant of a new trial. Leonard v. State, 110 Ga. 291 (34 S. E. 1015); Luby v. State, 102 Ga. 633 (3) (29 S. E. 494); Jones v. State, 92 Ga. 480 (3) (17 S. E. 859); Pascal v. State, 77 Ga. 596 (2) (3 S. E. 2); Wise v. State, 34 Ga. 348 (3); Lewis v. State, 33 Ga. 131 (1-4).

6. The court did not err in admitting in evidence the accusation preferred against the principal thief and the plea of guilty entered thereon. It appears from the record that Brinson, the principal thief, waived in writing indictment by the grand jury, and pleaded guilty to the accusation charging him with stealing the goods. Ga. L. 1915, p. 32; Park’s Ann. Code, Supp. (1917), p.' 910, § 956(a).

It would serve no useful purpose to review and discuss the evidence against,the defendant, or to set out in full the special grounds of the motion for a new trial. The evidence demanding the verdict, the court did not err in overruling the motion for new trial.

Judgment affirmed.

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


source: Caselaw Access Project

author: Broyles, P. J.

license: Public Domain

text:
    9413.
    Olsen v. The State.
    Decided March 6, 1918.
    Indictment for misdemeanor; from Glynn superior court— Judge Highsmith. October 19, 1917.

      J. T. Colson, for plaintiff in error.

      Alvin V. Sellers, solicitor-general, contra.
   Broyles, P. J.

Where a convicted defendant has been placed on probation and his sentence so molded by the court as to allow him to serve the same outside the confines of the chain-gang, jail, or other place of detention, under the supervision of the court, and in such manner and on such conditions as the court may see fit to impose, in accordance with the provisions of the act of the General Assembly approved August 16, 1913 (Ga. L. 1913, p. 112; Park’s Penal Code, § 1081 a, b, c, d); and thereafter, but prior to the expiration of the sentence, the' probationer is brought before the court on the charge that he has been delinquent in observing the rules prescribed by the court for his conduct, and where, after due examination, the court revokes its leave to the probationer to serve the remainder of his sentence outside the confines of the chain-gang, jail, or other place of detention, this court will not interfere unless • a manifest abuse of discretion on the part of the lower court appears. In such a case the judge is the trior of the facts and has a very wide discretion. No abuse of the court’s discretion appears in the instant case.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.


author: Bloodworth, J.

text:
    9416.
    Key v. The State.
   Bloodworth, J.

1. The only ground of the motion for a new trial other than the general grounds is based upon alleged newly discovered evidence, the only effect of which would be to impeach the chief witness for the State. “Though the witness sought to be impeached by newly discovered evidence was the only witness against the prisoner upon a vital point in the case, if the sole effect of the evidence would- be to impeach the witness a new trial will not be granted.” Arwood v. State, 59 Ga. 391 (1); Levining v. State, 13 Ga. 513 (1); Wright v. State, 34 Ga. 110 (2); Jackson v. State, 93 Ga. 190 (18 S. E. 401); Haynes v. State, 18 Ga. App. 741 (3), 742, 743 (90 S. E. 485), and cases cited.

Decided March 6, 1918.

Indictment for forgery; from White superior court — Judge J. 'B. Jones. November 10, 1917.

C. H. Edwards, T. F. Underwood, for plaintiff in error.

Robert McMillan, solicitor-general, contra.

2. There was ample evidence to support the verdict.

Judgment affirmed.

Broyles, P. J., and Harwell, J., concur.


author: Harwell, J.

text:
    9421.
    HARRIS v. THE STATE.
    The indictment, which was founded upon the “bone dry” law approved March 28, 1917, and alleged the possession of a quantity of intoxicating liquors by the defendant, was not subject to demurrer on the ground that it charged no offense, and that it did not set out the amount of liquor in the defendant’s possession.
    Decided March 6, 1918.
    Indictment for possessing intoxicating liquor; from Thomas superior court — Judge Thomas. April 23, 1917.

      Titus, Delele & Hopkins, for plaintiff in error.

      Fondren Mitchell, solicitor-general, contra.
   Harwell, J.

The indictment alleged that the defendant, on the 17th of April, 1917, did have, control, and possess a quantity of spirituous, malt, intoxicating, and alcoholic-liquors, etc. The defendant demurred to the indictment, upon the grounds, that the statute upon which it was based is unconstitutional and void, because repugnant to specified provisions of the State and Federal constitutions; that it sets forth no offense or criminal charge under the laws of the State of Georgia; and that it does not set out the amount of malt, intoxicating, and alcoholic liquors in the possession of the accused. The demurrer was overruled, and a writ of error was sued out, taking the case to the Supreme Court. That court held, as to the grounds of the demurrer based on alleged, unconstitutionally of the statute on which the indictment was founded, that no constitutional question was made, and transferred' the case to the Court of Appeals, to determine the other assignments of error. Harris v. State, 147 Ga. 489 (94 S. E. 572). The constitutional questions raised by the demurrer were therefore disposed of by this decision. . The indictment, which was found after the passage of the “bone dry” law approved March 28, 1917, was, as its language indicates, drawn under section 1 of that statute. It charged that the offense occurred on April 17, 1917. While the demurrer, in that portion attacking the constitutionality of the act, does not name the act or statute under which the indictment was drawn, the pleader evidently treats it as founded upon the act approved March 28, 1917, as he attacks it upon the ground that it deprives the defendant of the right to have intoxicating liquor in any quantity. In our opinion there is no merit in either of the grounds of the demurrer set out above. The act makes it unlawful to have, control, or possess any of the enumerated liquors or beverages. . Under the act it is unlawful to have in possession any quantity of intoxicating liquors or any of the liquors specified' therein. It is not necessary in an indictment founded upon this act, charging the unlawful possession of intoxicating liquors, to name any specified quantity. It is a sufficient compliance with the terms of the act to charge the possession of intoxicating liquors. The ground that the indictment did not set out the amount of liquor the defendant had in his possession was therefore not well taken. Inasmuch as the indictment was founded upon the “bone dry” law, the evidence for the State as to the unlawful possession would necessarily be confined to the time since the passage of this act, to wit, March 28, 1917, and up to the finding of the indictment. Hall v. State, 8 Ga. App. 747 (70 S. E. 211); Brown v. State, 8 Ga. App. 691 (70 S. E. 40); Wells v. State, 118 Ga. 556 (45 S. E. 443); Maddox v. State, 118 Ga. 32 (44 S. E. 806); Williams v. State, 89 Ga. 483 (15 S. E. 552); Hill v. Mayor &c. of Dalton, 72 Ga, 314; Garter v. State, 68 Ga. 826; Stringfield v. State, 25 Ga. 474.

The court did not err in overruling. the demurrers, and the judgment is

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


text:
    9430.
    Fleming v. City of Atlanta.
   Broyles, P. J.

1. A “pimp” is one who provides gratification for the Inst of others; a procurer; a panderer. 6 Words & Phrases, 5379.

2. A heil-boy in a hotel, who procures women for men for the purpose of gratifying their lust, is a “pimp” within the meaning of the ordinance of the City of Atlanta (City Code, 1910, § 1842), which provides that “Every person who follows in the City of Atlanta the occupation of enticing strangers and others to visit gambling houses or to gamble, or persons commonly known as ropers or cappers, and all persons commonly known as pimps, shall be punished upon conviction before the recorder’s court, by a fine of not more than one hundred dollars or imprisonment not more than thirty days, either or both, in the discretion of the recorder’s court.”

Decided March 6, 1918.

Certiorari; from Fulton superior court — Judge Pendleton. November 20, 1917. '

D. K. Johnston, for plaintiff in error.

J. L. May son, 8. D. Hewlett, contra.

(а) In a case against a bell-boy for violating this section of the city code, it is not necessary for a conviction that the city prove that the defendant was paid anything for his services.

(б) A single transaction is sufficient to support a conviction.

3. In the instant case a police officer of the City of Atlanta testified that he went to the Exchange Hotel in that city, that the defendant, who was a bell-boy in the hotel, showed him to a room, and that he (the policeman) “asked him if there were any women there, and he said ‘yes,’ and I told him to send one in, and after awhile one came in the room.” Under this evidence the only reasonable hypothesis was that the defendant sent the woman to the witness’s room, and that he sent her for the purpose of gratifying the lust of the witness. This being true, . and this evidence of the witness being undisputed, the conviction of the defendant was demanded, and the admission of other evidence, which was illegal, was therefore harmless error.

4. The judge of the superior court did not err in overruling the certiorari sued out by the defendant.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.


text:
    9432.
    STAMPER v. THE STATE.
    1. It appearing that after the defendant had been arrested and bound over and had given bond for his appearance at the term of the superior court at which the indictment was found, he had ample time to have his witnesses summoned and to prepare for trial, the trial judge did not abuse his discretion in overruling the motion for a continuance.
    2. The verdict was authorized by the evidence.
    Decided March 6, 1918.
    Indictment for adultery and fornication; from Ben Hill superior court — Judge Crum. November 7, 1917.
    Stamper was indicted for tbe offense of adultery and fornication, and was convicted. He made a motion for a new trial upon tbe general grounds, and also upon the ground that the court erred in overruling his motion for a continuance, in which he set up that he had just been arrested and brought into court, and that he had not time to get his witnesses, and had not had time to consult his ■ lawyer about the case against him; that he wanted Mrs. Barnes as a witness, and expected to show by her that he did not commit adultery with her; that he also wanted Butterworth as a witness, and expected to show by Butterworth that he (the accused) .had not been away from the tent long enough to have gone to the place where the State’s witnesses would testify that he had gone; that he also wanted Graham as a witness, and expected to show by Graham that he (the accused) did not go to the Orilla Southern Railroad, where the said offense of adultery was said to have been committed; that he had not had the witnesses subpoenaed, because he had not had time; that he was committed to this court under bail by Justice Luke; that the defendant’s attorney had not had time to confer with him since the indictment was returned, which was late in the afternoon before or early in the morning of that day; that this was the first the attorney knew of the indictment, and he was not prepared to try the case at that time, but would be ready for trial on the following morning; that the attorney had been engaged on cases in court, and had not had time to prepare this case, as the bill of indictment had just been returned, and the defendant had just been brought into the court-room. In a note appended to the motion the court stated that it appeared, on the showing for a postponement, that the defendant had been bound over to that term of the court on the same charge as that upon which he was indicted, that none of the witnesses referred to by the defendant had been subpoenaed, and that the court sent an automobile for Mrs. Barnes, the material witness, and that she reached the court and testified for the defendant on the trial.
    The court overruled the motion for a new trial, and the defendant excepted.

      F. M. Powers, J. H. Dodgen, for plaintiff in error.

      J. B. Wall, solicitor-general, J esse Grantham, contra.
   Harwell, J.

(After stating the foregoing facts.) The court, as the record shows, sent for Mrs. Barnes, the woman with whom the defendant is alleged to have had sexual intercourse,-and she testified in his behalf; so that the motion for a continuance on the ground of her absence need not be considered. Now as to the motion to continue in order that the defendant might subpoena the other two witnesses, Butterworth and Graham, and in order that his attorney might have further time for preparation to try his case. It appeared on the showing that the defendant had been tried and bound over to that term of the court (the term at which he was tried) by Justice Luke, under bail, on the same charge as that upon which the indictment was found, and that none of the witnesses upon whose absence the showing for a continuance was made had been subpoenaed by the defendant. The commitment by Justice Luke evidently refers to the preliminary trial before the justice of the peace. It does not appear when the commitment trial was had, but it does appear that the alleged offense took place on August 5, 1917, and that the defendant was arrested that night, and that the final trial in the superior court took place on August 29, 1917; so that the defendant evidently had ample time to subpoena his witnesses, employ a lawyer, and prepare for trial.

"While ample time to prepare for trial should be allowed to one accused of crime, it is the duty of a defendant, who has given bond for-his appearance at a specified term of the city court, to employ counsel and take any other steps essential to his defense, in advance of the term of court at which he is bound to appear; and a motion for continuance by one who had waited until the case had been sounded for trial, to employ his counsel, although he was previously under bond to appear at the court, was properly overruled.” Walker v. State, 11 Ga. App. 251 (74 S. E. 1100); Benfroe v. State, 8 Ga. App. 676 (70 S. E. 70); Grusin v. State, 10 Ga. App. 149 (75 S. E. 350); Shivers v. State, 53 Ga. 149 (1); Lewis v. State, 89 Ga. 803 (15 S. E. 772); Jones v. State, 115 Ga. 814 (2) (42 S. E. 271); Fitzgerald v. State, 126 Ga. 556 (55 S. E. 482).

Under the facts appearing in the instant case, the trial judge did not abuse his discretion in refusing to grant a continuance. The verdict was amply authorized by the evidence, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, P. J., and Bloodworih, J., concur.


author: Bboyles, P. J.

text:
    9437.
    Garrett v. The State.
   Bboyles, P. J.

• 1. In an indictment for simple larceny, where the offense charged is hog-stealing, the following description of the animals alleged to have been stolen is sufficient, viz.: “One black barrow hog of the value of six dollars; one black and white spotted female hog of the value of six dollars, of the personal property of Mrs. Elizabeth Wood, and both the value of twelve dollars.” Rivers v. State, 57 Ga. 28; Alderman v. State, Id. 367; Harvey v. State, 121 Ga. 590 (49 S. E. 674); Wheeler v. State, 18 Ga. App. 15 (88 S. E. 712); Geiger v. State, 21 Ga. App. 75 (93 S. E. 1027). The court did not err in overruling the demurrer to the indictment.

2. Eailure to instruct the jury that the killing of the hog by the defendant in his field, without any intention of stealing it, would not constitute the offense of simple larceny, was not error; this theory of defense being raised solely by the defendant’s statement, and there being no request to give it in charge to the jury.

3. The conviction of the defendant not depending entirely on circumstantial evidence, the court did not err in failing to charge the law of circumstantial evidence, in the absence of a timely written request.

4. Upon'the trial the solicitor-general expressly abandoned the charge in the indictment as to the larceny of the black barrow hog. The evidence as to the description of the other hog was in substantial accordance with that stated in the indictment. Under such circumstances the judge did not err in failing to charge, in the absence of a timely written request to do so, “that the proof in the case must agree and correspond with the allegations in the indictment;” he having instructed the jury that if they were “satisfied from the evidence in this case beyond a reasonable doubt that the defendant is guilty, having committed the larceny of the animal described in the indictment against him [italics ours], if you are satisfied of that beyond a reasonable doubt, then it would be your duty to convict him the defendant. If you are not so satisfied, then it would be your, duty to find him not guilty.”

5. The following excerpt from the charge is -excepted to: “If you are satisfied from the evidence in this case, beyond a reasonable doubt, that the defendant is' guilty, having committed the larceny of the animal described in the indictment against him, if you are satisfied of that beyond a reasonable doubt, then it would be your duty to convict him, the defendant. If you are not so satisfied, then it would be your duty to find him not guilty.” This portion of the charge, when considered in connection with the charge as a whole (the court having properly instructed the jury in regard to the defendant’s statement at the trial), is not subject to the exception that it restricted the jury to the sworn testimony and eliminated from their consideration the defendant’s statement. Jordan v. State, 130 Ga. 406 (60 S. E. 1063); Eidson v. State, 21 Ga. App. 244 (94 S. E. 73).

6. The charge as a whole was a fair and sufficiently full presentation of the controlling issues and the law of the ease, and properly instructed the jury in regard to the defendant’s statement.

Decided March 6, 1918.

Indictment for larceny; from Worth superior court — Judge Eve. September 14, 1917.

Passmore & Forehand, for plaintiff in error.

B. S. Foy, solicitor-general, contra.

7. The defendant introduced no evidence, but, while making hia statement, asserted that he had bought hogs of the same description as that given in the indictment, and had given his check in payment therefor. He held this alleged check in his hand, and, without being directed to do so by his counsel, handed it to a member of the jury, who took it and examined it. Other jurors also examined this check, and it was then returned to the defendant. This proceeding was not objected to by either the defendant’s or the State’s counsel. The check was not identified by the stenographer as evidence, nor was it formally offered or admitted in evidence, nor was it sent out with the jury when they retired to consider their verdict. Counsel for the State contended that this transaction amounted to the introduction of evidence by the defendant, and on his motion the court allowed the State the opening and conclusion of the argument. It does not appear, however, that this ruling was made over the objection, of the defendant or his counsel. Accordingly the question as to whether this ruling was erroneous will not be passed upon. If the defendant acquiesced in this ruling at the time it was made, and took his chances of an acquittal, he will not be heard subsequently to question its correctness in his motion for a new trial. The right to open and conclude the argument, especially in a criminal case, is a substantial and valuable right, but, like every other right, even the right of trial itself, it may be waived. If this ruling was made over the defendant’s objection, then this vitally important fact should have been made to appear in his motion for a new trial.

8. A motion for a mistrial was made by the defendant’s counsel because the solicitor-general, during his argument to the jury, said: “If the character of this defendant is so good, why doesn’t he bring in some of his neighbors to show that fact? Can he do it?” The character of the defendant not having been put in issue, this comment by the State’s counsel was unauthorized and illegal; but as the record discloses that the judge, as soon as his attention was called to the matter, specifically instructed the jury that they were to disregard any comments by the solicitor-general as to the character of the defendant, and that “the legal presumption is that the defendant’s character is good,” his discretion does not appear to have been abused by his refusal of the motion.

9. It does not appear that the trial judge abused the wide discretion vested in him, in overruling those grounds of the motion for a new trial which were based upon alleged newly discovered evidence.

10. The evidence authorized the defendant’s conviction, and the court did not err in refusing to grant a new trial.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.


text:
    9439.
    KILCREASE v. THE STATE.
    There was sufficient evidence to authorize the conviction of riot.
    Decided March 6, 1918.
    Accusation of riot; from city court of Statesboro — Judge Proctor. November 12, 191?.
    Will Kilcrease and Milledge Harley were charged with the offense of riot. The accusation charged that the defendants, acting with a common intent and in a violent and tumultuous manner, did go to the dwelling house of one Lula Lawrence and Mattie May Lawrence and commit an unlawful act of violence, to wit, did then and there make an assault upon Lula Lawrence and Mattie May Lawrence, and did point a pistol at the said Mattie May Lawrence; and the accusation in the second count charged that the defendants, acting with a common intent and in a violent and tumultuous manner, “did threaten to kill, intimidate, curse, and abuse the said Lula Lawrence and Mattie May Lawrence,” and did frighten and run them away from their premises and dwelling-house; the said Will Kilcrease and Milledge Harley being-then and there armed with a pistol. Kilcrease was found guilty. He made a motion for a new trial on the general grounds only, which the court overruled, and' he excepted.
    The evidence for the State showed that Kilcrease, Harley, and one Blandshaw went to the home of Lula Lawrence at night. As they approached the house they were talking pretty loud, and Kilcrease was heard to say that he would kill everybody big enough to die, and he named John Montgomery, Jesse Lovett, Will Padgett, and Lula Lawrence. “He was cursing. He said he would kill every damned thing big enough to die when they got there.” At the house were Will Lawton, Lula Lawrence, and her daughter Mattie May Lawrence, and John Montgomery. Lula Lawrence, John Montgomery, and Will Lawton fled when they heard Kilcrease and the others coming and heard the remarks of Kilcrease. The evidence indicated that the inmates of the house were badly frightened and fled to a corn field close by. After defendant and those with him left, Lula Lawrence returned and took her children to a neighbor’s house. Mattie May Lawrence remained at the house for the time being; later she went with her mother. Kilcrease and those with him approached the house, and asked the daughter where her mother was, and she told them that her mother had gone off. Harley drew a pistol and pointed it at Mattie May Lawrence. When Harley drew the pistol on Mattie May Lawrence, the defendant Kilcrease told him not to .shoot, that she was the daughter of Lula Lawrence. According to the testimony of Mattie May Lawrence there was no cursing at the house, and when they got to the house, they did nothing except come in the piazza and come to the door; and Mattie May Lawrence testified that she heard Will Kilcrease say they were hunting Jesse Lovett, Will Padgett, John Montgomery and Lula Lawrence. They remained at the house awhile and then left. There was evidence -that they were drinking. Later on that night Blandshaw was killed by Jesse Lovett. This, however, did not happen at the house. After Will Kilcrease and those with him left, Lula Lawrence came back and got the children and went to a Mr. Chambers’s house.
    John Montgomery testified: “The only thing I heard was what Kilcrease said. I heard no other man say anything. There was nothing out of the ordinary with the others so far as I know. There was no disturbance at' the house after I left.” Mattie May Lawrence testified: “When Milledge drew the pistol on me, Will Kilcrease said cHnh-huh-!'Milledge, don’t shoot her, she is not the one, that is the woman’s daughter.’ ” Other' witnesses for the State testified that they met Kilcrease and Harley and Blandshaw before they got to the house. The defendants said that they had treated them wrong and that they were going to have satisfaction. The defendant Kilcrease said that they were going to have satisfaction or kill everybody big enough to die. Will Lawton, who was present at the house, testified that he heard them before they got to the house, — “never heard them particularly call any names.” On cross-examination he testified that he “heard Kilcrease say he would kill everybody big enough to die, and that’s all he said. He didn’t mention any names at all as he was going up to the house.” “Will [Kilcrease] come in the house and asked for Lula, and the other fellow, he said to somebody, if you don’t put a light in the house he would put a smoke in there.” Another witness for the State testified that he saw Kilcrease and Harley right after they came back from Lula Lawrence’s house, and that they were drunk, and he locked them up.

      F. T. Lanier, for plaintiff in error.

      E. M. Jones, solicitor, contra.
   Harwell, J.

(After stating the foregoing facts.) From the facts as they appear in the record in the instant ease, there was some evidence authorizing the jury to find the defendant guilty of riot, and this court will not interfere. Lewis v. State, 3 Ga. App. 659 (58 S. E. 1070); Grier v. State, 11 Ga. App. 767 (76 S. E. 70); Rachels v. State, 51 Ga. 375; Sanders v. State, 60 Ga. 136.

Judgment affirmed.

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


author: Jenkins, J.

text:
    8926.
    CITY OF ROME v. BREED, ELLIOT & HARRISON.
    1. Where a hid for the purchase of municipal bonds provided: “We are to be furnished with a full and complete certified copy of transcripts establishing 'the legality of the issue as a direct obligation of Rome, Georgia, satisfactory to our attorneys, prior to our acceptance and payment for the bonds,” it was a conditional bid; and a bona fide opinion rendered by such attorneys, to the effect that the legality of the issue had not been satisfactorily shown, would prevent the -forfeiture and require the return of a deposit made with the bid. City of San Antonio v. Rollins, Tex. (127 S. W. 1166); Trowbridge v. New York, 24 Mise. 517 (53 N. Y. Supp. 616). ’
    2. The question in such, a case is, not whether the bonds were in fact valid or invalid,, but whether the opinion was bona fide and not rendered capriciously or in bad faith. City of Great Rails v. Theis, 79 Red. 943.
    3. In a suit by the bidder to recover a forfeited deposit which had accompanied the bid, where it was shown that the opinion rendered by its attorneys was to the effect that the 'legality of the issue was not satisfactorily shown from the transcripts furnished to it, and where the evidence was within itself without conflict; and nothing was disclosed tending to show collusion between the bidder and its attorneys, or any fraudulent purpose on the part of the latter, and the legal opinion thus rendered contained nothing within itself by which it could be reasonably inferred that it was capriciously or fraudulently made, it was not error for the court to direct a verdict in favor of the plaintiff.
    4. The foregoing ruling being controlling in the case,' it Is unnecessary to pass upon the question as to whether, under the city’s advertisement for bids, it had the right to forfeit the bidder’s accompanying deposit, upon a failure to comply with the terms of the bid.
    Decided March 12, 1918.
    Complaint; from Floyd superior court — Judge Wright. May 8, 1917. See, ante, 677.

      Max Meyerhardt, for plaintiff in error. ,

      Maddox & Doyal, contra.
   Jenkins, J.

In 1915 the City of Rome advertised for bids for $75,000 of its bonds. The advertisement described the bonds and fixed the time at which bids would be received, and contained the following provision: “All bidders must accompany their bids with a certified check for five hundred ($500.00) dollars.”' Nothing was said about the purpose for which this certified check was required, nor was any notice given that the deposit would be forfeited in ease of failure to comply with the terms of the bid. The plaintiff, a corporation, made a bid for these bonds, accompanying the same with a certified check for $500, and the bid was accepted by the City of Rome on March 31, 1915. The bid, as accepted, contained the following provision, to wit: “We are to be. furnished with a full and complete certified copy of transcripts establishing the legality of the issue as a direct obligation of Rome, Georgia, satisfactory to our attorneys, prior to our acceptance and payment for the bonds.” After the acceptance of the bid the bonds were issued for delivery by the city authorities, signed by the mayor and clerk on April 1, 1915. Pending an investigation of the legality of the issue by Messrs. Caldwell, Masslich & Beed as attorneys for the bidder, the city government of Rome was superseded by a commission form of government, which took office on April 5, 1915. The brief of evidence contains the following: “Cross-examined for the plaintiff, the witness [Hugh McCrary, city clerk] testified that there was a good deal of correspondence with the plaintiff, and, for a month following the first of April, plaintiffs were asking for additional records, etc. Defendant introduced a large number of letters and telegrams from plaintiff and their attorneys, asking for various items of information, and making various objections to the issue of bonds, in none of which objections was there any point made requiring that the -bonds be signed by the city commissioners, who came into office on April 5, .1915, until May 12, 1915, when the point was raised in a letter from Caldwell, Masslich & Beed to the city attorney, Max Meyerhardt.” The record, however, in no wise' discloses what the correspondence here alluded to consisted of. It does not show what the various items of information thus called for related to, nor does it show the character or purport of'the .objections thus referred to. On May 12, 1915, the attorneys of the plaintiff addressed the following letter to the city attorney of Rome.: “Re City of Borne, Georgia. Municipal building bonds. Max Meyerhardt, Esq., City Attorney, Borne, Georgia. Dear Sir: We have received from Messrs. Breed, Elliot & Harrison the following telegram: ‘Borne City Attorney wires please communicate with him direct with copies to us. Why do you want present officials to sign bonds? Bonds were dated April first when present officials not in office. Officials in office on April first signed bonds; no others can legally sign. Am willing for present officials to pass resolution ratifying and confirming bonds and their sale to you/ On Monday our clients called us on the long-distance telephone and told us that the bonds bore the signature of J. D. Hanks, who was mayor on April 1st, 1915, but, according to certificates furnished us, went out of office on April 5th. We accordingly told them that the bonds should be signed by the mayor who was in office at the time of delivery and payment, and that the fac simile signature of such mayor should also appear upon the. coupons. This is a rule which is universally accepted by attorneys who specialize in the examination of municipal bonds, and is based upon court decisions which throw great doubt upon the legality of bonds signed in any other way, except in the extremely rare cases where statutes expressly authorize the signature of the bonds in advance of their delivery. In this case there is, of.course, no such statutory provision. In the case of Coler v. Cleburne, 131 U. S. 162, the Supreme Court of the Hnited States held void in the hands of bona fide holders certain bonds of the City of Cleburne which were dated January 1st, 1884, and bore the signature of W. N. Hodge, who was mayor on the date of the bonds. They had not, however, ■ been signed by him until July 3d, 1884, on which date the court held ‘that the person who then signed the bonds as mayor was a' private citizen/ The court says: ‘We have always held that even bona fide purchasers of municipal bonds must take the risk of the official character of those who execute them/ The only safe rule to follow, therefore, is that bonds must bear the signature of officials who are in office at the time of delivery and payment, which is, under many decisions of the Federal courts and the courts of various States, equivalent to the date of ‘issue/ See Cleveland v. Spartanburg, 54 S. C. 83, 31 S. E. 871; Black v. Fishburn, 66 S. E. 681; Perkins County v. Graff, 114 Fed. 441. In connection with the Cleburne case, see also cases cited therein and Wright v. East Riverside District, 138 Fed. 321. In O’Neill v. Yellowstone Irrigation District, 121 Pac. 283, a contrary doctrine was announced, but no cases are cited or discussed, and it does not seem safe to follow this case, except in the State of Montana. We regret the trouble and expense involved in the reprinting and re-execution of the bonds, but under the circumstances it seems to be unavoidable. Since dictating the above, we have received the following telegram from our clients: ‘First Commissioner Rome wires please communicate with him direct copies to us, and if you can authorize us to accept bonds according to this telegram please wire him to ship. According to the bond election is is impossible to have bonds signed by present city officials or be reprinted. Will you honor draft if bonds are returned with certificates of filing with Secretary State? Answer.’ We are accordingly sending a copy of this letter to the First Commissioner. The statute expressly designates the executive under the coinmissión form of government as either ‘Mayor .or First Commissioner,’- so that a signature by the First Commissioner under the designation of ‘Mayor’ will be acceptable to us. Yours very truly, [Signed] Caldwell, Masslieh & Beed.”

The defendant did not undertake to meet the objection thus made, but proceeded on the following day to forfeit the plaintiff’s bid, together with the $500 deposited with it. Suit was thereupon filed by the plaintiff (now defendant in error) against the City of Rome to recover this $500, and other items of damage. The latter • items were stricken on demurrer, leaving only the item of $500; and, after hearing the evidence, the court directed a verdict in favor of the plaintiff for the said.sum of $500, and interest. To this judgment the city excepted.

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

Judgment affirmed.

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


author: Luke, J.

text:
    8937.
    Meridian Life Insurance Company, for use, v. Lathem.
   Luke, J.

When this ease was before the Supreme Court on exception to the direction of a verdict for the defendant (144 Ga. 227, 86 S. E. 1094),'that court reversed the judgment of the court below and held that “it was a question at issue as to whether the defendant, the insured, or his son, the agent, accepted the policy knowing the premium had been paid. If either the defendant or his agent, the son, accepted it, the defendant is bound for the amount of the premium.” The judgment of the Supreme Court having in effect held that the plaintiff was entitled to have his ease submitted to a jury, it was error to dismiss his petition, upon oral motion, for legal insufficiency.

Decided March 12, 1918.

Complaint; from Cherokee superior court — Judge J. B. Jones presiding. May 9, 1917.

B. W. Coleman, for plaintiff. W. D. Mills, for defendant.

Judgment reversed.

Wade, O. J., and Jenkins, J., concur.


text:
    8944.
    Battle v. Livingston.
    Decided March 12, 1918.
    Trover; from city court of Albany — Judge Clayton Jones. May 5, 1917.
    The suit was for the recovery of a mare which had been traded by the plaintiff to the defendant for a horse. The plaintiff testified that the horse swapped to him was worthless, and that he knew nothing about it at the time of the trade; that when the defendant brought the horse to him for the purpose of trading, he said to the defendant: “Do you guarantee this horse to be sound? If you don’t I will not trade.” The defendant replied that he guaranteed the horse to be as sound as a dollar.' The plaintiff then told his servant to “take the horse out.” He further testified: “I do not know where Randolph [the defendant] got this horse from, nor how long he had had him, but I do know that he guaranteed the horse to be sound, and I wouldn’t have traded if he hadn’t done it. Randolph did say at first that he would trade' just as the horses stood, but I knew him and I wouldn’t trade with him, unless he would agree to guarantee the horse to be sound.” There was no evidence tending to show knowledge on the part of the defendant that the horse was unsound at the time the sale was consummated. The trial resulted in a verdict for the plaintiff. The defendant’s motion for a new trial, the refusal of which was excepted to, was based on the grounds that the verdict was contrary to law, evidence, etc.
   Jenkins, J.

The right to rescind a horse swap exists only by virtue of such special terms of the contract of sale as may-so authorize, or, in the absence of any such agreement, by reason of knowingly false and fraudulent misrepresentation of existing facts, made to the complaining party, whereby he was induced to act to his injury. A mere breach of an express warranty which was the controlling inducement to trade, unaccompanied by any such fraudulent misrepresentation of fact, will not afford ground for the avoidance of such a contract. Stovall v. McBrayer, 20 Ga. App. 93 (92 S. E. 543); Barnett v. Speir, 93 Ga. 762 (21 S. E. 168; Newman v. Claflin Co., 107 Ga. 89 (32 S. E. 943); Johnson v. Harley, 121 Ga. 83 (48 S. E. 685).

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

Peacock & Gardner, for plaintiff in error.

T. 3. Milner, contra.


text:
    8948.
    Sappington v. Rimes.
   Jenkins, J.

1. In a trover suit the plaintiff must show a conversion on the part of the defendant. Eefusal to surrender the property on demand does not constitute conversion, but is evidence thereof. While such a demand and refusal is necessary to the maintenance of an action in trover where the property came into the defendant’s hands lawfully, unless it otherwise affirmatively appears that there was an actual conversion prior to the bringing of the suit (Baston v. Rabun, 115 Ga. 378, 41 S. E. 568), it is the rule, ordinarily, that no such demand and refusal need be shown for the purpose of proving conversion where the defendant is in possession of the property when the action is brought. Civil Code (1910), § 4483. The fact that possession of stolen property, unlawful as against the true owner, may have been acquired in good faith will not prevent such possession from operating as a conversion against the true owner (Miller v. Wilson, 98 Ga. 567, 569, 25 S. E. 568, 58 Am. St. R. 319; Liptrot v. Holmes, 1 Ga. 381, 391.); and thus, in a suit in trover where the plaintiff elects to take a money verdict, he is privileged to recover the highest proved value between, the date of such conversion and the date of trial; and even though there be no demand and refusal, the plaintiff is not limited to the highest proved value between the time when the suit was brought and the date of the trial.

2. Where, in an action in trover, the plaintiff chooses as his form of recovery the highest proved value of the property between the time of conversion and the date of the trial, the amount of the recovery is limited to the value laid in the petition.

3. So far as appears from the record, the statements of the plaintiff, complained of in the third and fourth grounds of the amendment to the motion for a new trial, made by him while a witness in his own • behalf, were statements of fact within his knowledge, and the court did not, for any reason assigned, err in admitting them in evidence.

4..It was error for the court to instruct the jury that “The plaintiff has elected to take a money verdict in this case, and if you find that he is entitled to recover, you will be authorized to find the highest proven value of the property,” the highest proved value having reference to a time prior to the conversion, without any proof of the continuance of such value subsequent thereto (Klassing v. Pavlovski, 134 Ga. 815, 68 S. E. 614), and the 'evidence submitted as to value between the date of conversion and the trial not being such as would demand a finding equal in amount to the verdict rendered. Johnson v. Stevens, 19 Ga. App. 192, 91 S. E. 220; Lott v. Banks, 21 Ga. App. 246, 94 S. E. 322, 324). It does not appear that the court instructed the jury that the highest proved value, recoverable by the plaintiff was that ■ between the time of conversion and the date of the trial; and “where the entire charge is not sent up in the bill of exceptions or in the record, and the portion of the charge excepted to is .error, without qualification, and when the judge who tried the case makes no statement in his certificate which shows that it was qualified by other parts of the charge, this court will presume that there was .no qualification.” Central Railroad v. Senn, 73 Ga. 705.

Decided March 12, 1918.

Trover; from city court of Zebulon — Judge Dupree. May 15, 1917.

Bedding & Lester, for plaintiff in error.

J. M. Smith, contra.

Judgment reversed.

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


text:
    8958.
    Johnson v. Redwine Brothers.
    Decided March 12, 1918.
    Claim; from Fayette superior court — Judge Searcy. May 17, 1917.

      W. B: Hollingsworth, for plaintiff in error.

      J, W. Culpepper, contra.
   Jenkins, J.

1. This court is without authority to entertain an objection to the sufficiency of the approval of the grounds of the amendment to a motion for a new trial, when it does not appear that such objection was raised and insisted upon before the trial judge at the time the motion was entertained by him. Ga. L. 1911, p. 150, see. 3.

2. On the trial of a claim interposed to a levy on certain cotton, it was error to reject evidence offered for the purpose of showing that the defendant in fi. fa., in selling the cotton to the claimant, was acting solely as the delegated agent of his landlord, in whom title lay. Such testimony was relevant as a part of the history of the transaction showing title in the claimant, and was not to be rejected as tending to show title in a stranger to the record. Tuttle v. Exchange Bank,. 90 Ga. 653 (16 S. E. 955); Carter v. Brown, 4 Ga. App. 238 (61 S. E. 142).

Judgment reversed.

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


text:
    8975.
    Gordon v. Atlantic Coast Line Railroad Company.
    Decided March 12, 1918.
    Action for damages; from city court of Savannah — Judge Freeman. April 25, 1917.

      Oliver & Oliver, for plaintiff.

      Osborne, Lawrence & Abrahams, for defendant.
   Luke, J.

Janie Gordon sued tlie railroad company, alleging, that when she was walking beside its tracks in a path used by pedestrians with its knowledge, she was struck by a train and injured; and that her injuries were due to the defendant’s negligence, “in running or backing its train at a high and dangerous rate of speed of fifteen miles per hour, at a point on its tracks -which it knew, or in the exercise of ordinary care should have known, was frequented and traversed by pedestrians; in failing to give petitioner warning of the approach of said train, when defendant company knew, or in the exercise of ordinary care should have known, that petitioner was walking along the pathway beside said main-line track,” and “in failing to slacken the speed of said train, when it knew, or in the exercise of ordinary care should have known, that petitioner was not -aware of the approach of said train.” The testimony of the plaintiff showed that the path ■ along the right of way of the railroad was constantly and daily used by pedestrians, that there was plenty of room for walking beside the track, and that the pathway did not go upon but was beside the track, and persons could and did use the path and were safe from trains passing over the track; that at the time she was struck her mind was absorbed in observing another train and two men riding on the top of the cars, which were on a track forty or more feet away, and she did not observe or hear the approach of the defendant’s train, and was struck by a step of one .of its coaches. Held: Even if the plaintiff was a licensee on the path beside the defendant’s track, the defendant was not bound to anticipate that she in a moment would move from the place of safety to a place where a step of a coach of the passing train would-strike her. Her own testimony was-such as to be conclusive that from no negligence upon the part of the defendant was she injured, but that her injury was due to her own lack of care. The court did not err in granting a nonsuit.

Judgment affirmed.

Wade, O. J., and Jenkins, J., concur.


text:
    9047, 9048.
    Flanders v. Atlanta Terminal Company; and vice versa.

   Luke, J.

This case arose as an action to recover damages for alleged negligence of the defendant in maintaining steps in its railroad station for passengers to descend to reach trains. The steps were covered with rubber and iron that had grown sleek from use, and on the day of the ■ alleged injury they were wet, and by reason thereof were more sleek. The plaintiff testified, that she was on her way down the steps, carrying several bundles, when suddenly she slipped and fell, suffering injuries; and that she did not know what caused her to fall. Her daughter testified, that she was with her at the time of the fall, but did not know what caused it; that about ten minutes after the plaintiff had fallen, arisen, and got on the train, the witness came back to ascend the steps, and while there made an examination and saw where a mark was made on the steps, as if some one had slipped; and that it appeared to be where the plaintiff had slipped,and fallen. Held: No presumption of negligence having been raised by proof of injury, the evidence did not sustain the petition and the allegations of negligence, and it was not error to grant a nonsuit.

Decided March 12, 1918.

Action for damages; from Fulton superior court — Judge Pendleton. May 1, 1917.

E. M. & G. F. Mitchell, R. R. Arnold, for plaintiff.

Brewster, Howell & Heyman, for defendant.

Judgment affirmed on main till of exceptions.

Cross-till dismissed. Wade, C. J., and Jenkins, J., Concur.


author: Wade, C. J.

text:
    9118.
    Smarr v. Kerlin.
    Decided March 12, 1918.
    Processioning; from Fayette superior court — Judge Searcy. July 14, 1917.

      H. A. Allen, for plaintiff in error.

      E. J. Reagan, Lester 0. Hickson, contra.
   Wade, C. J.

1. There was evidence to support the verdict.

2. The grounds of the motion for a new trial based upon the affidavit of a witness attacking his own testimony delivered at the trial as erroneous (even without considering the counter-affidavit also made by him) are without merit. Declarations of a witness after trial, at variance with his sworn testimony, even when made under oath and explicitly asserting that his testimony on the trial was false, do not constitute a cause for a new trial. Lasseter v. Simpson, 78 Ga. 61 (3 S. E. 243); Munro v. Woody, 78 Ga. 127 (2 S. E. 688); Jordan v. State, 124 Ga. 417 (2) (52 S. E. 768); Hardy v. State, 117 Ga. 40 (43 S. E. 434) Clark v. State, 117 Ga. 254 (8) (43 S. E. 853), and cases there cited. Hayes v. State, 16 Ga. App. 334, 335 (2) (85 S. E. 253); Civil Code, § 5961.

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

Judgment affirmed.

Jenkins and Luke, JJ., concur.


text:
    9202.
    SOUTHERN RAILWAY COMPANY v. SMITH.
    1. There was no proof that the engine alleged to have communicated the fire which injured the peach orchard of the plaintiff, adjacent to the railroad right of way, was actually emitting sparks at the time it passed the property, or that it caused the fire; and while there was proof that the engine was equipped with a spark-arrester which was inspected and found to be in good condition the day before and the day after the fire, there was no evidence that the engine was equipped with the best appliance of this character in general usé, the use of which was consistent with its practicable operation, or that the spark-arrester was of an approved or standard type or kind. “The measure of diligence which the law places upon a railroad company, in respect to the
    • providing and keeping in repair of spark-arresters or other appliances for the prevention of fire, is to use ordinary care and diligence to apply to its engines the best appliances in general use, the use of which is consistent with the practicable operation of its engines, and to use reasonable. care and skill in keeping the same in good order.” Southern By. Co. v. .Thompson, 129 Ga. 367 (7) (58 S. E. 1044). See Wrightsville & Tennille B. Co. v. Mullís, 11 Ga. App. 482 (75 S. E. 825); Western & Atlantia B. Co. v. Mallard, 139 Ga. 407 (3) (77 S. E. 399). Nothing herein ruled conflicts with the decision in the case of Seaboard Air-Line By: v. Jarrell, 145 Ga. 688 (89 S. É. 718), in which ease there was evidence “to show that the two engines which passed on the day of the fire and prior thereto were properly equipped with approved -[italics ours] spark-arresters, which evidence was uncontradicted.” The circumstances in proof as to the condition of the right of way, the time when the fire occurred, etc., were therefore sufficient to authorize the conclusion that the defendant was negligent as alleged, and to support a recovery.
    2. There is no merit in any of the special grounds of the motion for a ■new trial. The evidence authorized the verdict, and the trial judge did not err in overruling the motion for a new trial.
    Decided March 12, 1918.
    Action for damages; from Paulding superior court — Judge Bartlett. July 21, 1917.

      A. J. Gamp, Maddox, McOamy & Shumate, for plaintiff in error.

      W. S. Spinlcs, contra.
   Wade, C. J.

To make clear tbe ruling in the first headnote above, the entire evidence offered by the defendant as to the sparlcarrester with which its engine was equipped is presented. The engineer in charge of the locomotive which the plaintiff contended communicated the fire to his orchard, testified on this subject as follows: “I didn’t examine my spark-arrester that day. . . So far as the spark-arrester is concerned, I don’t ever look at it. I couldn’t tell what kind of a spark-arrester was on my engine. I assume it had one on it, from the fact that the regulations of the company require it. . . I know my engine had a good spark-arrester, because she didn’t throw fire. I know it didn’t throw fire so far as I saw; she .was within the standard. They all do throw more or less sparks with the best arresters you can put on them. It is a matter of impossibility to so equip an engine that it will pull a full load and not emit more or less sparks and coals, but the sizes they throw are not considered dangerous.” It will be observed that this witness testified that he had no knowledge as to the kind of spark-arrester his engine was equipped with, but merely assumed the engine was in fact provided with a sparkarrester, and that it was “a good spark-arrester,” because, so far as he observed, the locomotive “didn’t throw fire.” It is true he stated that “she [referring to the spark-arrester] was within the standard,” but from his other testimony it is obvious that this statement embodied merely a conclusion of the witness based upon the fact that he saw no sparks emitted by his engine. At all events, there was no positive testimony by him that his engine was properly equipped with an “approved” spark-arrester (Seaboard Air-Line Ry. v. Jarrell, supra), or that the spark-arrester actually in use was one of the “best appliances in general use,” the use of which was consistent with its practicable operation. Southern By. Co. v. Thompson, supra.

The fireman who at the time in question was in charge of the engine testified: “The spark-arresting apparatus on the engine was in good condition, so far as I know. I never saw the sparkayrester itself. . . From the condition of the smoke I saw coming out, I would say that the spark-arrester was in good condition. . . I have seen a spark-arrester. I remember seeing it on this engine several times.” In this testimony there is nothing to the effect that the spark-arrester on the engine alleged to have communicated the fire was an appliance of the best kind in general use or was even such an appliance as was customarily employed on locomotive engines.

The only other witness who testified as to the spark-arrester on the engine in question was the inspector for the defendant company, whose evidence was as follows: “I am a spark-arrester and ash-pan inspector for the Southern Eailroad. I have the inspection of the engine on which Mr. Simmons was running on the 19th tif November, 1912. That [indicating] is the second record I made. I am stationed at Inman Yards, Atlanta, Georgia. The inspection was made on the night of the 17th or 18th. Let me see, it was on the morning of the 18th. I inspected it again on the morning of the 20th. She arrived in Atlanta on the night of the 19th. ■ I inspected it when it went off and,after it came back. I took the front of it open and looked inside of it to see about the block sheet and table sheet and draft sheet and petticoat pipe. The netting was all right. I made a close examination of the spark-arrester both times. There was no trouble with it at all. In an engine, when the smoke comes from the boiler flues with the particles of coal, it is driven against the first sheet; if any coals come through, it strikes that and bursts them up. Then they hit another sheet, the draft sheet; that breaks them still further. They hit two sheets and then go to the top of the boiler and through the net. When they hit the sheets they are ground up in there. Assuming that the apparatus is in good condition when the particles'come out of the smoke-stack, they are something like grains of sand, or dust, something like that. I don’t think these things will ignite anything after they pass out at the top and pass through the air. They are not hot enough to start a fire; they may be, but I don’t think they are. I made an examination of the spark-arrester on the 18th and on the 20th, and found it in good .condition.” An analysis of this testimony will disclose that the witness nowhere stated anything in regard to the type or hind of spark-arrester used on the particular engine at the time of the fire. It is true he said he inspected this engine before and after the day of the fire “and found it in good condition,” and also that “there was no trouble with it at all.” He likewise testified how smoke, coming from boiler flues with particles of coal in it would be driven against different sheets in a spark-arrester, and how the passage of large particles that would start a fire would be prevented where the apparatus was in good condition, but this testimony was merely an abstract éxplanation of how a sparkarrester of proper type would prevent the emission of dangerous cinders or sparks. The witness did not testify that the -sparkarrester with which the particular engine was equipped would act in this manner, or that it was itself a good spark-arrester, sufficient to prevent the passage of dangerous cinders or sparks, and altogether failed to assert that it was the best appliance in ordinary nse which could be practicably employed on such an engine, or that it was even of a customary type or of a kind in general use. Although he explained the action of a good sparkarrester when in proper condition, and testified that the sparkarrester and ash-pan on this particular locomotive were in good condition, he did not testify that the particular appliance employed was itself the best appliance of the kind in general use, or even that it would, if in perfect condition, as efficiently prevent the emission of dangerous sparks and cinders as would a sparkarrester in “general use.” In fact, none of the testimony in the case showed that the spark-arrester attached to the particular engine was an approved spark-arrester, or was the best appliance of the kind in general use. It can not be said, therefore, as a matter of law, that the presumption created by the unexplained presence of the fire very soon after the passage of the engine coupled with the various circumstances which made it reasonable to infer that the fire was communicated by the passing train, was successfully rebutted, and the finding of the jury to the contrary was not unauthorized. The following quotation from Southern Railway Co. v. Herrington, 128 Ga. 440 (57 S. E. 695), appears to be in point: “The evidence relied upon to establish the fact that the fire was commnnicated to the land of plaintiff by a 'spark thrown from a locomotive of the defendant was entirely circumstantial. It appears, from the evidence, that two engines of the defendant had passed near the land, and in a very short time thereafter the fire originated about fifty feet from where the engines passed. There is nothing in the evidence to indicate that the fire could have originated from any other source. This was sufficient to authorize a finding that the fire originated from a spark emitted from a locomotive. This, fact being established, a presumption of negligence arose against the company; and the controlling question is whether this presumption was rebutted. The presumption could have been rebutted by the defendant showing that the engines were properly equipped [italics ours] and properly handled.” See, in this connection, Southern Ry. Co. v. Pace, 114 Ga. 712 (40 S. E. 723); Southern Ry. Co. v. Horine, 115 Ga. 664 (42 S. E. 52); Alabama Midland Ry. Co. v. Swindell, 117 Ga. 883 (45 S. E. 264).

Judgment affirmed.

Jenkins and Luke, JJ., concur.


text:
    9205.
    Western & Atlantic Railroad Co. v. Collett.
    Decided March 12, 1918.
    Action for damages;’ from Whitfield superior court — Judge Tarver. September 8, 1917.

      Tye, Peeples & Tye, Maddox, McCamy & Shumale', for plaintiff in error.

      Glenn & House, W. E. Mann, contra.
   Wade, C. J.

1. The motion for a new trial was based upon the general grounds only. Notwithstanding evidence that the engine alleged to have originated the fire which caused the damage for which recovery was sought was equipped with a proper spark-arrester, there was some testimony as to facts and circumstances from which the jury was authorized to infer that the fire, occurring a few minutes after the passage of the engine, was caused thereby. Nothing in the cases of Seaboard Air-Line Ry. v. Jarrell, 145 Ga. 688 (89 S. E. 718), Jarrell v. Seaboard Air-Line Ry., 21 Ga. App. 415 (94 S. E. 648), is in conflict with this ruling. In the Jarrell case there was “no testimony to show that the sparks were coming from the engine at the time it passed the property” (Seaboard Air-Line Ry. v. Jarrell, supra) ; whereas in the present case it was testified that when the engine passed a few minutes before the blaze broke out on the roof of a dry wooden building, located about 30 feet from the right of way of the defendant company, it was “throwing” out a shower of sparks and cinders — “live coals of fire, sparks, and cinders,” the wind was blowing gently from the direction of- the engine towards the house, and sparks as large as the end of a finger “were going maybe something like 15 or 20 feet high” at the very time the train was passing. Erom this and other testimony the jury could find that the spark-arrester was not in fact in a safe condition at the time, or that the engine was negligently operated as alleged in the petition. There was no error in overruling the motion for a new trial.

Judgment affirmed.

Jenkins and Luke, JJ., concur.


text:
    9295.
    Clark et al. v. Bank of Thomasville.
   Wade, C. J.

1. A waiver of homestead is void if embraced in a promissory note infected with usury. Prather v. Smith, 101 Ga. 283 (28 S. E. 857); Cleghorn v. Greeson, 77 Ga. 343; Hancock v. Bank of Tifton, 6 Ga. App. 678 (65 S. E. 784).

2. The decisions of the Supreme Court of Georgia are binding as precedents upon this court, and clear and definite rulings on questions of law must be recognized and followed. It was held by the Supreme - Court in Angler v. Smith, 101 Ga. 844 (28 S. R. 167), that “the defense of usury is good even against a bona fide holder for value of a negotiable promissory note, who acquired title to the same before its maturity.” See also Bailey v. Lumpkin, 1 Ga. 392, and Laramore v. Bank of Americus, 69 Ga. 722. What is said of the two cases last cited, in Weed v. Gainesville &c. Railroad Co., 119 Ga. 576 (46 S. E. 885), where the opinion is expressed that a bona fide holder for value should be protected against such a defense, is merely the view of one Justice, the question not being considered by the court in the Weed case. See also Atlanta Savings Bank v. Spencer, 107 Ga. 629 (7) (33 S. E. 878); Clarke v. Havard, 111 Ga. 242, 245 (36 S. E. 837, 51 L. R. A. 499).

Decided March 12, 1918.

Complaint; from Grady superior court — Judge Thomas. August 27, 1917.

8. P. Gain, for plaintiffs in error.

Titus, Delcle & Eoplcins, contra.

(a) It would seem to follow, as a logical conclusion, if the maker of a promissory note can set up the defense of usury against a bona fide holder who purchases before due, for value and without notice, that as against such a holder he can likewise insist upon the invalidity of the homestead waiver embraced in an usurious contract in the hands of such a bona fide holder.

(5) The only question presented by the record in this case being whether the defense of usury could be pleaded against a bona fide purchaser of a promissory note for value, before its maturity, for the purpose of avoiding a homestead waiver embraced therein, we hold that the court erred in sustaining the demurrer to the defendant’s plea setting up such a defense and in striking the plea. The act of 1916 (Ga. L. 1916, p. 48) has no relevancy to the case presented by this record.

Judgment reversed.

Jenkins and Luke, JJ., concur.


author: Wade, O. J.

text:
    9449.
    Harper v. International Harvester Company of America.
   Wade, O. J.

1. The defendant in the lower court made a solemn admission in judicio as to the execution of the note sued upon and its ownership by the plaintiff, and voluntarily assumed the burden of proving his sole remaining defense, — to wit, failure of consideration. This admission was binding on him, notwithstanding testimony (which, apparently through some oversight, was admitted without objection) to the effect that the title to the note which formed the basis of the purchase-money attachment was not in fact vested in the plaintiff, and notwithstanding the traverse to the attachment affidavit previously filed by the defendant.

2. The admission by the defendant in open court as to the ownership of the note which evidenced the purchase-money indebtedness being of binding force and effect, and there being" some testimony to support the verdict against the plea of failure of consideration, the trial judge did not err in overruling the motion for a new trial.

Decided March 12, 1918.

Attachment; from Morgan superior court — Judge Park. November 8, 1917.

M. 0. Few, for plaintiff in error.

Middlebroohs & Pennington, contra.

Judgment affirmed.

Jenkins and Luke, JJ., concur.


text:
    9140.
    Alford v. Davis et al., executors.
   Broyles, P. J.

1. Properly construed, the petition in this case set forth a cause of action based .upon a breach of a contract, made by the decedent, to compensate the plaintiff, by a legacy in her will, for services rendered to her in her lifetime by the plaintiff, and not a cause of action based upon a quantum meruit for the value of such services. Under such a construction, the cause of action set forth was not barred by the statute of limitations at the time of the bringing of the suit. The cause of action arose at the death of the decedent. Banks v. Howard, 117 Ga. 94 (2, 3) (43 S. E. 438); Gordon v. Spellman, 145 Ga. 682 (6) (89 S. E. 749).

2. The petition, construed as a whole, showed that the contract was oral; but as it further showed a full performance thereof on the part of the plaintiff, which was accepted by the other -party to the contract, the contract did not fall within the statute of frauds. Civil Code, § 3223 (2, 3).

3. The petition set forth a cause of action, and was not subject to general demurrer.

4. (a) The petition as a whole showing that the alleged contract set up in paragraph 3 thereof was oral, this paragraph was not subject to the special demurrer, which set up that the defendants were entitled to know whether the contract was in writing, and, if so, to have a copy thereof attached to the petition. That part of the special demurrer to this paragraph which set up that it “is vague and indefinite and sets forth no sufficient facts to make it a part of a cause of action as against these defendants” is itself too “vague and indefinite” to be considered. A demurrer, “being a critic, must itself be free from imperfection.” This is particularly true of a special demurrer, as its office is to point out clearly and specifically the alleged imperfection in the pleading attacked by it. It “must lay its finger, as it were, upon the very point. ”

(5) Paragraph 4 of the petition was not subject to the special ground of demurrer that it stated mere conclusions and was argumentative.

(c) In a -suit for damages for the breach of an express contract, the plaintiff can not recover upon a quantum meruit. Moore v. Smith, 121 Ga. 479 (49 S. E. 601). Under this ruling, paragraph 6 of the petition, which, set forth what Hie services rendered by the plaintiff to the deceased were reasonably worth, was subject to the special demurrer setting up in substance that the allegations of this paragraph were not germane to the plaintiff’s cause of action, which was based upon the breach of an express contract, and that the plaintiff 'was not entitled to recover upon a quantum meruit. .

Decided March 12, 1918.

Complaint; from Upson superior court — Judge Searcy. July 14, 1917.

The action was by Mayme T. Alford against the executors of Lizzie T. Hannah, deceased. The petition alleges, that the defendants, as executors, are indebted to the plaintiff in the sum of $1,800, by reason of the following facts: (Paragraph 3.) On or about October 1, 1906, the plaintiff, at the solicitation of the said Lizzie T. Hannah, moved into her home for the purpose of looking after and caring for her for the remainder of her life. She was old and feeble, practically an invalid, unable to wait on herself, and without any immediate family or other person to care for her. Plaintiff, from June 1, 1907, to February 6, 1916, the date of her death, administered to all her wants and did everything possible to make her life happy and comfortable, rendering such services as waiting on her, making and mending her clothes and seeing to it that they were properly laundered and returned, making her fires, cleaning her room and keeping it in order, etc. She was helpless, and it was necessary for plaintiff to remain constantly in her room or at her bedside day and night. All of these services were rendered in pursuance of a contract entered into between her and plaintiff on June 1, 1907, whereby she agreed to give plaintiff $2,000, or in lieu thereof the' home in which they were then living (described), at her death, as compensation for plaintiff’s services in waiting on and caring for her during the remainder of her life. Plaintiff elected to accept the house and lot or its value at her death in lieu of the $2,000. (Paragraph 4.) Plaintiff has complied fully with the terms of the contract as set ■ forth above, and in good faith, bel'ieving 'all along that the said Lizzie T. Hannah had left a provision in her will directing her executors either to pay the $2,000 or to deed plaintiff the house and lot described above, as she assured plaintiff time and time again, as well as other people, that such a provision had been made in her will, and that the house and lot they were then living in would belong to plaintiff at her death, as compensation for the services rendered her during her lifetime. (Paragraph 5.) The said house and lot were worth $1,800, as they were sold by the executors of said Lizzie T. Hannah at public sale for that amount. (Paragraph 6.) Plaintiff’s services for the nine years she waited on and cared for the said Lizzie T. Hannah were reasonably worth $1,800, which was the value of the said house and lot; for which amount she sues. The grounds of the demurrer are sufficiently indicated in the foregoing decision.

5. From the foregoing rulings it follows that the court properly sustained the special demurrer as to the 6th paragraph of the petition, but erred in sustaining the general demurrer and the remaining grounds of special demurrer, and in dismissing the case. While the special demurrer as to that paragraph was properly sustained, that paragraph was not of such vital importance as to render the striking of the same destructive of the plaintiff’s cause of action, and the suit should not have been dismissed. The judgment is accordingly reversed, with direction that the ease be reinstated, that paragraph 6 of the petition be stricken, and that the remaining grounds of demurrer, both general and" special, be overruled.

Judgment reversed, with direction.

Bloodworth and Harwell, JJ., concur.

W? 7. Allen, Little, Powell, Smith & Goldstein, for plaintiff.

R. B. Blaclcburn, Redding & Lester, James R. Davis, for defendants.


author: Beoodworth, J.

text:
    9150.
    McClendon v. Ward-Truitt Company.
    Decided March 12, 1918.
    Complaint; from city court of LaGrange — Judge Harwell. July 12, 1917.

      Meadors & Wyatt, E. A. Jones, for plaintiff in error.

      E. T. Moon, contra.
   Beoodworth, J.

1. Under the provision of the code that “Where any suit is instituted or defended-by a corporation, the opposite party shall not be admitted to testify in his own behalf' to transactions or communications solely with a deceased or insane officer or agent of the corporation” (Civil Code of 1910, § 5858 (3)), it was not error to refuse to allow the defendant in an action by a corporation to testify to transactions had with a traveling salesman, an agent of the corporation, • who at the time of the trial was dead,' relative to certain cheeks which the defendant claimed were delivered by him to the agent in part payment of the indebtedness sued on, even though he claimed also that the checks were destroyed by" fire.

2. The evidence supports the verdict.

Judgment affirmed.

Broyles, P. J., concurs. Harwell, J., disqualified.


author: Bloodworth, J. Bloodworth, J.

text:
    9253.
    JACKSON v. THE STATE.
    Decided March 6, 1918.
    Rehearing denied April 12, 1918.
    Accusation of adultery and fornication; from pity court of Floyd county — Judge Nunnally. September 28, 1917.

      W: B. Mebane, for plaintiff in error..

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

1. The court did not err in refusing to admit in evidence, on the trial of this ease on September 28, 1917, a conditional decree of divorce, granted in Alabama on August 4, 1917, by the express terms of which the decree of divorce could not become absolute in any event before six months after the grant thereof. This ease is easily differentiated from the eases cited by the plaintiff in error, each of which refers to remarriage after the decree of divorce is absolute.

2. Grounds B, C, and D of the amendment to the motion for a new trial are based upon alleged errors of the court in failing to give certain requested instructions to the jury, but cannot be considered by this court, because in none of these grounds is it alleged that the request was presented before the jury had retired to consider their verdict. Civil Code (1910), § 6084; FarTcas v. Oohn, 19 Ga. App. 472 (5) (91 S. E. 892); Southern Ry. Go. v. Williams, 19 Ga. App. 544 (5) (91 S. E. 1001) ; Seaboard Air-Line Ry. V. Barrow, 18- Ga. App. 261 (4) (89 S. E. 383) ; Seaboard Air-Line Ry. V. Lyon, 18 Ga. App. 266 (6) (89 S. E. 384)'.

3. The evidence is sufficient to support the verdict, and a new trial was properly refused.

Judgment affirmed.

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

ON MOTION ROB' REHEARING.

Bloodworth, J.

In Alabama divorces are granted by the chancery courts. Two sections of vol. 2 of the Code of Alabama of 1907 are pertinent here. They are as follows: “Sec. 3170. A decree made against a defendant, without personal service, who does not appear, is not absolute for twelve months from the rendition thereof, except as otherwise in this article provided; and in such ease the court must direct a copy of the decree to be sent to such defendant, or, in case of infants, or persons of unsound mind, to their guardians, if their residence can be ascertained. Sec. 3171. Such defendant may file a petition, showing sufficient cause for setting aside such decree and permitting him to defend the suit on' the' merits, at any time within such twelve months, unless he has been served with a copy of such decree, when such petition must be filed within six months from such service. If the parties have been dismissed, notice of such petition shall be given those in interest. Upon the hearing of such petition, the chancellor has full power to open the- decree and proceed with the cause as if no decree had been rendered therein.” In the suit for divorce brought in Alabama by the plaintiff in error against his wife, there was evidently no personal service; for the decree provides that “But this decree shall not be absolute for twelve months, except to issue execution for costs, unless within six months defendant is personally served with a copy thereof, in which case it shall become absolute after six months from such personal service. The register is hereby directed to send to the defendant a copy of this decree if her residence -is known or can be ascertained; and defendant, unless (?) personally served with copy of the decree, may, at any time within six months from such personal service, file a petition showing sufficient cause, if such she may have, for setting aside the decree and permitting her to defend the case on its merits, as by statute in such case made and provided.” It wjU thus be seen that the decree follows the express terms of the statute; and under the above law there can be no absolute divorce in this case until six months after personal service is perfected on the defendant, or, in the absence of such service, until twelve months from the date of the decree. The decree is dated August 4, 1917, and the second marriage occurred August'6, 1917, two days latér. It is thus apparent that at the time of the alleged second marriage the plaintiff in error was not divorced from his former wife. There is a very clear distinction between a conditional decree of divorce to become absolute at some time in the future, and an absolute decree in which there is a prohibition against defendant remarrying.

While counsel for plaintiff in error realizes that ignorance of the law will not excuse his client, and that this court cannot interfere with a sentence that is within the limit of the law, yet his client in his statement said, “I married her in good faith, believing I had a right to marry,” and in his brief the attorney calls attention to the fact that “the court sentenced the defendant to serve twelve months in the chain-gang.” While these contentions cannot avail him before this court, they might before the pardoning power of the State.

Rehearing denied.

Broyles, P. J., arid Harwell, J., concur.


author: Cooper, Judge.

text:
    A93A0753.
    C. W. MATTHEWS CONTRACTING COMPANY, INC. v. COLLINS et al.
    (435 SE2d 221)
   Cooper, Judge.

Appellant, a construction and paving contractor, regularly contracts with the State Department of Transportation to work on highway projects. During the period of November 1988 through November 1991, appellant paid in connection with its work for the State approximately $350,000 in local option, MARTA and special county sales taxes, three types of local sales taxes which are collected by the State Department of Revenue (“the Department”) for the use and benefit of local governments. See, e.g., OCGA § 48-8-87. Relying on OCGA § 50-17-29 (e), appellant filed a claim with the Department seeking a refund of these local sales taxes. See OCGA § 48-2-35 (b) (1). The Department denied appellant’s claim; and appellant filed an action in the superior court seeking a refund, as it is entitled to do under OCGA § 48-2-35 (b) (4). The trial court denied appellant’s motion for summary judgment and granted that of appellees, ruling that the exemption from local taxes for State contractors set forth in OCGA § 50-17-29 (e) did not apply to local sales and use taxes. From this ruling, appellant appeals.

Although appellant presents an important and interesting issue, we reluctantly conclude that we are without jurisdiction to address it in this case. Appellant brought this action in the superior court pursuant to OCGA § 48-2-35 (b) (4) after the Department denied its claim. Accordingly, OCGA § 5-6-35 (a) (1) applies to this situation and requires an application tó appeal. See Olin Corp. v. Collins, 261 Ga. 849 (413 SE2d 193) (1992). As appellant did not file an application, its appeal must be dismissed.

Decided June 29, 1993

Reconsideration denied July 28, 1993

Schreeder, Wheeler & Flint, David H. Flint, Laura R. Champion, for appellant.

Michael J. Bowers, Attorney General, David A. Runnion, Daniel M. Formby, Senior Assistant Attorneys General, for appellees.

Appeal dismissed.

McMurray, P. J., and Beasley, P. J., concur.


author: Pope, Chief Judge.

text:
    A93A0797.
    KAYLOR et al. v. TURNER et al.
    (435 SE2d 233)
   Pope, Chief Judge.

This action was brought pursuant to the Uniform Enforcement of Foreign Judgments Act. The parties submitted this case for the trial court’s consideration on stipulated facts. The parties stipulated that in the spring of 1980 Russell S. Kaylor and Derris Turner formed Kaylor Machinery & Supply, Inc. (“KM&S”) and Kaylor, Inc., both Tennessee corporations. In 1980 and 1981 Blount National Bank extended certain loans to those corporations. Russell Kaylor, Kathy Kaylor, Ben Turner, Derris Turner and W. T. Phillips executed guaranty agreements to secure those loans. Those loans went into default and the bank demanded payment in full by June 15, 1981 of those loans.

The bank filed an action in the Chancery Court of Blount County, Tennessee, against Russell Kaylor and Kathy Kaylor on their guaranties for one-third of the outstanding balances owed by KM&S and Kaylor, Inc. The bank filed that suit on the condition that the suit would not prejudice or limit the bank’s right to recover the full amount from the other guarantors. A bench trial was conducted in that case and on September 12, 1983, the court issued a final judgment and decree in favor of the bank joint and severally against both Kaylors in the sum of $80,106.31 and additionally a judgment against Russell Kaylor individually in the sum of $35,905.92. No appeal was taken from that judgment.

In 1984, Ben Turner and Derris Turner paid all monies owing to the bank on the loans extended to KM&S and Kaylor, Inc. The Kaylors made no payments to the bank. Prior to November 1984, the bank offered to assign its judgment against the Kaylors to the Turners. An assignment was not made at that time.

In 1990, the Turners, as assignees of First American Bank of Knoxvillé, Tennessee, the successor-in-interest to Blount National Bank, filed a revival action in the Chancery Court of Blount County, Tennessee, to revive the bank’s 1983 judgment against the Kaylors. In that action, Kathy Kaylor was served by certified mail and Russell Kaylor was personally served in accordance with Tennessee law. The Kaylors did not respond in that action. That court issued an order reviving the judgment and no appeal was taken from that order.

On December 10, 1990, the Turners filed an action to domesticate the Tennessee judgment in Georgia, where the Kaylors have resided since 1983. In the trial court, the Kaylors did not challenge the Turners’ right to domesticate the judgment, but set forth defenses to the enforcement of that judgment.

1. Under the full faith and credit clause of the United States Constitution, the judgment of a foreign court will be enforced by the courts of this state unless the foreign judgment is successfully attacked for lack of jurisdiction. A. A. A., Inc. v. Lindberg, 172 Ga. App. 753 (324 SE2d 480) (1984). Although the Kaylors concede that the trial court had jurisdiction over them in the original litigation, they argue the Chancery Court of Blount County, Tennessee, lacked personal jurisdiction over them in the revival action filed in that court. They contend because they moved to Georgia in 1983 and did not have contacts with the State of Tennessee for several years before the revival action was filed, the Tennessee court does not have jurisdiction over their person because the minimum contacts requirement is not met.

The parties do not cite, and our review of the record did not reveal, any Tennessee law on this point and we will therefore apply Georgia law. See Ferster v. Ferster, 220 Ga. 319, 322 (138 SE2d 674) (1964). We note, however, that Tenn. Code Ann. § 20-2-214, providing for jurisdiction of persons unavailable to personal service in Tennessee, confers jurisdiction to the full extent allowed under the due process clause of the Fourteenth Amendment. Shelby Mut. Ins. Co. v. Moore, 645 SW2d 242 (Tenn. Ct. App. 1981). The same is true for Georgia’s Long Arm Statute, OCGA § 9-10-91. Clarkson Power Flow v. Thompson, 244 Ga. 300 (260 SE2d 9) (1979). Therefore in both states, “[t]he interpretations of the United States Supreme Court are controlling, and those of the federal courts entitled to persuasive consideration.” Process Systems v. Dixie Packaging Co., 137 Ga. App. 452 (2) (224 SE2d 103) (1976).

In Huff v. Pharr, 748 F2d 1553 (11th Cir. 1984), the Eleventh Circuit Court of Appeals had occasion to consider a similar argument. The issue presented in that appeal was whether a defendant’s participation in the original litigation and his connection with the forum state prior to the litigation satisfied the minimum contacts requirement for a second action in the same forum to revive the judgment rendered in the original litigation. The Eleventh Circuit held that the minimum contacts requirement was satisfied in the revival action because that action was “uniquely connected with the defendant’s previous forum-related activities.” Id. at 1555. See also Kronstadt v. Kronstadt, 570 A2d 485, 487 (N.J. Super. 1990) (following the Huff decision). We hold that when a defendant had the requisite minimum contacts with the forum state for that state to exercise personal jurisdiction over the defendant during the original litigation, those same contacts are sufficient to provide personal jurisdiction to the trial court for any revival action concerning the judgment entered in the course of the original litigation. Accordingly, the trial court correctly held the Chancery Court of Blount County, Tennessee, had personal jurisdiction over the Kaylors.

2. We next consider whether Georgia or Tennessee law governs this dispute. In 1986, Georgia adopted the Uniform Enforcement of Foreign Judgments Law. OCGA § 9-12-130 et seq. The purpose of that act is to give to holders of foreign judgments the same rights and remedies as the holder of a domestic judgment. The trial court properly looked to OCGA § 9-12-132 to decide which state’s substantive law should govern disputes concerning a foreign judgment. That statute provides in pertinent part: “A filed foreign judgment has the same effect and is subject to the same procedures, defenses, and proceedings for reopening, vacating, staying, enforcing, or satisfying as a judgment of the court in which it is filed and may be enforced or satisfied in like manner.” As the trial court correctly noted, “[t]his [C]ode section creates a conflict of laws rule applicable to foreign judgments so that the trial court must within the language of the act apply Georgia law as if the foreign judgment had been rendered by the forum court. This statutory conflict of laws rule controls rather than the traditional conflict of laws rule of lex loci contractus applied in Georgia.”

However, the trial court found that notwithstanding OCGA § 9-12-132, it must apply the traditional conflicts of laws rule applied in Georgia because at the time the judgment was rendered Georgia had not adopted the Uniform Enforcement of Foreign Judgments Law. “Laws which act upon remedies alone, although retroactive, will be enforced, provided they do not impair the obligation of contracts or disturb absolutely vested rights, and only go to confirm rights already existing, and in furtherance of the remedy, by curing defects and adding to the means of enforcing existing obligations. [Cit.]” Canton Textile Mills v. Lathem, 253 Ga. 102, 104 (317 SE2d 189), cert. denied, 469 U. S. 918 (105 SC 296, 83 LE2d 231) (1984). OCGA § 9-12-132 is a law that acts upon remedies alone. Accordingly the trial court erred by failing to apply OCGA § 9-12-132.

Decided July 14, 1993

Reconsideration denied July 30, 1993

Varner, Stephens, Wingfield & Humphries, J. Timothy White, Brendan J. McCarthy, Hurt, Richardson, Garner, Todd & Cadenhead, Lisa S. Street, Lamberth, Bonapfel, Cifelli, Willson & Stokes, Gary D. Stokes, for appellants.

Schwall, Ruff & Goodman, Emory A. Schwall, for appellees.

3. We next consider whether the trial court properly held that the defendants waived any defenses they may have to enforcement of the judgment because they failed to appear and assert those defenses in the revival action. The general rule concerning what defenses can be asserted in a revival action is that post-judgment defenses may be raised but not defenses available before judgment was entered. See generally 49 CJS, § 540; Bowers v. Jim Rainwater Builder &c., 203 Ga. App. 254, 255 (416 SE2d 832) (1992). While the parties do not cite, and we are not aware of any Georgia case addressing the issue of what defenses are waived by the bar of res judicata when they are not asserted during a revival action, it is well-settled in Georgia that the principle of res judicata applies equally to revival actions as to other suits. Id.; Heslen v. Heslen, 199 Ga. App. 271 (1) (404 SE2d 592) (1991); Mitchell v. Chastain Finance Co., 141 Ga. App. 512 (3) (233 SE2d 829) (1977). Tennessee law mirrors Georgia law in this respect. See Craddock v. Calcutt, 285 SW2d 528 (Tenn. App. 1955). The three prerequisites necessary for the successful assertion of the defense of res judicata are present in this case: (1) identity of parties; (2) identity of the cause of action; and (3) prior adjudication by a court of competent jurisdiction. See Ellis v. Curtis-Toledo, Inc., 204 Ga. App. 704 (1) (420 SE2d 756) (1992). Because the post-judgment defenses the Kaylors sought to assert against the Turners’ attempt to enforce the revived judgment could have been raised in the Tennessee revival action, the trial court correctly held the Kaylors are barred by the doctrine of res judicata from asserting those defenses now.

Judgment affirmed.

Birdsong, P. J., and Andrews, J., concur.

       While this is not a fact stipulated by the parties, on January 23,1990, the First American Bank of Knoxville, Tennessee assigned to the Turners its interests in the judgment obtained in 1983 against the Kaylors.

       Tennessee adopted the Uniform Enforcement of Foreign Judgments Law in 1976.