text:
    326.
    SOUTHERN RAILWAY COMPANY v. PURYEAR.
    1. The act of an engineer in blowing a whistle in compliance with the mandate of the statute in approaching a public crossing is not negligence, unless the whistle be blown in such manner as ■ to produce an unnecessary and unusual noise. Neither is the blowing of the whistle by the engineer for the purpose of preventing stock from getting on the track in front of a running train, where there is apparent danger that the stock will get on the track unless so frightened away, negligence, unless the blowing be done in an unusual and unnecessary manner. There was no evidence in this ease to support the verdict against the railway company, and the presumption of negligence was clearly rebutted by the positive and uncontroverted testimony.
    2. To render a railroad company responsible in damages for killing a horse, the evidence, or some reasonable inference deducible therefrom, must show that the death of the horse resulted from the injuries received. The evidence and circumstances in this ease failed to show that the death of the horse in April was the result of the injuries received in December before, but did clearly show that such death was caused by some disease disconnected with those injuries.
    Certiorari, from Whitfield superior court — Judge Eite. October 9, 1906.
    Argued May 7,
    Decided May 24, 1907.

      Shumate, Maddox & McCamy, J. M. Rudolph, for plaintiff in error.

      George G. Glenn, contra.
   Hill, C. J.

Puryear sued the Southern Eailway Company in a justice’s court for damages for the alleged killing of his colt in December, 1904, by the running of the train of the defendant company; the suit being for $75. The verdict and judgment in the case were against the defendant, for $75. Thereupon it brought its petition for certiorari to the superior court. The judge of the superior court, on the hearing of the certiorari, overruled the same, and refused to grant a new trial. This judgment is -brought here for review. The evidence makes the following case: In the latter part of December, 1904, the colt in question and a mule were in the dirt road, at a point about 400 or 500 yards south of.where the dirt road crosses the track of the -Southern Eailway. The colts were a short distance south of the blow post of said crossing. The dirt road at this place runs parallel to and within a very short distance of the railroad track. At the time of the injuries complained of the train of the defendant company was running north. The uncontradicted evidence of the engineer is that, as he approached the blow post for said crossing, he observed the colts in the dirt road, and that they commenced running along the dirt road together; that when he reached the blow post he blew the crossing signal; that the colts dontinued to run up the road ahead of the engine, ■and that, being afraid that they would run on down to the crossing and take up the track, which was the habit of animals under similar circumstances, in the*effort to prevent this and to frighten the colts away from the track and make them turn back, he commenced blowing the stock alarm at them; that the mule colt did turn back, but that the horse colt continued running down the road, outrunning the train, and passed over the crossing, and that was the last he saw of him. The engineer further testified that there was no unusual or unnecessary noise made bjr the running of the train, or by the blowing of the whistle at the time and place •of the blowing, and that the blowing of the whistle was the proper thing to do under the circumstances; that he ceased blowing the whistle before the colt reached the crossing, and did not blow it any more. This evidence of the engineer was corroborated by the fireman, and was not contradicted by anjr of the witnesses for the plaintiff. The testimony shows that the colt, after running across the railroad crossing, ran into the fence, knocked down two panels and one of the posts, and cut its shoulder and its flank, and sprained its right ankle. The cut in its shoulder was from four to six inches long and about an inch deep in the deepest place; but the wounds were flesh wounds and did not strike the bone. The sprain in the ankle caused it to become slightly enlarged, and when the colt would walk it had a slight limp. There were no bones broken.at all. The flesh wounds healed, but .the colt never seemed to get right. On April 15th, thereafter, the plaintiff drove the colt through the country, 18 miles, to his father’s. Some time after-wards the colt was turned loose in the pasture with other stock, and it got sick. It was doctored, and got better; but it again got sick and died. Several of the witnesses testified that they could • not tell what was the matter with the colt, but that it just “got down and seemed to be weak.” One of the witnesses, who seemed to be somewhat of a horse doctor, thought the colt had the colic, and drenched it with buttermilk. This is substantially all the evidence in the case, and the question presented is: Does this evidence, considered riiost favorably for the plaintiff, make a ease of liability against the railroad P

The proximate cause of the fright of the colt, as shown by the uncontradicted evidence, was the noise .of the approaching train ; for there had been no blowing of the whistle at the time the colt was seen running up the dirt road parallel with the railroad trade-There was no unusual noise caused by the running of the train, only the noise incident usually to the running of a heavy freight train. The evidence showed that it was absolutely necessary for the whistle to be blown at the blow post, in order to comply with the imperative mandate of the statute; but the testimony is -unconfcradicted that in the performance of this duty the engineer did not blow the whistle so as to cause an unnecessary or unusual noise. If the noise of the running train and the blowing of the whistle-at the blow post caused the fright of the colt, the railroad would 1 not have been liable; for these things were not negligence, unless unusual and unnecessary, or done in an unusual or unnecessary manner. This is too clear for doubt. The blowing of the whistle ' by the engineer subsequently was done by him (according to his uneontradieted evidence) for the purpose of preventing the colts from running on the track or across the crossing, and was done for the purpose of preventing injury to the colts by frightening them away from the track. We do not think that the engineer can reasonably be adjudged guilty of negligence for blowing the whistle-for the purpose indicated, if done in a proper way. On the-contrary, we think it was the prudent thing for the engineer to liavedone. We think, therefore, that if the noise of the running train and the blowing of the whistle, under the circumstances, caused the fright of the colt, and caused it to injure itself as described in the evidence, the company is not responsible for such fright or the consequences thereof; for the evidence clearly shows that its agent exercised all ordinary and reasonable care and diligence in connection with the matter and to prevent any injury to the colt, the specific act of alleged negligence in blowing the whistle being-neither unusual nor unnecessary at the time when and the place where it was done.

The evidence showed that the colt was injured the last of December, 1904, by running into the fence, and inflicting upon itself two flesh wounds and spraining one ankle. These wounds were not serious, and the two flesh wounds were entirely healed, and as a result of the sprained ankle there was a slight limp. The colt died five months thereafter from some unknown disease, which was thought by the person who treated it to have been colic. Even if the company was liable for the injuries which the colt received in running against the fence, unless it died as a result of such injuries,- the company would not be liable for its death. The facts of this case, instead of showing, or even raising an inference, that the death was the result of the injuries, indicated very clearly that death was caused by some disease wholly unconnected with the injuries. We therefore conclude that there was no evidence of negligence on the part of the defendant railway, but that, on the contrary, any presumption of negligence arising .from the injuries was fully rebutted by the positive and uncontradicted testimony of nnimpeached witnesses, and that the death of the colt resulted, not from the injuries received in - December, but from some disease wholly disconnected therefrom in April following.

The judgment of the superior court in overruling the certiorari and refusing a new trial is Reversed.


source: Caselaw Access Project

author: Powell, J.

license: Public Domain

text:
    332.
    CEDARTOWN COTTON & EXPORT CO. v. MILES.
    1. Every petition should set forth the facts upon which the cause of action is based “plainly, fully, and distinctly,” and with such certainty that the same may be understood by the defendant who is to answer them, the jury who are to ascertain the truth thereof, and the court who is to give judgment.

      (a) The plaintiff is not required to set forth the evidence, either direct or circumstantial, by which he expects to establish the traversable facts alleged in the petition.
    (b) The certainty required as to the allegations in a suit by a servant against his master for personal injuries occasioned by a defective instrumentality is discussed.
    2. The court erred in overruling the demurrers to the petition.
    Action for damages, from city court of Polk county — Judge Irwin. December 17, 1906.
    Argued May 7,
    Decided May 24, 1907.

      Bunn & Trawick, for plaintiff in error.

      Seaborn & Barry Wright, J. A. Wright, contra.
   Powell, J.

The exception in this case is to the overruling of.a demurrer to the plaintiff’s petition. The petition, omitting formal parts, alleges: Paragraph 1: That defendant operates a cotton factory. Paragraph 2: That on the 15th day of July, 1905, petitioner was in the service of the defendant as a card stripper. Petitioner was cleaning his card, and while cleaning the feed shaft the pulley upon which the belts from the cylinder and from the comb run flew Off the axle, and the belt from the cylinder pulley caught petitioner’s arm between the shoulder and elbow, and jerked petitioner against the card, pulled and wound his arm around and between the feed shaft and the card, and broke it in two places between the" shoulder and elbow. Paragraph 3: The flying off of said pulley was due to the negligence of defendant, in that the nut and screw which held said pulley on the axle were not in their places, and the end of the axle was also broken. Said fast should have been known to the defendant, and was unknown to the plaintiff, and his injury is due to the negligence aforesaid. Paragraph 4 specifically describes the injury received. Paragraph 5:. All of said injuries were due to the negligence of defendant, and could not have been averted by plaintiff by the exercise of ordinary care. Paragraphs 6 and 7 allege plaintiff’s age (45 years), his earning capacity, pain and suffering, and contain the ad damnum and - usual prayers. By amendment there is added, after the word “plaintiff,” in the third paragraph, the words “and could not, by the exercise of ordinary care, have been known to him.”

In addition to the general demurrer, the defendant, by special demurrer, insists “that the allegations of fact set out in said petition show that the defect complained of was a patent one, and that, if plaintiff did not know the existence of the same, he could, by the exercise of ordinary care, have discovered it;” also that they do' not sufficiently describe the'defect complained of in said machine and the manner in which the injury was received; also, as to the third paragraph of the petition, that “the allegations in said paragraph do not show how or why said nut or screw happened to be off, who took it off, or when it was removed; said paragraph charges that the end of the axle was also broken, but there are no allegations which show that said alleged broken axle in any way caused .or contributed to the injury; said paragraph does not show that plaintiff did not know about said nut and screw being out of place; the last sentence in said paragraph sets out a conclusion, and contains no averments which show how or wherein defendant was negligent;” also, as to paragraph 2, that “the allegations therein are confused, vague, indefinite, and do not put defendant on notice as to how plaintiff was injured;” also, as to paragraph 5, “that the same is too general; said paragraph contains no allegations showing negligence on part of defendant; the last clause of said paragraph is merely a conclusion of the pleader.” The trial court overruled all the demurrers.

As to pleadings at common law it has been said on eminent and unquestioned authority (Chitty on PI. 256): “The principal rule as to the mode of stating the facts is that they must be set forth with certainty, by which term is signified a clear and distinct statement of the facts which constitute the cause of action or ground of defense, so that they may be understood by the party who is to answer them, by the jury who are to ascertain the truth of the allegations, and by the court who are to give judgment.” Our Civil Code, §4960, requires that the plaintiff, in his petition, shall plainty, fully, and distinctly set forth his charge, ground of complaint, and demand. As construed by the courts of this State, this statutory provision requires a higher degree of certainty in pleading than was necessa^ at common law; but the object to be attained is the same under both systems, to wit, that the pleadings be understood by the partjr, the jury, and the court. They certainly ought to be so certain and full that the court may look to the allegations of fact and know whether a cause of action is set forth or not. The plaintiff is not required to set forth' the evidence, either direct or circumstantial, by which he expects to establish the traversable facts alleged in the declaration, and a demurrer can not properly be used to compel him to do so; but all the facts necessary to be stated should be set forth plainly, and special demurrer will compel this. In negligence suits, in order that the court may determine from an inspection of the pleading whether a cause of action is set forth, each fact necessary to raise the duty and to show the specific breach thereof, or the specific wrong inflicted, should be plainly and unequivocally stated; and enough of the details of each element of the case should be set out to clearly distinguish the transaction as an actionable one and not to leave it doubtful whether it is so or not. Many facts, especially those resting peculiarly within the knowledge of the. opposite party, may be alleged in general terms; but they should be alleged as facts, not merely as legal conclusions.

In a suit by a servant against the master for an injury occasioned by a defective instrumentality, the servant should allege the facts of his employment. This usually may be done in general terms, provided the language used is sufficient to clearly distinguish his relation to the master from that of a volunteer. He should allege, also, the character of the services he was hired to perform. The allegations as to this may be general, except that they should increase in definiteness as they relate to the particular instrumentality in question, and as to this they should be sufficiently specific to show the relationship of the service to the instrumentality. It is not ordinarily necessary to allege the master’s duty to furnish reasonably safe instrumentalities; for this is a matter of which the court will take judicial notice, and, if this duty be alleged at all, it may be stated, without objection, in the form of a legal conclusion. Things of which the courts take ex-officio notice need not be specially pleaded.' Chitty, PI. 236. He should also set out a definite'description of the instrumentality in question; and more details are required when the instrumentality is not a simple and well-known contrivance .than when it consists of something that people generally, from their common knowledge, understand in detail without elaboration or description. However, it is not necessary to go into details of description, except so far as may be necessary to show the relation of the instrumentality to the duties of the servant, to the specific mode of the injury, to the exact nature of the defect, to the negligence of the master, to the lack of contributory negligence of the servant, or to some other essential element of the case. The defect in the instrumentality should also be set forth with similar certainty, and it should appear whether the defect was latent or patent. This should be shown by facts stated, and not by mere conclusions of the pleader. The facts should disclose the proximateness of the defect as a cause of the injury. The master’s actual or constructive knowledge must appear. If the allegation be that the master knew of the defect, this may be simply and directly stated, and it is not necessary to state how or why he knew it. If constructive knowledge be charged to the master, and the facts stated in the petition make a case where by law the duty of knowing is imposed upon the master, the legal conclusion “that he ought to have known” is not subject to objection; but if the duty of knowing does not arise as a matter of law from the facts already stated, then the specific circumstances creating the duty of knowing must be detailed. See Babcock Lumber Co. v. Johnson, 120 Ga. 1034, 48 S. E. 438. Also, the servant’s lack of knowledge must appear. As to this, the allegation that the servant “did not know” of a defect is a statement of fact, and is sufficient as alleging actual lack of knowledge. Freedom from implied knowledge can be alleged in the form of a legal conclusion onty when the facts set forth show such a state of circumstances as to relieve the plaintiff from such an imputation; otherwise the court will disregard the legal conclusion and give judgment on the facts actually stated. If the plaintiff relies upon his'tender years, his inexperience, a false sense of security occasioned by misrepresentations of the master, the latent character of the defect, or other reason regarded by the law as sufficient to relieve the servant from implication of knowledge, the facts should be definitely stated. The details of how the injury occurred should, of course, be specifically set forth. So far as they illustrate the character of the defect in the instrumentality, the master’s negligence, or the servant’s freedom from fault, they should be more specific than wherein they are merely collateral to the salient legal elements of the case. The sum of the whole matter is that the petition should set out plainly and distinctly, by allegations of facts, an unequivocal cause of action.. If the facts as alleged also reasonably tend to establish some defense which would defeat the action, enough additional facts must be set out to negative this defense. But the petition need not anticipate a defense which the facts alleged do not disclose. Of course, these suggestions are not intended to be considered as exhaustive. There are many other matters to be regarded. 'We are merely -trying to stress the point that the pleader should make his necessary allegations plain, definite, and unequivocal, and that he may be compelled by demurrer to do so, "but that, when he has done this, he can not be compelled by special demurrer to go further and allege details which might be valuable to the opposite party in the preparation of his defense, and that it is not required that the pleader set forth the evidence by which he expects to prove the allegations so made.

Applying these rules to the petition in the present case, we think that it is deficient in certainty. The description of the machine at which the plaintiff was working is very indefinite. The court can not say, from what is set out, whether the defect was latent or patent, or whether the fact that the end of the axle was broken had any relation to the injury. The plaintiff relies upon ■constructive notice on the master’s part as to the absence of a nut and screw, without alleging that the nut and screw, which were not in their places, were left off by the master, or that they had been off such a length of time as to charge him with notice. lie alleges the conclusion that by ordinary care he himself could not have known of their absence, without showing any facts on which to base this conclusion. So far as the petition discloses, the defect was patent. We recognize the rule that if the defect was latent the master would be ordinarily held bound to discover the fact sooner than the servant, since- the duty of inspection rests on the master and not on the servant; but the allegations are not sufficient to justify an application of this rule. Every fact alleged in this petition might be true, and the master not be liable. Unless the plaintiff amends his petition and cures these defects, it should be dismissed.

Judgment reversed.


text:
    337.
    Thompson v. Becham.
    Certiorari, from Pike superior court — Judge Reagan. October 12, 190G.
    Argued May 7,
    Decided May 24, 1907.

      G. D. Dominick, for plaintiff.

      J. M. Smith, for defendant.
   Powell, J.

1. While the answer of the trial magistrate to a writ of certiorari must verify the fact that a final judgment has been rendered, yet an answer which merely verifies the rendition of a final judgment,without more, is entirely insufficient, where the certiorari is brought, to correct errors in the proceedings which were had at the trial, and ' upon which such judgment was rendered.

2. Allegations in' the petition for certiorari, not verified by the answer, are not to be taken as admitted, and present nothing for determination, either by the superior or the appellate court. Landrum v. Moss, 1 Ga. App. 216, 57 S. E. 96 ; Little v. Fort Valley, 123 Ga. 503, 51 S. E. 501; Brown v. Gainesville, 125 Ga. 230, 53 S. E. 1002.

Judgment reversed.


author: Russell, J.

text:
    353.
    TRAYLOR, SPENCER & CO. v. BRIMBERY.
    1. Time is of the essence of a contract, when the nature of the contract is such as to indicate that this must have been the intention of the parties. In order for a proposition to be binding upon him who makes the proposal, the opposite party must accept it before the time fixed for the performance of the contract.
    2. In a case where B. agreed in writing to pay to the creditors of 0., in the event that they “may hereafter accept my offer of settlement, . -. 50 per cent, of principal in full settlement of said claims, paying 25 per cent. Eebruary 1, and 25 per cent. April 1, Í899,” and D., one of the creditors, accepted the proposition on May 16, 1899, B. was not bound thereby to pay the said 50 per cent., for the reason that an acceptance after the date proposed for payment is not acceptance within a reasonable time.
    3. The evidence disclosing the above state of facts, in an action brought to recover the 50 per cent, proposed to be paid, it was not error to award a nonsuit.
    Complaint, from Mitchell' superior court — Judge Spence. November 29, 1906.
    Argued May 14,
    Decided May 24, 1907.

      I. A. Bush & Son, W. R. Hammond, for plaintiffs.

      Sam S. Bennet, for defendant.
   Russell, J.

Traylor, Spencer & Co. brought suit in a justice’s court against M. F. Brimbery. Attached to the summons was the following account: “Winston, N.. C., July 15, 1899. M. F. Brimbery, in account with Traylor, Spencer & Company. Terms: 1/2 Feb. 1st; 1/2 April 1st, 1899. July 15. To cash aect. settlement and transfer acct. vs. A. B. Brimbery, at 50%, $65.37.” The case was appealed to the superior court, and upon introduction of the plaintiff’s evidence a nonsuit was awarded.

The plaintiff introduced the following writing: “Camilla, Ga., Dec. 23, 1898. In consideration that the stock of goods, notes, accounts, and other property belonging to A. B. Brimbery is hereby placed in my hands for disposition, I hereby agree to pay to I. A. Bush & Sons, attorneys at law, for such of creditors of A. B_ Brimbery as have not already accepted my offer of 50% in full settlement of claims, their pro rata share of the proceeds of said stock of goods, notes, and accounts, etc., as soon as che same can be reduced to cash by me. In the event that said creditors may hereafter accept my offer of settlement, as made to I. A. Bush & Sons, attorneys aforesaid, I agree to pay them 50% of principal in full settlement of said claim, paying 25% February 1, and 25% April 1, 1899. Claims as follows: French, Morris & Co., $100.95; Loomis & Hart Mfg. Co., $49.10; Atlanta Wooden Ware Co., $43.45; Traylor, Spencer & Co., $127.00; Cumberland Paper Co., $57.15; Ware Fur. Mfg. Co., $72.00; Wilber Seed Co., $32.00; John C. Vogler, $38.25; W. H. Marks & Co., $23.50 (paid); Waxelbaum Pepper Co., $49.00. [Signed] M. F. Brimbery.”

I. A. Bush testified for the plaintiffs that I. A. Bush & Sons were attorneys for the plaintiffs when the agreement was signed by M. F. Brimbery. A. B. Brimbery, a son of defendant, failed in business and turned over to I. A. Bush his stock of merchandise and other property for the benefit of his creditors. M. F. Brimbery claimed to lie one of A. B. Brimbery’s largest creditors. The said M. F. made the proposition set out in the agreement, and by consent of A. B. Brimbery, I. A. Bush & Sons turned all the property of A. B. Brimbery over to M. F. Brimbery. Soon after this: M. F. Brimbery sold the stock of .goods for $2’,000 or $2,200. Witness was not able to state the amount realized out of the other-property. He further testified that Marshall E. Bush, a witness. on the former trial of the ease, was dead; that the said deceased witness testified, on the former trial, that as soon as he was authorized by plaintiffs in this case he notified said Brimbery that he would accept his proposition of 50 per cent, in the dollar as full settlement. I. A. Bush further testified that he knew that M. F.. Brimbery was notified by M. E. Bush, because he talked to him about it several times. The notice of acceptance was given M. F. Brimbery after the dates named in the agreement and after the date of the letter hereafter in evidence.

The plaintiffs introduced in evidence the following letter r “Danville, Va., May 16, 1899. Messrs. I. A. Bush & Sons, Camilla Georgia. Dear Sirs: — In reply to your favor concerning A. B. Brimberv’s account, would say that you may accept' 40 per cent, net to us in full settlement of the account. We trust that you will close the matter at once. Traylor, Spencer & Company.” I. A. Bush then testified: “This letter from Traylor, Spencer & Co. to I. A. Bush & Sons came by due course of mail from the post-office address of plaintiffs.”

Omitting the objections to the magistrate’s summons and to the peculiar wording of the account thereto attached, and that the contract proposed b3r Brimber3r may well be construed as a contract between the defendant and I. A. Bush & Sons, attorneys at law, for all such creditors of A. B. Brimbery as have not already accepted the offer at 50 per cent., and not a contract for the plaintiffs individually, and remembering that niceties of pleading are not required in justice’s courts (Southern Railway Co. v. Oliver, 1 Ga. App. 736, 58 S. E. 244), we come to the controlling point in the case. We have no difficulty in construing the suit as one for $65.-37 in cash, which would have been the amount due if the plaintiffs had accepted the proposition. If the plaintiffs had accepted the defendant’s proposal, he would have owed them 25 per cent, of their claim on February 1st, and 25 per cent, on April 1st, and this debt was to be discharged in cash. He had been intrusted with the stock of goods, and if this proposition was accepted the debt did not arise altogether from the contract; but the contract was also evidence of the amount he was to pay. Assuming, then, that the statement of account is sufficient for the purposes of a justice’s court, and that suit was brought (as is apparent) to recover under the 50 per cent, proposition, and not the pro rata, was the eviclence so insufficient to sustain the allegations that a nonsuit ought to have been awarded?

TTe think that the case..was■ properly nonsuited. Admitting that the evidence harmonized with- the summons and that the suit was brought to recover the 50 per cent, offered, the suit must fail for the reason that the evidence shows that the offer or proposal to pay 50 per cent, was not accepted until long after the time for; the performance of the contract had passed. The proposal can not be construed to be held out indefinitely, in view of the times fixed for the payments in case of acceptance; and the offer would have had to be accepted in a reasonable time. To a proposal made December 23d, 1898, payments under which were to begin Feb: ruary 1st following, an acceptance made several months thereafter (during May, 1899) would not be an acceptance within a reasonable time. It is evident, from the terms of the writing signed by Brimbery, that he proposed to pay the creditors either their pro rata share of the proceeds of the stock of goods, notes, accounts, etc., or 50 per cent, of the amount of the claim of each creditor, at his option. If he honestly administered the trust reposed in him, the creditor would receive his pro rata share, which might be more or less than 50 per cent, of his account. There was no risk in this to Brimbery. The risk was on the creditor. If the creditor accepted the 50 per cent., it devolved the risk upon Brimbery, and there was no risk on the creditor, though his pro rata share from the stock of goods might not have amounted to 10 per cent, of his claim. From the very nature of the transaction time was of the essence of the proposal to contract, and of the contract, if one had been made by acceptance on the part of the creditor.

If the creditor had accepted the 50 per cent, proposal before February 1, 1899, Brimbery would have been bound to pay the amounts contracted to be paid, regardless of what the stock brought and whether he had sold the stock or not. He would have been compelled to pay, if able to respond, even if the stock had been destroyed by fire. In other words, he took all the chances. The plaintiffs really had three options. They could allow Brimbery to sell and collect for the stock, notes, accounts, etc., and take their, pro rata in a division with all the creditors. They could have accepted the 50 per cent, or could have disregarded Brimbery’s proposal altogether, sued the debtor, A. B. Brimbery, or his legal representative, and garnished M. F. Brimbery, obtained a judgment for the full amount justly due, and perhaps, by garnishment, have collected the entire claim. By failing to accept either of Brimbery’s proposals, they are remitted to the latter course of action. Judgment affirmed.


text:
    354.
    ATLANTIC COAST LINE RAILROAD COMPANY v. HART LUMBER COMPANY.
    1. A plaintiff, where it becomes necessary for the purpose of enforcing his rights, may amend his petition by- substituting the name of another person, suing for his use.

      (а) The right, for the protection of which such amendment is allowable, need not be such a right as is capable of direct enforcement by the original plaintiff, either in law or in equity, provided it be substantial.
    (б) Upon such an amendment being made, a cause of action must be shown to exist in favor of the nominal party.
    2. A party who submits to a ruling on pleadings, by filing an amendment to meet the objection, waives his right to except, on the ground that the amendment was not necessary. Brantley Co. v. Southerland, 1 Ga. App. 804, 57 S. E. 960; Glover v. Railway Co., 107 Ga. 34, 32 S. E. 876.
    3. An affirmative plea, lacking in certainty and showing no reason why the defendant can not make it more certain, should, when the defects are specifically pointed out by demurrer, be stricken, unless amended.
    4. Where the judgment is reversed on account of decisive errors in the initial pleadings, alleged errors occurring oy the trial will not be considered.
    Complaint, from city court of Nashville — Judge Peeples. August 15, 1906.
    Submitted May 14,
    Decided May 24, 1907.

      Hendricks, Smith. & Christian, for plaintiff.

      Buie & Knight, for defendant.
   Powell, J.

The plaintiff, the railroad company, claimed that the defendant, the lumber company,' had obtained some railroad iron under a contract to rent and return it, or, if any portion was not redelivered on demand, to pay the value thereof. These contracts were not made with the plaintiff that brought the suit, but with the Brunswick & Western Railroad Company and with the Savannah, Florida & Western Railway Company. At the trial the plaintiff offered to amend by striking its name as plaintiff, and by inserting the names of the other two railroad companies as plaintiffs, suing for its use. The court refused to allow this amendment. The plaintiff then tendered an amendment striking its name as plaintiff and inserting the name of the Brunswick & Western Railroad Company as plaintiff, suing for its use; and the court also refused this. Among other things, the defendant pleaded that it had rented some iron, but that the same had been checked up and returned. To this plea the plaintiff demurred, on the ground that “it is in the nature of a plea of payment, and the party to whom, the place where, and the date, and the amount of the rail returned on same, is not set forth as required by law,” and that “it is so vague and indefinite until it amounts to no plea or defense whatever.” The court overruled this demurrer. Upon demurrer to the petition for lack of certainty, the court required an amendment of the plaintiff. The plaintiff amended to meet the ruling, and now excepts on the ground that the court erred in requiring the amendment. The trial proceeded, resulted in a nonsuit, and several errors are assigned.

Ordinarily new and distinct parties can not be added by amendment; but there are exceptions to this rule. One exception is that provided by the Civil Code, §5105, which allows a plaintiff, when it becomes necessary for the purpose of enforcing his'rights, to substitute the name of another person in his stead, suing for his use. Since such an amendment is allowable for the designated purpose “of enforcing the rights of such plaintiff,” some showing should be made to the court that some right of the original plaintiff is connected with the cause of action he desires to assert in the name of the nominal party to be substituted; but this right need not be so perfect as to be capable of direct enforcement, either in law or in equity. It is analogous to the practice in ejectment, where the real plaintiff is allowed to lay demises in the name of any living person, and recover upon any of such demises, though he be unable to connect his title by legal evidence with the title of the person in whose name he recovers, provided that the court is satisfied that he bona fide claims under such person, or has some connection with his title. See Couch v. Turner, 17 Ga. 489; Shanks v. White, 36 Ga. 432; Harper v. Wilkes, 76 Ga. 106; Kinsey v. Senshough, 17 Ga. 540. If the court is satisfied, by the showing made, that the original plaintiff has directly or indirectly bought- or otherwise acquired the substituted plaintiff’s cause of action,, or a substantial interest therein, he should not refuse such an amendment, though, from failure to comply with legal prerequisites, or through absence of formal proof, the plaintiff can not. establish a full legal connection therewith. Usually the statement of counsel, or the oath of the party that he does claim such an interest, in the absence of a counter showing, is sufficient. After the amendment is made, the pleadings must show a cause of action in the nominal plaintiff, and, to authorize recovery, the proof must establish it. Therefore an amendment which would, have the effect of substituting as plaintiff a person who, under the pleadings, would not have even an apparent right to sue, should be refused. This is the holding of the Supreme Court in Mitchell v. Railway Co., 111 Ga. 771, 36 S. E. 971, 51 L. R. A. 622 (2), and in Norwich Union Insurance Co. v. Wellhouse, 113 Ga. 970, 39 S. E. 397. The contention of the defendant in error that these decisions negative the privilege of an original plaintiff, who has-not the strictly legal right to sue, to amend by substituting in his-stead and for his use a plaintiff who has the apparent legal right,, is not well founded. In this view, the court did not err in refusing the amendment wherein the plaintiff sought to substitute two-separate and distinct plaintiffs, suing for his use, but did err in refusing the amendment offering to substitute the Brunswick & Western Bailroad Company alone.

The proposition announced in the second headnote, being well settled, needs no discussion.

The court ought to have sustained the plaintiff’s demurrer to-that paragraph of the plea which set up redelivery; and, in the absence of an amendment, that much of the defense should have-been stricken. In such a plea the defendant should allege, with such reasonable certainty as he may be able to do, the time and place of redelivery, the person to whom made, and the amounts-delivered in each installment, if the delivery was by installments. If for any reason these facts can not be set up in detail, the plea should show the court some excuse for failure of strict compliance.

Where the reviewing court finds reversible error in the rulings of the trial court as to the initial pleadings, it is not usual to look further into the record for the consideration of errors assigned. to rulings upon the trial, since a new trial necessarily results. See Cagle v. Shepard, 1 Ga. App. 192, 57 S. E. 946, and cases cited. Counsel for defendant in error in their brief have argued as to what they consider errors made against them by the court in ruling on the demurrer to the plaintiff’s petition; but, in the absence of a cross-bill, these matters are not properly before this court. Judgment reversed.


text:
    356.
    Austin v. Ferst’s Sons Company.
   Russell, J.

1. All exceptions to petitions and pleas shall be taken at the first term. If a plaintiff’s petition is insufficient in law, or for any reason is not sufficiently full to enable the defendant to plead thereto, the defendant must make his objections at the first term, or he will be held to have waived any objection which can be cured by amendment.

2. There was no error in allowing the plaintiff’s petition to be amended by adding the name of his counsel. Currie v. Deaver, 1 Ga. App. 11, 57 S. E. 897; Gillis v. Atlantic Coast Line R. Co., 127 Ga. 678, 56 S. E. 1003.

3. The failure to pass an order allowing an amendment was immaterial, when the trial judge, in his order overruling a demurrer, used the language: “The demurrer is overruled after amendment allowed; ” the amendment proposed being clearly stated in writing, fully entitled in the cause, and signed by counsel, and the only omission being the signature of the judge. When the paper containing such an amendment has been entered upon the minutes, and such minutes have been approved and signed by the judge, the writing is fully identified, and the amendment authorized.

4. There was no error in allowing the petition to be amended by adding thereto the name of the plaintiff’s attorney, nor by alleging that the account was due and unpaid, and that the defendants were a partnership composed of named individuals. Perkins Co. v. Shewmake, 119 Ga. 617, 46 S. E. 832. The words “M. Eerst’s Sons and Company” do not import a corporation.

5. Evidence that the defendant admitted that the account sued upon was correct is not rebutted by the defendant’s plea, although sworn to. The pleadings only form the issue. Admissions therein contained may be used against the party making them, but affirmative statements made by him in his own behalf have no probative value, when in conflict with sworn testimony delivered on the trial. The proof submitted was sufficient to prove the correctness of the plaintiff’s account.

6. The charge of the court was not, for the reasons assigned, erroneous.

Judgment affirmed.

Complaint from city court of Nashville — Judge Peeples. October 6, 1906.

Submitted May 14,

Decided May 24, 1907.

Hendricks, Smith & Christian, for plaintiff in error.

J. O. Sirmans, Buie & Knight, contra.


text:
    367.
    SOLOMON v. THE STATE.
    1. Taken in connection with the charge on the same subject, it is not: error to state, in ruling upon the admissibility of testimony relative . to dying declarations, that “the rule is this, the meaning of the law is this: that when a man feels like he is in a dying condition and makes, a statement, it has the same weight as if made under oath; upon the-theory that a man in a dying condition would not misrepresent a fact.”
    2. Under the evidence submitted, the law of voluntary manslaughter should have been given in charge to the jury, and the jury were properly instructed upon that subject by the trial judge. “Minor verbal inaccuracies in the charge, not calculated to mislead the jury, do not constrain the grant of a new trial.” Moody v. State, 1 Ga. App. 772, 58-S. E. 262.
    3. The ground of the motion for a new trial, predicated upon alleged newly-discovered evidence, presents no reason for setting aside the verdict, and does not commend itself to favorable consideration. When the affidavits filed in connection with this ground are considered, no-reason is afforded for believing that on another trial a different result would or should be obtained.
    4. The numerous grounds of the motion for new trial not specifically treated by the rulings above announced disclose no reason for reversing the judgment refusing a new trial.
    Conviction of manslaughter, from Pulaski superior court— Judge Parker. December 29, 1906.
    Argued March 21,
    Decided May 24, 1907.

      A. C. Pate, Marion Turner, Shelby Myrick, for plaintiff in error.

      E. D. Graham, solicitor-general, contra.
   Russell, J.

Mark Solomon was indicted for the offense of murder, and was convicted of the offense of manslaughter. After conviction a motion for new trial was made and was overruled;, and the bill of exceptions assigns error upon the judgment refusing a new trial. As appears from the record, the defendant and one Oscar Newman had an altercation on the night of November 15, 1885, in which Newman was cut in the side; and Newman died •three days later from the effects of the wound. They were returning home along the road after having called on some young girls. Newmán was about eighteen years of age, Solomon perhaps .a little younger. A dispute arose about an apple which Solomon or Newman had given to one of the .young ladies that evening, "both of them having given an apple to the same young girl. Four • of the young men were going along the road together, — -Newman, ■ Solomon, Henry Dixon, and J. T. Grimsley. Grimsley had given .an apple to Newman, and he asked Newman what-he did with the apple he gave him. Newman replied, “I gave it to my girl.” 'The defendant remarked that a respectable girl would not take an apple from a young man. Newman then said, “Yes, I’ve given her baskets full.” Solomon again said- that no respectable young lady would take an apple from a young man. Newman said, “My sisters are respectable.” Then Solomon said, “You must be a dam fool,” and Newman struck Solomon across the shoulders with a •walking-cane. As he did so, Solomon made a back-handed lick, .as they were walking side by side. As soon as the lick was made, Newman said, “Boys, he has cut me.” They were at the fence where Newman turned off'to go through the field. Dixon and ■Grimsley went with Newman through the field. The defendant went on home. Newman had gone only a little way in .the field before he had to lie down. Help was summoned from his home, .and he was carried there. Newman said, “He has cut me.” Sol- - onion picked up a limb' lying in the road and drew it back and said, “If you haven’t enough, I’ll give you enough.” The cane with which Newman struck Solomon was a little limber cane about the size of a finger. It was not a stick that one could kill another •with. Newman lived three days and three nights.

According to the witness Grimsley, Dixon and himself were walking together, and the defendant and the deceased .were also walking together; but the evidence does not disclose which couple was ahead of the other. The first thing that attracted Grimsley’s attention was that Solomon called Newman a “damn fool,” and all ■■stopped. The next thing that occurred was that Newman struck 'Solomon with the little walking-cane, and the next was a backhanded lick from Solomon, and Newman’s exclamation that he was cut. Grimsley did not see any knife. Awas at night, and, -though the moon was shining, it was cloudy.* The State proved the dying statement of the deceased, by Jesse Newman, his father. This statement was as follows: “You heard me and Dixon as we were going down to Mrs. Jesup’s. You heard me shaking the apples off the trees. I gave one to one of the girls. On the return back home Mr. Solomon got in a dispute about it. He ran under me and cut me. As he cut me I struck him with that little cane.” The wound was in the abdomen of the deceased, about opposite the navel and about two inches long, ranging downwards. It did not go straight in. This is the case on the part of 'the State. The defendant’s statement was, that the deceased struck him with a stick, and that he then reached down and took up a limb and drew it back at the defendant, who was approaching him with his knife drawn, having pulled it from his left-hand pocket; and that he, Solomon, hit Newman over the head with the limb, and Newman ducked down, and as he went down he said, “I am cut;” and then Newman got up, shut his knife up, and put it in his pocket. Solomon’s contention about the knife was that if Newman was cut he cut himself.

The defendant was indicted shortly after the killing, but for some reason, not disclosed by the record, he was not tried for more than twentjr-one years. He moved for a new trial, upon various grounds. In the first assignment of error it is insisted that the judge erred in saying, in the presence of the jury, while ruling upon the admissibility of certain testimony relative to the dying declaration of Oscar Newman, “The rule is this, the meaning of the law is this: that when a man feels like he is in a dying condition and makes a statement, it has the same weight as if made under oath; upon the theory that a man in a dying condition would not misrepresent a fact.” It is insisted, that this language contained an erroneous statement of the law as to the weight and effect of a dying declaration, and was calculated to impress the jury that the deceased would not misrepresent the facts of the difficulty which occurred between him and defendant; and that the statement of the court amounted to an expression of opinion, in the presence of the jury, upon the evidence. We do not think that the assignment of error is well taken. The court correctly stated the reason underlying the admissibility of dying declarations. There was no expjBssion or intimation of opinion as to wha!' weight the jury shopd give the evidence, in saying that such state -mente are admitted “upon the theory that a man in a dying eondi-tion would not misrepresent a fact.”

The second assignment of error complains that the court charged ■the law of voluntary manslaughter, and read to the jury, as a part -of the charge on that subject, section 65 of the Penal Code. The plaintiff .in error insists that the court, by reading the entire section, gave the jury the impression that voluntary and involuntary manslaughter were one and the same thing, and could have prevented the jury from bringing in a verdict of involuntary manslaughter; and the plaintiff in error insists further that the judge should not have charged upon the subject of voluntary manslaughter at all. This assignment is absolutely without merit. All the evidence in the ease shows a sudden quarrel; and not to have charged upon the subject of voluntary manslaughter would have been manifest error. It would have been more proper to omit the •definition of involuntary manslaughter, contained in section 65; .as no view of the case rendered a charge upon involuntary manslaughter applicable; but the error, if any, was certainly harmless.

There is no merit in the third ground, in which exception is taken to the charge of the court. The portions of the charge excepted to in the fourth, fifth, and sixth grounds of the amended motion are correct presentations of principles of law applicable to the facts of the case. The charge excepted to in the fourth ground was as follows: “If they (the facts and circumstances surrounding the case) .were such as to excite the fears of a reasonable man that some bodily harm, less than a felony, was imminent, and the defendant killed the deceased under these circumstances, he would be guilty of voluntary manslaughter.” The fifth ground complains ■of the following charge: “I charge you further, that if you find that the difficulty between the defendant and the deceased was brought about by the defendant cursing the deceased, that the deceased thereupon struck him with a stick — a small stick, — that the stick did not make a sufficient blow to be disproportionate to the insult given, and that thereupon the defendant stabbed and Tilled the deceased, he would be guilty of murder.” The charge complained of in the sixth ground was given in connection with instructions upon the application of the rule of reasonable doubt, and, considered in connection with the rest of the charge, was beneficial, rather than hurtful, to the defendant. The language complained of was as follows: “If you are not satisfied of his guilt of the crime of murder, then consider, under the rules of law which I have given you in charge, as _ applied to the evidence, whether the defendant is guilt}* of voluntary manslaughter; and if you are satisfied that he isj then it would be your duty to so find. The punishment for voluntary manslaughter is confinement in the penitentiary for not less than one, nor more than twenty years. If you should not be satisfied to a moral and reasonable certainty, and beyond a reasonable doubt, that the defendant is guilty of the offense of murder, then you look to the law as given you in charge, and the testimony as you have heard it from the witness stand in the case, and see whether or not the defendant is guilty of the lesser offense of voluntary manslaughter; and if you find, to a moral and reasonable certainty and beyond a reasonable doubt, that he is, then the form of the verdict would be, ‘We, the jury, find the defendant guilty of voluntary manslaughter.’” The error assigned as to these extracts from the charge was that a charge upon the subject of voluntary manslaughter was not warranted by the evidence; and, as we have stated above, a consideration of the evidence satisfies us that there is no merit in these exceptions.

The seventh ground of exception is because the court charged the jury, “If you are satisfied of the guilt of either of these offenses, then the form of your verdict would be, ‘We, the jury, find the defendant guilty.’” Not to have instructed the jury as above quoted would have been error, and consequently there is no merit in the assignment of error.

The eighth ground of the motion relied upon the newly-discovered evidence of R. S. Manning, as appears in two affidavits, both dated November 6, 1905, which are as follows: “Personally appeared before me, the undersigned, an officer of the said State, authorized by law to administer oaths, R. S. Manning, who, on oath, says, that he knew Oscar Newman before he died, and was at Oscar Newman’s home on Monday or, Tuesday before the Wednesday on which Oscar Newman died; that at that time Oscar Newman told deponent that he, Oscar Newman, did not know whether Mark Solomon cut him or whether he cut himself, as his knife was open in his pants pocket at the time of the difficulty with Solomon.” The second affidavit wa.s as follows: “Personally appeared before me, tbe undersigned, an officer of said State, authorized by law to administer oaths, E. S. Manning, who, on oath, says, that he knew Oscar Newman before Oscar Newman died, and was at his home Monday or Tuesday before he died on Wednesday. That the de-' ponent examined Oscar Newman’s clothes, to see where the knife which caused the wound from which Newman died cut the clothes. Deponent says, that there was a hole through the inside lining of Newman’s pants pocket, which was directly over or covered the wound in his, Newman’s stomach which caused his death; that there was no cut or hole in the outside cloth of the pants; that the pants showed no other cut except the one in the lining of the pocket; that the pants were the ones that Newman wore on Sunday, and were comparatively new.” Waiving the point that Judge A. C. Pate, one of defendant’s counsel, as appears from the record, did not make the required affidavit, and that his partner could not swear that Judge Pate did not know of the facts therein contained, and for that reason the affidavits would not be admissible as evidence, we think that the ruling of the court was correct, in refusing to grant a new trial because of the newly-discovered evidence. In the first place there was conflict between the testimony of Manning and that presented by the State upon the hearing. Two witnesses swore that Manning was never at the home of Oscar Newman after the cutting, and had no opportunity to have any conversation with him or to see his pants, as he swears he did. This raised a question of veracity and called for an exercise of discretion and choice on the part of the judge of the superior court, with which an appellate court could not interfere and which it would not control, unless that discretion were manifestly abused.

Furthermore, if there had been no contradiction of the affidavit of Manning bjr other witnesses, the physical facts testified to by all the witnesses, and not contradicted b3r Manning himself, sustain the judgment of the judge of the superior court in not granting a new trial upon the newfy-discovered evidence. All of the witnesses testified with reference to the wound, that it was above the pants line, on the left-hand side of the abdomen, and ranged downward. For Manning’s testimomr to have any probative value, the wound would have had to range upward, if the hole which was discovered in the pants was caused by the same stroke as caused the death of 3'oung Newman. It is strange that, living in the same neighborhood with the parties to this case, Mr. Manning retained this information sacredly locked in his own conscience for twenty-one long years. But even now it could not produce a different result were another trial had; for if it be submitted to a jury that Mr. Manning saw a hole in the pants pocket of the deceased, whether on the right or left-hand side not disclosed, when all the testimony shows that the cut which caused the death of the deceased was above the pants line, on the left-hand side, and ranged downward, it could not affect the case. The affidavit of Manning should, at least, have disclosed whether the pocket was the right-hand or left-hand pocket. His testimony as to the statement made by Oscar Newman comes under the rule that new trials will not be granted for newlv-discovered evidence merely impeaching in its character; for Mr. Manning does not claim to have seen the difficulty any more than did Mr. Newman, the father of the deceased. His testimony, therefore, would only be admissible as a contradictory statement, made by the deceased; for the purpose of di» crediting the statement made to his father.

We find no error in the judgment overruling the motion for new trial; and being a court for the,correction of errors only, wre art constrained to affirm the judgment. The judgment must be predicated upon the record, and upon nothing else. But in view of statements made in the argument, the truth of which we admit,, we would, could we lawfully do so, award the plaintiff in error a ne\V trial. It seems to us a proper case for the exercise of executive clemency; but we have no pardoning power.

Judgment affirmed.


text:
    377.
    Stewart v. The State.
    Accusation of carrying concealed weapon, from city court of Vienna — Judge Henderson. February 23, 1907.
    Argued April 22,
    Decided May 24, 1907.

      Busbee & Busbee, for plaintiff in error.

      Watts Powell, solicitor, contra.
   Russell, J.

This case is controlled by the decision in Hughes v. State, 2 Ga. App. 29, 58 S. E. 390. Judgment reversed.


author: Hill, C. J.

text:
    75.
    ADAMS v. HAIGLER et al.

    1. No error appears in the rulings of the court on the demurrers to the pleas, except as pointed out in the opinion.
    2. The allegations of the petition were proved by the evidence introduced in behalf of the plaintiff, assuming it to be true; and the judgment granting a nonsuit was error.
    Action on bond, from city court pf Macon — ’Judge Hodges. June 12, 1906.
    Argued February 7,
    Decided May 28, 1907.

      Hardeman & Jones, for plaintiff.

      M. Felton Hatcher, for defendants.
   Hill, C. J.

Adams brought suit on a contractor’s bond against Haigler and Frey as principals and Bazemore as surety. Demurrers were filed by the defendants to. the petition, and were sustained by the trial court. On exceptions to this judgment, the Supreme Court reversed the judgment, and held that the “allegations in the original petition and the amendment seem to set forth a complete cause of action upon the bond,” and that “the petition was not subject to any of the objections set forth in the demurrers.” Adams v. Haigler, 123 Ga. 659, 51 S. E. 638. The opinion of the Supreme Court is comprehensive, and fully settles the law of the case relating to the allegations of the petition. Me do not think any profitable purpose would be accomplished by making an extended statement of the case, as that has been done by the Supreme Court. The case is now before this court on exceptions to the refusal of the court to strike certain pleas, and to the granting of a nonsuit.

The defendants filed separate answers, denying the allegations of the plaintiff, except as to the execution of the contract. Haigler pleaded: (3) That at the time of entering into that contract another contract was made by Frey and himself with the plaintiff, in which it was agreed that the plaintiff should purchase the lumber and other things necessary in the construction of the house; (4) that after the signing of the original contract it was agreed between the plaintiff and himself that they would not carry out all its terms, and it was not carried out in all its terms, in that the plaintiff agreed to buy and to furnish to him certain lumber, and the plaintiff instructed him that it was not necessary to live up to paragraph 5 of the contract, and not necessary .for him to see the architect and get a written estimate, bnt that he (Haigler) conld come to him (the plaintiff) when in need of money; (5) that it was agreed between the plaintiff and himself that paragraph 3 of the contract should not be carried out; (6) that it was agreed between them that no written direction from the architect was necessary for alterations in the plans or for extra work; (12) that in good faith he (Haigler) performed his work as far as” possible, and the plaintiff was not damaged in any amount, for he was not subjected to any loss, and he got more than his money’s1 worth. Other parts of Haigler’s pleading were stricken on demurrer. The demurrer as to the foregoing paragraphs was overruled.

Frey, in his answer, repeated the foregoing averment of Haigler as to the agreement that the plaintiff should furnish lumber, etc.,, and set up further: (4) That after the signing of the contract he (Frey), with the consent of the plaintiff and of Haigler, withdrew from “said partnership” and the contract, and was released from an}' further interest or connection therewith; and (5) that up to-the time of said withdrawal he had not failed or refused to carry out his contract, and it was at the suggestion of the plaintiff (he has learned since his withdrawal) that he gave up the contract, and. it was admitted by the plaintiff as being satisfactory that he should withdraw. A demurrer to each of these paragraphs, as well as; to the entire answer of Frey, was overruled.

Bazemore pleaded: (3) That at the time the contract attached to the petition was made he “knew of no other contract being signed between the parties thereto, and he never consented in any way to the change, abrogation, or alteration of said contract in. any wa}', nor to the signing of any other contract in reference thereto;” (4) that “he is discharged by law from any liability on said bond, for the reason that said averments in the declaration admit said contract was abrogated, altered, and changed by the parties thereto by mutual consent, and without the knowledge and consent of” this defendant; (5) that “he is discharged from liability on said bond as surety, for the further reason that said changes, alterations, and abrogations of said contract increased the risk of said defendant as suretj', and exposed the defendant to greater liability thereon, without his knowledge or consent;” (6) that he is discharged as surety because the plaintiff purchased the material used in the construction of the building, 'in violation of the contract, defendant being willing to risk the judgment and experience of the parties whose faithful'performance he guaranteed, but unwilling to accept and risk the judgment of the plaintiff in purchasing material, owing to the plaintiff’s lack of experience in •that line; (7) that he is discharged because the plaintiff violated paragraph 7 of the contract, “in that he purchased said material ■without giving five days’ notice as required thereby, and without .any notice or consent to or of this defendant;” (8) that he is discharged because the plaintiff failed to have the said lumber delivered at the proper times, which delay increased 'the cost of the '.building several hundred dollars, and which delay and purchases ■above set out increased the risk and liability of this defendant as surety, .and since the filing of this suit he has learned that the plaintiff admitted that there were such delays, and put in a claim against the parties from whom the material was purchased, for a certain sum as damages for the delay; (9) that he is discharged because the plaintiff, without his knowledge or consent, paid out money in a different way and mode from that required by the contract; (10) that he is discharged because, without his knowledge ■or consent, the plaintiff consented to Frey’s withdrawal from the ■contract, which consent increased the risk of the surety and exposed him to greater liability; (11) that he is discharged because the plaintiff accepted the house from the contractors; (12) that he is discharged because the plaintiff, in his declaration, avers that the said additions and alterations in. the plan of work were made without, being directed in writing by the architect, and without the consent or knowledge of the surety, as required by the contract, which likewise increased the risk of this defendant as surety; and (13) that he is not liable to the plaintiff in any amount, for the reason that the plaintiff has not been damaged, but has received more than his money’s worth for every expense incurred. The plaintiff demurred generally and specially to Bazemore’s • answer, .and the demurrer was overruled.

We will consider the pleas and demurrers in so far as we think the judgment of the court was erroneous thereon. The demurrer to paragraph 3 of Haigler’s answer should have been sustained; the alleged change of the contract in the particular mentioned having been the result of an agreement by all the parties thereto, as stated in this paragraph. Such consent novation could not be 'set up as a sufficient and valid defense by the contractors. The demurrer to paragraph 4 of Haigler’s answer should have been sustained. It was wholly immaterial from whom Adams, the plaintiff, purchased the lumber to be used in building the house; it having been agreed, as alleged in paragraph 3, that he should purchase the “lumber and other things necessary in the construction of the house.” Paragraph 5 of the contract provides how the contractors shall be paid, to wit, that the architect shall make an esti • mate of the material and labor put into the building during the preceding month, and this estimate shall be paid by the owner, de-ducting lo per cent, to be paid on the completion and acceptance of the work. This clause of the contract was changed by the owner and Haigler, the contractor, who continued the work under the contract, and the change was for the benefit of the contractor. A change for the benefit of the contractor and with his consent certainly could not be pleaded as a defense to his failure to complete the contract. The demurrer to the sixth paragraph of Haigler’s answer should have been sustained; it being alleged that the matter therein referred to was the result of an agreement between the parties to the contract. The twelfth paragraph of Haigler’r answer sets up no issuable fact, but is a conclusion of the pleader, and constitutes no defense. It should have been stricken.

The third paragraph of the answer of the defendant Frey should have been stricken, for the same reason that the demurrer to paragraph 3 of Haigler’s answer should have been sustained.

The demurrer to paragraphs 4, 5, 6, 7, 9, 10, 12, and 13 of Bazemore’s answer should have been sustained.' The questions made by these paragraphs of the surety’s answer are fully covered by the decision of the Supreme Court overruling the demurrers to the petition. These allegations of the petition were held by the Supreme Court not to constitute a novation of the contract so as to increase the risk of the surety and to release him from the contract. “The act of Haigler in carrying on the work was, under the allegations of the petition, not a novation, but in pursuance of the original contract. . . Bazemore’s risk as surety was not increased by any act of Adams, and . . the condition of the bond was broken by Haigler’s failure to comply with the terms of the contract.” “Haigler was allowed, with the knowledge of Bazemore, the surety, to continue the work which Frey had failed to complete. Both Haigler and Frey were under an obligation to complete the work, and it was immaterial to the plaintiff which one actually did the work. Bazemore, the surety, was surety for both, and he was alike responsible for the failure of either.” Adams v. Haigler, 123 Ga. 659, 664, 51 S. E. 638.

The decision of the Supreme Court, we think, reduced the defenses that could be made by the defendants (1) to showing that the delay in completing the work was due to the alterations and additions made by the plaintiff, and not to the fault of the contractors; (2) to any material changes in the contract not embraced in the admitted changes set out in the petition, and which were not ■consented to by the defendant Bazemore, and which increased his risk as surety. (3) The separate answer of Frey averred that the plaintiff had, with the consent of Haigler, released him from compliance with the contract. This made a sufficient defense as to him, if true. Except as herein ruled, we think the judgment of the trial court in overruling the demurrers to the pleas was right.

We think the court erred in sustaining the motion to non-suit. The question on the nonsuit is, not whether the plaintiff was entitled to recover, but whether his evidence supported the case made by the allegations of his petition. An examination of the evidence will show that the plaintiff substantially supported the allegations of his petition. The damage claimed under the contract was composed of three items: (1) The sum of $426.03, besides interest, expended by the plaintiff in excess of the contract price in the purchase of material and in the payment of labor; (2) $40, the rental value of the house between the date fixed in the contract for the completion of the house and the date when it was sufficiently completed for occupation; (3) $33.60 for additional work necessary to be done, and the material therefor, in order to complete the house in accordance with the contract. In support of these items the plaintiff introduced the contract and bond sued on, and showed, by his own testimony and that of his architect, that the contractors commenced work under the contract. In a few daj'S one of the contractors, Frey, abandoned the work without the consent of the plaintiff, and the other contractor, Haigler, continued under the contract. He could not get credit for the material, nor could be pay for the labor, unless Adams would agree to be responsible. It was agreed between Adams and Haigler that Adams would furnish, the money to meet the pay rolls and would pay the bills for the material whenever they were approved by Haigler. The payments made by Adams for material and labor, according to the evidence, exceeded the contract price by $426.03. There seems not to have been any proof submitted by the plaintiff in support of his claim for $40 as the rental value of the house for the month he was delayed in getting into it. The item of $33.60, covering additional work and materials necessary to complete the- house in accordance with the terms of the contract, was proved by the testimony of the architect and of the plaintiff. The evidence introduced in behalf of the plaintiff, assuming it to be true, proved his case as laid, except as to the item of $40 above mentioned; and it was error to grant the nonsuit.

Judgment reversed..


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    82.
    FERRY & COMPANY v. MATTOX & TURNER.
    1. Judgment against a partnership binds not only the firm property, but, when that is exhausted, it binds the individual assets of the partners served. A judgment need not be rendered against the individual members of a partnership in order to bind individual assets. “A judgment ■against a copartnership binds not only the partnership property, but also the individual property of each member of the same who has been served with the process; but it does not bind, and execution issuing thereon can not be levied on, the individual property of one not served.” Ells v. Bone, 71 Ga. 469.
    ■2. A partner’s separate property is bound alike.by all judgments against him, whether they be judgments against him as an individual or judgments against him as a partner. As to the proceeds of partnership property, an equity among the partners themselves requires that this property be applied'first to the payment of partnership debts, and it works in such a way as to give debts against the partnership a preference over debts against a partner, in respect to that partner’s interest in the partnership effects. Hoskins v. Johnson, 24 Ga. 630.
    .'3. Service on a partner is service on the firm. Notice to a partner is notice to the firm.
    Certiorari, from Elbert superior court — Judge Holden. April 2, 1906.
    Submitted February 11,
    Decided May 28, 1907.

      Z. B. Rogers, for plaintiffs. I. C. VanDuzer, for defendant.
   Russell, J.

Suit was brought in a justice’s court by D. M. Terry & Co. against the firm of Mattox & Turner. The summons was directed to the firm of Mattox & Turner. There was an -acknowledgment of service in these words: “I acknowledge service on the within summons, and waive all other service of any kind. [Signed] Mattox & Turner, per J. R. Mattox.” This was the only service of the summons that was ever had. When the ease came on for trial before the justice of the peace, that magistrate entered up judgment against the firm of Mattox & Turner, .and against John R. Mattox and M. W. Turner as individuals. Mattox & Turner certioraried to the superior court, and the judge •of the superior court overruled the certiorari and denied a new trial, but, in doing so, rendered a judgment finally disposing of the •case, to which D. M. Ferry & Co. excepted. The judgment of the judge of the superior court overruled the certiorari, but corrected the judgment entered by the justice of the peace upon the verdict •of the jury, so as to make it bind,,nothing but the partnership assets (if any) of Mattox & Turner. His judgment was as follows: •'“After hearing the within certiorari and argument thereon, and .after considering the same, it is ordered that the same be refused and a new trial of the case be denied. It is ordered, further, that the plaintiffs recover of the defendants, Mattox & Turner, the sum •of-dollars, costs of this proceeding. It is ordered that the judgment rendered in the justice’s court have the effect of binding ■the partnership assets of the firm of Mattox & Turner, and that '.said verdict and judgment operate only against said assets, and that portion of the judgment against J. R. Mattox and M. W. Turner ns individuals is stricken from said judgment.” The plaintiffs in error except only to that portion of the judgment which orders "that the justice’s court judgment operate only against assets of "the firm of Mattox & Turner, and strikes J. ' R. Mattox ;and M. W. Turner as individuals from the judgment. The defendants in error, who were the petitioners in the petition for certiorari, have not filed any cross-bill of exceptions, and hence we have only two questions to decide: (1) Did the court err in adjudging that the judgment against a partnership should bind only partnership assets? (2) Did the court err in striking that portion ■of the judgment rendered against J. B. Mattox and M. W. Turner .as individuals?

We think that the court erred in declaring in his final judgment that the judgment rendered previously in the justice’s court should only bind partnership assets. It is well settled that, when partnership assets are exhausted, the individual property of the partners served becomes liable for partnership debts. This is true even if there be no service on all of the partners. As to the second question, we think that the court erred in part, and that his judgment was partly right. There was no error in ordering that M. W. Turner be stricken from the judgment, because he was not served with copy summons, nor did he acknowledge service; but we think that the judgment should bind the property of J. It. Mattox, and that it was error to strike the portion of the judgment binding him as an individual. Service of a partner is always good service of the firm, and notice to a partner is always notice to the firm. The acknowledgment of service, which we have quoted above, was in reality a personal acknowledgment of service by Mattox, though signed “Mattox & Turner, per J. E. Mattox.” He had notice of the suit. He appeared and pleaded to it. He is bound by the judgment. The plea is in the following words: “And now comes J. E. Mattox, a member of the firm of Mattox & Turner, and for plea and answer to the above suit says (1) that the said firm of Mattox & Turner is not indebted to the plaintiff in the manner and form alleged or in any manner whatever; that said Mattox & Turner is not indebted to the plaintiff in any sum whatever.” And the affidavit to the plea was made by J. E. Mattox. The words “a member of the firm of Mattox & Turner” may be treated as surplusage, and that leaves it merely a plea made by Mattox. But even if he acknowledged service as a member of the firm, and only pleaded in behalf of the firm, he had notice of the suit, was in court, and not only took no steps to protect himself against the judgment, but did not even except thereto by certiorari. The question of amending the judgment was not before the superior court. It was not one of the complaints made by the petitioner, and no errors except those brought to the attention of the court can be corrected on certiorari. We think it extremely doubtful, for this reason, whether even Turner’s name could have been stricken from the judgment; but, as there is no insistence as to him, we will assume that it was proper to relieve him from the binding force of the judgment. But as to Mattox the case is different. In the entire litigation he was not only personally participating in the proceedings, but he was in reality the partnership’s only representative. Neither as a partner nor as an individual can he be heard to complain of the judgment in the justice’s court; and, not having complained, the judge of the superior court unnecessarily afforded him a relief he had not asked.

Judgment reversed.


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    303.
    BEDINGFIELD & CO. v. BATES ADVERTISING CO.
    1. While it is error to strike an entire plea when any portion thereof is good, still an answer of the defendant may properly be stricken when the denials contained in the answer to a petition filed in orderly and distinct paragraphs are entirely inconsistent with the admissions made by him in the same connection.
    2. Where a defendant denies the allegation of indebtedness on an account sued on, but at the same time admits all of the averments of the plaintiff’s petition necessary to constitute such indebtedness, the admission, and not the denial, must prevail, as pleadings are to be taken most strongly against the pleader.
    3. Where a petition sets forth a cause of action in orderly paragraphs, and the plea and answer thereto set up no ground of defense, the court may, at any stage of the trial, give the case such direction as will disregard the plea.
    Complaint from city court of Macon — -Judge Hodges. September 8, 1906.
    Argued May 1,
    Decided May 28, 1907.

      Nottingham & Cabaniss, for plaintiffs in error.

      Steed & Ryals, contra.
   Russell, J.

The Bates Advertising Company sued Bedingñeld & Co. for a balance of an account arising upon a written contract. The defendants except to the striking of their answer on demurrer; and the only question for our consideration is whether the judge of the city court erred in sustaining the demurrer.'

The Bates Advertising Company, in its petition, averred that Bedingñeld & Co. were indebted $135 and interest, upon an account and contract. Attached to the petition were a bill of particulars and the contract relied upon. The bill of particulars specified that Bedingñeld & Co. were indebted for “services rendered on mail service work (cancellation clause at the rate of $15 for ■-each piece), $180,” and were entitled to credit for payments of .-'$15 December 30th, January 30th, and February 27th, respectively, making $45 in all, and leaving-a balance due of $135. The plaintiff also attached, as part of its petition, three letters received from the defendants, inclosing the above payments, in one of which the inclosure is referred to as “being this month’s payment for -services rendered,” in another as “being second payment of our account,” and in the third and last letter the inclosure is described as “third payment on our contract.” The cause of action was predicated upon the contract, which was specially pleaded and ■attached to the petition, together with a letter from the defendants, availing themselves of a conditional release provided for in the -contract. The order or contract relied upon by the plaintiff (and -admitted by the defendants in their answer) is as follows:

“Macon, Ga., Oct. 24, 1904.
“The Bates Advertising Company, Spruce and William Sts., New York City. Gentlemen: — You may enter our order for a .special advertising service to be sent out 12 times during a period of 12 months to a list of 3,000 names. This service is to consist ■of a special business-getting plan covering 12 mailings; all these mailings to be fac-simile tj^pewritten letters, large illustrated •cards, or special illustrated folders, at your discretion. The price •of service to be $80 per month for a period of 12 months. It is understood that the order of mailing and the character of matter is to be whatever in your own judgment will produce the best re- ■ suits. It is understood that all reading matter, sketches, designs, .and dummies are to be submitted at one time for our approval or ■criticism. Should we for any reason decide at this time not to proceed further with the work, we are to be released from this ■order, on condition that we return all matter and designs to you within 10 days and pay for the work at the rate of $15 for each form of,letter, card, or folder. It is understood that the above price includes the formulating of the business-getting plan, the preparation of reading matter, making designs, making necessary ■electrotypes, printing all matter, folding (in the case of letters, inclosing in envelopes and sealing), addressing and fixing of -stamps (but does not include postage), and mailing. If matter is to be mailed from our office, these prices are f. o. b. cars, New ’York. This price does not include letter-heads and envelopes, which, will be furnished from our regular stock, but does include-inserting individuals’ names at- the heads of the letters.
“Yours truly, [Signed] Bedingfield & Co.”

Under the clause allowing a conditional release, the defendants,, on December 6, 1904, wrote the plaintiffs: “We fear that the expenditure involved in getting out the circulars as contemplated', by you in the sketch submitted to us would be larger, after figuring the postage, etc., than we feel warranted in expending! We-will- therefore pay you for the sketches submitted at the price stipulated in the contract.”

. The defendants denied indebtedness in any sum, but admitted that they entered into the contract above set forth. They specially pleaded that the plaintiff did not furnish them with letters- and advertising matter specially designed for them, or specially designed by Mr. Charles Austin Bates. The answer insisted that; the matter furnished the defendants was of like character and kind with that furnished to other parties with whom the plaintiff had contracted. The defendants further admitted that they decided and elected not to proceed further under the contract, and. averred that the forms submitted to them were of such nature and character that they did not feel warranted in expending the large-sum necessary to mail them to their customers. They averred that'on December 6th, at the time they declined to proceed further with the advertising scheme, they had not had opportunity to thoroughly investigate the character of the matter submitted to them by the plaintiff, other than to see that the same was of poor quality and not the work the plaintiff had contracted to furnish. ' The-defendants admitted the contract, the submission of specimen, and the payments, and admitted writing all the letters attached to the-plaintiff’s petition, but insisted that the letters were not special letters prepared for their exclusive use, and especially that they were not prepared by Charles Austin Bates, and asked to recoup the $45 paid by them. The only ground of defense set up by the defendants, then, was that the plaintiff failed to comply with the terms of the contract, in that the form submitted had not been specially prepared for defendants by Charles Austin Bates. -

The plaintiff demurred to this defense, as variously repeated in the fourth, fifth, sixth, seventh, ninth, and twelfth paragraphs of’ the answer, bn the ground that the provisions embodied in the-defense, not being expressed in the written contract and being in conflict with it, constituted an attempt to add to, vary, and contradict by parol the terms of a valid written instrument. Upon inspection of the pleadings we think there can be no question that this ground of the demurrer was well taken and properly sustained. The answer does not seek to reform the contract (and, indeed, the city court had no jurisdiction to do so); nor does it set up that there was any fraud, accident, or mistake; nor does it allege that the provisions sought to be added were embodied in a written contemporaneous agreement or in a subsequent parol agreement, or that the written contract is either incomplete or ambiguous. The provisions which the answer sought to add are in conflict with the written contract, which distinctly provides that the character of the matter is to be whatever in plaintiffs judgment will produce the best results, and there is nothing in the contract providing that “matter of like character and kind” should not be furnished by plaintiff to others, nor that the matter furnished to the defendants should be the work of Charles Austin Bates. These new and dis- ■ tinct provisions were limitations on the rights of plaintiff under the contract, and could not be added without reforming it.

The plaintiff also demurred on the ground that the answer distinctly admitted that the reading matter and sketches for designs were submitted to the defendants for approval, and the work was approved and accepted and agreed to be paid for at the less price under the contract; the defendants electing the smaller price on account of the expense, and thereby waiving any defects which had been discovered. In the seventh paragraph of the answer, notice at the time of submission of the character of the work is admitted, because it is averred that the defendants saw that the work was of poor quality, and not of the kind the plaintiff had contracted to furnish. We think, therefore, that as to this ground the demurrer was properly sustained. It is true that the answer denies acceptance, but it clearly admits all the facts necessary to constitute an acceptance, to wit, the submission of the matter for approval and the writing and sending of the letter making the election and giving the reason why they preferred to pay $180, rather than $960. The defendants’ - denial of acceptance being inconsistent with the facts admitted by them, there was no error in striking on demurrer that portion of defendant’s plea. “Where .a defendant, in his answer to a petition filed in orderly and distinct paragraphs, . . . does not undertake to deny allegations in the petition which are entirely inconsistent with the truth ■of the denial set up in the answer, and the plaintiff moves to strike the answer on this ground, it is not error for the court to strike the answer after giving the defendant ample opportunity to amend the same.” Burns v. Condon, 108 Ga. 794, 33 S. E. 907. “The defendant could not both admit and deny its allegation of its indebtedness to the plaintiff on the account sued on; and, as its pleadings are to be taken more strongly against it, it is the admission, and not the denial, which must prevail.” Williams Mfg. Co. v. Warner Refining Co., 125 Ga. 411, 54 S. E. 96.

The plaintiff further demurred to the answer, as we think properly, upon the ground that the defendants, after admitting the writing of the letter of December 6th, attempt in their answer to set up other reasons for declining to go on with the service than that expressed in their letter. It seems to us that the reason why they agreed to pay the very amount for which they are being sued would be immaterial in any view of the case; but, however this may be, as they admit the letter, they are estopped from setting up other reasons not assigned in that letter. Fenn v. Ware, 100 Ga. 563, 28 S. E. 238; Cowdery v. Greenlee, 126 Ga. 786, 55 S. E. 918 (1). “Where a party gives a reason for his conduct and decision touching anything involved in a controversy, he can not, after litigation has begun, change his ground and put his conduct upon another and different consideration. He is not permitted to thus mend his hold. He is estopped from .doing it by a settled prin-eiple of law.” 2 Herman on Estoppel, 947.

The demurrer to the answer on the ground that the defenses “that the sketches submitted were not made by Charles Austin Bates, and were not specially made for the defendants, were insufficient in law, was properly sustained, because the defendants’ admission showed that under the election made by them the sketches submitted were to be returned to the plaintiff at the end •of ten days, and under the election it was immaterial whether these ■sketches were the work of Bates, or whether they were similar in character to other sketches sent out by the plaintiff. We see no error in sustaining the special demurrers to which we have referred; and when the special defenses had been thus stricken, as-there was nothing left in the answer except denials inconsistent with the admissions, these, too, could properly be stricken, under the principles so clearly announced in the Williams case, 125 Ga. 408, 54 S. E. 95, to which we have previously referred, and the judgment rendered was an inevitable consequence.

We find no error in the rulings complained of. Neither rescission nor recoupment was properly pleaded; and, indeed, neither could be pleaded, under the admissions made by the defendants. The defendants, according to the answer, got nothing for their' money; but, if they were bitten by an empty scheme, it was their own fault. They admit the contract, the submission of the-sketches, and the letters confirmatory of the first contract and affording evidence of the second. They expressly accepted the work, at the price stipulated in the contract. They filed no plea of failure of consideration. The litigation reached its only, legitimate-termination.

Judgment affirmed.


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    338.
    ROUSCH v. GREEN.
    1. An appeal is a de novo investigation, and should not he dismissed because of the absence of either party to the cause. The action may be; dismissed for such absence and failure to prosecute the case on the part-of the plaintiff, but the appeal can not he dismissed for that reason.
    2. Consequently, where judgment in favor of the defendant had been rendered by a justice of the peace, and the case had been appealed to the¡ superior court, it was error, for non-appearance of the plaintiff, to dismiss the appeal, order an affirmance of the judgment in favor of the defendant, and enter judgment for costs against the plaintiff.
    Appeal, from Jones superior court — Judge Lewis. October 16, 1906.
    Submitted May 13,
    Decided May 28, 1907.

      R. Douglas Feagin, for plaintiff.

      Johnson & Johnson, for defendant.
   Russell, J.

Rousch brought a complaint on a note against Thomas Green. Green filed a plea of non est factum, and other-pleas in addition thereto. On the trial of the case before the justice, a judgment was rendered in favor of the defendant. The plaintiff appealed the case to the superior court. When the case was called in its order in the superior court, neither the appellant nor his counsel was present. The defendant announced ready and made a motion to dismiss the appeal'; and thereupon the court granted the following order and judgment: “Jones superior court, October term, 190(h The within case having been called in its regular order, and there being no appearance for the appellant, it is ordered, upon motion of the defendant, that the appeal he dismissed, the judgment of the lower court be sustained, and that defendant recover of plaintiff all costs of this suit to be taxed by the clerk.” The plaintiff (now plaintiff in error) excepts to this judgment, and alleges that the court erred in entering up the judgment and order above set forth, and in dismissing the appeal, and in ordering the judgment of the justice’s court affirmed at plaintiff’s cost.

There is but one question presented for adjudication, and that is whether the defendant in a case pending on appeal has the right to dismiss the appeal, or is restricted to a motion to dismiss the case. The objection of the plaintiff in error is limited to this one question, for the reason that there can not he any error in the judgment of the superior court in affirming the judgment of the justice’s court, if the defendant had the right to dismiss the appeal; for, if so, the law itself would affirm the judgment of the justice’s court. This has been held in Fagan v. McTier, 81 Ga. 75, 6 S. E. 177; and the same principle is embodied in the concluding portion of section 4470 of the Civil Code of 1895. We think the judge of the superior court erred in dismissing the appeal on the motion of defendant’s counsel. Although it is true that the appeal merely suspends judgment, it is nevertheless true that the appeal is a proceeding de novo. So far as concerns the opposite party (the respondent), the present case, when appealed, was an original suit on the, promissory note, brought ip the superior court. As such original suit, and thus considered, when the plaintiff failed to appear'the defendant could do nothing except move to dismiss the action; and, the appeal making the case in the justice’s court stand in the same relation to the respondent as if the case had been brought in the superior court and had never been tried, the defendant’s rights were no greater than if that had been originally done.

Counsel for defendant in error urges that, if the defendant’s only remedy is to dismiss the ease on appeal, such a rule would be harsh and unjust, because the plaintiff, in that event, could renew his action, and'the judgment of the justice would become a nullity. The learned counsel for defendant in error asks: “How can a defendant-in a case like this ever get any benefits from the judgment in the-lower court, if he is 'forced to dismiss the case on appeal?” And he then proceeds to argue: “All the plaintiff would have to do would be to remain away, and thus either force the defendant to dismiss the case on appeal or await his pleasure for trial. The plaintiff can keep on litigating, and worry the defendant until the statute bars him.” Even if this be true (though it is not usual for plaintiffs to prosecute fruitless suits), we can only follow the law. By the Civil Code, § 4469: “An appeal to the superior court is a de novo investigation. It brings up the whole record from the court below, and all competent evidence is admissible on the trial thereof, whether adduced on a former trial or not. Either party is entitled to be heard on the whole merits of the case.” The judgment appealed from is in no legal sense final. Until the appeal was disposed of, the ease was undetermined, and there could be no final judgment on the merits. The appeal opened the case "to a full hearing on all the issues made. Its effect was to suspend the first judgment.” Had the judgment been for the plaintiff,'it would have “bound the property-of the defendant to no greater extent than to prevent its alienation between that time and the signing of the judgment on the appeal.” Williams v. McDaniel, 77 Ga. 6. By the provisions of the Civil Code, §-4471, “no person shall be allowed to withdraw an appeal after it shall be entered, but-by the consent of the adverse party,” and, except for defects in the appeal proceedings, this is the only .provision for dismissing an appeal. If the appeal is properly in court, and all the requirements of law with relation to appeals have been complied with, and there is no defect as to time, bond, sureties, etc., the appeal can not be-dismissed by the opposite party, except upon the same terms as any other action originating in the court. And'we fail to see any peculiar hardship'in this. The defendant on the appeal, if he is the respondent, can move to dismiss the case* and it is true it can be brought again. If the cause was an original action, all the defendant could do would he to dismiss the ease, and it, too, could be brought again. It is true that, so far as our investigation extends, in all the cases in. which the Supreme Court has held it to be error to dismiss the appeal, the defendant was the appellant. But this does not alter the rule. The reason why in any case it is error to dismiss such an appeal is that both parties have the same right (if the case is properly in court) to be heard upon the merits as if it had never been tried.

The only reason.the defendant in error gives why it should be otherwise is that if he had moved to dismiss the ease, and it had been dismissed, the plaintiff could sue again, whereas, if the appeal can be dismissed, he would hold the judgment rendered by the justice in his favor. This would violate the express provisions of section 4469, which makes an appeal a new investigation. Without referring to numerous authorities which amply sustain our view of this subject, we think the question is fully settled in the case of Bateman v. Smith Gin Co., 98 Ga. 219, 25 S. E. 422: “Where a plaintiff fails to appear and prosecute his case, it is, of course, the right of the defendant to move to have the same dismissed for want of prosecution; and this is the only proper course to be pursued, unless there has been-filed a plea of set-off, or some other defense in the nature of a cross-action against the plaintiff. In 'that event, it might be the right of the defendant to proceed to prove his counter-claim and take judgment thereon; but, even then, the merits of the plaintiff’s cause of action would not be affected by the rendition of a judgment in the defendant’s favor upon his counter-claim.” See, also, Griffin Marble Works v. Padgett, 77 Ga. 497, 498; Central Ry. Co. v. Howard, 112 Ga. 917, 38 S. E. 338; Montgomery v. Fouché, 125 Ga. 43, 53 S. E. 767; National Furniture Co. v. Edwards, 105 Ga. 240-242, 31 S. E. 161. In Singer Mfg. Co. v. Walker, 77 Ga. 649, the exact question was decided, except that the defendant, instead of the plaintiff, appealed from the judgment of the justice of the peace; but the reason of the decision is stated, and is the same as that upon which we base our judgment.

Judgment reversed.