text:
    10840, 10841.
    GREEN v. HINES, director-general: and vice versa.

    Decided April 14, 1920.
    Under the pleadings and the facts in this ease, upon which it was sought to recover for personal injuries received in stepping from a railroad train, the verdict rendered for the defendant was demanded by the evidence; and the motion for a new trial was properly overruled.
    Action for damages; from Chatham superior court-—Judge Meldrim. June 26, 1919.
    Mrs. Janie Green sued the Central of Georgia Bailway Company. By amendment Walker D. Hines, director-general of railroads, was made defendant. The petition alleged: that the plaintiff went to the defendant’s station at Savannah, with a relative, and as she entered the car she told the conductor that she “was assisting her relative in boarding the train with her baggage, and would enter the coach with her, to which the said conductor consented, and permitted petitioner to enter the doach, knowing that it was petitioner’s purpose not to leave on said train, but to alight from the same prior to its departure;” that “for many years it had been the practice and custom of the defendant company always to sound a gong five minutes before any passenger-train departs, and so long, continued and uniform has been this practice and custom that petitioner and the public generally who may be on board the trains of said company await the sound of the gong before leaving the same;” that “while petitioner was in the car, talking briefly with her relative, awaiting the sound of the gong to advise her to alight from the train, she ascertained that the time for the departure of the train was at hand and no gong had been sounded. Without awaiting the sound of the gong, she rose from her seat, while the train was still stationary, for the purpose of leaving the ear, and started towards the back door of the car, and while approaching said door the train began to move. Petitioner found that the rear door of the car was locked and was compelled to traverse the entire length of the car to the front door in order to alight from the front platform; the train in the meantime increasing its speed. Another lady whose name is unknown to petitioner, was likewise 'caught on the train in the same manner, and hastened to the front door in order to alight.” “ As soon as petitioner reached the front steps of the car she lifted her son down off of the steps-—-the train at that time not moving at such a rapid speed as to render it dangerous for petitioner to alight. After this, having placed her son upon the ground, she endeavored to step from the slowly moving train on to the concrete platform, but because of the motion of the train, in her effort to alight therefrom, her left foot was turned and twisted, and a small bone in the instep of her foot was broken.”. Among other amendments the plaintiff alleged that she “entered the ear by the front door thereof,” and that she “remained in the coach with her relative from five to ten minutes.” The grounds of negligence alleged were: “ 1. Because the defendant company did not advise petitioner of the time for the train to start. 2. Because the said company failed in accordance with its usual and uniform custom to sound a gong, warning persons to leave the train. 3. Because the said defendant company needlessly and carelessly had locked the rear door of the car, thus preventing petitioner to alight from the same before it had gathered sufficient speed to injure petitioner. 4. Because the defendant company did not give petitioner a suitable and reasonable length of time to alight from the said train in safety.” The defendant filed demurrers both general and special, and also filed a plea denying liability. After the petition had been amended to meet certain of the special demurrers, all the demurrers were overruled and the case proceeded to trial.
    The plaintiff testified in part: that she was frequently at the station where she was injured; that “the gong always rang five minutes before the leaving time of the train;” that when she was entering the train she told the conductor that she was not going off on the train, but was there to see her sister-in-law off, and asked him if she “had. time tp go on the car and assist her with her baggage, and he said ‘yes’;” that she “entered the coach at the forward end of it; ” that this was “ some fifteen. or twenty minutes before the train was to leave;” that she sat on the arm of the seat occupied by her sister-in-law, some ten minutes or more; ” that when the car began to get crowded she took her little boy, who was with her, and went to the back door, but, finding that it was locked, turned towards the front door, and before she reached that door the conductor cried “all aboard;” that when she reached the steps the train was moving; that she put her boy off safely; that when she stepped off, the speed of the train was gradually getting faster; that as she stepped off she lost her balance and stumbled. Plaintiff also swore: “ If the back door had not been locked I would have had time enough to get off the car before the train started off. If the gong had been sounded five minutes before the train left I could have left before the train started. . Before I started to- leave the car no one had notified anyone in the car that the train was about to move. . . When I got off the car the train was moving very slowly. I am not much judge of the speed of a train. I did not think it was dangerous to step off of the car when I did. If I [had] thought it was dangerous to do so I would not have stepped off the car as I did. I used very good care, the best I knew how, in stepping off the car.”
    The conductor’s evidence was in part as follows: “I have no recollection of Mrs. Green getting on ... I do not know how long before this occasion it had been when they stopped sounding the gong, but it had been some days. It had not rung since the custom ceased. It used to ring five minutes before the departure of the trains . . . We are required to announce at the two waiting-rooms, one white and one colored, and in front of the ticket-office in the station, the leaving time of this train. The conductor does that. I' leave the train and go up to the station house and make the announcement at the places I have just stated. I did that on this day before this- particular train left. The announcement is made five minutes before the departure of the train. I was away from my train five minutes before its departure, to make that announcement. I did not see this lady attempt to get off the train after I hollered ‘ all aboard.’ I did not know that the lady was on the train and intended to get off when I called ‘ all aboard.’ I was standing near the front end of the first-class coach, the forward end, when I hollered ‘all aboard.’ I then walked to the rear of the coach and hollered ‘ all aboard’ again. I announced it twice. The train did not move immediately after I called the first ‘all aboard.’ The rear door of this coach in question was locked. That is kept locked for the reason it is the requirement of the company for safety ... It is to keep any one from getting on or off at that end of the coach with no protection at all. There is no employee of the company there at that end to look after them. After I gave the last ‘all aboard’ I stepped on the rear platform of the car. The train had proceeded just about * one car-length, one passenger-coach length, when Mr. Dick, our employee, who was standing on the outside, threw his hand up as a signal,- and says, ‘A woman is getting off,’ and I immediately pulled the bell-cord, and the train came to a stop. I saw the lady after the train stopped . . .1 did not see the lady get off, and of course I can’t say where she got off.” Other witnesses testified, but the foregoing statement embraces all the material facts necessary to an adjudication of the issues involved. The trial resulted in a verdict for the defendant. The plaintiff made a motion for a new trial, which was overruled, and she excepted.

      Oliver & Oliver, for plaintiff in error.

      H. W. Johnson, contra.
   Bloodworth, J.

(After stating the foregoing facts).

In overruling the motion for a new trial the learned judge of the trial court wrote an opinion which covers all the grounds of the motion, and which is substantially correct. That opinion is as' follows:

“The 1st, 2d, 3d and 4th grounds of the amended motion require no special consideration. Beference to the charge will show that they are not well founded. On the 5th amended ground: There was no request to charge, and even if there had been a request, it would not have been a proper charge. There was no evidence to justify the recital that the gong was broken. Some un- . known man made such a statement not under oath. The statement wás hearsay and had no probative value. Certainly I could not have charged as a fact that the company did not sound a warning of the train’s departure. There was no evidence to justify it, and the evidence of the conductor was to the contrary. Neither could I have charged ‘that the company did not intend to sound a warning of the train’s departure as it had done for many years.’ What had it done for many years? That charge which it is contended I should have given is not only confusing and misleading, but it assumed facts not proven.
. “On the 6th ground of the amended motion: I charged, ‘It must 'appear that the defendant was guilty of the alleged negligence set out in the petition, and that negligence must be shown to be the cause-—■ tide proximate cause — of the injury alleged to have been sustained.’ I further charged, ‘N-ow you take the case and without prejudice look at it. See what the truth of it is, and, if the defendant is liable in the way set out in the petition, then you would be authorized to find a verdict in favor of the plaintiff.’ I had previously charged in these words: ‘ She avers that she has sustained certain damages in the way set out in the petition, which you will have before you.’ The complaint is that I should have singled out a particular ground of negligence, and then charged that if the company was guilty of negligence contributing to the plaintiff’s injury she would be entitled to recover. I hardly think that is the law.
“The 7th ground of the amended motion cannot be considered. It is elementary that each ground of the motion must be complete within itself. This ground is singularly violative of this principle. The 8th ground complains of the strong language used in cautioning the jury to do ‘ exact justice between the lady on one side and the defendant on the other.’ Deference to the evidence shows that the case was between a lady with a sprained ankle and a soulless corporation that sees as much beauty in a crowbar as in a pretty foot. The case afforded a field where the flowers of rhetoric grew wild. The plaintiff not only had a sprained ankle with all of its horrors, but she ‘ couldn’t get a cook last summer, and had neighbors to come in and see about the children.’ Doubtless the plaintiff suffered very much from not having a cook in Savannah in the summer, but that suffering, bodily or mental, could hardly be ascribed to Mr. Hines, the director-general of railroads. Seriously, cases should be tried under the rules of law and evidence and without appeals to prejudice. No higher duty rests upon a judge than to see that a recovery is based on exact justice. Cautionary charges can only be judged of in the light of the trial. I do not think that the criticisms are well founded.
“ I do not think that the 11th and 14th grounds, both inclusive, require special consideration when the entire charge is read. In the 15th ground it is complained that I failed to charge, ‘If the conductor knew that the gong was broken.’ Certainly I should not have so charged. The only evidence on that point was the hearsay statement of some unknown man, alleged to have been made to the conductor after the accident. No charge should be given which is not authorized by the evidence.”

Under the pleadings and the facts in this case, we think the verdict rendered was demanded by the evidence, and the motion for a new trial was properly overruled.

Judgment affirmed on main bill of exceptions;

cross-bill dismissed. Broyles, C. J., and Luke, J., concur.


source: Caselaw Access Project

author: Bloodworth, J.

license: Public Domain

text:
    10939.
    HINES, director-general, v. JACKSON & CO.
    Decided April 14, 1920.
    Where live stock are shipped, under a special contract which provides, as in this case, that the shipper “will indemnify and save harmless the railway company against any and all claims of any persons against the railway company arising out of loss or damage to said live stock while being transported, except such liability as shall accrue by reason of the gross negligence of the railway company, its servants and employees,” the carrier is required only to exercise slight diligence. The exercise of such diligence was shown and the presumption against the carrier rebutted by the evidence in this case. The verdict for the plaintiff was therefore unauthorized, and the tidal judge erred in overruling the motion for a new trial.
    Action for damages; from Wilkes superior court—-Judge Walker. September 5, 1919.
    Certain mules were shipped from Atlanta, Ga., to Washington, Ga., at a special rate lower than the regular tariff rate, and under a special contract which provided that “the party of the second part, in consideration of the special rate hereinbefore provided and of the transportation of said animals as aforesaid, hereby covenants and agrees that he will indemnify and save harmless the railway company against any and all claims of any persons against the railway company arising out of loss or damage to said live stock while being transported, except such liability Us shall accrue by reason of the gross negligence of the railway company, its servants and employees.” One of the mules was found dead, with his neck broken, in the car, while at Barnett, where the car containing the mules was transferred from the main line of railway to the Washington branch. The station-agent at Barnett, who found the mule dead in the ear, testified in part as follows: “This car was not moved at all between the time it was placed on the side-track and the time it was coupled to be placed in the train going from Barnett to Washington. Between the time of arrival of the car* at Barnett and the time of its departure from Barnett it was not subjected to any rough handling. In fact it was not moved at all until coupled to and pulled in Washington-branch train by Conductor Oslin. There were no trains on this particular track while the car was stopped at Barnett. I was station-agent and was in position to observe the movements of trains had there been any.” The conductor in charge of the train from Atlanta to Barnett testified: “I made an examination of this car of live stock before my train left Atlanta, by looking at the stock from the outside of the car, and all the animals were standing and they appeared to be in good condition. I looked at the animals at every stopping place en route, and always found the stock standing and apparently in good condition. When my train reached Barnett this car was placed on the side-track and left for the Washington branch. I did not examine the stock when we reached Barnett. In the journey from Atlanta to Barnett nothing unusual took place in reference to the movement and handling of the train. Neither did my train nor the car [containing the mules] meet with any accident, nor was there any collision or derailment of the car inquired about, or of the train, or any portion of the train; nor, during the journey inquired about, • was there any unusual, violent or unnecessary movement or jerk, stop, or starting of the train. In the process of taking this car out of the train, at Barnett and placing it on the side-track at that point this car was not subjected to any rough treatment or rough handling, nor did it have any collision or derailment, nor was it started,, stopped, or jerked in any unusual, violent, or unnecessary manner.”
    There was a verdict for the plaintiff, followed by a motion for a new trial, which was overruled.

      Cumming & Harper, for the plaintiff in error.

      C. E. Sutton, contra.
   Bloodworth, J.

(After stating the foregoing facts.)

The special contract in this case is valid under the laws of Georgia, and the plaintiff is bound by its terms. Georgia Southern & Florida Railway Co. v. Greer, 2 Ga. App. 516 (2), 518 (2) (58 S. E. 782), and cases cited. “The fact that there was in the present case a special contract would not take it out of the rule, that after the plaintiff has proved that the stock were lost or injured while in the possession of the defendants the law would raise a presumption that the defendants were at fault. Such a presumption would in such a case arise, and the burden would then be placed upon the defendants to show that they had exercised the degree of diligence which the contract required. Columbus Railroad Co. v. Kennedy, 78 Ga. 653.” Cooper v. Raleigh & Gaston R. Co., 110 Ga. 664 (36 S. E. 240). What degree of diligence on the part of the defendant was required by the contract ? “ The rule of presumption against the carrier, notwithstanding said special contract, still arose, and the burden was upon the company to rebut this presumption; but the contract diminished the onerous 'character of this burden, for under its terms the carrier was required 'to exercise only slight diligence and was only liable for gross negligence. Columbus R. Co. v. Kennedy [supra]; Cooper v. R. & G. Co. [supra].” Georgia So. Ry. Co. v. Greer, supra. No evidence was introduced by the plaintiff to contradict the evidence of the defendant in reference to the care with which the train was 'handled. Does the evidence show that the railroad has exercised the diligence required of it under the contract,— slight diligence,— and thus rebut the presumption against it? We think so. This being true, the court erred in overruling the motion for new trial.

Judgment reversed.

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


text:
    10968.
    CRAWFORD v. HUNT.
    Decided April 14, 1920.
    1. “One who signs an instrument written by the opposite party at interest therein, without reading it, when he is capable of doing so, can not afterwards set up fraud in the procurement of his signature thereto, when no trick or artifice was resorted to for the purpose of inducing him to thus sign it, and it was not signed under any emergency requiring haste in its execution.” Rounsaville v. Leonard Mfg. Co., 127 Ga. 735 (2) (56 S. E. 1030).
    2. A note payable one year after date or as soon as a named estate is wound up is due one year after the date of the note, or sooner if the estate is wound up prior to that time.
    Complaint; from city court of Atlanta—Judge Reid. September 5, 1919.
    Suit was filed July 7, 1919, on a note dated June 1, 1917, and payable “one year after date or as soon as J. B. .Crawford’s estate is wound up.” A demurrer was filed by the defendant as follows: “She especially demurs to said petition because it does not allege whether or not J. B. Crawford’s estate is wound up; as suit cannot be maintained without such an allegation and proof thereof.” The demurrer was overruled. The defendant filed a plea in which she admitted the signing of the note, but denied that it was due, for the reason that she called the attention of the attorney for the plaintiff to the fact that she could not pay the claim prior to the closing up of the Crawford estate, and that he agreed that 'the note should be so drawn, and when this agreement was reached “ she left the wording to plaintiff’s attorney, he being a lawyer and familiar with the construction of legal phraseology, and never doubted but that the wording used in the note meant just what they had agreed to,— that the note should not become due until said estate was wound up.” By amendment she alleged “that the estate of J. B. Crawford has not been wound up or closed, as was contemplated by the parties it should be before said note should be due.” The judge passed the following order: “Upon motion of plaintiff’s attorney, made in open court, the within plea and the, amendment thereto is stricken except the admissions contained therein, for the reason that the same sets up no legal defense to the note sued upon.” The defendant excepted to the overruling of the demurrer and to the order striking the plea as amended.

      J. J. Barge, for plaintiff in error.

      McElreath & Scott, contra.
   Bloodworth, J.

(After stating the foregoing facts.)

The court did not err in either of its rulings on the pleadings.

1. No emergency requiring haste in signing the note is alleged, and no confidential or fiduciary relation existed between the person who drew the contract and the defendant. Indeed, the plea alleged that the note was drawn by the attorney for the plaintiff. “The parties were dealing at arm’s length.” “Where one who can read signs a contract without apprising himself of its contents, otherwise than by accepting representations made by the opposite party, with whom there exists no fiduciary or confidential relation, he can not defend an action based on it, on the ground that it does not contain the contract actually made; unless it should appear that at the time he signed it some such emergency existed as would excuse his failure to read it, or that his failure to read it was brought about by some misleading artifice or device perpetrated by the opposite party, amounting to actual fraud such as would reasonably prevent him from reading it.” Tinsley v. Gullett Gin Co., 21 Ga. App. 512 (2) (94 S. E. 892), and cit.

2. The court properly construed the words “one year after-date or as soon as J. B. Crawford’s estate is wound up” to fix the maximum limit of the maturity of the note as one year after date. Contracts must be so construed, if possible, as to give effect to all the words and clauses thereof. The only way to give effect to the two clauses relating to the maturity of the note is to construe them to mean “one year after date, or as soon as J. B. Crawford’s estate is wound up if prior to that time.” Any other construction would render the words “ one year after date ” meaningless, and postpone the maturity of the note to some indefinite and uncertain time in the future.

Judgment affirmed.

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


text:
    10971.
    PAPPA v. POPE.
    A ease was tried on August 5, and the court adjourned on August 8. A bill of exceptions was tendered to the judge on September 6, and on that day mailed by him to the attorney for the plaintiff in error, for correction. It was not returned to the judge until September 27. The certificate of the judge does not show any reason for the delay in again tendering the bill of exceptions for certification. Held, that the writ of error must be dismissed.
    Decided April 14, 1920.
    Rehearing Denied Mat 11, 1920.
    Action on contract; from Wilkes superior court — Judge Walker. August 5, 1919.
    Application for certiorari was denied by the Supreme Court.

      S. H. Sibley, W. A. Slaton, Callaway & Howard, for plaintiff.

      W. Carroll Latimer, R. C. Norman, for defendant.
   Bloodworth, J.

This case was tried at the August term, 1919, of court. The bill of exceptions recites: “And now comes the plaintiff in the time required by law and tenders to the court this bill of exceptions, and prays that the same may be signed and certified, that the errors complained of may be reviewed and corrected. This the 5th day of September, 1919.” Acting under the Civil Code of 1910, § 6158, the trial judge, on September 6, 1919, endorsed on the bill of exceptions his objections thereto, and returned it to the attorney for the plaintiff in error. (The contention of counsel for the plaintiff in error, that this is a “second certificate” by the judge to the bill of exceptions is without merit. This entry was made on the bill of exceptions more than twenty days before the certificate thereto, and can not be an “additional certificate,” within the meaning of those decisions which hold, in effect, that an additional certificate following the one required by statute should be ignored.) A motion to dismiss the writ of error was made on two grounds, as follows: ' “1. For that it appears from the record that the bill of exceptions was not presented to and certified by the court below in the time required by law, for that it appears upon the record that Wilkes superior court adjourned on August 8th, 1919, and that the bill of exceptions was not presented to and certified by the trial judge until September 27th, 1919, more than 30 days thereafter. 2. For that it appears from the record that the bill of exceptions was presented to the trial judge on September 6th, 1919, when it was returned to counsel for plaintiff in error for correction, and that counsel for plaintiff in error did not re-present the bill of exceptions to the trial judge within a reasonable time, as required under section 6158 of the Code of Georgia, for that the same was not presented again to the trial judge for certificate until September 27th, 1919, and there appears no reason set out justifying this delay.”

In his written response to this motion to dismiss the writ of error, the plaintiff in error admits that the judge returned to him the bill of exceptions, with the judge’s objections entered thereon, and that he received it on September 9, and he alleges: that he was not able to get the attorneys representing the defendant in error to correct the bill of exceptions, and could not get the official transcript thereof from the reporter, although he made repeated efforts to do so; that on September 13 he left Georgia for Baltimore, and, returning therefrom, he reached his home on the afternoon of the 21st; that on the 23d he was compelled to go to Atlanta to argue a case before the railroad commission, and, returning, reached home on the afternoon of the 25th; that a part of the transcript was mailed to him by the stenographer on the 18th, and he received the remainder on the 25th, and that “ within 24 hours of the actual receipt by him of said record [he] had mailed to Judge "Walker a completed bill of exceptions.”

The first of the above grounds of the motion to dismiss the writ of error is based on § 6187 of the Civil Code of 1910. This section deals only with the subject of the delay of the judge 'in certifying the bill of exceptions, and not with the delay of counsel in tendering the same either in the first instance or after it had been returned for correction.” Walker v. Wood, 119 Ga. 627 (46 S. E. 870). If this ground stood alone, and the record did not show that the bill of exceptions had been returned by the judge to the movant’s counsel for correction, under repeated rulings of this and the Supreme Court it would be our duty to overrule the motion to dismiss the writ of error. Thompson v. Stephens, 138 Ga. 205 (75 S. E. 136); Hartley v. Marietta Nursery Co., 138 Ga. 736 (76 S. E. 39); Castleberry v. Parrish, 135 Ga. 527 (1) (69 S. E. 817); Clarke v. Allen, 19 Ga. App. 653 (91 S. E. 1049), and cit.

The second ground of the motion to dismiss the writ of error is based on § 6158 of the Civil Code of 1910, and presents an entirely different question. This section is as follows: “ If the judge shall. determine that the bill of exceptions is not true, or does not contain all the necessary facts, he shall return the same, within ten days, to the party or his attorney, with his objections to the same in writing. If those objections axe met and removed, the judge may then certify, specifying in his certificate the cause of the delay. If the judge sees proper, he may order notice to the opposite party of the fact and time of tendering the exceptions, and may hear evidence as to the truth thereof.” (Italics ours.) The judge in his certificate to the bill of exceptions has not complied with this positive requirement of the law. That he should do so is imperative. In Dykes v. Brock, 128 Ga. 396 (57 S. E. 700), the Supreme Court says: <£ The fact that the brief of the evidence was not correct was a sufficient reason for the judge to refuse to certify the bill of exceptions, and it was incumbent upon counsel to cause the corrections to be made in the brief of evidence, with due diligence. The corrected brief of the evidence was not presented to the judge until May 29th, which was eighty-three days after the court had adjourned and fifty-four days after counsel had been notified that the brief was' incorrect and that the judge would not sign the bill of exceptions, for this reason. The law requires that if a bill of exceptions is presented within due time, a mere failure on the part of the judge to sign the same within the time prescribed by law shall be no cause for a dismissal of the bill of exceptions, unless it should appear that the failure to sign and certify the same was caused by some act of the plaintiff in error or his counsel. Acts of 1896, p. 45; Van Epps Code Supp. § 6246 [Civil Code of 1910, § 6187]. When counsel for the plaintiff in error were notified by the judge that the brief of the evidence was incorrect, they should, within a reasonable time, have made the corrections necessary and presented the corrected brief to the judge. While the brief of the evidence was not, in the present case, a part of the bill of exceptions, it was tendered for the purpose of approval, in order that it might be incorporated in the record. A correct brief of the evidence was indispensable in the case, for the assignment of error therein could not be decided, unless the evidence came before the Supreme Court in one of the ways prescribed by law. The case, therefore, is to be determined in exactly the same way as if the evidence had been incorporated in the bill of exceptions, and was, for some reason, incorrect, and the bill of exceptions had been returned to counsel for correction. When it appears that the corrected brief of the evidence was not presented until fifty-four days after the attention of counsel was called to the fact that the brief, as presented, was incorrect, it must be held that the correct brief was not presented within a reasonable time. Walker v. Wood, 119 Ga. 624; Atkins v. Winter, 121 Ga. 75. When counsel for the plaintiff in error delay for an unreasonable time the making of corrections in the bill of exceptions or the brief of the evidence, required by the judge as a condition precedent to certifying the bill of exceptions, the bill of exceptions will be dismissed, unless it affirmatively appears that the delay was caused solely by providential cause or imperative necessity. (Italics ours.) The mere failure or refusal of the official stenographer to furnish a transcript of the notes of the evidence taken at the trial is neither providential cause nor imperative necessity. See, in this connection, Lambert Hoisting Engine Co. v. Bray, 127 Ga. 452, and cases cited in division 2 of the opinion. The reason for the delay must appear in the certificate of the judge (italics ours), and this court will not hear evidence by affidavits as to the matter.”

In Atkins v. Winter, 121 Ga. 76 (48 S. E. 717), it was held that that “ if there is no good reason for delay in presenting the corrected bill for authentication, then the fact relied on as an excuse must itself be verified by the trial judge.” The headnotes in that case are as follows: 1. It is essential to the validity of a bill of exceptions that it shall show on its face that it was signed in due time. 2. A defective bill of exceptions can not be aided by extrinsic evidence, and this court, therefore, can not consider an affidavit setting up reasons why a corrected hill of exceptions was not presented until the return of the judge to the county where the trial was had.

3. The Civil Code [1895], § 5545, not expressly stating the length of time allowed for correcting and presenting the changed bill of exceptions, must be construed to mean that the plaintiff is to have a reasonable time in which to act. 4. What is such reasonable time should be determined as matter of law, and not as matter of fact depending upon the convenience of parties, the regularity of the mails, or the means of transportation to the residence of the judge, since the same would necessitate the hearing of testimony, and a trial to determine whether the trial here should proceed. 5. When the bill is returned for correction, a new starting point is fixed. [Italics ours]. What is a reasonable time for making the correetions is, therefore, independent of the length of time allowed for the presentation of the- original bill of exceptions. 6. Since, in the nature of the case, it ought to require less time to correct than in the first instance to prepare an entire bill of exceptions, it is both liberal and reasonable, by analogy, to fix twenty days for the correction and return of the bill of exceptions [italics ours], the same being a period deemed sufficient by the law for the preparation of bills of exceptions in injunction cases, which are among the most voluminous provided for by statute.” In Meador v. Callicott, 129 Ga. 631 (60 S. E. 863), the decision in the case of Atkins v. Winter, supra, was reviewed by the Supreme Court, and that court said: “After duly considering the ruling there made we are thoroughly satisfied of its.soundness, and approve the same.”

By .the law creating it this court is bound by the rulings of the Supreme Court. That court has held, as appears in the foregoing quotations, that what is a reasonable time in which a bill of exceptions should be tendered back to the judge after it has been returned by him for correction, should be determined as a matter of law; that it is both reasonable and liberal to fix twenty days for the correction and return of the bill of exceptions, and that where there is delay the reason therefor must appear in the certificate of the judge. In the instant case it does not appear that the failure to return the bill of exceptions to the judge prior to September 27 was the result either of providential cause or of imperative necessity. Applying the foregoing ruling to the facts of this case the bill of exceptions must be dismissed.

IVrit of error dismissed.

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


text:
    10977.
    Liberty Banking Co. v. Chatham Bank & Trust Co.
    Decided April 14, 1920.
    Complaint; from city court of Savannah — Judge Freeman. July 28, 1919.
    The Liberty Banking Company sought to recover from the Chat-ham Bank & Trust Company the amount of a cashier’s check issued by the defendant and payable to the order of C. W. Smiley. The check was issued in behalf of a depositor, to be used in a loan to the payee, and was sent by an agent of the depositor to an attorney, who, by means of a forged indorsement of the payee’s name, obtained the money on it from the Liberty Banking Company, and that company, through an intermediate bank, collected it from the defendant bank, and, after the forgery had been discovered, reimbursed the .defendant, obtained the cancelled check, caused the payee to indorse it “ without recourse,” and then presented it to the defendant with a demand for payment, which was refused. The first count of the plaintiff’s petition is in the form of an ordinary suit on a check, with the addition of a prayer for 25% damages. The second count, after setting out substantially the foregoing facts, proceeds as follows: “Petitioner sues to recover of and from the defendant the amount of said check, paid, laid out, and expended by petitioner to and for the use of said defendant, and, being so indebted, the said defendant undertook and then and there faithfully promised to pay to petitioner the said mentioned sum of money when it, the defendant, should be thereunto afterwards requested.” Demurrers to the prayer for damages and to the second count were sustained. The special ground of demurrer to that count was that it was not alleged that the plaintiff paid anything to C. W. Smiley, ’ or that Smiley was ever in possession of the check, or had any right, title or interest in it, when he indorsed his name on it. The defendant in its plea denied that the plaintiff was a bona fide holder of the check for value, and alleged that Smiley was never the owner or possessor of the check.
   Bloodworth, J.

The court did not err in its rulings on the demurrers, nor in excluding evidence, and a nonsuit was properly awarded.

Judgment affirmed.

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

On the trial the plaintiff introduced in evidence parts of the defendant’s answer, which in substance were as follows: The defendant had on deposit to the credit of Noord Amerikaansche Hypotheekbank certain funds deposited for the purpose of making loans to be secured by deeds to real estate. The Georgia Land & Securities Company had negotiated a loan from these funds to C. 'W. Smiley, to be secured by deed to certain real estate; and the check in question was delivered by the defendant to that company to be turned over by it to Smiley in payment of the loan negotiated with him in behalf of the above-named depositor. It was to be delivered to Smiley on the execution and delivery of a security deed by him, and for this purpose the Georgia Land & Securities Company transmitted the check to a named attorney at law, residing at Ludowici, Georgia. “Defendant does not know whom ” the said attorney “ represented in the transaction; defendant had no connection or relation with him whatever.” The name of Smile}1, the payee, was forged and indorsed on the check, and it was also indorsed below his name by the attorney mentioned, and the attorney presented it to the Liberty Banking Company, which paid it and indorsed it, guaranteeing the prior indorsements, and transmitted it to the Savannah Bank & Trust Company; the latter company made a like indorsement and guaranty, and collected from the defendant the amount of the check, and the check was canceled and marked “paid,” with a punch which perforated the paper. The defendant subsequently discovered that the indorsement in the payee’s name was forged, and demanded and obtained from the Savannah Bank & Trust Company a return of the amount paid, and delivered the canceled check to that company in order to enable it to go back on the Liberty Banking Company, to which it had transmitted the money collected. The Savannah Bank & Trust Company transmitted the cheek to the Liberty Banking Company, and the latter company procured from Smiley an indorsement of the cheek, “without recourse,” and again indorsed it and demanded payment from the defendant.

From the testimony of the plaintiff’s cashier it appears that after the canceled check was returned to the plaintiff the cashier took it to Smiley, who said that he had never before seen it, and the cashier induced him to indorse it, assuring him that he would not be liable on the indorsement. No consideration was paid or promised for the indorsement. The loan transaction for which the check was given had never been consummated. The check was never in Smiley’s possession except when it was handed to him by the plaintiff’s cashier for the purpose of signing his name on the back of it. After this witness had testified the plaintiff tendered in evidence the check sued on. The defendant objected to it, on the ground that “-the plaintiff had shown no delivery either to Smiley, or by the bank to him.” No other witness testified. On motion of the defendant the court granted a nonsuit. To this and the other rulings stated the plaintiff excepted.

Edwin A. Cohen, Hitch & Denmark, for plaintiff, cited:

Civil Code (1910), §§ 2342-3; Tiedeman, Com. Paper, 251; 34 Olda. 388 (125 Pae. 1115, 33 Am. & Eng. Ann. Cas. 1914 C, 233); 3 Pick. 194; 26 Ark. 660; 6 Cush. 19 (52 Am. Dec. 761); 4 Allen, 336 (81 Am. Dec. 707); 6 Colo. App. 303 (40 Pac. 473); 1 Dan. Neg. Instr. (3d ed.) 74, 75.

Lawton & Cunningham, E. Ormonde Hunter, for defendant, cited:

62 Ga. 272; 4 Ga. App. 534; 17 Ga. App. 170 (3); 10 Ga. App. 98; 124 Ga. 965; 134 Ga. 364; 8 Corp. Juris., 43; 99 Ga. 379; 111 Ga. 486; 1 Dan. Neg. Instr. (6th ed.) 91, 93; 16 Ga. App. 23; 23 N. E. 180.


text:
    11018.
    OTWELL v. HASKINS.
    Decided April 14, 1920.
    A petition for tne appointment of a guardian which alleges that a certain person “is aged and infirm mentally and physically, and is subject to have a guardian appointed on account of mental incapacity,” is -amendable by adding, after the words "aged and infirm mentally,” that the said person is “ imbecile from old age and incapable of managing her estate.”
    Appeal; from Campbell superior court-—Judge Smith. August 4, 1919.

      Oscar Parker, John H. Hudson, for plaintiff.

      Griffith & Matthews, for defendant.
   Bloodworth, J.

This was a proceeding to have a guardian appointed under § 3089 of the Civil Code -of 1910. The petition alleged that “Mrs. Mary Haskins, of said county, is aged and infirm mentally [and?] physically, and is subject to have a guardian appointed on account of mental incapacity.” Mrs. Haskins filed a defense, denying the allegation of the petition, and adding that “she is not an imbecile; that she is physically able to attend to her business, and that there is no reason — legal or other reason — why a guardian should be appointed for her person or her property. She is as competent mentally and physically to attend to her affairs at the present time as she has ever been, and all the allegations to the contrary are untrue.” In the court of ordinary the jury found “Mrs. Mary Haskins to be aged and infirm mentally and physically, and subject to have a guardian appointed on account of mental incapacity to manage and control her estate.” On appeal to the superior court the plaintiff offered to amend the petition for appointment of a guardian by “adding, after the words ‘aged and infirm mentally/ that said Mrs. Has-kins is a person imbecile from old age and incapable of managing her estate.” This amendment was disallowed and the petition dismissed.

Both of these rulings were erroneous. In our State the law relating to amendments is very liberal. In Penn v. McGhee, 6 Ga. App. 635 (65 S. E. 688), this court said: “We think there can be no doubt that the plaintiff had the right to amend the affidavit upon which the attachment issued, by inserting a sufficient ground for attachment. Hnder the Civil Code of 1895, § 5122 [Code of 1910, § 5706], ‘all affidavits that are the foundation of legal proceedings, and all counter-affidavits, shall be amendable to the same extent as ordinary declarations, and with only the restrictions, limitations, and consequences now obtaining in the case of ordinary declarations and pleas/ It is insisted, however, that the affidavit in the present case is not amendable, because there is not enough to amend by. As held in Leffler v. Union Compress Co., 121 Ga. 44 (48 S. E. 710), the affidavit and bond upon which the attachment and the summons of garnishment are based, the attachment, the summons of garnishment,' the answer of the garnishee, where one is made, and the judgment against the garnishee, constitute the record and pleadings in the garnishment proceedings. Considering the affidavit with the bond and attachment, there appears a party plaintiff and a party defendant, and plainly an attempt to proceed by attachment. And even though the attempt is a complete failure, if the shadow is distinct enough to identify a particular cause of action, flesh may be put upon the skeleton.” In Hardy v. Luke, 18 Ga. App. 423 (la) (89 S. E. 540) it was held that “the provisions of § 5706 of the Civil Code, relative to the amendment of affidavits, are to be broadly and liberally construed.” In Collins v. Taylor, 128 Ga. 790 (58 S. E. 446), the Supreme Court said: “All affidavits for the foreclosure of liens, or which are the foundation of legal proceedings, are amendable to the same extent as ordinary declarations. Civil Code, § 5122 [Code- of 1910, § 5706].- This statute is remedial in its nature, and is therefore to be liberally construed and applied.” See also Bainbridge Stock Co. v. Krause-McFarlin Co.; 8 Ga. App. 220 (1) (68 S. E. 1013); Levin v. American Furniture Co., 133 Ga. 670 (66 S. E. 888); City of Columbus v. Anglin, 120 Ga. 785 (5) (48 S. E. 318).

In his celebrated opinion in the case of Ellison v. Georgia Railroad Co., 87 Ga. 708 (13 S. E. 814), Chief Justice Bleckley said:

“The declaration must show what the design of the pleader was, and that his design was such that, if filled out and completed, a cause of action might appear. But in looking for his design by the light of the imperfect declaration, no test of full certainty, but only the test of probability, is to be applied. If enough is alleged to render it fairly and reasonably probable that the plaintiff claimed to have a cause of action of the kind indicated, and that it was his design or that of his pleader to declare upon it, this probability is to be accepted for the purpose of allowing amendment just as though his design were known with full certainty. For it is only when a party stops pleading and stands upon the result that certainty is the guide and measure of construction. So long as he proposes to amend, he is still endeavoring to plead, and if he reaches the requisite certainty by the amendment and the original pleading together, he will be excused for any want of certainty before, higher than that of reasonable probability. . . The pleader is a builder who has a right to go on and finish from any beginning whatever, provided he can show his original plan by what he has done and what he proposes to do, and provided he will confine himself to that plan, and provided the plan is one which, when fully executed, will result in a real edifice and not a mere castle in the air. . . From what has been said, it is apparent that nothing less is- enough to amend by in matter of substance in respect to the cause of action than a plaintiff, a defendant, jurisdiction of the court, and facts enough to indicate and identify some particular cause of action as the one intended to be declared upon, so as to enable the court to determine whether the facts proposed to be introduced by the amendment are part and parcel of that same cause; and when all these elements are in the declaration, there is enough to amend by. The least amount of substance in a declaration which will serve to show that what is offered to be added rightly belongs there, is enough to amend by if the addition proposed would make the cause of action complete. . . If the legal ease which the pleader intended to make has been so far developed and differentiated in design that the court can recognize it as probably fit to become a member of the case family, though it may still be in the womb and deficient in vigor or not fully developed in some of the essential parts or organs which would enable it to live as an independent being, indeed, if it be little more than a mere germ, the law has quickened it, and it is within the reach of amendment. Life, in the law of amendment, means mere quickening, ante-natal life, that which is sufficient to start with, though it may be much less than is requisite to support existence against the most feeble’ attack if the amending power be not invoked.”

Applying the principle announced in the 'foregoing decisions, the court should have allowed the amendment to the petition, and this would have perfected it.

Judgment reversed.

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


text:
    11085.
    CITIZENS BANK OF ROME v. HOYT & CO. et al.

    Decided April 14, 1920.
    Usury in a promissory note does not 'render it void, under the laws of Georgia. Where executed prior to the act of 1916 (Ga. L. 1916, p. 48) it can ho enforced for the principal and lawful interest.
    Complaint; from city court of Eloyd county — Judge Nunnally. October 31, 1919.
    On November 1, 1911, a note for $2,544.01 principal, payable on demand, was given to the Citizens Bank of Rome, Georgia, signed by N. C. Hoyt & Company, and by B. C. Yancey and N. C. Hoyt. On January 27; 1915, suit for the amount then due thereon was brought against the signers, and it was alleged that “N. 0. Hoyt & Company is a partnership composed of N. C. Hoyt and Benjamin C. Yancey.” Pleas were filed in behalf of all the defendants, in which they admitted the execution of the note, but alleged, that it was a part of a scheme to evade the usury law enacted in 1908, which made it a misdemeanor “for any one to charge, take or receive, in any manner, directly or indirectly, interest for the use of money at a greater rate than five per cent, per month;” “that said note was prepared by the Citizens Bank, through its president, Sproull Eouché, as a part of a criminally usurious scheme, for the purpose of exacting and securing usury in certain money-lending transactions hereinafter more fully described to the court; that the said note was taken by the said Citizens Bank for the purpose of protecting itself from whatever losses it might suffer in the prosecution of its criminally usurious practices; that the said Citizens Bank not only acted with full knowledge of this criminal scheme, but took active part in it, both by preparing the note sued on as a part of the evasive scheme and by sharing liberally in the bountiful harvest of ill-gotten gains derived as is hereinafter more fully set out and described ; ” that “ by this criminal scheme it' was arranged, and clearly understood both by the said Sproull Fouché, president as aforesaid, and N. C. Hoyt & Company, that the said Hoyt & Company should take notes and mortgages from the borrower and indorse these notes and hand them to the said Citizens Bank; the said bank was to furnish the money, Hoyt & Company to charge the criminal usury, and the said Citizens Bank and N. C. Hoyt & Company were to share in the criminal usury and the proceeds of the criminal act. The usury charged by this evasive scheme ranged from 5% per month to 20% per month, according to the degree of misfortune in which the borrower found himself when forced to resort to this source for funds;” “that defendant can not. herein set forth the names of the makers of all notes handled from said 15th day of August, 1908, to November 1, 1911, nor the amounts of said notes or the interest so charged by said plaintiff, but that the books of plaintiff will show the sums charged and collected by said plaintiff;” that “this defendant charges and believes that the amount of interest charged and retained by said bank, and the amount of discount so charged by said bank, as alleged in the. 6th paragraph of this answer, over and above the legal rate of eight per cent, per annum, was far larger than the amount claimed by plaintiff as due on said note, and that if said excess of interest and discount rate so charged and collected by said bank is applied as a credit on said note sued on, the said note would not only be fully paid but largely overpaid, and defendant entitled to a judgment against said plaintiff for said excess;” “that the exacting, reserving, and contracting for said illegal interest was criminal, and the contract so entered into and the note so taken and now sued on is absolutely void and -can not be enforced in the courts.” Defendants prayed that they “be released from any and all liability which may attach to them under and by reason of this said note sued on, and that petitioner’s suit be dismissed.”
    On the trial of the ease the plaintiff introduced the note and closed. The defendants introduced evidence to support the allegation in their plea that usurious interest had been'charged, and then made the following motion, counsel stating: “If there was a conflict in the evidence there might be a matter for the jury, but we ask your honor to direct a verdict for the defendants sued here on this note. They offer the note and close, and the defendants attack the note, not only [for the reason] that it is usury, but it is absolutely a crime, illegal. All the evidence, except the mere introduction of the note, and there is no contradiction of the defendant, and he says they got together, the proposition was made and discussed, and the whole transaction was between him and the bank. In other words, he was a sort of go-between, between the bank and the borrower.” The court directed a verdict for the defendants, and the plaintiff excepted.

      Denny & Wright, for plaintiff.

      Maddox & Doyal, C. I. Carey, Claude H. Porter, for defendants.
   Bloodworth, J.

(After stating the foregoing facts.)

Under the rulings in Croom v. Jordan, 20 Ga. App. 802 (93 S. E. 538), and West v. Atlanta Loan & Savings Co., 22 Ga. App. 184 (95 S. E. 721), the court erred in directing a verdict for the defendants. In the opinion in the Croom case Judge George said: “ It is insisted by the plaintiff in error that the mortgage executed .by him is absolutely void. The uncontroverted evidence is to the effect that the mortgage contained an amount as interest in excess of five per cent, per month. Under the law of this State such a contract is unlawful, and the act of reserving, taking, or charging a rate of interest greater than five per cent, per month for the loan or advance of money or forbearance to enforce the collection of money, is made penal. Section 3444 of the Civil Code and section 700 of the Penal Code would have the effect (nothing further appearing) to sustain the contention made by the plaintiff in error, and defeat the mortgage in this case, manifestly made in the face of the plain provisions of the law of this State, referred to above. However, the statutes and the decided cases of the courts of last resort in this State on the subject of usury provide for the civil status of usurious contracts. As to contracts made prior to the acts of 1916, the excess interest, that is the amount charged over and above the legal rate of interest, shall be forfeited. The status of a mortgage infected with usury, when the subject of an action in a civil court, as in this case, is thoroughly established by the decisions of this court and the Supreme Court. Such a mortgage is not void, except as to the usury included therein, and may be enforced for the collection of the actual principal and the legal interest thereon.” In the West case, supra, Judge Harwell said: “ That the note charged or reserved a rate of interest in excess of the legal rate would not make it void. If usurious, the effect is simply to forfeit the excess of interest above the legal rate; the note and contract having been made on May 25, 1916, prior to the act of the legislature, approved August 18,1916, which forfeits all interest in a usurious contract. Code section 3444, which makes it a misdemeanor to charge more than a certain rate, does not attempt to annul the contract. The section following (3445) says: ‘The preceding section shall not be construed as repealing or imparing the usury laws now existing, but as being cumulative thereto/ A contract is not rendered void under the laws of this State by the fact that it is tainted with usury.” The Civil Code (1910), § 4215, provides that “A contract to do an immoral or illegal thing is void. If the contract be severable, that which is legal will not be annulled by that which is illegal.” Hsury can be severed from legal interest.

Applying to the facts of this case the principle announced in the foregoing decisions, the plaintiff would be entitled to recover the amount of the principal sued for and legal interest, after deducting the amount of usury incorporated therein; and the question as to the amount of the usury should have been submitted to the jury.

Judgment reversed.

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


text:
    11089.
    STANFIELD et al. v. McCONNON & CO.
    Decided April 14, 1920.
    1. The demurrers to the petition as amended were properly overruled.

      (a) “A surety may be sued separately from his principal (Civil Code of 1910, § 3559), and it is immaterial, under the facts of this case, whether the defendant in the lower court be treated as a guarantor or as a surety.”
    (b) Where four persons sign an agreement, it can make no difference as to their liability that two of them sign as “ sureties ” and two as “ guarantors.” It is not what they call themselves in signing the paper, but what the agreement and the facts make them that fixes their legal liability.
    (c) A surety can be sued without joining his principal, and a guarantor can-riot be sued jointly with the principal debtor.
    2. The court did not err in directing a verdict for the plaintiff.
    Complaint^ from Chattooga superior court — Judge Wright. September 11, 1919.
    On March 31, 1915, a contract was entered into in which McConnon & Company agreed to sell to George W. Parker certain “medicines, extracts and other articles manufactured by” McConnon & Company. Attached to the contract was the following agreement: ■ .
    “In consideration of the sum of one dollar to us severally in hand paid by McConnon '& Company, the receipt whereof is hereby acknowledged, and the execution of the within agreement by said company, and the sale and delivery by it to the party of the second part, of its medicines and other articles, we, the undersigned, securities, do hereby jointly and severally promise and guarantee the full and complete payment of said medicines, extracts and other articles, at the time and place and in the manner as in said agreement provided.

      “L. M. Murphey. (Seal.) L. B. Stanfield. (Seal.) “Surety sign here. M. A. Kellett.- (Seal.)

      “D. P. Henley. (Seal.) (Guarantors sign in ink on
    “Surety sign here. above lines.) ”
    McConnon & Company sued Stanfield, Kellett, Murphey, and Henley, alleging in part: “Petitioner shows that heretofore, to wit, on the 31st day of March, 1915, your petitioner entered into, a contract with one George W. Parker, then a resident of said State and county, under which your petitioner undertook to sell to the said Parker certain wares, goods, and merchandise,' which the said Parker agreed to pay for in accordance with the terms of said contract, a copy of said contract being hereto attached, marked Exhibit A, and made a part of this petition. Petitioner shows that the defendants hereinbefore named thereupon executed to your petitioner a contract of guaranty or suretyship, guaranteeing to your petitioner the payment for all goods, wares, and merchandise sold to said Parker under said contract, a copy of said contract of guaranty or suretyship being hereto attached, marked Exhibit B, and made a part of this petition. Your petitioner shows, that, acting upon said contract with said Parker and upon said guaranty and suretyship of said defendants herein, your petitioner sold and delivered to said Parker goods, wares, and merchandise in the sum of $202.63; that the said Parker has paid thereon the sum of $18.00, leaving a balance due your petitioner in the sum of $184.63, which said Parker fails and refuses to pay, 'and for which said amount said defendants are indebted to your petitioner, under their said contract, by reason of the default of the said Parker to pay said amount; a copy of said account being hereto attached, marked Exhibit C, and made a part of this petition. Petitioner shows, that it has fully complied with the terms of said contract with the said George W. Parker, and also with the defendants in this case; that it has made demand for the payment of said amount, but that said amount remains due and unpaid. Petitioner shows, that it is thought that said Parker is not now a resident of said State and county, 'and his whereabouts are unknown to your petitioner, though your petitioner is advised and believes that he is now a non-resident of the State of Georgia and without the jurisdiction of this court.” Demurrers to the petition were filed, and after it had been amended to meet one of the special demurrers the demurrers were overruled and the case proceeded to trial.
    The plaintiffs' tendered in evidence certain interrogatories executed in the State of Minnesota. To the reafiing of these inter-' rogatories to the jury the defendants filed written objections, and also “orally objected to the introduction of said depositions, upon the following constitutional grounds: that the introduetion of the same would contravene and deprive defendants of their rights under sections 5699, 5700, 5701, and upon the general ground that the act providing for the taking of such depositions out of the State by notary public upon the mere notice to be present at the place in a foreign State and upon the day mentioned is contrary to public policy.” These objections were overruled.' When all the evidence was in, the court directed a verdict for the plaintiff.- The defendants excepted.

      Wesley Shropshire, for plaintiffs in error.

      John D. & E. S. Taylor, Denny & Wright, contra.
   Bloodworth, J.

(After stating the foregoing facts.)

Because of the constitutional question sought to be raised, this case was originally transmitted to the Supreme Court. That court ordered that the case be transferred to this court. This eliminates the constitutional question and leaves for us the determination of two questions only.

1. Were the demurrers to the petition properly overruled ?- Yes. Only three ■points raised by the demurrers require consideration. The other grounds are all covered by these three, except what is set up in the amendment to the demurrer, and that embraces matter for plea and not for demurrer.

(a) The demurrer to the 4th paragraph of the petition alleges that “ said paragraph fails to distinctly set forth whether the contract is one of guaranty or suretyship, but alleges that it is one or the other,” and the “plaintiff should declare in his petition distinctly whether the said contract is one of guaranty or one of surety. It can not be both.” Suit was not brought against Parker, the party who signed the original contract and who purchased the goods for which payment is being sought, but against those only who signed the agreement copied in the foregoing statement of facts. The question to be determined is whether the plaintiff is entitled to recover against the defendants upon the cause of action set forth in the petition. Under the facts of this case it can make no difference whether those who signed the agreement be treated as guarantors or sureties. “A surety may be sued separately from his principal (Civil Code, § 3559), and it is immaterial, under the facts of this case, whether the defendant in the lower court be treated as a guarantor or as a surety. Small Co. v. Claxton, 1 Ga. App. 83 (57 S. E. 977)”. Amos v. Continental Trust Co., 22 Ga. App. 348 (2) (95 S. E. 1025). In Small Co. v. Claxton, supra, Judge Hill said: “ Considering these excerpts from the opinions of these two able jurists, we are led to the conclusion, that while, there is a distinction between these two classes of contracts, it is a distinction without a very substantial difference, in so far as liability is concerned. It makes no sort of difference whether the consideration of the contract is a benefit flowing to the maker, to the third party for whose benefit the contract was made, or results in an injury to the promisee. In either event the substance of the contract is the same, and the maker thereof undertakes to pay the debt if it is not paid by the party for whose benefit the contract was made, whether it be a guaranty or a suretyship. The contract in this case, following the distinctions above given, seems to combine some of the elements of suretyship, and some of guaranty. It is entirely separate from the obligation of the principal debtors who bought the goods from the plaintiff, but it was made for a consideration flowing, not to the maker, but to the parties for whose benefit the contract was made. It is perfectly clear that the maker would be bound in either case, if the other allegations in the petition of the plaintiff are proved. Sims v. Clark, 91 Ga. 302 [18 S. E. 158]. We have little sympathy with 'artificial distinctions between principles of law which present no substantial difference as to matters of right and justice, which tend to confuse rather than to enlighten, and to furnish loopholes for technical escapes from contract obligations. The important question in the case now under consideration is whether the writing is a valid written obligation, it being wholly immaterial, in determining this question, whether the maker of the obligation is bound as surety or guarantor.” See also Johnson v. Georgia Fertilizer & Oil Co., 21 Ga. App. 530 (3) (94 S. E. 850).

■(b) It is further urged by demurrer that two of those who signed the agreement signed as “sureties” and two as “guarantors,” and that in no event can they be sued jointly. It can make no difference in their liability that two of them designated themselves as “sureties” and two as “guarantors.” It is not what they call themselves in signing the contract, but what the agreement and the facts make them that fixes their liability. See in this connection Callaway v. Harrold, 61 Ga. 112 (2). In this case all four of the defendants signed the same agreement, and all are liable alike, whether it be as surety or guarantor.

(c) The'seventh ground of the demurrer is as follows: “The .contract as sued upon shows upon its face that plaintiff can not recover of defendants without first securing a judgment and ascertaining as against said Parker what amount is due, and without first exhausing the principal, the said Parker.” There is no merit in this contention. If the defendants are sureties it is well settled that a surety can be sued without joining the principal. See Civil Code (1910), §§ 3553, 3559; Johnson v. Georgia Fertilizer & Oil Co., supra, and cit. If they are guarantors it is fully as well settled that they can not be sued jointly with the principal debtor (Sims v. Clark, 91 Ga. 302 (1), 18 S. E. 158; Holmes v. Schwab, 141 Ga. 44 (3), 80 S. E. 414; Ga. Casualty Co. v. Dixie Trust & Security Co., 23 Ga. App. 447 (2), 98 S. E. 414); that "it is not necessary that the creditor should obtain a judgment against the original debtor before suit against a guarantor.” (Kalmon v. Scarboro, 11 Ga. App. 547 (3), 552, 75 S. E. 846); and that the solvency or insolvency of the original undertakers in such a suit is not material. Penn Tobacco Co. v. Leman, 109 Ga. 428 (2) (34 S.E. 679).

2. Did the court err in directing a verdict for the plaintiff? This question we must answer in the negative. "The mere fact that there are conflicts in the testimony does not render the direction of a verdict in favor of a party erroneous, when it appears that the conflicts are immaterial, and that, giving to the opposite party the benefit of the most favorable view of the evidence as a whole and of all legitimate inferences therefrom, the verdict against him is demanded.” Dorris v. Farmers & Merchants Bank, 22 Ga. App. 514 (5), 518 (5) (96 S. E. 450, and cit.

Judgment affirmed.

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


text:
    11108.
    GAINESVILLE GROCERY CO. v. BANK OF DAHLONEGA.
    Decided April 14, 1920.
    In the superior court the garnishee in all eases has until the first day of the second term after the service of the summons of garnishment in which to answer. The words “until the first day” include all of that day.

      Garnishment; from Lumpkin superior court — Judge J. B. Jones. October 23, 1919.

      W. J. Gaillard, for plaintiff in error.

      O. J. Lilly, contra.
   Bloodworth, J.

On January 29, 1919, an attachment was issued in favor of the Gainesville Grocery Company against J. W. Lunsford, and made returnable to the April term of court. On February 6 summons of garnishment was served upon the Bank of Dahlonega, directing the bank to answer at the April term of court, which was the appearance term of the attachment case, the trial term being the October term. The attachment case was entered on the docket, but in this entry there was no reference to the garnishment, and there was no separate entry of the garnishment ease. A declaration in the garnishment case was filed. On the first day of the October term of the court the attachment ease was reached in its order on the call of the issue docket, and verdict and judgment were rendered 'against the defendant. Thereupon the attorney for the plaintiff presented to the court for his signature a judgment 'against the garnishee. Upon an examination of the docket the judge discovered that the garnishment case was not on it, -and thereupon entered it himself on the docket. When the judge inquired whether any one represented the bank an attorney said that he did, and asked for a short time in which to investigate. Time was allowed him, over the objection of counsel for plaintiff. During the day an answer was filed by the bank. On the next day a written motion was- made by the plaintiff to strike the answer of the bank, one of the grounds of which was that it was “not sworn to properly,” and the substance of the other grounds was that the answer was filed too late. After 'argument the judge passed the following order: “The within motion is overruled and disallowed for the following reasons: On the first day of the October term, 1919, of this court, and immediately after a verdict and judgment against Lunsford in favor of plaintiff had been rendered, plaintiff’s counsel presented to the court a prepared judgment against the defendant in garnishment (the bank), and, examining the docket, no such case appeared, and, calling attention to that fact, counsel for the bank asked for a short time to investigate the matter. The case was then entered on the court docket, after which, and during said first day of said term, the defendant in garnishment presented its answer as appears.” To this order, and also to the refusal of the judge to grant plaintiffs original and oral motion to enter judgment against the garnishee, the plaintiff excepted.

The court did not err in these rulings, for “ in the superior court, under Civil Code §§ 4551, 4709 [§§ 5097, 5269 of the Civil Code of 1910], the garnishee in all cases has until the first day of the second term after the service of the summons of garnishment in which to answer.” Averback v. Spivey, 122 Ga. 18 (2) (49 S. E. 748). See also Sanders v. Miller, 60 Ga. 554 (1); Liverpool &c. Insurance Co. v. Savannah Grocery Co., 97 Ga. 746, 747 (25 S. E. 828); Jarrell v. Guann, 105 Ga. 141 (31 S. E. 149). Section 5097 of the Civil Code of 1910 is as follows: “When any person summoned as garnishee fails to appear in obedience to the summons, and answer at the first term of the court at which he is required to appear, the case shall stand continued until the next term of the courtj and if he should fail to appear and answer by said next term, the plaintiff may, on motion, have judgment against him for the 'amount of the judgment he may have obtained against the defendant in attachment, or so much thereof as shall remain unpaid at the time the judgment is rendered against the garnishee; and the court may continue the case until final judgment is rendered against the defendant in attachment.” (Italics ours.) In Rogers v. Cherokee Iron &c. Co., 70 Ga 717 (1), it was held : “Where in a motion for new trial the movant is allowed until a certain day, time or term to prepare and file the motion and approved brief of evidence, the word 'until’ includes such day, term or time, and if proper action be taken at that time it is in season. [Board of Commissioners v. Darf] 67 Ga. 765.” In Atlanta Journal v. Brunswick Publishing Co., 111 Ga. 722 (36 S. E. 929), Justice Little said: “It is likewise true that the rights of the diligent creditor require a prompt compliance with the law on the part of the garnishee. It has, however, been repeatedly ruled by this court that circumstances may arise in which the garnishee ought not to have judgment rendered against him for failure to answer at the exact time required. Garnishment is but a substitute for a proceeding in equity.” See Russell v. Freedman’s Savings Bank, 50 Ga. 576.

The above rulings cover all that is insisted upon in the brief of counsel for the plaintiff in error.

Judgment affirmed.

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


text:
    11111.
    Henderson v. Leviton.
    Decided April 14, 1920.
    Trover; from Echols superior court — Judge Thomas. October 4 1919.

      J. B. Sicks, W. T. Dickerson, S. Burkhalter, for plaintiff in error.

      Franklin & Langdale, E. K. Wilcox, contra.
   Bloodworth, J.

There is no merit in any of the special grounds of the motion for new trial; the verdict was based on conflicting evidence, was satisfactory to the trial judge, and must be to this court.

Judgment affirmed.

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


text:
    11208.
    Redding v. The State.
    Decided April 14, 1920.
    Conviction of shooting at another; from Bibb superior court — Judge Graham presiding. December 11, 1919.
   Bloodworth, J.

1. The plaintiff in error was indicted for assault with intent to murder and was convicted of unlawfully shooting at another. The facts of this case bring it squarely within the ruling in the case of Drysdale v. State, 83 Ga. 744 (10 S. E. 358, 6 L. R. A. 424, 20 Am. St. R. 340), where it was held: “1. Where a verdict is correct if the testimony of the prosecutor was' true, and where the jury must have believed it true in order to render the verdict, the result coincides with the substantial merits of the case. 2. A husband may attack for intimacy with his wife in his presence, raising a well-founded belief that the criminal act is just over or about to begin; and the adulterer, though in danger, has no right to defend himself by using a deadly weapon.” See also Brown v. State, 10 Ga. App. 50 (3), 52 (7), 56 (4) (72 S. E. 537).

2. When they are read in connection with the remainder of the charge of the court, there is no error in any of the excerpts of which complaint is made.

Judgment affirmed.

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

John R. Cooper, W. O. Cooper Jr., W. R. Nisbet, Walter J. Grace Jr., for plaintiff in error.

Charles H. Garrett, solicitor-general, contra.


text:
    11213.
    Thompson v. The State.
    Decided April 14, 1920.
    Indictment for manufacture of liquor; from Randolph superior court — Judge Harrell presiding. November 11, 1919.

      Charles W. Worrill, for plaintiff in error.

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

The special grounds of the motion for a new trial in this case are but amplifications of the general grounds; there is some evidence to support the verdict, which has the approval of the trial judge, and, under the uniform rulings of this court and of the Supreme Court, this court is powerless to interfere.

Judgment affirmed.

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


text:
    11220.
    TURNER v. THE STATE.
    Decided April 14, 1920.
    A conviction of having unlawful possession or control of liquor was not authorized by the evidence in this ease.
    Indictment for misdemeanor; from Taliaferro superior court — Judge Walker. November 28, 1919.

      J. A. Beazley, for plaintiff in error.

      R. C. Norman, solicitor-general, Alvin C. Golucke, contra.
   Bloodworth, J.

The evidence in this case is as follows: W. J. Sturdivant, sheriff, sworn for the State: “ On the 24th of December, 1918, I went with several others to the home of Clark J. Turner, the defendant, in search of liquor. We found in the front or company room a gallon jug full of liquor or about full. This was hidden behind a dresser. This was the front or company room. It was not Clark’s bedroom, or where his family roomed, but a sort of parlor or company room. In another room occupied by Jack Turner, who is the father of Clark Turner, we found some empty jugs that had contained liquor. This was in Jack Turner’s bedroom, the room that he slept in. Clark Turner lived there, and I suppose it was his home. It is the old home that Jack Turner has lived in for years, and where he raised a family, and I suppose Clark was raised there for the most part. I suppose Clark carried on the farm, as Jack is not able to work, 'being blind. I don’t know whether it is Clark’s house or not. Yes, it is the old Jack Turner home, that he or his wife, now dead, has owned for years. Clark was not there when we went there, and we did not see him.” John Blackwell, sworn for State: “I was present at the house where ClaTk Turner lives when he-[we ?] found the whisky in the front room, just as Sheriff Sturdivant says. We also found the empty jugs in the closet of Jack’s room, as the sheriff has stated. While we were searching in this room Jack Turner went to a chest and took out a flask containing some liquor and turned it up and drank it, and said: ' They may get the balance of my liquor, but they won’t get this.’ Clark Turner was not there.” J. T. Overton, sworn for the State: “I live adjoining farms to Clark Turner. I was present with Sheriff Sturdivant and Deputy Blackwell when we found the liquor in the house where Clark Turner lived. We found a gallon jug about full in the front room. This room was a front room — a sort of company room, and not occupied by anyone. The- liquor was behind the dresser. In Jack Turner’s room we found some empty jugs that had had liquor in them in his closet. Jack went to a chest and took out a flask with some liquor in it and drank it, 'and said: 'They may get the balance of it, but they won’t get this.’ We didn’t get that. Jack Turner lived in the old part of the house. Clark Turner lived in the new part of the house. The room where the liquor was found was a part of the new part of the house. A closet separated the new part from.the old part. The liquor that Jack got out of the chest and drank up was in the old part of the house, where Jack roomed. Clark run the farm. All this was in Taliaferro county. Clark runs a store near his home. We searched that carefully. We found no liquor or any bottles indicating liquor had been in them.” Jack Turner, sworn for defense: .“The liquor that the officers got was my liquor. It was brought to me by a man I did not know, but who owned or had an automobile. I wanted some liquor, and he said he could get it for me. He did get it, and brought it to me while Clark Turner was gone, and the officers got it before he got back. Clark had gone off to Woodville, taking orders for clothes, and went the day before the officers came. I put this liquor over behind the dresser and hid it. I took some out of the jug and poured it in the flask, and had that in the chest in my room. When the officers came I went and got that out, and drank it before they could get it, and told them they might get the balance, but they would not get that. Clark Turner never saw any of that liquor, and did not know it was there. The house is my house. It is my old home where I have lived for forty years and where nearly all my children were born and raised. My wife died, and Clark was living there with me in my house.” Clark Turner, defendant, made statement: “When the officers came there and got that liquor I was not at home. I went to Woodville the day before and had not got back. I did not know the liquor was there, and had nothing to do with it. I live there with my father, but it is his house—the old family home where I was raised. My father raised his family there, including myself, and he has lived there continuously. Part of the time I have lived to myself, on other lands, but he has continued to live in the old home. When my mother died he got me to come and live in the house with him, as he was blind and feeble.”

Under the foregoing evidence the conviction of the defendant was not authorized, and the judge erred in overruling the motion for a new trial.

Judgment reversed.

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


text:
    11223.
    Alexander v. The State.
    Decided April 14, 1920.
    Indictment for misdemeanor; from Taliaferro superior court — Judge Walker. November 28, 1919.
    The indictment charged that on July 15, 1918, Son Alexander “did knowingly permit and allow and did have and possess and locate on his premises apparatus for the distilling and manufacture of spirituous, vinous, malted, fermented, and intoxicating liquors and prohibited liquors and beverages.” The sheriff testified, that on July 15, 1918, he and W. C. Chapman went to Son Alexander’s house and then went down to a.spring about 250 yards from his house and found two barrels of mash use.d in making liquor, and a lard-can still for making liquor; that this mash was about 50 feet from the spring up the branch, and the lardean still was some 30 feet from the spring down the branch. “ Son Alexander’s hog pasture ran about half way from the house to the spring, and from there on it was a swamp. I know all this was on Son Alexander’s farm and place, because I had seen him cultivating the land between the house and the spring, and had seen him working on the other side of the spring, down the branch. I don’t know just where Son Alexander’s farm lay, but I had seen him plowing on the southwest side of the branch beyond the spring.” W. 0. Chapman testified that the apparatus was found as stated by the sheriff; he did not know of his own knowledge where Son Alexander’s land or farm ran to, or whether the still apparatus was on his farm, but supposed it was. The defendant, in his statement at the trial, denied that the apparatus found by the officer was on his land, and said that his land went no further than the hog pasture, and he had no control over the land beyond that.
   Bloodworth, J.

The motion for new trial contains no special ground; there is some evidence to support the verdict, which has the approval of the trial judge, and this court can not interfere.

Judgment affvimied.

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

J. A. Beazley, for plaintiff in error.

R. C. Norman, solicitor-general, Alvin C. Golucke, contra.


text:
    11229.
    CLARK v. THE STATE.
    Decided April 14, 1920.
    1. “ Ordinarily, when a month is referred to, it will be understood to be of the current year, unless from the connection it appear that anot> is intended.”
    2. There was no harmful error in the charge of which compl»'
    3. There was evidence to support the verdict.
    Indictment for manufacture of liquor; fi court — Judge Sheppard. November 28, 1911

      An. indictment returned on July 10, 1919, charged that on the 7th day of June, 1919, the accused “did unlawfully distill, manufacture, and make alcoholic, spirituous, vinous, malt, and mixed liquors and whiskeys, which, if drunk to excess, would produce intoxication.” The accused was tried July 15, 1919. The sheriff testified: “ I know the defendant, Charlie Clark. I recently arrested him at his home in Tattnall county. It was on Sunday I arrested him, in the afternoon. I saw a still right there on the place. As to how long ago I was at the home of Charlie Clark and arrested him, it was something right about the first of June, about the 6th or 7th, somewhere along there.” Wallace Clark, son of the defendant, testified: “I know Charlie Clark. He is my father. I know about his having a whisky still there on his place. He had it on the edge of the branch there. I seen him operating that still. . . He was making whisky. . . I seen him making that whisky five or six times. I helped him make it. . . As to how long it was that my father was making whisky down there, it was about a week after he come home from the farm, Perry Jenkins’ farm. As to whether that has been four or five months, he come home since the middle of March. It was since then that I seen him making the whisky.” The defendant was convicted, and filed a motion for a new trial, the grounds of which, besides the usual general grounds, were as follows: “ Because the evidence in said case fails to show that the offense charged was committed since the passage of the act of March 28, 1917, under which the indictment w'as found, as shown in the charge of the court.” “Because the evidence fails to disclose that said offense was committed within the statute of limitations, and that it is not barred by the same.” “Because the court erred in charging the jury that if they found that the defendant had committed said offense ‘at any time after the 28th of March, 1917/ they would be authorized to convict, when said charge should have limited the same to a date prior to the date of the indictment.”

      E. C. Collins, for plaintiff in error.

      J. Saxton Daniel, solicitor, contra.
   Bloodworth, J.

(After stating the foregoing faetSi)

1. “Ordinarily, when a month is referred to, it will be understood to be of the current year, unless from the connection it appear that another is intended.” Tipton v. State, 119. Ga. 304 (2) (46 S. E. 436). See also Plair v. State, 23 Ga. App. 574 (99 S. E. 61), and cit.

3. All the evidence showing that the offense was committed some time during the year 1919 and prior to the finding of the indictment, it was not error harmful to the accused for the judge to charge the jury that they would be authorized *to convict the defendant if they found that the offense was committed at any time after the 38th of March, 1917. See Plair v. State, supra, and cit.

3. There was sufficient evidence to support the verdict, and the court properly overruled the motion for a new trial.

Judgment affirmed.

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


text:
    11237.
    Cuba v. The State.
    Decided April 14, 1920.
    Indictment for assault with intent to murder—conviction of shooting at another; from Eulton superior court. — Judge Humphries. December 6,1919.

      H. A. Allen, for plaintiff in error.

      John A. Boykin, solicitor-general, E. A. Stephens, contra.
   Bloodworth, J.

1. There is no merit in the ground of the motion for a new trial in which it was contended ¡that the defendant’s right of cross-examination was unduly restricted by the court.

2. The court did not err in charging the jury- on the law as to shooting at another.

3. The evidence authorized the verdict.

Judgment affirmed.

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


text:
    11246.
    Chapman v. The State.
   Bloodworth, J.

1. When considered in connection with’ all the facts of the case and the statement of the judge in his order overruling the motion for a new trial, and in the light of the entire charge, there is no reversible error in any of the excerpts from the charge of which complaint is made.

2. This court has no authority to set aside a verdict approved by the judge, where the record shows no error of law and there is evidence to support the verdict.

Decided April 14, 1920.

Conviction of shooting at another; from Jones superior court —.Judge Park. December 27, 1919.

Application for certiorari was denied by the Supreme Court.

J. C. Barron, R. N. Hardeman, F. Holmes Johnson, contra.

Doyle Campbell, solicitor-general, contra.

Judgment affirmed.

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


author: Broyles, C. J. Bloodworth, J.,

text:
    11247.
    MINSHEW v. THE STATE.
    Decided April 14, 1920.
    Indictment for misdemeanor; from Ben Hill superior court— Judge Gower. January 15, 1920.
    The indictment 'alleged that J. G. Minshew, in Ben Hill county, in this State, being a justice of the peace in and for that county, “did join together in matrimony one George J. Minshew and Letha Luke without a license 'as provided by law; that is to say, the said J. G. Minshew performed said marriage ceremony under a license issued by the ordinary of Turner county, said State, he, the said J. G. Minshew, well knowing that the said Letba Luke was then and there a resident of Ben Hill county, said State, and the said Letba Luke was at the time a resident of Ben Hill county, contrary to the laws of said State,” etc. The demurrer was on the grounds: (1) No offense is set forth.
   Broyles, C. J.

1. An indictment under section 677 of the Penal Code of 1910, for performing a marriage ceremony illegally, is fatally defective where it does not charge that the marriage ceremony was performed without a license or publication of barms, as provided by law, or that either of the contracting parties was, within the knowledge of the marrying official, an idiot or lunatic, or subject to some other disability which would render the marriage improper and illegal.

(a) The fact that the license was issued by the' ordinary of a county in which the female did not reside, while improper and contrary to law, would not in itself render the marriage illegal; and therefore the knowledge of this fact by the marrying official would not constitute a violation of section 677 of the Penal Code. A marriage may be legal without any license at all. Clark v. Cassidy, 64 Ga. 663 (4); Dale v. State, 88 Ga. 556 (15 S. E. 287). This being true, it clearly follows that a marriage may he legal although the license was procured in the wrong county.

2. Under the above ruling the court erred in overruling the demurrer to file indictment.

Judgment reversed.

Luke, J., concurs; Bloodworth, J., concurs specially.

(.2) No facts are alleged which would show that the marriage was illegally performed. (3) Under the facts alleged the marriage ceremony was legal. (4) It is not alleged that at the time of the issuance of the license the female was a resident of a county other than that in which the license was issued; but even were it so alleged it could not be the basis of a criminal charge against the marrying officer, because the right to issue the license is a matter for judicial determination by the ordinary issuing it, and not subject to review by any officer authorized to perform a marriage ceremony. (5) No disability to contract marriage is alleged; “the ‘other disability’ referred to in the code section defining such offense meaning any other disability of the same class as idiocy or lunacy, whereby a party would be totally incapacitated to contract marriage, and absence of license entirely does not constitute such disability.” (6) It is not alleged that there was no publication of banns.

Cutts Nicholson, for plaintiff in error,

cited: Penal Code (1910), § 677; Civil Code (1910), §§ 2936, 2937, 2938; 64 Ga. 662 (1); 84 Ga. 440; 63 Ga. 533; 114 Ga. 96; 69 Ga. 754; 30 Ga. 173; 130 Ga. 161,168; Park’s Ann. Code, § 4, par. 9, and cit.; 103 Ga. 429; 121 Ga. 412; Civil Code, § 2931.

J. B. Wall, solicitor-general, Jesse Grantham, A. J. McDonald, contra,

cited Penal Code (1910), § 677; Civil Code, §§ 2936, 2939.

Bloodworth, J.,

concurring specially.

I concur in the judgment of reversal in this case because I think that portion of the demurrer should have been sustained which attacked the indictment on the ground that it did not show where the woman resided at the time the license was issued. It is 'against the law of this State for a minister (or any official authorized to perform the ceremony) to join in matrimony any man or woman without a license as provided by law. Penal Code (1910), §677. It is provided in § 2936 of the Civil Code of 1910 that “ marriage licenses shall be granted by the ordinaries, or their deputies, where the female to be married resides, if resident in this State, directed to any judge, justice of the peace, or minister of the gospel, authorizing the marriage of the persons therein named.” (Italics mine.) If the license was regularly and legally issued in the county where the woman resided at the time of the issuance thereof, then the minister or official could, without violating the law, perform the ceremony in any county in this State in which the woman might be at the time of the marriage. But want of authority on the part of the minister or other official performing the ceremony does not affect the validity of the marriage. Civil Code (1910), § 2942.


text:
    11259.
    Barber v. The State.
    Decided April 14, 1920.
    Indictment for larceny from house; from Monroe superior court—.Judge Searcy. January 10, 1920.

      Hubert F. Rawls, Walter J. Grace, for plaintiff in error.

      E. M. Owen, solicitor-general, contra.
   Bloodworth, J.

“ In this case the motion for a new trial contained only the usual general grounds. There was some slight evidence authorizing the verdict; and the verdict having been approved by the trial judge, under the repeated and uniform rulings of this court and of the Supreme Court a reviewing court is powerless to interfere. When the verdict is apparently decidedly against the weight of the evidence, the trial judge has a wide discretion as to granting or refusing a new trial; but when there is any evidence, however slight, to support a verdict which has been approved by the trial judge, this court is absolutely without authority to control the judgment of the trial court.” Bradham v. State, 21 Ga. App. 510 (94 . S. E. 618), and cit. See also Smith v. State, 91 Ga. 188 (17 S. E. 68).

Judgment affirmed.

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


text:
    11268.
    GRIGGS v. THE STATE.
    A conviction of the offense of making intoxicating liquor was not authorized by the evidence in this case, from which it appeared that the’ accused was discovered at a still where evidently some one had recently been making liquor, and that he had in his hand a cup from which he was drinking, and that when he heard and saw the witnesses he threw down the cup and started to run, and he did not stop, \yhen told to do so.
    Decided April 14, 1920.
    Indictment for manufacture of liquor; from Jones superior court — Judge Park. December 20, 1919.

      J. B. Jackson, for plaintiff in error.

      Doyle Campbell, solicitor-general, contra.
   Bloodworth, J.

The evidence in this case shows that certain persons.approached what was designated as “the still site,” where evidently some one had recently been making liquor. A witness swore: “ We stopped, I suppose, about thirty steps from the still. I saw a negro there. He was as close to the still as the edge of that table, walking from me. He had a quart or a half-gallon cup in his hand, and he was drinking something out of the cup. He was walking away from the still and drinking something as he was walking. I suppose he got as far as the back of the courthouse before he recognized me, and I spoke to Mr. Glawson, and says: ‘Look there, yonder goes a negro from that still/ and the-negro heard me, and threw the cup down and started to run, and I told him to stop, 'and he didn’t, and I shot at him two or three times.” Another witness swore: “When I got on the branch I [could ?] see that distillery, and saw' a man down there. I could not see his head, but I could see his hands and back moving. In a very short time he stepped back and turned his back to me, and reached down on the ground and got a bucket of some description, and went oil drinkng out of it. He was right at the furnace. I didn’t know it at that time. I saw him as he went away. About the time he peartened up, Mr. Ezell and me hailed him and told him to stop, and about that time I shot. . . This man didn’t seem to be excited. He had not seen me. . . I don’t know what started him running. He started, I suppose, when Ezell told him to stop.” ' This is all the evidence that in any way connects the defendant with the offense of making liquor, and is not sufficient to authorize his conviction. The most that can be said of it is that it shows “presence” and “flight.” In Griffin v. State, 2 Ga. App. 534 (2), it was .held: “Neither presence nor flight, nor both together, without more, is conclusive of guilt.”

•It is not necessary to consider the assignments of error not dealt with above.

tJudgment reversed.

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


text:
    11277.
    HUMPHREY v. THE STATE.
    Decided April 14, 1920.
    A conviction of having unlawful possession or control of liquor was not authorized by the evidence in this ease.
    Indictment for possession of liquor; from Glascock superior court — Judge Walker. December 12, 1919.

      J. C. Newsome, for plaintiff in error.

      R. C. Norman, solicitor-general, contra.
   Bloodworth, J.

The indictment in this case charged that on the 16th day of February, 1919, the accused “did have and control and possess spirituous, vinous, malted, fermented, and intoxicating liquors and prohibited liquors and beverages.” The evidence for the State showed that in the absence of the accused the sheriff and another searched the dwelling and found no whisky therein, but they “found about one quart in a quart-bottle in his corn-crib. It was covered up> under the corn.” They also “ found a gallon jug in the hog-pen near the house, nearly full. It was covered with a little pine-straw and pine-tops.” It was described as “ brown jug with a rope tied in the handle.” This was on Sunday, February 16, 1919. The evidence for the defendant showed that he and his wife went visiting on Saturday, the 15th, and left a negro named John Williams, who had lived with him most of the year, in charge of his crib to feed his hogs and other stock Saturday night and Sunday morning. Two witnesses swore that they saw John Williams on Sunday morning, the 16th, with a brown jug with a handle and a rope tied in the handle, and the jug had ivhisky in it, and John Williams carried the jug. of whisky towards the residence of the accused. Another witness swore that he went to the home of the accused late Saturday afternoon, and there was no one there except John Williams, who was “in the crib shucking corn and fixing to feed the mule and hogs. He had a quart-bottle there in the crib, with some whisky in it . . . He sorter had it covered up with corn.” In his statement the defendant said, in part: “ Me and my family went off visiting on Saturday evening before, and I got back just as the sheriff and Mr. Usry were leaving. It was not my liquor they found. I didn’t have any. I didn’t know there was any on the place. I left a negro named John Williams in charge of everything to feed my hogs and stock.”

The only circumstance connecting the defendant with the whisky is the fact that it was found upon his premises. Under the evidence in this case it is more reasonable to believe that the whisky belonged to John Williams than to the accused. “Where all the evidence in the case wholly fails to connect the defendant with the commission of the offense charged, but, on the contrary, presents reasonable hypotheses of his innocence, a verdict of guilty is without evidence to support it, and therefore contrary to law, and such verdict, on motion for a new trial, should be set aside on this general ground.” Johnson v. State, 1 Ga. App. 129 (2) (57 S. E. 934). The testimony in this case being entirely circumstantial, and the facts proved being consistent with the innocence of the defendant, 'and failing to connect him with the perpetration of the crime charged, the verdict was contrary to evidence. The court therefore erred in overruling the motion for a new trial. Bailey v. State, 104 Ga. 530 (30 S. E. 817). See also Newman v. State, 26 Ga. 633.

Judgment reversed.

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