text:
    9826.
    BARRS v. THE STATE.
    “A party who has been tried and convicted by a court not having jurisdiction of the offense can not plead prior jeopardy if subsequently indicted for the same offense in a court having jurisdiction thereof.”
    Decided October 14, 1918.
    Accusation of misdemeanor;' from city \ court of Dublin—Judge Flynt. May 20, 1918.

      B. Bari Gamp, for plaintiff in error.

      S. P. New, solicitor, contra.
   Bloodworth, J.

An accusation charging the defendant with having in his possession a quantity of intoxicating liquor was filed in the city court of Dublin. The defendant was arrested and placed in jail. At his request he was carried from the Laurens county jail to Wrightsville, in Johnson county, where an accusation was drawn against him by the solicitor-general of the Dublin circuit, charging him with the same offense. A plea of guilty was then and there entered before the judge of that circuit, and a sentence imposed. On return of the defendant to Laurens county he was again arrested and was tried in the city court, under the original accusation. A plea of former jeopardy was filed. The .record contains an agreed statement of facts, headed, “Special plea in bar filed by defend'ant,”which statement is as follows: “It is agreed, from the facts in the plea at bar, that the defendant was arrested by the deputy-sheriff of the superior court, and, upon the request of the defendant, the sheriff of the county, or his deputies, after the defendant was placed in jail, . . carried the defendant before the solicitor-general of the Dublin judicial circuit, who preferred an accusation against him at Wrightsville in Johnson county, and then, carried him before his honor J. L. Kent, judge of said circuit, where a plea of guilty to said accusation was entered, and judgment rendered thereon by the judge of the. superior court, and sentence imposed by the judge of the superior court at Wrightsville in Johnson county. TL~re was a warrant pending against the defendant at the time of his arrest. Also let it appear that the arrest was made by the sheriff of the county at the request of the sheriff of the city court.” While it appears from the record that a motion was made to “strike” the special plea, yet the record shows also that the motion was sustained on the single ground that “the judge 'of the superior court did not. have any jurisdiction to pass on a matter like that ip another county.” The judge “struck” the plea, instead of overruling it, .but this was a mere technical error. Wells v. State, 118 Ga. 556 (7), 563 (45 S. E. 443).

In the brief of counsel for the plaintiff in error it is stated that “there can be but one possible point to determine, and that is as to whether the judge of the superior court had a right to receive the plea of guilty in another county of his circuit, and one other than the county in which the crime was alleged to have been committed.” From the foregoing it is evident that the judge had before him the agreed statement of facts, and, taking it under consideration, passed upon the issue raised by the special plea. This being true, the question for determination is, Was the ruling of the judge of the city court correct ? Or can a defendant in a criminal case be tried in a county different from the one in which the crime is committed, whére there has been no change of venue? Section 29 of the Penal Code (1910), is as follows: “All criminal cases shall be tried in the county where the crime was committed, except cases in the superior courts where the judge is satisfied that an impartial jury can not be obtained in such county. When he becomes thus satisfied, he, may change the venue for the trial.”. See also art. 6, sec. 16, par. 6 of the constitution of the State, embodied in the Civil Code (1910), § 6543. In the instant case there is no claim that an impartial jury could not be obtained, and no question of'a change of venue is involved. Counsel for the plaintiff in error insists that no one but his client could raise the question of jurisdiction, and that he has waived it.

The 3d headnote of Dix v. Dix, 132 Ga. 630 (64 S. E. 790), is as follows: “If a court is wholly without jurisdiction of a given subject-matter, or power to pass upon issues in respect thereto, an attempted decision of issues on that subject is invalid, and will not operate as res adjudic.ata in a subsequent suit concerning the subject-matter in a court of competent jurisdiction.” In the opinion in that case we find the following (p. 632) : “It is rudimentary law that parties, can not, by consent'express or implied, give jurisdiction 'to a'court; that as to the subject-matter, the court is limited, by the powers conferred upon it by law, and can not be given additional power or jurisdiction by consent of the parties or by waiver; but that as to jurisdiction of the person, the point may generally be waived, so far as the rights of the parties are concerned, but not so as to prejudice the rights of -third persons. Civil Code [of 1895], §§ 5079-5080. The language in the latter part of section 5079 [Civil Code of 1910, § 5663] does not mean that parties can confer upon a court, by agreement or waiver, jurisdiction as to a subject-matter.” In Smith v. Ferrario, 105 Ga. 51 (31 S. E. 38), the court said: “It appears, from the supplemental record brought up by the defendant in error, that this ease was referred 'to the judge of the city court by consent of both .parties, in order, as it was stated, to have the question determined. The case was argued here without any motion to dismiss for want of jurisdiction. Consent of parties, however, can not give a court jurisdiction of a subject-matter when it has none by law; and when this court discovers from the record that a judgment has been rendered by a court having no jurisdiction of the subject-matter and the case is brought here for 'review upon wrii of error, this court will of its own motion reverse the judgment.” See also State v. Sallade, 111 Ga. 700 (36 S. E. 922); Epps v. Buckmaster, 104 Ga. 698 (2, 3), 700 (30 S. E. 959); Yon v. Baldwin, 76 Ga. 769; Raney v. McRae, 14 Ga. 589 (60 Am. D. 660).

In State of Indiana v. Tolleston Club of Chicago, 53 Eed. 19, District Judge Baker said: “The want of jurisdiction is affirmatively shown on the face of the record. In such case neither silence nor positive consent will confer jurisdiction, because-the parties cannot confer on the court a jurisdiction denied to' it by the statute.” The 2d headnote in Montross v. State, 61 Miss. 429, is as follows: “A party who has been tried and convicted by a court not having jurisdiction of the offense cannot plead prior jeopardy if subsequently indicted for the same offense in a court'having- jurisdiction thereof.” In Commonwealth v. Peters, 53 Mass. (12 Metc.) 387, the Supreme Court of Massachusetts said: “An acquittal by a jury, in a court of the United States, of a defendant who is there indicted for an offense of which that court has no jurisdiction, is no bar to an indictment against him, for the same offense, in' a-state court.” The first headnote in Blyew v. Commonwealth, 91 Ky. 200 (15 S. W. 356), is as follows: “The trial and conviction of the defendant in the United States' Circuit Court did not bar a prosecution in the State court for the samé offense, the United States Court having no jurisdiction of the' offense.” In the case of Mills v. Commonwealth, 13 Pa. St. 627, the court said (p. 630): “Jurisdiction in courffi is the power and authority to'declare the law. The very word in its origin imports as much. It is derived, from juris and dico,—I speak by the law. And that sentence ought to be inscribed in living light on every tribunal of criminal power. It is the right of administering justice through the laws by the means which the law has provided for that purpose; . . it is not the consent of counsel which can constitute a tribunal -by which a citizen may be tried and punished. It is the law of the land, and that alone which can constitute and establish such a tribunal. I need not repeat the authorities which establish that consent can •not give jurisdiction. In criminal proceedings especially - that axiom has grown with the growth and strengthened with the strength of the law. Trials by lynch law might otherwise be valid. For 'at times, I dare to say, a man might consent to their jurisdiction in hope or in fear, or perhaps in ignorance. But autrefois acquit or autrefois convict could not'be pleaded in that case, nor in this. -Because it is a lawful trial only that can be effectually so pleaded. . . The trial was coram non judice, and therefore null.”

Other questions were raised by the motion to “strike,” but they had reference to mere irregularities of procedure, and these could' have been waived if the case had been proceeding in a court of competent jurisdiction ;• but there is a wide difference between such irregularities in a court of competent jurisdiction and the entire absence of jurisdiction. The latter can not be waived. The order of the judge of the city court was based upon the entire absence of jurisdiction in the superior court of Johnson county to try the case where the venue was clearly shown to be in Laurens county. Applying the principles announced above, it clearly appears that t.he superior court of Johnson county had no jurisdiction, that the judgment against the defendant in that- court is void, and the judge of the city court did not err in so holding.

Judgment affirmed.

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


source: Caselaw Access Project

author: Bloodworth, J.

license: Public Domain

text:
    9848.
    BURBANK et al. v. THE STATE.
    An indictment tinder § 601 of the Penal Code (1910) should name the owner.or “proprietor” of the shores of the waters from which the defendant has taken, or attempted to take, fish in violation of that section.
    Decided October 14, 1918.
    Indictment for unlawful fishing; from Liberty superior court— Judge Sheppard. March 30, 1918.

      W. 0. Hodges, Robert W. Burden, for plaintiffs in error.

      W. F. Slater, solicitor-general, contra.
   Bloodworth, J.

An indictment was returned against George and Will Burbank, charging them with a misdemeanor, “for that the said George Burbank and Will Burbank, in the county of Liberty and State of Georgia aforesaid, on the 22 day of December in the year of our Lord one thousand nine hundred and fifteen, with force and arms, did take fish with net on and from the waters of McQueen’s Creek where artificial shell-reef beds and fishing •grounds had been constructed, and within one hundred yards of said shell-reef' fishing grounds, -the said George Burbank and Will' Búrbank not being the proprietors nor the owners of said shore of McQueen’s Creek, nor of the shell-reef fishing grounds, and the said George Burbank and Will Burbank were not authorized by the proprietors of the shores of said McQueen’s Creek to take fish from the waters of said McQueen’s Creek; that the said McQueen’s Creek may be described as follows, that it is a certain salt creek, extending from the Atlantic Ocean into the lands of St. Catherine’s Island; contrary to the laws of said State, the good order, peace and dignity thereof.” To this indictment the accused demurred as follows: “1. 'Said indictment fails to allege who the owners or proprietors of the said McQueen Creek are, where said alleged private fishing grounds are located. 2. Said indictment fails to allege that the said private fishing grounds or artificial shell-reefs were and are posted as required by the laws of Georgia, the same being located upon the navigable tide-waters of tire ocean or an arm thereof. 3. Said indictment fails to allege that the defendants were fishing with net between low and high water marks, all waters below low-water mark being'public waters on McQueen’s Creek or inlet.” The demurrer was overruled “on each.and every ground thereof.”

Under the rulings of this court we think the judge should have sustained the first ground of the demurrer. It may be that McQueen’s Creek is a small and short one, and that all of the lands bordering on it are owned by the same person, but the indictment does not so allege. Of the size and length of the creek and the. owners of the adjacent lands the court cannot take judicial cognizance. The laws applicable to indictments must be so construed as to apply alike, to all indictments drawn under any particular section, and every indictment should be so definite in its allegations as to enable the person accused to prepare his defense. Suppose that McQueen's Creek was 50 miles long and there were 100 persons owning land which bordered on the creek, would it be insisted that an indictment was good against a special demurrer which alleged that the defendant was “not authorized by the proprietors of the shores of said McQueen’s Creek to take fish from the waters?” Would it not be an injustice to the defendant to require him to summon the 100 landowners or “proprietors,” to show by each that he did have his consent (if such were true) to fish opposite the shore of his land, when by simply alleging the-owner of the shore the evidence would be limited to the owner or “proprietor” of that particular part of the shore.

The headnote in Baker v. State, 19 Ga. App. 84 (90 S. E. 983), is as follows: “'An indictment charging a violation of section 18 of the act of 1911 (Acts of 1911, p. 144; Park’s Penal Code, § 594 (h)), in that in a certain county the accused unlawfully hunted without a license, on lands not his own, outside of a specified militia district therein, in which he resided, but which failed to allege in what militia district he hunted, is fatally defective.” 'The indictment in that case was under the acts of 1911, p. 144 (Park’s Penal Code, § 594 (h)), which declares'that “any person who shall hunt, without first obtaining a license, except upon his own land, or in his own militia district, . . shall be guilty of a misdemeanor.” In the opinion Judge Wade said: “The mere allegation that the-hunting was done in the county of Camden elsewhere than in the 31st'Georgia militia district of that county, where the defendant resided, was not sufficient to put the accused on such notice that he could properly defend or be able to prepare for trial. Eor example, in a case of mistaken identity, under such an. indictment the accused might, be unable to procure witnesses in advance of trial who would be-able to establish for him a defense of alibi, though in point of fact there were witnesses who knew of their own knowledge that on the day fixed by the testimony for the State he was not actually in the particular militia district where, according to the State’s testimony, the crime charged in the= indictment was committed, because of their knowledge of his presence in another district, in a different' part of the county, far remote from the scene of the crime; though it would be otherwise if he had been put on proper notice by the indictment itself as to the particular militia district in which the alleged crime was by some one committed.” Applying the same process of reasoning to the instant case, it is easy to see why the indictment in this case should be more definite and name the owner of the shore. In this connection see also Morrow v. State, 17 Ga. App. 116 (86 S. E. 280), and Heard v. State, 4 Ga. App. 572 (61 S. E. 1055), and cases cited. The erroneous ruling of f:he' judge on the first ground of the demurrer rendered-the further proceedings nugatory. Grounds 2 and 3-of the demurrer are without merit.

■Judgment reversed.

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


author: Bloodwoetii, J.^

text:
    9851.
    Osterholtz v. The State.
    Decided October 14, 1918.
    Accusation of unlawful possession of liquor; from city court of Savannah—Judge Kourke. April 20, 19Í8.

      Robert L. Golding, for plaintiff in error.

      Walter G. Hartridge, solicitor-general, contra.
   Bloodwoetii, J.^

The accused was tried by the judge without the intervention of a jury. There was sufficient evidence to sustain the conviction, and this court will not interfere with the discretion of the trial judge in overruling the motion for new trial, which was based on general grounds only.

Judgment affirmed.

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


author: Bloodwoeth, J.

text:
    9863.
    Rachels v. The State.
    Decided October 14, 1918.
    Accusation of larceny; from city court of Macon—Judge G-uerry. May 23, 1918.

      8. B. Hunter, for plaintiff in error. Will Gunn, solicitor, contra.
   Bloodwoeth, J.

1- There is no merit in the grounds of the motion for

new trial based on alleged newly discovered evidence. They show that the defendant knew of this evidence before the trial, and that there was a 'lack of diligence on his part to procure the same. Burgess v. State, 93 Ga. 304 (20 S. E. 331); Watkins v. State, 18 Ga. App. 60 (3), 61 (88 S. E. 1000).

2. There was sufficient evidence to support the finding of guilty by the trial judge, who presided without a jury.

Judgment affirmed.

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


author: Blood worth, J.

text:
    9898.
    BRINSON v. THE STATE.
    1. As to the alleged dying declaration, the exceptions are without merit.
    2. The charge of the court on voluntary manslaughter was authorized by evidence.
    3. The instructions consisting of provisions of the code as to criminal intent could not have -harmed the accused;
    4. The omission of instructions on a theory presented only by the defendant’s statement at the trial, where there is, no written request for such instructions-, is not cause for a new trial.
    5.. The verdict is supported by evidence.
    Decided October 14, 1918.

      Indictment for murder—conviction of voluntary manslaughter;, from Glascock superior court—Judge Walker. May 33, 1918.

      M. L. Felts, F. B. Rogers, for plaintiff in error.

      R. G. Norman, solicitor-general, contra. •
   Blood worth, J.

The first ground of the amendment to the motion for new trial assigns error on the admission in evidence of an alleged dying declaration of the deceased, (1) because it was not shown that he was in the article of death and conscious of his condition; (2) because it contained testimony showing other than the cause of death and who killed him; (3) because the declaration was made in response to questions asked the deceased.

On preliminary examination, the witness by whom the dying declaration was proved testified: “He said he was going to die, he couldn’t live. He says, ‘My entrails are shdt out and I can’t live. I am going to die.’ ” This was about three o’clock a. m., and the deceased died before day. This Was sufficient foundation to make a prima facie case. Davis v. State, 120 Ga. 843 (3), 845 (48 S. E. 305); Jefferson v. State, 137 Ga. 382 (3), 385 (73 S. E. 499); Josey v. State, 137 Ga. 769, 772 (74 S. E. 282), and cases cited.

The assignment of error which alleged that “the statements [of the deceased] contained testimony showing other than the cause of death and the person who killed him” is without merit. “Where an objection goes to the testimony as a. whole, and part of the testimony is admissible, the objection may without error be overruled, though a part of the testimony be inadmissible.” Brown v. State, 8 Ga. App, 382 (3), 385 (69 S. E. 45).

There is no merit in the assignment of error which alleges that the declaration was made in response to questions asked deceased. “The admissibility of dying statements attributed to á deceased person is not affected by the fact that the statements may have been elicited in response to questions- put to him by a -bystander.” Smith v. State, 9 Ga. App. 403 (3), 405 (71 S. E. 606).

The trial judge did not err in charging the-jury on voluntary manslaughter. The defendant’s statement showed that the deceased came in the house with a quart bottle of kerosene, drawn back in his hand, and slapped her, and said, “You get in the house, don’t I’ll kill you.'” Weldon v. State, 21 Ga. App. 330 (94 S. E. 327 (h)); Tanner v. State, 21 Ga. App. 189 (94 S. E. 67), and cases cited in opinion.

The excerpt from the charge of the court, complained of in the 3d ground of the amendment to the motion for a new trial, is a literal quotation of sections 31, 32, and 40 of the Penal Code (1910), preceded by the words, “Under her defense I charge you that.” Under the facts of the case the giving of this charge to the jury could not have been harmful to the defendant. Indeed, the statement of the defendant justified the judge in giving this charge.

Grounds 4 and 5 are without merit. “In the absence of a written request so to do, it is not error for the trial judge to fail to charge the law of a theory of the case presented solely by the prisoner’s statement.” Robinson v. State, 114 Ga. 56 (4), 57 (39 S. E. 862).

There was sufficient evidence to support the verdict, which has the approval of the trial judge.

Judgment affirmed.

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


author: Jenkins, J.

text:
    9487.
    Falla v. Pine Mountain Granite Co.
   Jenkins, J.

1. “Except in case of railroad companies, the master is not liable to one servant for injuries arising from the negligence or misconduct of other servants about the same business.” Civil Code (1910), § 3129.

2. Where two or more employees in the same service are engaged in labor for the furtherance of the general purpose of the business in 'which they contract to serve, and are subject to the general control and direction of a common master, though employed in different departments of duty and so far removed from- each other as that one can not in any degree control or influence the conduct of the other, they are. nevertheless fellow-servants within the meaning of the rule stated above. Brush Electric Light Co. v. Wells, 110 Ga. 192 (35 S. E. 365); Georgia Coal & Iron Co. v. Bradford, 131 Ga. 289 (62 S. E. 193, 127 Am. St. R. 228); Byrd v. Thompson, 146 Ga. 300 (91 S. E. 100); Winn v. Fulton Bag & Cotton Mills, 15 Ga. App. 33 (82 S. E. 586); Dawn v. Great Eastern Lumber Co., 15 Ga. App. 108 (82 S. E. 666). Thus, one employed by a stone company in the cutting or breaking of stone for paving or Belgian blocks is a fellow-servant with the engineer and fireman of a locomotive operated by the same company in connection with such stone industry, and with the employees engaged in making blasts in the quarrying of such stone, and therefore is not entitled to recover damages from the master for injuries attributable to their negligence.

3. A servant assumes the ordinary risks of his employment, and is bound to exercise his own skill and diligence to protect himself. The general rule of law requiring the master to furnish a safe place to work is usually applied to a permanent place, or one which is quasi-permanent. The obligation of a master to provide reasonably safe places for his servants to work does not oblige' him to keep the places where they are employed in a safe condition at every moment of their work, so far as its safety depends on the due performance of that work by them and their fellow-servants. Byrd v. Thompson, supra; Terry v. Thompson, 22 Ga. App. 406 (95 S. E. 1010).

Decided October 15, 1918.

Action for damages; from DeKalb superior court—Judge Smith December ¿,1917'.

Alonzo Field, for plaintiff. '

Bryan, Jordan & Middlebroolcs, A. M. Brand, for defendant.

4. There was no evidence introduced by the plaintiff tending to show that the point to which the defendant had transported him on its ears and at which it caused him to alight could be taken as being in itself a dangerous place; on the contrary, the evidence of the plaintiff discloses that the explosion of the blasting charge carried the piece of stone which caused his injury a most unusual and extraordinary distance^ His evidence also shows it was a long-established custom or system in effect at the defendant’s quarry that the men who made the blast would give out a warning prior to the time a blast was to be made; and from this evidence it appears that this warning was in point of fact actually given prior to the time the plaintiff was injured. Thus, under the facts as disclosed by the record' of this case, there is no reason why there should be a different application of the fellow-servant rule by virtue of the principle of law to the effect that where the work of the master is complex and involves the presence and co-operation of a number of laborers, so situated that independent individual action on their respective parts would render the doing of the work unsafe, the duty devolves upon the master of organizing and maintaining a system by which the work can be done with reasonable safety, and if he chooses to leave to an employee the regulation of matters which he ought to have provided for by specific rules, such employee will be regarded as his representative, and not as a fellow-servant of the laborers who do his work. . The plaintiff in this case was a man with thirty-four years’ experience in the character of work in which he was engaged at the time of the injury; and if the place where he was injured was unsafe at that particular time, the injury must have been due either to .the . risk incident to the character of work being 'done, or if there was negligence at all, it existed on the part of his fellow-servants. In neither of these events can the plaintiff recover, and the'trial judge did not err in granting a nonsuit.

Judgment affirmed.

Wáde, O. J., and Lulce, J., concur.


author: Wade, C.' J.

text:
    9489.
    Farmers State Bank v. Singletary et al.

    Decided October 15, 1918.
    Complaint; from Early superior court—Judge Worrill. January 5, 1918.
    The petition alleges, in substance, that on June 30, 1915, it was agreed between 'the plaintiffs and the defendant, the Farmers State Bank, that the bank should be allowed to hypothecate, for the purpose of obtaining funds needed in carrying on its regular banking business, certain cotton delivered to -it by the plaintiffs on that date; and at the same time the bank issued to them certificates of deposit for $17,162.64, which amount was to be deducted from the proceeds. of the cotton when sold, it being agreed that no such sale should be made until the plaintiffs should consent to the sale. íhe bank, in accordance with the agreement, borrowed on the. cotton large sums of money, which were used in its regular banking business, but, in violation of the agreement, sold the cotton without the consent of the plaintiffs, and they demanded that the bank come to an accounting and pay to them the balance due for the cotton after they had accounted to the bank for the certificates of deposit issued to them; whereupon it was agreed between the parties, on April 22, 1916, that the bank wp,s indebted to the plaintiffs for the value of the cotton, in' the sum of $28,505.52, less the amount of the certificates of deposit and the amount of certain advances and of certain promissory notes; and, in partial settlement, the bank canceled and delivered to the plaintiffs one of these notes and gave its receipt for the amount of the others. Under the terms of this compromise, settlement, and agreement, there became due to the plaintiffs' on April 22, 1916, $6,989.27, which remains unpaid, and the bank refuses to pay it. The suit is for this amount and interest.
   Wade, C.' J.

1. Where accord’ and’ satisfaction is pleaded in bar to a suit based on the’ original cause of action, it must appear that the accord has been fully executed; but where an agreement has. been reached between the parties as to the amount of indebtedness due by one to the other after a comparison anil adjustment of their respective claims, and a portion only of the resulting sum- of indebtedness agreed upon is paid by one party and the balance thereof still remains unpaid, the other party is not compelled to rescind or disregard the compromise agreement and sue on the original claim, but may at his election retain the amount received under the compromise agreement and maintain an action for the balance due thereunder.

(a) Under the allegations in the petition in this case, it was at least necessary that an agreement be reached as to the market value of the cotton at some particular date, out of which the demand of the plaintiff's arose.

2. The compromise or liquidation contract between the parties which furnishes the foundation for the action brought is not an unilateral contract.

3. Under the allegations in the petition it does not appear that any amount of money was loaned to the plaintiffs, and therefore there is no merit in the contention that the petition fails to disclose that the amount-loaned to the plaintiffs by the bank was not.in excess of that allowed by law.

4. The trial judge did not err in overruling the demurrer to the petition.

Judgment affirmed.

Jenkins and Luke, JJ., concur.

The demurrer is on. the grounds: (1) No cause of action is set out. (2) The petition does not set up that the defendant had enough capital and surplus to authorize the agreement to lend $17,-162.64, or that the loan was amply secured by good collateral. (3) The alleged contract is unilateral, no consideration being obtained by the bank for the'option claimed by the plaintiffs. (4) No facts alleged authorize, a claim that a compromise was effected between the parties litigant.

Cited by counsel for plaintiff in error: Civil Code (1910), §§ 4326-9; 1 Corpus Juris, 527, 530-4, 539-57, 567-8, 574-7; Troutman v. Lucas, 63 Ga. 466, 469; Blalock v. Jackson, 94 Ga. 469 (3); Patterson v. Ramspeck, 81 Ga. 808 (4); Taylor v. Thomas, 61 Ga. 472 (3); Kennedy v. Maddox, 15 Ga. App. 684; Stone Mountain Granite Corporation v. Patrick, 19 Ga. App. 269 (4); Brunswick R. Co. v. Clem, 80 Ga. 534; Long v. Scanlan, 105 Ca. 426; Fouche v. Morris, 112 Ga. 143, 144-5; Petty v. B. & W. Ry. Co., 109 Ga. 680; Lowry v. Sloan, 51 Ga. 633 (2), 636-7; Dannelly v. Cuthbert Oil Co., 131 Ga. 697-8; Long v. Lawson, 7 Ga. App. 460-1; Edwards Bottling Works v. Jarnagin, 11 Ga. App. 163; Bynum v. Knighton, 137 Ga. 251 (1); Dillard v. Dillard, 118 Ga. 97 (3); Nance v. Winship Machine Co., 94 Ga. 649 (3); Smith v. Mechanics Nat. Bank, 108 Ga. 211; Bowen v. Waxelbaum, 2 Ga. App. 522 (3-5), 524-5; City Electric Co. v. Floyd County, 115 Ga. 655; Belt v. Lazenby, 126 Ga. 767 (2, 3), 771-2, and cit.; Byrd Printing Co. v. Whitaker Paper Co., 135 Ga. 865 (2), 867-8; Dickerson v. Dickerson, 19 Ga. App. 269; Davis v. Morgan, 117 Ga. 504 (1), 505-7, and cit.; Reese v. Hood, 99 Ga. 132-3; American Mortgage Co. v. Rawlings, 127 Ga, 82; McLendon v. Wilson, 52 Ga. 41 (1); Stewart v. Stephens, 7 Ga. App. 453, 458-60; Graham v. Howell, 50 Ga. 203 (2); Rhodes v. Outcault Adv. Co., 135 Ga. 516, (1-2); Copeland v. Montgomery, 8 Ga. App. 633; Ryan v. Progressive Pub. Co., 16 Ga. App. 83, 86 et seq., and cit.; Phinizy v. Bush, 129 Ga. 479 (6), 491; Molyneaux v. Collier, 13 Ga. 407 (11-14), 420-4; s. c. 3 Ga. 112, 17 Ga. 46, 30 Ga. 731; Parker v. Riley, 21 Ga. 427 (2); Mallet v. Watkins, 132 Ga. 700-1, and cit.; Swindell v. Bainbridge State Bank, 3 Ga. App. 364, 366-7; Savannah Ice Co. v. Canal-Louisiana Bank, 12 Ga. App. 819 (10); First Nat. Bank v. Monroe, 135 Ga. 614 (2); Gordon v. Mitchell, 68 Ga. 12 (3), 17 et seq.; Penitentiary Co. v. Gordon, 85 Ga. 160 (8), 170.

Cited contra: Georgia R. Co. v. Kent, 92 Ga. 782; Morris v. Munroe, 30 Ga. 630; Sprigs v. Bramblett, 54 Ga. 348; Bass v. Bass, 73 Ga. 135; Tyson v. Woodruff, 108 Ga. 368; Thornton v. Lemon, 114 Ga. 155; 6 Am. & Eng. Enc. L. (2d ed.) 713, and cit.; City Ry. Co. v. Floyd County, 115 Ga. 655, 657; Rogers v. Ball, 54 Ga. 15; Glaze v. W. & A. R. Co., 67 Ga. 761 (2); 3 Cook, Corp. (7th ed.) § 750, p. 2749; New Albany v. Burke, 11 Wall. 96; First Nat. Bank v. Exchange Bank, 92 U. S. 122; Illinois Pneumatic Co. v. Berry, 113 U. S. 322; Dickerson v. Dickerson, 19 Ga. App. 269; Kennedy v. Maddox, 15 Ga. App. 684 (distinguished).

Park & Stone, Glessner & Collins, for plaintiff in error.

Pottle & Hofmayer, contra. •


text:
    9490.
    Wright v. Stewart et al.

   Jenkins, J.

1. The Civil Code (1910), § 4698, provides that “Justices of the peace, and notaries public who are ex-officio justices of -the peace, shall hold their respective courts monthly at fixed times and places; and when from any reason the business of such couft can not be disposed of in one day, such courts may hold from day to day or to such time as may be agreed upon by the parties, with the consent of the court, until the business is disposed of. All continuances shall be from term to term, except when in the discretion' of the court it is better to continue to a day or from day to day in the term for which the case was assigned for trial.”

2. Where the fixed place for holding the justice’s court was the grand-jury room, and, at the time designated for the court’s' regular session, the room was occupied, by reason of the grand jury being then and there in session, and where the court regularly met at the time and place appointed, and, at the front of the only door leading into the jury room, the Justice regularly opened court and adjourned over to the following day, this will, from the necessity of the case, be taken as a compliance with the law relative to the time and place for holding such courts. . ' i

Decided October 15, 1918.

Certiorari; from Monroe superior court—-Judge Searcy. 'December 11, 1917.

IJ. W. Nalley, A. M. Zellner, for plaintiff in error.

J. M. Fletcher, contra.

3. The quoted statute providing that if for “any reason” the business of such court can not be disposed of in one day, the court may hold over from day to day, does not contemplate that the reasons requiring such an adjournment shall necessarily pertain to or arise only out of the business pending in the court; but if for any reason an adjournment is necessary, even though no portion of- the court’s business can be disposed of, such an order of adjournment is legal.

¡I, The action of the justice of the peace in entering up a default judgment against the garnishee on the day following his order of adjournment was therefore not illegal for the reason that the court was not at that time lawfully in session. The order of the judge of the superior court sustaining the certiorari, assigning error upon the judgment of the justice of the peace in dismissing the affidavit of 'illegality, and in which order he remands the case back to the justice’s court, is, however, affirmed, for the reason that the affidavit of illegality attacking the default judgment against the garnishee shows that the plaintiff in ' li. fa., after having had transferred to her two executions issued upon judgments obtained in two separate and distinct suits against the same defendant, sued out one summons of garnishment, based upon the two executions, and consolidated them in the affidavit and bond to obtain the garnishment, thus rendering the' proceeding illegal and void.. The garnishee, having been served only with one summons, was not required to answer,' but could by affidavit of illegality take advantage of the illegal proceeding. Rich v. Kiser, 61 Ga. 370; Morgan v. Latham, 111 Ga. 835 (36 S. E. 99).

Judgment affirmed.

Wade, G. J., and Luke, J., concur.


author: Wade, C. J.

text:
    9500.
    WILLIAMS, guardian, v. FARMERS STATE BANK.
    1. The evidence demanded a verdict for the defendant, and the court did not err in directing the verdict.
    2. The legal title to'bank stock purchased by and issued to W., “guardian,” was prima facie in him individually, and on his death descended to his personal representative; and his successor in the trust had no right, under the facts of this case, to recover from the bank money paid for the stock.
    3. In an action at law brought in behalf of wards against a bank to recover money alleged to have been paid from funds of the wards 'by their deceased guardian for stock issued to Mm by tlie bank^on Ms subscription and in Ms name as an individual, Ms declarations to others to the effect that the money invested in the stock belonged to his wards were not admissible against the defendant.
    4, Where both parties to a suit introduce evidence and the case as a whole turns upon a question of law which must be decided adversely to the plaintiff, it is not error for the trial judge to direct a verdict in favor of the defendant; and the plaintiff is not entitled to complain on the ground that the court should have awarded a nonsuit, instead of directing a verdict, where no motion for nonsuit or dismissal was made by the plaintiff'.
    Decided October 15, 1918.
    Complaint; from Berrien superior court—Judge Thomas. April 14, 1917. .

      :Hendriclcs, Mills & Hendricks, for plaintiff.

      W. B. Smith, JS. K. Wilcox, for defendant.
   Wade, C. J.

The bill of exceptions in this case was sued out to the Supreme Court, apparently upon the idea that the proceeding in the lower court was an equitable One. The Supreme Court transferred the case to this court, holding that the pleadings upon' which the‘case was tried made it merely an action at law. Williams v. Farmers State Bank, 147 Ga. 569 (94 S. E. 998). This case, therefore, is an'action at law, instituted by Mrs. Orrel Williams, as guardian of the person and property of Eloise and Juanita McLeod, minors, against the Farmers State Bank of Sparks, Georgia, to recover $500, alleged .to have'been invested in stocks of that bank by one. G. E. Williams, former guardian (now deceased) of the plaintiff’s wards. ' She alleged in her petition that the defendant bank induced her deceased husband, the former guardian of her wards, to buy ten shares of its capital stock, with funds belonging to the wards, knowing at the time that the purchaser had no authority under the law to invest such trust funds in the stock of the bank; that after the purchase $600 was paid on the purchase-price of the stock, which stock was in fact worthless; that the stock was tendered back to the bank, and demand was made for the principal amount, with interest at 8 per cent, from the date of the purchase; and that she desired to sue the stockholders for the amount so received by the bank; and'discovery was sought as to the list of the stockholders of the bank. It was further alleged that G. E. Williams, the former guardian, had no authority from the court of ordinary to buy the said stock; that on September 26, 1911, a certificate was issued to “G. E. Williams, gdn.” In the body of the certificate appears the following language: “This certifies that G. E. Williams, gdn., is the owner of ten shares of $100 each of the capital stock of Farmers State Bank, transferable only on the books of the corporation by the holder hereof in person, or by an attorney, upon the surrender of this certificate, properly endorsed.”

On the trial the plaintiff tendered in evidence certified copies of letters of guardianship issued to her. and to her husband, who was up to the time of his death guardian of her wards; also a certificate of stock from the Farmers State Bank to “G. E. Williams, gdn.” J7 C. Wilson, in behalf of the plaintiff, testified that he was cashier of the defendant bank at the time he signed the stock certificate referred to. In reference to whose money paid for the stock he testified, “I only know what the party said. I can only Iqiow what I was told about it at the time and former transactions with Mr. Williams. I got the money from Mr. Williams. . . the consideration was $600. . . When the Farmers State Bank began its organization, (I solicited the stock mostly for that bank as the representative of Mr. Benton (the president). I solicited stock from G. E. Williams. The bank was not then organized. The stock had not been subscribed. I solicited Mr. Williams to subscribe for stock in this organization. . . Mr. Williams subscribed for 10 shares of stock. . . I know of no other way that the guardian money paid for this stock issued to ‘ G. E. Williams, gdn./ other than stated. Mr. G. E. Williams had an account with the Farmers State Bank. I find on this book, account of G. E.' Williams, personally; there is one account there of $30 on February 20th, 1912; that is the only account of G. E. Williams that I find. I don’t suppose that it goes any further; that is all,' the personal account. I made that entry there f Number one/ for ten shares of'stock, ‘G. E. Williams, gdn., sixty per cent, paid.’ That entry is correct.” F. C. Adams, also sworn for plaintiff, testified that he knew G. E. Williams to be the guardian of Eloise and Juanita McLeod; that these wards received money on a life-insurance policy on the life of their mother; that the Merchants and Farmers Bank handled the insurance, and that he wa.s, according to his recollection, vice-president of said bank at that time; that “Mr. Williams, as guardian, purchased some stock in the Farmers & Merchants Bank. The stock in the Farmers & Merchants Bank was paid for with the insurance' money on the life of Mrs. McLeod. . . I could not say positively that the money that purchased that stock in the Farmers State Bank was used to purchase the stock in the Farmers & Merchants Bank. .1 could not say positively of any connection of the two. . . Mr. Williams had an estate of his own. . . His estate consisted of a farm, house and lot there in Sparks'. He may possibly have had some money that I did not know anything about.” The plaintiff introduced three more witnesses, who testified that they knew nothing about the purchase of the stock by Williams. The defendant tendered in evidence a stock-subscription list, on which appeared “G. E. Williams, 10 shares, $1000.” This concluded the evidence for both sides, and the trial judge directed a verdict for the defendant. ' A motion for a new trial was overruled, and the plaintiff excepted.

The case turns upon a question of law. The evidence adduced on the trial demanded a finding in favor of the defendant, and the trial judge did not err in so directing. “Where a fiduciary loans money belonging to his cestuis que trust and takes notes therefor payable to himself, though he adds the word ‘guardian/ ‘administrator/ or ‘executor/ as the case may be, the legal title to the notes vests in him; and if he dies, the legal title descends to his personal representative, and not to his successor in the trust.” Kennedy v. Gelders, 7 Ga. App. 241, 242 (66 S. E. 620). See also Zellner v. Cleveland, 69 Ga. 631; Saffold v. Banks, 69 Ga. 289. Section 4939 of the Civil Code provides that where an action at law is brought on a contract, it must be instituted “in the name of the party in-whom the legal interest in such contract is vested.” In the case under consideration the action (at law) was instituted not by the personal representative _ of the deceased fiduciary, but by his successor in the trust. This being the case, in order for the plaintiff to maintain the action at law, as the successor in the trust, it was incumbent upon her to show by competent evidence that the money that G. E. Williams, the former guardian, invested in the stock was the money of her wards. This the evidence failed to do, inasmuch as there was absolutely no testimony whatever that the money invested by the former guardian belonged to his wards; but to the contrary there is unchallenged documentary evidence (the stock certificate and the stock-subscription list) indicating that the stock was purchased by G. E. Williams in his individual capacity, and not in his representative capacity as guardian. It is true that the stock'certificate was issued to “G. E. Williams, gdn.” However; under the statute law of this State, “an instrument signed by one as agent, trustee, guardian, administrator, executor, or the like, without more,_ is the individual undertaking of the maker, such words being generally words of description.” Civil Code, § 3570. Since, therefore, the evidence demanded a finding that the legal title to the stock, during the lifetime’ of Williams, was in himself personally, and, upon his death descended to his personal representative, his successor in the trust had no legal right to bring suit in behalf of the. wards to recover money paid in on the purchase of said stock. Nothing herein ruled is in conflict with the decision in the case of Dozier v. McWhorter, 117 Ga. 786 (45 S. E. 61), or the decisions there cited, for those were cases in which the-equitable title, and not the legal title, was involved. In the Saffold case, supra, this distinction is-expressly recognized.

S.pecial grounds 1 to 14 inclusive raise the question whether the court erred in refusing to allow proof of declarations of the deceased guardian, G. E. Williams, to the effect that the money invested in the stock belonged to his wards. The court did not err in rejecting such testimony. The bank having dealt with Williams as an individual, the stock being subscribed for and issued to him as such,' and the legal title to it being in him individually, such declarations as to ownership were not admissible in an action at law against the. bank. The admissibility of declarations of this kind in an equitable proceeding to trace trust funds illegally applied by the defendant is not here involved. ’

The 15th and last ground of the amendment to the motion for a new trial complains that the court erred in directing a verdict-for the defendant, it being contended that a nonsuit should have been granted, so that the plaintiff could recommence her suit. Conceding that the plaintiff “would have been entitled to a nonsuit upon making a motion therefor, or could have voluntarily dismissed her case without prejudice, she made no motion to that effect [so far as appears from the record], but submitted to the direction of a werdict against her; and, having allowed the verdict'to be thus taken against her-without moving to dismiss her case or to be permitted to take a -nonsuit, she cannot now be heard to complain of the method in which her -suit was disposed of. Thompson v. Etowah Iron Co., 91 Ga. 538 (2) [17 S. E. 663]. See also Grand Rapids Furniture Co. v. Morel, 110 Ga. 321 (2) [35 S. E. 312].” Watson v. Barnes, 125 Ga. 733, 735 (54 S. E. 723).

Judgment affirmed.

Jenlcins and LuJce, JJ., concur.


text:
    9510.
    Williams v. Atlas Assurance Company Limited of London.
   Jenkins, J.

1. Where a policy of fire insurance contains no provision to the contrary, a statement by the insurer’s agent who represented it in receiving the application for insurance, in collecting the premium, and in issuing the policy, made to the insured within the time in which, under the terms of the policy, proofs of loss were required to be made, that the company declines or refuses to pay the loss, will amount to a waiver of such proof. Phenix Insurance Co. v. Searles, 100 Ga. 97 (27 S. E. 779).

2. But where such a policy of insurance contains the following stipulation, viz: “This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements, or conditions as may be indorsed hereon or ’added hereto, and no officer, agent, or other representative of this- company shall h'ave power to waive any provision or condition of this policy except such as by the terms of. this policy may be the subject of agreement indorsed ’hereon .or added hereto, and as to such provisions and conditions no officer, agent or representative shall have such power or be deemed or held to have waived such provisions or conditions unless such waiver, if any, shall be written upon or attached hereto, nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached,” such an agent’s notice of refusal to pay the loss would not bind the company as a waiver on its behalf of the contractual duty of furnishing the proofs of loss called for by the terms of the contract of insurance. Johnson v. Ætna Insurance Co., 123 Ga. 404, 409 (51 S. E. 339, 107 Am. St. R. 92). If, however, such an absolute refusal to pay be made by such an authorized agent of the insurer as had authority to represent it in determining whether or not the policy should be paid, the rule would be otherwise. Continental Insurance Co. v. Wickham, 110 Ga. 129 (35 S. E. 287).

3. Where a policy of fire insurance, in addition to the stipulation quoted above, provides that the insured shall, within a named period after the fire, furnish to the insurer ceftain specified' proofs of loss, signed and sworn to, then even an agent of the company whose duty it is to ascertain and determine its liability under the’policy has no authority to dispense With such proof on the part of the insured by a . mere verbal waiver of such contractual requirement. Bailey v. First national Fire Insurance Co., 18 Ga. App. 213 (89 S. E. 80).

4. While the mere act of furnishing oral information to such an adjuster as to the fact that a fire had occurred, together with a’ written list or memorandum of the goods alleged to have been destroyed by the fire, would not, without more, dispense with compliance with the stipulations as to proofs of loss, yet where the insured, within the time allowed, in good faith endeavors thus to comply with the requirements of the policy in regard to proofs of loss, by giving such notice thereof, and furnishing to the authorized adjuster of the insurance company such written list or memorandum of the goods alleged to have been destroyed, and the company’s, agent accepts as sufficient such oral and written notice as being in compliance with the requirements of the policy, and the company makes no objection thereto, the insurer will be estopped from denying literal compliance with the terms of the policy relative to such proofs. Phœnix Insurance Co. v. Hart, 112 Ga. 765 (38 S. E. 67).

Decided October 15, 1918.

Action on insurance policy; from city court of Greenville—Judge Revill. December 7, 1917.

McLaughlin & Jones, N. F. Culpepper, for plaintiff.

Smith, Hammond & Smith, Hatchett & Hatchett, for defendant.

5. In a suit upon a second policy of insurance which contains the following provision, viz.: “This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the insured now has or shall hereafter make or procure any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy,” in order that the defendant company should be held to have waived such provision relative to the issuance of a previous policy, there must have been actual notice to the company’s agent, at the time he wrote the second policy, of the existence of the previous contract of insurance. While actual notice to such an agent is constructive notice to his principal, constructive notice to such agent will not be held to be consti’uctive notice to the principal. Liverpool &c. Insurance Co. v. Hughes, 145 Ga. 716 (89 S. E. 817).

6. The evidence of the plaintiff himself having disclosed that he had previously applied for a policy of insurance in another company and paid the premium therefor, the previous contract of insurance became consummated upon the issuance of the policy, even though it still remained in the hands of the agent and the plaintiff did not in fact know that it had been actually issued. Civil Code (1910), § 2470; New York Life Ins. Co. v. Babcock, 104 Ga. 67 (30 S. E. 273, 42 L. R. A. 88, 69 Am. St. R. 134); Todd v. German American Ins. Co., 2 Ga. App. 789 (59 S. E. 94). The facts which in this case could at most be taken as constructive notice only to the agent of the defendant company who issued the second policy, of the existence of the former policy, would not constitute notice to the principal and operate as a waiver of the prior policy on its part, and the trial judge therefore did not err in granting a nonsuit in defendant’s favor.

Judgment affirmed.

Wade, C. J., and Luke, J., concur.


text:
    9518.
    DALTON v. MOULTRIE GROCERY COMPANY.
    1. Dismissal of the writ of error is not required, because of incompleteness of the record transmitted to this court in this case.
    2. Where an answer to a summons of garnishment was, prematurely filed, and timely exception was taken on this ground in the justice’s court to which the summons was returnable, and the court sustained the exception and dismissed the answer, and no offer' to amend the answer or to file another answer was made until after several subsequent terms of the court had passed, and no reason was shown for this omission, it was not error to refuse to allow suchEan amendment or additional answer.
    Decided October 15, 1918.
    Certiorari; from Colquitt superior court—Judge Thomas. January 25, 1918.

      Parker & Gibson> for plaintiff in error. W. F. Way, contra.
   Wade, C. J.

The Court of Appeals may order the’clerk of the court below to certify and send up any portion of the record of a case in that court which in the opinion of this court may be necessary to enable it to adjudicate fairly and fully the questions at issue; and where it is apparent that the Teeord can thus be supplemented, the omitted portion will be so supplied and no dismissal will result. Civil Code (1910), § 6149 (4, 5). The motion to dismiss is therefore overruled; and since no additional record is necessary to present fairly and fully the questions at issue in this case, this court will not require the record to be supplemented.

“An answer to a summons of garnishment should not be made and sworn to until the term of the court to which the summons is returnable, but an answer prematurely made and filed is not on that account insufficient, unless it be excepted to; and when excepted to, it is amendable.” Plant v. Mutual Life Ins. Co., 92 Ga. 636 (19 S. E. 719). In Dannenberg Co. v. Adler-May Co., 137 Ga. 111 (72 S. E. 906), the answer of the garnishee was prematurely filed, but no exceptions were taken thereto. If exception had been taken on this ground, the answer could have been amended (Burrus v. Moore, 63 Ga. 405; Plant v. Mutual Life Ins. Co. supra), and if not amended would have been subject to dismissal. In this case the answer was filed on the day before the court convened at which the garnishee was required to respond to the suihmons served upon him, and there was timely exception upon the ground that the answer had been prematurely filed. No amendment 'to the answer was made or offered, and at a regular term of the justice’s court, held several months thereafter, the magistrate granted an order sustaining the exception and dismissing the answer of the garnishee. . After the dismissal of the answer there was nothing in court to amend by, and the garnishee could not on a subsequent day, during the same term of the justice’s court, file an additional answer by way of amendment.

While it is true that “even where a garnishee is in default, and a judgment is rendered against [the garnishee], upon motion during the same term, setting forth good and sufficient reasons for not answering in due time, and denying indebtedness to defendant, the court is not without discretionary power to set aside the judgment and relieve the garnishee from . . injustice, . . it has been said . .. that this is not an arbitrary power, and that after the second tprm the court can only allow an answer to be filed by the garnishee upon showing some reason legally sufficient to excuse a previous failure .to do so. Jones v. Bibb Brick Co., 120 Co. 321 (48 S. E. 25).” Dannenberg Co. v. Adler-May Co., supra. See also Russell v. Freedman’s Savings Bank, 50 Ga. 575; Bearden v. Metropolitan Street Railroad Co., 82 Ga. 605 (9 S. E. 603); Mashburn v. Harrell, 12 Ga. App. 327 (77 S. E. 207); Smith v. Monroe Oil &c. Co., 20 Ga. App. 487 (93 S. E. 105). The original answer having been stricken upon proper exception, the garnishee was in default, and the so-called amendment then offered, after the second term of the court, could only be received upon a showing setting forth good and sufficient reasons for not answering, in due time. There was no reason assigned in this case why the original answer had not been amended before the exception thereto was sustained and the answer dismissed, or why a good and sufficient answer had not been filed prior to the term of court at which the proposed answer was offered and rejected. The magistrate, did not err in dismissing upon exception thereto the original answer filed by the garnishee, as premature, and in declining, after the lapse of several terms of the justice’s court, to receive another an-, swer by the garnishee, either as an amendment to the answer previously stricken or as an original answer to a garnishment .then in default. “Where a garnishee was in default in making answer at the term at which he was directed so to do,'and also at the next term thereafter, there was no error, after the lapse of several other terms, in refusing to allow the garnishee to then answer the garnishment. O’Neill Mfg. Co. v. Ahrens & Ott Mfg. Co., 110 Ga. 656 (3), 659 (36 S. E. 66). The judge of the superior court erred in sustaining the certiorari and setting aside the judgment of the lower court.

Judgment reversed.

Jenkins and Luke, JJ., concur.


text:
    9519.
    GEORGIA NORTHERN RAILWAY CO. v. BATTLE.
    1. The question as to the value of an article is peculiarly for the jury. Jurors, are not absolutely bound to accept as correct the opinion or estimate of a witness as to the value of property, though uneontradieted by other testimony, but have the right to consider the nature of the property involved, together with any other fact or circumstance properly within their knowledge, throwing light upon the question, and they may by their verdict place a lower value upon the property than that stated in the opinions or estimates given in evidence.
    2. Since a new trial must be had, the general grounds of the motion for a new trial and those which amount to an amplification thereof need not now be passed upon.
    Decided October 15, 1918.
    Action for damages; from Colquitt superior court—Judge Thomas. January 25, 1918.
    The plaintiff sought to recover damages for the killing of certain live stock, alleged to be of the value of $275: This allegation was denied by the defendant. The verdict was for the full amount sued for. In the defendant’s motion for a new trial, the refusal of which is assigned as error, it is alleged that the court erred in charging the jury as follows: “If you find, from the evidence in this case, that the property of the plaintiff, as alleged in the declaration, was killed, and that it was killed as the result of the failure.on the part of the defendant company, its agents and servants, to exercise ordinary care in the operation and conduct of its railroad engines and cars, as alleged in the declaration, then and in that event the plaintiff would be entitled to recover, and the plaintiff would be entitled to recover the fair market value of the stock killed, as alleged in the declaration.” This is alleged to be erroneous for the following reasons: “ (a) Because the court instructed the jury that ‘the plaintiff would-be entitled to recover the fair market value of the stock killed, as alleged in the declaration5 and nowhere instructed the jury that the fair market value could be arrived at . only from the sworn evidence- in the case, but confined the jury in his charge to the value of the stock as alleged in the declaration, if .the jury found for the plaintiff at all. (1) Because the effect of said charge was to deny to the jury the right to say by their verdict as arrived at from the evidence adduced on the trial the value of said stock, and how much, if any, the plaintiff was entitled to recover, (c) Because the charge of the court arbitrarily fixed' the .value of the stock killed at the sum alleged in the plaintiff’s declaration, and the only question submitted to the jury for their determination was the negligence of the defendant, or the want thereof.”
    W. F. Way, for plaintiff in error.

      Parker & Gilson, J. B. Fussell, contra.
   Jenkins, J.

(After stating the foregoing facts.) We think the objection to the excerpt from the charge of the court is well taken. It was for the jury to say, from the evidence adduced, what the value of the property was, and the charge of the court in fixing the value thereof as tliat alleged in the petition was an invasion of the province of the jury, and was therefore error. The charge complained of was in effect a direction to the jury by the court that if they should find in favor of the plaintiff, they should find -in his favor the sum of $275, the amount alleged in the petition as the value of the stock killed. While it is true that the only evidence introduced upon the trial of the ease as to the value of the stock was -the uncontradicted testimony of the plaintiff himself, who swore that the stock was worth the sum alleged in the petition, and while this was sufficient to prove the- value of the stock killed and establish the measure of damages sustained (Seaboard Air-Line Ry. v. Peeples, 12 Ga. App. 206 (77 S. E. 12), still, as was held in the case of Westberry v. Hand, 19 Ga. App. 529 (91 S. E. 930), “The question as to the value of an article is peculiarly for the jury,” and “Jurors are not required to accept as correct the uncontradicted opinion or estimate of a witness as to the value of property, and may by their verdict place a lower value upon the property.” They had the right to also consider the testimony relative to the nature of the property involved, and every other fact and circumstance properly within their knowledge throwing light upon the question. See also Johnson v. Stevens, 19 Ga. App. 192 (91 S. E. 220); Lott v. Banks, 21 Ga. App. 246 (94 S. E. 322 (4)). Since the charge of the court deprived the jury of the right of fixing the value of the property, it was such harmful error as to require the grant of a new trial, for the jury might have, had they been permitted to do so, found a verdict for a sum less than that laid in the petition and sworn to by the plaintiff.

Judgment reversed.

Wade, G. J., and Luke, J., concur.


text:
    9527.
    Smith et al. v. Rome Hardware Co.
    Decided October 15, 1918.
    Action on bond; from Floyd superior court—Judge Wright. January 15, 1918.

      M. B. Bubanks, for plaintiff in error. Maddox & Boyal, contra.
   Wade, C. J.

The claimant in a garnishment case, being a party to a proceeding brought thereafter in the superior court to distribute the funds deposited with the clerk of that court under the garnishment proceedings, possession of which she had acquired by filing bond as required by law, was bound by the judgment, of that court, distributing the funds; and, the clerk having paid out the funds in accordance with that judgment, an action in the name of the obligee of the bond, for the use of the clerk, could be maintained to recover from the claimant and her surety on the bond the amount so paid out. The trial judge did not err in overruling the general demurrer to the petition.

Judgment affirmed.

Jenkins and Luke, JJ., concur.


text:
    9534.
    BRANTLEY v. MERCHANTS AND FARMERS BANK OF HOGANSVILLE.
    1. While a seller ordinarily can not convey a greater title than he himself owns, one of the exceptions to this rule is that the bona fide purchaser of a negotiable paper not dishonored will be protected in his title, though the seller had none. Civil Code (1910), § 4118. Thus, if such an instrument be completed in form and duly signed, hut prior to its delivery is feloniously taken by the payee, and prior to. its maturity is indorsed and passed by such unlawful taker to a bona fide holder for value, the innocent purchaser is protected in his title and can recover 1 against the maker. Civil Code (1910), § 4286; Atlanta National Bank v. Bateman, 21 Ga. App. 624 (94'S. E. 853 ), and authorities there cited. See Garter v. Haralson, 146 Ga. 282 (91 S. E. 88).
    2. “The holder of a note is presumed to he such bona fide, and for value; if either fact is negatived by proof, the defendants’are let into all their defenses; such presumption is negatived by proof of any fraud in the procurement of the note.” Civil Code (1910), § 4288. Fraud in the procurement of the note, as here used, means fraud on the part of the holder thereof, and has no reference to the fraud in the contract out of which the note arose, or fraud of an intervening, indorser. “Any circumstances which, would place a prudent man upon his guard, in purchasing negotiable paper, shall be sufficient to constitute notice to a purchaser of such paper before it is due.” Civil Code (1910), § 4291.
    3. An apparent exception to the rule governing the legal presumption in 'favor of the holder of a negotiable note as set forth in the preceding headnote has been recognized and expressed as follows: “Possession alone of a security negotiable by delivery before due, is presumptive evidence of title thereto; but when such security is proven to have been stolen or otherwise appropriated in fraud of the rights of the owner, then the onus is upon the possessor to show that he took it bona Me and for value.”
    4. “A promissory note is negotiable by indorsement of the payee or holder, or, if payable to bearer, by transfer and delivery only.” Civil Code (.1910), § 4273.
    5. Thus, where a note is payable to a named person, .and after being indorsed by the payee is passed to a third person, such taker, by indorsement and not merely by delivery, would be protected by the general rule as to the presumption set up in his favor, and is not subject to the exception stated in the third headnote..
    Decided October 15, 1918.
    Complaint; from Campbell superior court—Judge Smith. December 1, 1917.

      J. F. Golightly, for plaintiff in error.

      W. 0. Wright, A. H. Freeman, 'contra.
   Jenkins, J.

The defendant in this case entered'^a plea setting up an original total lack of consideration, and also offered as an amendment thereto the defense that the note had never been delivered to the payee, but that, after having been entrusted by the maker into the hands of the payee, to be held by him as the property of the maker pending certain negotiations, it was fraudulently converted by the payee, and by him illegally indorsed, and thus came into the hands of the holder, who is the plaintiff in the suit. It is not the contention of the defendant that if the plaintiff be in fact an innocent and bona fide purchaser for value, he, as such, would not be protected against the defenses offered. The exception taken pertains to a question of presumption only. The plaintiff having failed to offer any proof that it discounted the note for a valuable consideration, in the usual course of business, before maturity, and without notice of dishonor or want of consid-' eration, but having relied entirely upon the presumption - in its favor in these respects, as provided by section 4288 of the Code, and the defendant having submitted evidence to the effect that the note was originally lacking in consideration, and had been illegally and fraudulently converted by the payee' and indorsed by him to the holder, the defendant contends that the court erred in directing a verdict in the plaintiff’s favor; the theory being that upon such proof being made or 'offered by the defendant, the burden of showing that the plaintiff was a bona fide holder and for value was shifted, and that the original presumption in the plaintiff’s favor no longer protected him.

In the case of Matthews v. Poythress, 4 Ga. 287, Judge Nisbet, speaking for the Supreme Court, said: “He who buys a promissory note, bill of exchange, or any other security negotiable by¡ delivery, before it is due, acquires a title to such security and a property in it by virtue of his possession. But if such security be proven to have been lost or stolen, or in any other way appropriated in fraud of the rights of the owner, then such purchaser does not acquire a title to it until he proves that he took it bona fide and for value. And in that event—that is, when the purchaser has proven that he took the security bona fide and for value—his title may be defeated by proof on the part of the defendant in the action, where suit 'is brought upon the note or bill,'or of the plaintiff, where the suit is brought for the note or bill, that he took it mala fide.” That opinion was rendered in the year 1848, long prior to the adoption of the first code of this State, which went into effect on Janirary 1, 1863. In that code and in each of those succeeding it there is a section'as follows: “The holder of a note is presumed to be such bona fide, and for value; if either fact is negatived by proof, the. defendants are let into all their defenses; such presumption is negatived by proof of any 'fraud in the procurement of the note.” Civil Code (1910), § 4288. It has been uniformly held that fraud in the procurement, as here used, means fraud in the procurement of the note by the holder thereof, and has no reference to the fraud in the contract out of which the note arose, or fraud of - an intervening indorser. Harrell v. National Bank, 128 Ga. 504 (57 S. E. 869), and cases there cited. However, in the decision in the case of Merchants’ &c. Bank v. Trustees, 62 Ga. 271, which was rendered after the adoption of the code, the decision in the Matthews case, supra, was approved and-followed. The fourth headnote of that decision is as follows: “Possession alone of a security negotiable by delivery before due, is presumptive evidence.of title thereto; but when such security is proven to have been stolen or otherwise appropriated in fraud of the rights of the owner, then the onus is upon the possessor to show that he took it bona fide and for value; and upon his showing that, then the owner must show mala fides—that is, that the possessor has notice, actual or constructive, of the title of the true owner.” See also Fidelity Trust Co. v. Mays, 142 Ga. 821, 827 (83 S. E. 961).

In Sheffield v. Johnson County Bank, 2 Ga. App. 221 (3), (58 S. E. 386), Judge Powell, delivering the decision of this court, said: “While by common law; .and by general law, as recognized in most of the American States, and possibly in this State, if the defendant in an action by the legal holder of a negotiable promissory note shows.that the note was procured by fraud or duress, or that it is founded upon an illegal consideration or an original total lack of consideration, .the burden of proving that he is a bona fide holder for value is cast upon the plaintiff, yet no such result follows from proof showing mere failure of consideration, total or partial.” However, in that case, since the proof showed only a partial failure of consideration, the holding as made was not really necessary to a determination of that case. In Walden v. Downing Co., 4 Ga. App. 534 (61 S. E. 1127), the holding in that case was quoted and followed as the law upon the subject, and without any reference to whether the note was such as could be negotiated merely by delivery, or whether it was such an instrument as required an indorsement in order to effect a transfer thereof. It is undoubtedly true that the statement made by Judge Powell in the Sheffield case as to. what constitutes the general rule, both at common law and throughout most of the States, is entirely correct.. See 3 E. C. L. § 243, et seq, § 248. Indeed, what is commonly known as the “uniform negotiable instrument law,” long of force in a great number of States, contains, among its provisions the following: “Every holder is deemed prima facie to be a holder in due course; but when it is shown that the title of any person who has negotiated the instrument was defective, the burden is. on the holder to prove that he or some person under whom he claims. acquired the titlevas a holder in due course.” .Our code, however, contains no such provision; and since the only rule upon the subject which it does contain appears so plainly to contemplate that the legal presumptions in favor of the holder shall continue to exist in his favor until combated by proof, not that the original payee, or an intervening indorser, fraudulently obtained the note, but that the holder himself did, we are disinclined to recognize any extension of the exception to this rule further than that literally prescribed by the language of the decision in the Merchants’ &c. Bank case, supra. There would seem in fact to be a rational ground for distinction between a case where the holder comes into possession of an instrument'capable of being passed , merely by delivery, and where the holder comes into possession thereof, by virtue of the solemn indorsement of the payee therein named. . In -the former case there is nothing except naked possession to indicate that the holder took it in good faith; whereas in a case where the payee has entered his solemn indorsement thereón, and thereby guaranteed* its validity, to subsequent transferees, there exists this manifest additional reason, as shown by the face of the instrument, whereby the subsequent taker should be held to have acted in good faith. It is true that a note payable to the order of a named person, and by him indorsed in blank, subsequently becomes payable to bearer, and negotiable by mere delivery (Heard v. DeLoach, 105 Ga. 500, 30 S. E. 940; South v. People’s National Bank, 4 Ga. App. 92, 60 S. E. 1087; Stiles v. Shedden, 2 Ga. App. 317 (2), 58 S. E. 515); but this is true only after the payee has vouched for and guaranteed the validity of the instrument by virtue of his indorsement, and prior to such indorsement it is' not negotiable in the sense that a note payable simply to bearer would' be.

The case of Harrell v. National Bank, supra, was a suit by the transferee and holder of a negotiable instrument, and the defendant pleaded that the payee had surreptitiously and fraudulently taken possession of the note and indorsed it to the plaintiff holder. Justice Evans, speaking for the Supreme Court, said: "The plaintiff bank offered evidence to show that the defendant [plaintiff] had purchased the note in good faith, and in the usual course of business, for a valuable consideration, before due, without notice of any dishonor. It could have relied upon the presumption afforded bv the code section above quoted [Civil Code of 1910, § 4288], and required of the defendant proof that it was not a bona fide holder, in order to defeat its right to recover.” [Italics ours.,] The facts of that case and those of this case appear to be practically identical,. and we thinlr the ruling there made controls this case.

Judgment affirmed.

Wade, G. J., and Lulce, J., concur.

(Certiorari to review this decision was granted by the Supreme Court.)


text:
    9611.
    Mayor & Aldermen of Savannah v. Williamson et al.

    Decided October 15, 1918.
    Action for damages; from Chatham superior court—Judge Meldrim. February 8, 1918.

      B. J. Travis, D. 8. Atkinson, for plaintiff in error.
    - Baiford Falligant, Osborne, Lawrence & Abrahams, contra.
   Wade, C. J.

1. Where, as in this ease, damages are sought on account of injury to certain subdivisions of a 40-acre tract of land, alleged to have been caused by a change in the grade of abutting streets, and the petition fails to allege the market value of the entire tract prior to and after the grading, there can be no recovery; and, so far as the instant case is concerned,, this doctrine (right or wrong) has crystallized into unalterable'law. See former decision, 19 Ga. App. 784 (92 S. E. 291). It was there said: “If a plaintiff could select certain lots out of an entire tract belonging to him and sue for .the difference in market value of these lots before and after the grading of a street abutting them had been altered, notwithstanding .the value of the entire property, including these lots, had been greatly enhanced thereby, this - would be not only in direct opposition to the ruling in Nelson v. Atlanta, 128 Ga. 252 (57 S. E. 245), but also in opposition to the general principle that an increase in value resulting from improvement may be set off against damage caused by the grading of streets. Moore v. Atlanta, 70 Ga. 611, 617; Hurt V. Atlanta, 100 Ga. 274 (28 S. E. 65).”

(a) The fatal omission to allege in the petition the market value of the entire tract -before and after the grading of the a'butting. streets was not supplied by an amendment setting forth that the market value of plaintiffs’ lands “contiguous to the described lots, including said lots,” before the elevation was $40,000, and after the elevation only $20,000. There should have been a clear and unequivocal allegation in accordance with law. The depreciation alleged should not have been confined to the particular lots named, nor to the lots or land immediately contiguous to the described lots.

2. There being no allegation in the petition, as finally amended, setting out the market value of the entire tract of land, not merely that contiguous to the described lots, but also that contiguous to the abutting streets, before and after the grading, the trial court erred in overruling the demurrer attacking the petition for this reason.

Judgment reversed.

Jenhins and Lulce, JJ., concur.


author: Luke, J.

text:
    9755.
    Williams et al. v. Ellis et al.

    Decided October 15, 1918.
    Action on bond; from Jeff Davis' superior court—Jiidge High-smith. April 11, 1918.

      Gordon Knox, for plaintiffs. S. D. Dell, for defendants.
   Luke, J.

1. When the sheriff of a county is also, by the act creating a city court for the county, sheriff of the city court, his acts are as separate when acting in the different capacities as if he were two persons. Consequently, where the “deputy sheriff” levies a city court fi. fa., addressed “to all and singular the sheriffs of said State,” upon real estate, and turns the fi. fa. over to the “sheriff of the county,” and advertisement and sale of the property and deed to the purchaser are made by the sheriff of the county, and not as “sheriff of the city court,” suit will not lie against the sureties upon the bond of the ‘.‘sheriff of the city court,” when it is made to appear that the sheriff illegally converted to his own use the money realized from the sale of the property; but the sureties on the bond of the “sheriff of the county”' would be liable.

2. The evidence authorized the verdict, which has the approval of the trial judge. It was not error to overrule the motion for a new trial.

Judgment affirmed.

Wade, G. J., and Jenhms, J., concur.


text:
    9756.
    Southern Railway Company v. Sims
    Decided October 15, 1918.
    Appeal; from Floyd superior court—Judge Wright. April 27, 1918.

      O. I. Carey, Maddox, McCamy & Shumate, for plaintiff in error. Denny & Wright, contra.
   Wade, C. J.

1. The only special ground of the motion for a new trial not being referred to in the briefs of counsel for the plaintiff in error, it will be treated as abandoned.

2. There was some evidence from which the jury might have inferred that the presence of the cow in close proximity to the track of the defendant and its evident intention and effort to cross the same' must have been discovered by the employees in charge of the locomotive in ample time to -have checked or entirely stopped the movement of the train before coming into collision with the animal, if the engineer and fireman had been free from negligence (as they testified), in maintaining a careful lookout, and therefore we cannot say that the finding to the effect that the presumption of negligence had not been entirely rebutted was wholly unauthorized.

Judgment affirmed.

Jenlcins and hulee, JJ., concur.


text:
    9757.
    Southern Railway Company v. Sims.
    Decided October 15, 1918.
    Appeal; from Floyd superior court—Judge Wright. April 27, 1918.

      Q. L. Carey, Maddóx, McCamy & Shumate, for plaintiff error.

      Denny & Wright, contra.
   Wade, C. J.

1. The only special grounds of the motion for a new trial, not being referred to in the briefs of the counsel for the plaintiff in error, will be treated as abandoned.

2. Under all the facts and circumstances appearing in this ease, this court can not say, as a matter of law, that the presumption of negligence on the part of the defendant was wholly rebutted, and therefore that the finding of the jury in favor of the plaintiff was unauthorized. There was some conilict in the testimony touching the question whether the engineer could have seen the cow approaching the track sooner than he actually did discover her proximity and her evident intention to cross it, and consequently whether or not he was in the' exercise of full diligence at the'time. Likewise, it appears that the engineer neither blew the whistle nor did anything else, because in his judgment it would have been unavailing to do either, and in fact made no attempt to avoid the killing. The verdict had the approval of the trial judge, and, being supported by some testimony, can not be set aside on the general grounds only.

Judgment affirmed.

Jenkins and Luke, JJ., concur.


text:
    9773.
    Hicks v. Lindsey.
   Luke, J.

1. Where a petition for certiorari is sanctioned by the judge of the superior court and duly served upon the trial court, requiring an answer thereto, and the presiding judge of the trial court answers that because of the length of time since trial of the case he can not and does not remember the evidence adduced before him on the trial of the case, and can not and does not by such answer verify the truth of the testimony as set out in the petition for certiorari, the judge of the superior court can do nothing other than overrule the certiorari. The ordinary of Berrien county, whose judgment is complained of in the petition for certiorari, states in' his answer that he can not and does not remember the testimony adduced on the trial of the case. At whatever disadvantage the petitioner may be placed, no exception or traverse, to such an answer can avail him anything. Colbert v. State. 118 Ga. 302 (45 S. E. 403); Gilmore v. Georgian Co., 17 Ga. App. 759 (88 S. E. 416).

2. The only question passed upon in this case, in view of the note of the judge in the matter of taxing costs, is the question raised upon the judgment overruling the certiorari. The court did not err in overruling the certiorari.

Decided October 15, 1918.

Certiorari; from Berrien superior court—Judge Thomas. April 19, 1918. (See former decision, 21 Ga. App. 319.)

B. A. Hendricks, for plaintiff in error. J. P. Knight contra.

Judgment affirmed.

Wade, O. J., and Jenlcins, J., concur.


text:
    9842.
    SAVANNAH AND ATLANTA RAILWAY v. JONES.
    1. The evidence authorized a finding that the death of the plaintiff’s horse (which fell through a trestle when running ahead of the defendant’s train) resulted from negligence of the engineer in charge of the locomotive.
    2. The charge of the court fairly covered the issues involved; and it was not error to refuse to charge that the plaintiff could not recover if the horse could have easily got off the track between the time he saw' the engine coming' and the time he attempted to cross the trestle.
    Decided October 15, 1918.
    Action for damages; from city court of Savannah—Judge Ereeman. April 19, 1918.
    ■ The special grounds of the motion for a new trial g,re: “1. Because the court, after reciting in detail the allegations of the plaintiff’s petition, and thereby bringing to the jury’s attention all the contentions of the plaintiff, failed to state the following contention of the defendant: that plaintiff’s horse could have easily gotten off of the railroad tracks between the time he saw the engine coming and the time he attempted to cross the' railroad trestle.” 2. The court refused to charge the jury as follows: “If you find that plaintiff’s horse could have easily gotten off of the railroad tracks between the time he saw the engine coming and the time he attempted to cross the trestle, there can be no recovery against the defendant.”

      Hitch & Denmark, for plaintiff in error. Shelby Myrick, contra.
   Wade, C. J.

Questions of negligence are ordinarily for the jury; and we cannot hold that there was no evidence to authorize the finding that the death of' the plaintiff’s horse (which fell through a trestle when running ahead of the defendant’s train) resulted from a failure on the part of the railway employees to exercise proper care and diligence to prevent injury to the horse, when it must necessarily have appeared to the engineer in charge of the locomotive that the horse proceeding down the track in the direction of the open trestle would, with reasonable certainty, be urged forward to this point of danger by the approach of the train with undiminished (if not accelerated) speed, coupled with the failure to blow the whistle, ring the bell, or make any effort whatsoever to cause the animal -to leave the track. According to the testimony of the engineer, the horse, when it got on the track, was about 170 feet in front of the train, and was proceeding towards the trestle, which was then about 70 yards in front of the animal; the train was advancing in the same direction at a speed óf not more than 5 miles per hour, and was under absolute control, and could have been stopped at any time; it was not only not stopped, but its speed was not diminished; no whistle was blown, no' bell rung, and nothing whatever was done to frighten the horse from the track or to prevent the injury. A witness for the plaintiff testified that the train was actually “speeded up” as it approached the horse, and was running about 12 or 15 miles per hour, and did not stop until it arrived at the trestle where the horse fell through. The cases of Gay v. Wadley, 86 Ga. 103 (12 S. E. 298), and Southern Ry. Co. v. Frix, 137 Ga. 607 (73 S. E. 1057), are somewhat different in their facts, as in both the whistle was continuously blown in efforts to, frighten the animals off the track.

There is no merit in the special grounds of the' motion for a new trial. The charge of the court fairly, covered the issues involved, and there was no error in declining the- request to charge.

Judgment affirmed.

Jenkins and Luke, JJ., concur.


text:
    9846.
    Columbus Railroad Company v. Holcombe.
   Luke, J.

1. A street-railroad company has only an equal right with the traveling public to the use of the street in which its track is laid. .In using the highway at a public crossing the law gives to the travelers on the highway the same right to cross the track that it gives to the street-car to cross the highway; and the law imposes on the street-railroad company the duty of ordinary care to avoid injury by its cars to persons attempting to cross the track at gpeh places.

2. In a suit against a street-railroad company, where the petition alleged that the injured persons was fifty-four years- of age, deaf in his left ear, and hard oí hearing in his right ear, and approached a street-railroad crossing after looking to his right and left along the railroad-track, and saw a car standing some distance away, and believing he had ample time to- cross the track before a car could reach the crossing where he desired to cross, proceeded on across the street to the crossing ■and on to the track, and as he stepped upon the trade he was' struck by a street-car and knocked down, etc., a general demurrer to the petition should have been sustained; for it is clear, from the allegations made, that by the exercise of ordinary care he could have avoided the injury. The proximate- cause of the injury was his miscalculation, that he had time to cross the track ahead of the car, and his failure to observe the car at all 'after he' made his calculation. The, court erred in overruling the demurrer.

Decided October 15, 1918.

. Action-for damages; from Muscogee, superior court—Judge Howard. May 20, 1918.

F. U. Garrard, A. 8. Beasley, for plaintiff in error.

B. Terry, contra.

Judgment reversed.

Wade,.0. J., and Jenlcms, J., concur.


text:
    9878.
    MERIT MANUFACTURING COMPANY v. WHITELEY.
    Where goods are purchased under an implied warranty that they are reasonably suited to the uses intended, and are accepted by the purchaser, ■ he will be precluded from pleading, in an action for the purchase-price, „ a partial failure of consideration, growing out of. a patent defect in the goods, or a latent defect which, by the exercise of ordinary care and prudence, might have been discovered before the sale.
    Decided October 15, 1918.
    Complaint; from Glascock superior court—Judge Walker. May 20, 1918.

      M. L. Gfoss, for plaintiff in error.

      E. P. Davis, E. B. Bogers, contra.
   Luke, J.

Merit Manufacturing Company brought suit against M. S. Whiteley upon an open account, for $124.50, alleged tó be the balance due upon a bill of merchandise. The evidence shows that the plaintiff sold to the defendant $599.50 worth of merchandise, which was originally shipped to the defendant, “order notify,” with draft and bill of lading attached. Upon the arrival of the goods the defendant refused to pay the draft and receive the shipment, without first being given an opportunity to inspect the entire shipment. He proposed that if the plaintiff would allow him ■ to inspect the goods, he would accept such of them as suited him, and forward a check to cover the.purchase-price of all goods accepted, and return such goods as were not 'satisfactory to him. The plaintiff accepted the proposition and authorized the bank to turn over the bill of lading to the defendant. The defendant received possession of the goods' according to his proposition and, immediately on inspection, discovered that certain. suits, 63 in number, contained no vests. The evidence shows .that notwithstanding the defendant had discovered this and agreed to pay for such as were satisfactory to him and return such as were not satisfactory to him, he took out the entire shipment,- placed the goods -in his store, and sold all of the two-piece suits, and did not return or offer to return any of the suits. In installments he paid all of the invoice price of the goods except $134.50. He pleaded that because of the shortage the plaintiff became indebted to him the value of the vests. The jury returned a verdict in favor of |he plaintiff for $30 principal and interest, which w¿s only a part of the amount justly due the plaintiff. A motion for a new trial was overruled by the court, and .on- the judgment overruling the motira error is assigned.

Hpon this record a finding for the full amount sued for was demanded by the -evidence, and it was error for the court to overrule the motion for a new trial. See Cook v. Finch, 117 Ga. 541 (44 S. E. 95), and cases cited.

Judgment reversed.

Wade, G. J., and Jenkins, J., concur.


text:
    9890.
    Central of Georgia Railway Co. v. Lockett.
    Decided October 15, 1918.
    Action for damages; from city court of Americus—Judge Harper. May 34, 1918.

      B. T. Hawkins, Yeomans & Wilkinson, for plaintiff in error.

      H. Q. Jones, FLixon & Pace, contra.
   Luke, J.

The petition was not subject to the demurrer. The charge of -the court was full and fair. The evidence, though weak, was sufficient to authorize the verdict; which has the approval of the trial judge. For none of the reasons assigned did the court err in overruling the-motion! for a new trial.

Judgment affirmed.

Wade, C. J., and Jenlcins, J., concur.


text:
    9905.
    Crane v. Smith.
    Decided October 15, 1918.
    Action on contract; from city court of Atlanta—Judge Reid. May 10,1918.,

      Munday & Gornwell, James K. Hines, for plaintiff.

      Rosser, Slaton, Phillips & Hoplcins, for defendant.
   Luke, J.

Where a petition was attacked by demurrer upon the ground that causes of action ex contractu and ex delicto were joined^ therein, and the court, on hearing the demurrer, rendered a judgment “that there be stricken both, from the amendment and the original petition all allegations seeking to recover upon grounds ex delicto, and the special demurrers complaining as to the general damages be and the same are hereby sustained,” and there was no exception to the judgment, it became the law of the case. And where, at a subsequent term of the court, the plaintiff announced in open court that he did not insist on damages ex contractu, but insisted on damages ex delicto, arising out of a breach of the contract, it was not error for the court to sustain a demurrer and dismiss the petition as amended. See Colquitt v. Georgia Railway Power Co., 146 Ga. 249 (91 S. E. 70).

Judgment affirmed.

Wade, C. J., and Jenhins, J., concur.


author: Broyles, P. J.

text:
    9722.
    Lowe v. Burden.
    Decided October 15, 1918.
    Complaint; from city court of Houston county—Judge Riley. March 14, 1918.

      L. D. Moore, for plaintiff in error. G. L. Shepard, contra.
   Broyles, P. J.

1. The amendment to the motion for a new trial complains solely of the exclusion of certain evidence, but it is not shown therein that this evidence was offered by the plaintiff in error. Accordingly, that ground of the- motion raises no question for adjudication by this ' court.

2. There was some evidence which authorized the verdict; and, it having been approved by the trial judge, this court has no authority to interfere.

Judgment affirmed.

Bloodworih tend Harwell, JJ., concur.


text:
    9488.
    Causey v. Causey.
   Luke, J.

Where a husband dies intestate, the wife is first entitled-to be appointed administratrix upon his estate. Civil Code (1910), § 3943.

(a) A conclusion by the father of the decedent, as follows: “From my knowledge of this lady I would say she Is not á fit person and a proper person to manage an estate,” will not raise such an /issue as will defeat the wife’s legal right to appointment as the representative of the estate of her deceased husband. The court did not, for any of the reasons assigned, err in directing a verdict'. r ./

Decided October 16, 1918.

Appeal; from- Crawford superior court—Judge Mathewsi ' October' 17, 1917.

W• D. McNeil, for plaintiff in error.

Napier & Maynard, contra.

Judgment affirmed.

Wade, G. J., mid Jenloins, J., concur.


text:
    9492.
    Liston v. Lake Park Bank.
    Decided October 16, 1918.
    Claim; from Echols superior court—Judge Thomas. October 13, 1917. '

      J. B. Hieles, for plaintiff in error.

      Woodward & Smith, H. W. Nelson, contra.
   Luke, J.

1. The brief of counsel for the plaintiff in error' raises simply the question whether the evidence authorized the verdict. Where there is some evidence authorizing the verdict and the verdict has the approval of the trial judge, this court is powerless to interfere, and rightly so. The jury and the trial judge have the advantage of seeing as well as hearing the witnesses testify, and are in better position to credit or disbelieve testimony when they are so situated. We can not say that the court erred in overruling the motion for a new trial.

Judgment affirmed.

Wade, O. J., and Jenloins, J., concur.