text:
    8874.
    Case-Fowler Lumber Company v. Good Roads Machinery Company.
    Decided January 30, 1918.
   Luke, J.

1. Case-Eowler Lumber Company, on December 5, 1915, purchased a tractor-engine from the Good Roads Machinery Company, paying therefor, on January 17, 1916, the sum of $1,116.67 in cash and giving three promissory notes for $744.44 each, due April 1, July 1, and October 1, 1916. The note due April 1 was paid; the other notes were not paid, and suit was brought to recover judgment on them. The defendant pleaded, among other things, as follows: “Prior to the time when the defendant paid part of the purchase-price for said [tractor-engine], to wit, on January 17, 1916, though defendant had had a little trouble with said machine, plaintiff had promised that it would remedy said trouble, and actually sent a man to the place where said machine was, for the purpose of remedying said trouble. Relying upon said promise and efforts of plaintiff to remedy the trouble, defendant made said settlement in cash and notes on January 17, 1916. Prior to the time when defendant paid to plaintiff the first note due on the purchase-price of said machine, to wit, on or about the first day of April, 1916, though the defendant at that time had had- considerable trouble with said machine, plaintiff had promised that it would remedy said trouble, and actually sent a. man to the place where said machine was, for the purpose of remedying said trouble. Relying upon said promise and efforts of plaintiff to remedy the trouble, defendant paid said note as aforesaid on or about the first -day of April, 1916.” The engine was wholly worthless and not suited for the purposes for which it was bought, etc. Upon demurrer the court struck the plea as being insufficient in law, and rendered judgment for the plaintiff upon the two unpaid notes. Seld, that the court erred in so ruling. Schofield-Burkett Construction Co. v. Rich, 16 Ga. App. 321 (85 S. E. 285); McDaniel v. Mallary Machinery Co., 6 Ca. App. 848 (66 S. E. 146).

Judgment reversed.

Wade, C. J., and Jenkins, J., concur.

Complaint; from Bibb superior court — Judge Mathews. April 33, 1917.

J-Iardeman, Jones, Park & Johnston, Harry S. Strozier, for plaintiff in error. P. B. D’Orr, contra.


source: Caselaw Access Project

author: Luke, J.

license: Public Domain

text:
    8917.
    BREEDLOVE administratrix, v. WIREGRASS DEVELOPMENT COMPANY.
    The court erred in directing a verdict, and in overruling the motion for a new trial.
    Decided January 30, 1918.
    Complaint; from Colquitt superior court — Judge Thomas. May 3, 1917.

      W. A. Covington, Pope & Bennet, for plaintiff.

      J. W. Walters, Shipp & Kline, for defendant.
   Luke, J.

This case is fully stated in the report made when it appeared in the Supreme Court (Toole v. Wiregrass Development Co., 143 Ga. 57, 83 S. E. 514): “The plaintiff, John E. Toole, brought suit against the Wiregrass Development Company to recover the sum of $7,500 as commissions on sales of real estate during the years of 1910 and 1911. The petition alleged, in substance, as follows: In June, 1910, the plaintiff was conducting a real estate business at Macon, Ga. At this time plaintiff and defendant began negotiations looking to the employment of plaintiff by defendant, to handle and sell for defendant a lot of town property at Pecan City in Dougherty county, Georgia. The property was divided into numerous parcels, and it was in the contemplation of the parties that the parcels should be sold separately or together, and that it would probably take several months in order to complete the sale. In August, 1910, pursuant to the negotiations, defendant through its president and general manager, W. E. Aycock, telegraphed plaintiff to come to its office at Moultrie, Ga., to discuss with the defendant the making of the contract. In response to the telegram plaintiff went to defendant’s office and came to an agreement with defendant, by the terms of which plaintiff was to move from Macon, Ga., to Pecan City, and was to remain there as a resident salesman and general agent of the defendant company, looking after and preserving the lands, improving, advertising, and selling the same as rapidly as possible. Under the agreement plaintiff was to receive no salary or compensation for his services, except commissions on the purchase-price of any and all of the lands sold by the company, plaintiff’s commissions being 10 per cent, of the purchase-price of all sales made by him alone and independently of the efforts of other real estate agents and of defendant, and 5 per cent, upon any and all other sales of land made by the company while plaintiff continued at the work. In October, 1910, plaintiff removed from Macon to Pecan City and entered upon his duties under the contract. He continued to remain at Pecan City until September, 1911. During the time he was at Pecan City he faithfully discharged his duties under the contract, and vigorously advertised and pushed the sales of the parcel of land, carefully protected it and remained on it for the purpose of showing prospective purchasers over it, and gave his best efforts to the establishment of a post-office, schools, churches, and merchants in the town. During the months of October,-November, December, January, and February, considerable' portions of the lands were sold by the company to various persons, amounting to about $12,000; and in each instance, as soon as the sale was closed, the defendant paid the plaintiff, in accordance with its contract, 10 per cent, commissions on such sales as were made by the plaintiff alone, and. 5 per cent, on all other sales. In the course of his advertising the lands and by correspondence, the plaintiff, in February, 1911, wrote to J. H. Ernest, of Albany, Ga., who was dealing extensively in lands in that vicinity, seeking to effect a sale of the entire tract of land to him. He did not reply to the'letter in writing, but soon thereafter went to see the lands and began to consider the purchase. While continuing his efforts to sell the land, W. E. Aycock, the president of the company, notified the plaintiff in April, 1911, that he had hopes of selling the entire remaining portion of the land to Ernest, and suggested to plaintiff that he suspend further advertisement of the lands pending the negotiations with Ernest. Pending these negotiations Aycock consulted with the plaintiff as to the manner of securing the sale to Ernest; and finally, a short time thereafter, Aycock notified plaintiff that the company had succeeded in selling to Ernest all of the property then remaining, except a few town lots. The company did, in June, 1911, sell to Ernest, or to him and his associates, the remaining land, and the price agreed’ upon was $150,000. After the sale Aycock told -plaintiff that plaintiff’s commission of 5 per cent, pn the purchase-price should be paid as soon as possible, but that the purchase-price was partly on credit, and plaintiff might have to take his commissions in notes, which plaintiff agreed to do. Later, in November, 1911, plaintiff -was notified by Aycock that he would not be paid his commissions on the sale to Ernest, for the alleged reason that the directors of the company declined to authorize-payment.

“Plaintiff further alleged: He did not, in the year 1911 or 1912,-go before the ordinary of Bibb, Dougherty, or Colquitt county and register his name, the business that he proposed to engage in, and the place where it w:as to be conducted, or pay special tax as a person engaged in the business of buying and selling real estate on commissions. It was not necessary for him to do so, because the contract made by him with defendant was one of employment and service, and not one of the real estate owner on the one hand and a person or firm engaged in the business of buying and selling real estate on commissions on the other, for the reason that plaintiff was not, at the time of making the contract or at any time during the execution thereof, a person or firm engaged in the business of buying or selling real estate on commission; but on the contrary plaintiff was, during all of that time, the employee of defendant alone, and his entire time and services were, by the terms of the contract, commanded by the defendant alone, and he was not employed by or rendering service to any one else. The contract between plaintiff and defendant was not such a one for the selling of real estate on commission as is contemplated by the tax acts imposing a tax on a person or firm engaged in the business of buying or selling real estate, on commission. Further, at the time that plaintiff was engaged in the execution of the contract he was an indigent Confederate soldier who was a resident of this State, and therefore was not subject to the payment ef the tax; and even if he was subject to the tax, the non-payment of it is not and should not be a legal reason why he should not be entitled to his compensation under the terms of the contract.

“The defendant demurred to the petition, on the grounds, among others, that there was nothing alleged to show that Aycock had any authority, expressed or implied, to bind the defendant corporation; and that the plaintiff could not recover a money judgment against the defendant, the petition showing that there was only an agreement for a sale and that no sale had been finally consummated, and not alleging that the purchase-price, or any portion thereof, had ever been paid to the defendant. A further ground of demurrer was, that, it appearing that the plaintiff had not complied with the law with reference to real-estate agents taking a license to do business, there can be no recovery in this case. The court sustained the demurrer on each and every ground, and dismissed the petition. Whereupon the plaintiff excepted.”

The Supreme Court, in passing upon the demurrer, considered at length the ground that it appeared that the plaintiff had not complied with the law “with reference to real-estate agents taking a license to do business.” However, the court passed upon all the \other grounds of demurrer briefly, but as certainly, when it was held that “the other grounds of demurrer are without substantial merit.” This being true, this court is now bound by the decision of the Supreme Court in this case. We therefore hold that all questions raised by the demurrer are res judicata, and that the plaintiff set forth a legal cause of action. Having so held, the issue upon the petition as raised by the defendant’s plea is the only question for determination.

The defendant in its plea admitted that it and Toole did have an agreement respecting the sale of the lands described in the petition, but denied that the agreement was as alleged; averring that the agreement was as follows: “that the said plaintiff should advertise for purchasers and use such efforts as he saw fit to find purchasers and make sales of city lots and small tracts of land outside of the town limits, he was to receive no salary, was to pay all of his own expenses and has [as] compensation for all sales that he alone made he was to receive a commission of ten per cent, of the total purchase-price, and upon all sales made to parties sent or directed to him by Aycock he was to exhibit the property and use his best efforts to close the trade and if successful he was to receive as commission for the same five per cent, of the total purchase price. This agreement covered town lots and sales, of- individual small tracts of land. It was expressly understood that the said Aycock reserved the right to sell at any time he found a purchaser the whole of defendant’s lands upon such terms as he saw fit, and in that event plaintiff was to receive no commission. It Was further distinctly understood that W. E. Aycock had the right to discontinue the work and service of plaintiff at any time he saw fit to do so.” In the plea it was stated that “Defendant admits that when negotiations were begun by Walters and Aycock, as above stated, with H: J. Ernest for the sale of the entire tract'of land held by the Wiregrass Development Company that W. E. Aycock promptly notified plaintiff of the same and instructed him to suspend further operation until the negotiations were terminated, that his services were not needed in that behalf; to which plaintiff made'no objections or complaint and failed to set up any claim whatever to commissions on the whole tract if said negotiations resulted in a sale, but acquiesced in the same, recognizing the right to the said Aycock and Walters to negotiate and perfect said sale.” “Defendant admits that they sold or made a contract with Ernest and his associates, by the' terms of which contract the- said Wiregrass Development Company was to make a deed to Ernest and his associates to 3059 8/10 acres of land at $50 per acre whenever the total purchase price should be paid, that there was no cash money paid in small monthly payments running for a period of six or seven years, and that only $200 has been paid under said contract, and defendant is very doubtful of receiving further payments, and for that reason will be compelled to abrogate [airy] contract made with Ernest and his associates.” At the conclusion of the evidence the court directed a verdict for $10, the same being 5 per cent, upon the $200 that the defendant admitted it received from the purchasers of the property.

From a careful examination of the entire record and all the evidence, we are of the opinion that the court erred in directing a verdict for $10. The evidence of the plaintiff was sufficient to have carried the case to the jury; and, under proper instruction, the jury should have been permitted to determine the issue as to whether the plaintiff was entitled to recover the additional com-, mission. It is always error for the court to direct a verdict when the evidence makes an issue as to the truthfulness of the facts alleged by the plaintiff and the averments of the plea of the defendant. We do not discuss the testimony and what a jury might determine -its probative value to be, for the reason that this case must be tried again. The court erred in overruling the motion for a new trial. See Payne v. Ponder, 139 Ga. 285 (77 S. E. 32).

Judgment reversed.

Wade, G. J., and Jenlcins, J., concur.


author: Bloodworth, J.

text:
    8907.
    TUGGLE v. GREEN & SONS.
    Before suit against the purchaser for the. entire purchase-price of goods shipped by common carrier as in this case can be maintained by the seller, title must be relinquished by the seller and must pass to the purchaser. The seller can not retain the goods and also recover the full price.
    Decided January 30, 1918.
    Complaint; from DeKalb superior court — Judge Smith. April 12, 1917.

      L. J. Steele, C. M. Moon, Scott Candler, for plaintiff in error.

      Little, Powell, Smith & Goldstein, Moise & Riddell, contra.
   Bloodworth, J.

A written contract for the sale of a soda fountain and accessories was made between Green & Sons and H. C. Tuggle, doing business as H. C. Tuggle Drug Company, the goods were shipped in accordance with the contract, and on arrival at destination were declined by the purchaser, and the sellers brought suit under § 4131 of the Civil Code (1910) for the entire purchase-price thereof. The petition in part alleged: “4. That your petitioners according to the terms of said contract thereupon stored said soda fountain for the use of H. C. Tuggle, notified him thereof, and elected to sue for the entire price, $650.00, less the payment of $32.50 made with the order. 5. That your petitioner paid' out for freight on said soda fountain and accessories from Philadelphia to Stone Mountain, and storage at Stone Mountain, $43.89, and for freight from Stone Mountain to Atlanta and drayage at Atlanta $8.11. Also they paid out $2.00 for storage of said fountain for the first month, beginning January 5th, 1916, and will have to pay out $2.00 for each additional month of storage.” Under these allegations, which were denied by the plea, it is a condition precedent to any recovery that the proof show that the goods were stored for the vendee. Oklahoma Vinegar Co. v. Garter, 116 Ga. 140 (2), 146 (42 S. E. 378, 59 L. R. A. 122, 94 Am. St. R. 112); Rounsaville v. Leonard Mfg. Co., 127 Ga. 735 (4), 740, 741 (56 S. E. 1030); Georgia Agricultural Works v. Price, 11 Ga. App. 80 (1), 82 (74 S. E. 718); Southern Flour &c. Co. v. St. Louis Grain Co., 11 Ga. App. 403 (75 S. E. 439). And to recover for freight, storage, and drayage, the proof must show that these specific items of expense were incurred.

Before suit can legally be brought for the entire purchase-price of goods shipped by common carrier as in this case,, the seller must relinquish, title thereto and title must pass to the purchaser. The seller can not retain the goods and also recover the full purchase-price thereof. The contract of purchase in the instant case shows by the following clauses that title was reserved in the seller: “It being understood and agreed that the title to and ownership of said goods, and the right of possession, shall remain in you [the sellers] until payment of the price in full and the receipt by you at your office in Philadelphia of the full amount of the purchase money.” The sellers realized that, having retained title, before they could bring suit for the full purchase-price they must at least store the goods for the purchaser, as they incorporated in the contract of sale the following: “Should I/we by our neglect or refusal to pay and/or settle as agreed above, thereby wrongfully refuse to perform the condition upon which time is granted, it is agreed that [if] the consideration for the grant of time fails, that the full amount of the purchase price shall at once be due and payable, and that in addition to any other remedies you may have at law, you may store and retain the property for me/us, at my/our risk, retaking possession, if already delivered, and proceed, at your option, to recover the entire price, any law, usage, or custom to the contrary notwithstanding.”

When the goods in this case were shipped, the bill of lading, with a draft for the purchase-price attached, was sent to a bank at Stone Mountain, with instructions to the bank to have a certain conditional-sale contract, which was sent to the bank with the draft, “properly signed, witnessed, and acknowledged, and lodged for record at least one day before delivery of B/L.” All of this indicated the unequivocal intention of the sellers to retain title to the goods until payment of the draft. Georgia, Fla. & Ala. Ry. Co. V. Blish Milling Co., 15 Ga. App. 143 (3), 147 (83 S. E. 784); Cartersville Grocery Co. v. Rowland, 17 Ga. App. 43 (86 S. E. 403); Ware v. Chason, 14 Ga. App. 47 (80 S. E. 31); Southern Railway Co. v. Strozier, 10 Ga. App. 159 (73 S. E. 43); Delgado Mills v. Georgia R. &c. Co., 144 Ga. 175 (3) (86 S. E. 550); Civil Code (1910), § 4134. “It is well settled that when the seller of personal property takes from the carrier a bill of lading therefor to his own order, and attaches it to a draft drawn on the buyer, this is. a declaration on the part of the seller that he does not part with the title to the goods shipped, but retains the title until the draft which is sent with the bill of lading is accepted and paid; and when the title is thus reserved, the carrier is usually the agent of the seller, and not of the buyer, and the risk is the seller’s, and not the buyer’s. Erwin v. Harris, 87 Ga. 333 (13 S. E. 513), and authorities cited in the body of the opinion.” Moss v. Sell, 8 Ga. App. 591 (70 S. E. 18). “Where parties enter into a written contract for the purchase and sale of a chattel, before the seller can maintain an action for its agreed price there must be such delivery, actual or constructive, as will pass the title and vest the ownership of the property in the purchaser. Oklahoma Vinegar Co. v. Carter, 116 Ga. 140 (42 S. E. 378, 59 L. R. A. 122, 94 Am. St. R. 112). Where the contract is that the defendant is to make a partial cash payment and give notes for the balance, the seller retaining the title until the full purchase-money is paid, a tender on terms of the buyer’s compliance with the contract will not have the effect of transferring the title to the buyer. If the buyer refuses to make the partial cash payment and give notes as called for by the .terms of the sale, or to accept any possession or control of the property, no title "passes to him, and the seller’s remedy is not for the purchase-price of the chattel, but for the breach of the contract. Dilman v. Patterson Produce &c. Co., 2 Ga. App. 213 (58 S. E. 365); Tufts v. Grewer, 83 Me. 407, 412 (22 Atl. 382).” Bridges v. McFarland, 143 Ga. 583 (85 S. E. 856).

The agreed statement of facts not showing that title to the property had passed to the purchaser, or that the goods had been stored for his use, the sellers could not recover the full purchase-price, and, there being no evidence as to the amount of freight, storage, and drayage paid, the plaintiffs failed to prove their case as laid, the court erred in directing a verdict, and the judgment must be

Reversed.

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


author: Wade, C. J.

text:
    8534.
    Western Union Telegraph Company v. Petteway.
   Wade, C. J.

1. The petition as amended, which claimed nominal damages for the negligent failure to deliver an interstate telegraphic message from Portsmouth, Virginia, to Gainesville, Georgia, was not subject to general demurrer

2. The interstate night-letter, for the non-delivery of which damages were sought, ivas by agreement sent subject to the terms printed on its back, which provide that “unless otherwise indicated on its face, this is an unrepeated night-letter, and paid for as such;” and nothing is “otherwise indicated on its face.” Hence it is an “unrepeated” message. The terms of the contract further provide that the telegraph company “shall not be liable for mistakes or delays in the transmission or delivery, or non-delivery, of .any unrepeated night-letter, beyond the amount received for sending the same; ” and shall not be liable f®r mistakes or delays in the transmission or delivery of any repeated night-letter beyond fifty times the sum received for sending it, “unless specially valued.” Construing the contract as a whole, it is apparent that the further stipulation therein that the company shall not be liable “beyond the sum of $50, at which amount this night-letter is hereby valued,” etc., has reference solely to “repeated” night-letters, and not to “unrepeated” night-letters; and the liability of the telegraph company on this unrepeated night-letter is therefore fixed by the agreement at the sum received for its transmission.

Decided January 31, 1918.

Action for damages; from city court of Hall county — -Judge Wheeler. January 30, 1917.

Brewster, Howell & Heyman, Marie Bolding, for plaintiff in error. O. N. Davie, B. D. Kenyon, contra.

3. By repeated adjudications it is now established that under the act of June 18, 1910, 36 Stat. 539 (U. S. Comp. St. 1916, § 8563), Congress has taken possession of the field of interstate commerce by telegraph (see Gardner v. Western Union Telegraph Co., 231 Fed. 405 (4), 145 C. C. A. 399) ; and it has been repeatedly held that under the provisions of that act the classification of messages into unrepeated and repeated telegrams, and the charging of different tolls for such messages, is permissible, and that the stipulation set forth above, requiring the payment of an additional charge for the transmission of a repeated message, is a valid and enforceable stipulation. See Kirsch v. Postal Telegraph-Cable Co., 100 Kan. 250 (164 Pac. 267); Poor v. Western Union Telegraph Co., 196 Mo. App. 557 (196 S. W. 28) ; Western Union Telegraph Co. v. Lee, 174 Ky. 210 (192 S. W. 70); Meadows v. Postal Telegraph-Cable Co. (N. C.), 91 S. E. 1009.

4. The stipulation requiring the payment of an additional charge for the transmission of a repeated message being a valid and reasonable regulation (Primrose v. Western Union Telegraph Co., 154 U. S. 1, 14 Sup. Ct. 1098, 38 L. ed. 883), the sender, by declining to pay this extra charge and sending the message as an “unrepeated” message, himself assumed the risk of non-delivery, and could therefore only recover, as stipulated in the contract, the amount received by the defendant for such transmission.

5. Under the foregoing rulings the verdict for $50 was unauthorized, and the court erred in overruling the motion for a new tidal.

6. The remaining special grounds of the motion for a new trial need not be passed upon.

Judgment reversed.

Jenleins and Luhe, JJ., concur.


text:
    8585.
    Fowler v. Knowles.
    Decided January 31, 1918.
    Complaint; from Floyd. Motion to dismiss.

      Henry Walker, for plaintiff in error.

      L. H. Covington, Dean & Dean, contra.
   Luke, J.

1. It appears from the record that the clerk of the trial court failed to transmit to this court the bill of exceptions and a transcript of the record within the time required by law, and it also appears that this was due to the fault of the attorney for the plaintiff in error, who had and kept a part of the record in his possession, and that the clerk of the trial court was unable to get it from him. It follows that the bill of exceptions must be dismissed. Civil Code (1910), §§ 6185, 6186; Moore v. State, 13 Ga. App. 32 (78 S. E. 774), and cases there cited.

2. This bill of exceptions would have to be dismissed for the further reason that there is no proper assignment of error on the final judgment in the case.

Writ of error dismissed.

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


author: Beoodwoeth, J.

text:
    8841.
    Story, administratrix, v. Wolff et al., executrixes.
    Decided January 31, 1918.
    Complaint; from Pulaski- superior court — Judge Grabam. March 14, 1917.
    The motion to dismiss the writ of error was on the ground that “there is no sufficiently specific assignment of error, the bill of exceptions having been filed to the judgment of the court on an agreed statement of facts, and the-only assignment of error being that the judgment was contrary to law.” Cited in support of the motion: Lamar, Taylor & Riley Drug Co. v. Southern School Booh Go., 18 Ga. App. 650; Patterson v. Bech, 133 Ga. 706, and cases cited.
   Beoodwoeth, J.

1. The assignment of error in the bill of exceptions is sufficient to give this court jurisdiction. Laurens Cotton Co. v. American Trust & Banking Co., 20 Ga. App. 348 (93 S. E. 43); Savannah Trust Co. v. National Bank, 16 Ga. App. 718 (86 S. E. 49); Patterson v. Beck, 133 Ga. 701, 707 (66 S. E. 911).

2. Where the maker of .a note containing a provision for attorney’s fees dies and an administrator is appointed, and the statutory notice of intention to sue thereon for principal, interest, and attorney’s fees is given to the administrator, and such a suit is brought, the plaintiff is entitled to judgment for attorney’s fees in addition to principal and interest. McCall v. Walter, 71 Ga. 287 (2); Harris v. Powers, 129 Ga. 74 (9), 88 (58 S. E. 1038, 12 Ann. Cas. 475).

3. Under the agreed statement of facts there was no error in the judgment rendered.

Judgment affirmed.

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

The suit was against an administratrix, and was based on a promissory note of the intestate, containing the usual stipulation as to attorney’s fees of ten per cent, for collection. The suit included these fees, and it was prayed that the judgment therein should be a special lien on certain property described in a deed executed by the intestate to secure the payment of the note. The suit was filed more than twelve months after the administratrix had qualified, and after compliance with the requirements of the statute as to notice of intention to sue for attorney’s fees. The defendant’s answer admitted the material allegations of the petition, and alleged that in her opinion the assets of the estate, when reduced to cash, would not be sufficient to pay unsecured creditors, and that the estate was to that extent insolvent; and she prayed that if judgment should be rendered against her, it should be against her in her representative capacity 'alone and should bind only the estate of the intestate. A sale of the land of the estate had been ordered by the ordinary, but was delayed by appeals of objecting creditors which were pending when this suit was brought, but afterwards, under.order of the court of ordinary, the land described in this suit was sold, and brought more than the amount sued for. The principal and the interest sued for were paid, and the case was submitted to the court, for determination without a jury, on an agreed statement of facts. The bill of exceptions states that the" issues in the case were "by agreement of counsel for both parties reduced to one, to wit: whether plaintiffs were entitled to recover a judgment for attorney’s fees .which would rank in dignity with the judgment for principal and interest of their claim and be secured by the lien securing principal and interest.” From the agreed statement of facts it appears that the defendant offered to prove that the estate was "insolvent and unable to pay secured and unsecured debts in full;” and the court “refused to allow proof of the insolvency of the estate,” holding that such evidence was irrelevant and immaterial; but there is no exception to this ruling. The judgment on the agreed statement of facts states, that, it appearing that the property against which a special lien is asked has been sold by the defendant for an amount in excess of the principal, interest, and attorney’s fees for which judgment is asked, and all costs of court, and that the principal and interest have been paid by the defendant, the court finds for the plaintiffs the amount of the attorney’s fees, and thereupon adjudges that the plaintiffs recover that sum of the defendant as administratrix of the intestate named. The bill of exceptions adds that the court “made said judgment a'special lien on the property described in the deed to secure the notes sued on.” The assignment of error is as follows: “To the action of the court in rendering said judgment and in permitting the same to be entered, plaintiff in error then and there excepted, and now excepts, and assigns the same as error, upon the ground that it is contrary to law.”

J. T. Hill, H. E. Coates, for plaintiff in error, cited:

Third Nat. Bank v. Strauss, 135 Ga. 324 (3); Civil Code (1910), § 4000 (8); Nisbet v. Lawson, 1. Ga. 287; Cornett v. Fain, 33 Ga. 224 (1); Roberts v. Prior, 20 Ga. 53; Carter v. Penn, 79 Ga. 747 (4) ; and submitted a request that the decision in Harris v. Powers, 129 Ga. 74 (which case, it was contended, is distinguishable from this case), be reviewed and overruled, if in conflict with Third Nat. Bank v. Strauss, supra.

Hardeman, Jones, Park & Johnston, contra, cited:

Harris v. Powers, supra; Royal v. Edinburgh-American Land Mortgage Co., 143 Ga. 347 (2); Guarantee Trust &c. Co. v. American Nat. Bank, 15 Ga. App. 778; Third Nat. Bank v. Strauss, supra.


author: Bboyles, P. J.

text:
    9147.
    Postal Telegraph-Cable Co. v. Schaefer Cotton Co.
   Bboyles, P. J.

1. In view of the amendments to the original petition, allowed upon the second trial .of the ease, it is unnecessary to consider the exceptions pendente lite, filed upon the first trial, to the judgment overruling the demurrer to the .original petition.

2. The court did not err in overruling the demurrer to the petition as amended.

3. It was not error to allow the amendment to the petition.

4. The court did not err in allowing the plaintiff to reopen the case, after a motion for a nonsuit had been made, and to introduce in evidence a certain letter received by it from the defendant.

5. The exceptions based upon the refusal of the court to declare a nonsuit will not be' considered, as thereafter the case proceeded to a verdict and judgment, and a motion for a new trial was made which included the ground that the verdict was contrary to the evidence and without evidence to support it.

Decided January 31, 1918.

Action, for damages; from Stephens superior court — Judge J. B. Jones. July 27, 1917.

McMillan & Erwin, for plaintiff in error.

Davis & Davis, contra..

6. The refusal to direct a verdict is never error.

7. There was some evidence which authorized a finding that the plaintiff had sufficiently complied with that provision on the back of the telegraph blank which required that claim for damages should be presented in writing to the company within sixty days after the message had been filed with it for transmission.

8. The excerpt from the charge of the court, complained of in the 4th ground of the amendment to the motion for a new trial, was authorized by the evidence, and was not erroneous for any reason assigned.

9. The undisputed evidence being that the defendant in transmitting the telegram made a mistake in its wording, and this error not having been denied by the defendant either in its pleadings or its evidence, the court erred in giving the following instruction to the jury: “The defendant company denies that there was any change .in the telegram and that the telegram was different on its reception to what it was when sent.” In many cases such an error might be insufficient to require a new trial, but, the case at bar being a very close one, this error may have turned the wavering scales of justice and caused the jury to return a verdict for the plaintiff. A new trial of the case is therefore necessary on account of this error.

10. The remaining grounds of the amendment to the motion for a new. trial show.no material error.

11. As another trial of the case must be had, the sufficiency of the evidence to support the verdict is not passed upon.

Judgment reversed.

Bloodworth and Harwell, JJ., concur.


author: Broyles, P. J.

text:
    9180.
    Smith v. Long Cigar and Grocery Company.
   Broyles, P. J.

1. While a mortgage covering a stock of goods, changing in specifics, covers also additional goods purchased in the usual course of business to replenish the stock and to keep the business going (Civil Code, § 3256; Powers v. Georgia-Florida Grocery Co., 7 Ga. App. 592 (67 S. E. 685); In re Caldwell, 178 Fed. 377), there is no such statutory provision where the original stock of goods is sold under- a conditional bill of sale wherein the title is reserved in the vendor. See Clarice v. McNatt, 132 Ga. 610 (64 S. E. 795, 26 L. R. A. (N. S.) 585); Loving Pub. Co. v. Johnson, 58 Tex. 273 (4 S. W. 532).

Decided January 31, 1918.

Certiorari; from Bibb superior court — Judge Mathews. July 28, 1917. '

G. H. Garrett, for plaintiff in error. Walter DeFore, contra.

_2. Under the ruling in the preceding note, and the agreed statement of facts in this case, the judge of the municipal court of Macon, presiding by agreement without the intervention of a jury, did not err in finding the property subject to the plaintiff’s execution, and in ordering the execution to proceed against the property.

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

Judgment affirmed.

Bloodworth and Hartwell, JJ., concur.


text:
    9372.
    Reynolds Home Mixture Guano Company v. Avera Loan and Investment Company et al.

    Decided January 31, 1918.
    Money rule; from city court of Oglethorpe — Judge Greer. October 12, 1917.

      W. F. Weaver, for plaintiff in error. G. G. Robinson, contra.
   Broyles, P. J.

Under the facts of the case, and the agreement of counsel that the case be withdrawn from the' consideration of the jury and the questions involved be decided by the court, the court did not err in rendering the judgment excepted to.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.


text:
    8372.
    Mayor and Council of Unadilla v. Felder.
    Decided February 7, 1918.
    Action for damages; from Dooly superior court — Judge George. December 19, 1916.

      Jule Felton, J. G. Jones, for plaintiff in error. ■

      Powell & Lumsden, J. T. Sill, contra.
   Luke, J.

1. The Supreme Court in this case (145 Ga. 440, 89 S. E. 423),. settled the question as to whether the petition set forth a legal cause of action.

2. Prom the evidence the jury were authorized to find that the plaintiff had proved his case as laid; and while the excerpt from the charge of the court complained of may be subject to the criticism that it was too general, yet when the entire charge is considered there is no such error assigned as to require a reversal. The court did not err in overruling the motion for a new trial.

Judgment affirmed.

Wade, O. J., and Jehhvns, J., concur.


author: Ltjke, J.

text:
    8383.
    Vickery et al. v. Morehead.
    Decided February 7, 1918.
    Action for damages; from Hart superior court — Judge'Worley. December 28, 1916.

      A. G. & Julian McGurry, J. H. & Parke Skelton, for plaintiffs in error. A. A. McGurry, contra.
   Ltjke, J.

1. The plaintiff having sued for damages on account of an alleged unlawful battery, it was error for the court to charge the jury that in estimating the damages the worldly circumstances of the parties should be considered and weighed. Georgia Railroad v. Homer, 73 Ga. 251 (1); Civil Code (1910), § 4504.

2. It is not likely that the other alleged errors will recur on another trial, and they are not now considered.

Judgment reversed.

Wade, 0. J., and Jenhins, J., concur.-


author: Luke, J. Jenkins, J.,

text:
    8433, 8434.
    DeBOW v. VICKSBURG, SHREVEPORT AND PACIFIC RAILWAY; and vice versa.

   Luke, J.

1. Service of process on a non-resident railroad corporation may be legally perfected, so as to give jurisdiction to a court of this State for the rendition of a judgment, by handing a copy personally to an agent who maintains an office in this State, furnished to him by the corporation, and who represents it in soliciting freight and other business. Bell v. New Orleans &c. R. Co., 2 Ga. App. 812 (59 S. E. 102). The court did not err, after hearing evidence, in finding against the traverse and the plea to the jurisdiction.

2. A mere general limitation in a bill of lading, as to the value of property shipped, amounting to no more than an arbitrary preadjustment of value, will not serve to exempt the carrier from liability for the true' value, if the property he destroyed by negligence of the carrier. Central of Ga. Ry. Co. v. Hall, 124 Ga. 322.

3. While “an interstate carrier may, by a fair, open, and reasonable agreement, limit the amount recoverable by the shipper to an agreed value made for the purpose of obtaining the lower of two or more rates proportioned to the amount of the' risk” (Adams Express Co. v. Croninger, 226 U. S. 492, 33 Sup. Ct. 153, 57 L. ed. 314, 44 L. R. A. (N. S.) 257), and “knowledge of the shipper that the rate, is based on value is to he presumed from the terms of the bill of lading, and of the published schedule filed with the interstate-commerce commission, and the effect of so filing the schedule makes the published rates binding upon shipper and carrier alike” (Boston & Maine Railroad Co. v. Hooker, 233 U. S. 97 (34 Sup. Ct. 526, 58 L. ed. 868, L. R. A. 1915B, 450, Ann. Cas. 1915D, 593), requirements of the interstate-commerce law as to the filing and publication of such schedules are not applicable, and no such presumption arises, when property is being transported free under the provision of the act of Congress of February 4, 1887, as amended March 2, 1889, “to regulate commerce” (c. 382, sec. 22), that nothing therein “shall prevent the carriage . . of property free or at reduced rates . . to or from fairs and expositions for exhibition thereat.” 25 Stat. 862 (U. S. Comp. St. 1916, § 8595).

Decided February 7,

— Rehearing denied February 27, 1918.

Action for damages; from Fulton superior court — Judge Bell. November 11, 1916.

Afkinson & Born, for plaintiff.

Anderson & Rountree, R. W. Crenshaw, for defendant.

4. Where an interstate carrier issued a circular and published a general order providing that all shipments of hogs intended for exhibition at fairs and expositions should be carried thereto at the full tariff rates, but that if returned in thirty days they should be returned free from further freight charges, on presentation of the paid freight-bill showing that the shipment moved over the carrier’s lines on the first movement, and of a certificate from the proper officers of the fair, showing that the hogs had been regularly exhibited and had not changed ownership, and thereafter a hog was shipped to a fair on the carrier’s line, for the purpose of exhibition, and the shipper complied in all respects with this order, and the carrier accepted the hog for return shipment in accordance with the agreement to return it free from further freight charges, and, while in course of transportation, the hog received injuries which caused its death, the shipper, if the injuries resulted from negligence of the carrier, was not bound by an arbitrary prearranged valuation upon such property, printed in a bill of lading issued to him, acknowledging receipt of the hog for return shipment free of additional freight charges, and he was entitled to recover full damages for the loss sustained by him by reason of such negligence.

5. The court erred in limiting the plaintiff’s recovery to the sum of $10, named in the bill of lading as the limit of recovery for a hog, and in directing a verdict for that amount. It was therefore error to overrule the plaintiff’s motion for a new trial.

Judgment on main bill of exceptions reversedon cross-bill affirmed.

~Wade, O. J., and Jenhins, J., concur.

ON MOTION FOR REHEARING.

Jenkins, J.,

concurring specially. It appears that J. D. B. DeBów, the plaintiff in this case, delivered to the Western Railway of Alabama, at Montgomery, certain property, the value of which is sued for, and received from that road a through bill of lading for its transportation to the fair grounds at Shreveport, La. The defendant company, by its return bill of lading, consigned the property to DeBow at Montgomery, “D. H. to Meridian a/cLa. State Fair.” By the twelfth clause of defendant’s shipping agreement it was provided that “In case said live stock is to be transported over the line or lines of any other railroad company, the party of the first part shall be released from liability of every kind whatsoever after said live stock shall have left its road, it being agreed that it shall not be held or deemed liable for anything occurring beyond its line of road, except that it shall protect, in so far as it legally can, the through published rate of freight. The conditions of this contract, however, shall inure to the benefit of all carriers transporting said live stock, unless otherwise stipulated by them, but in no event shall one carrier be liable for the negligence of another.” There was a clause in this bill of lading limiting the liability of the carrier to an agreed valuation of $10, and it was further stipulated that such agreement was voluntarily entered into by reason of the reduced rate obtained. The injury occurred on the lines of an intermediate connecting carrier, after the property had left the hands of the defendant company on its return shipment to Montgomery.

1. Assuming that the defendant was an initial carrier, I do not agree with its contention that by reason of the quoted clause in the bill of lading, limiting liability to acts of its own negligénce, it was relieved from liability for negligence of its connecting carriers. Prior to the passage' of what is known as the Carmack amendment to the Hepburn interstate-commerce act (34 Stat. 595, 3591, § 7, pars. 11, 12), and the enactment of the Georgia statute relative to intrastate shipments in conformity thereto (Civil Code of 1910, § 2777), it was the rule that a common: carrier was not bound to issue a bill of lading for transportation of freight beyond its own terminus; and if it did so, it might stipulate, as a condition to the undertaking, that its liability should extend only to injuries occurring on its own lines. Central R. Co. v. Avant, 80 Ca. 195 (5 S. E. 78); R. & D. R. Co. v. Shomo, 90 Ga. 496, 500 (16 S. E. 220); Kavanaugh v. Southern Ry. Co., 120 Ga. 62 (2), 65 (47 S. E. 526, 1 Ann. Cas. 705). Whether under the Federal statute a common carrier can now refuse an interstate shipment designated for a point beyond its own lines was left an open question by the Supreme Court of the United States in Atlantic Coast Line R. Co. v. Riverside Mills, 219 U. S. 186 (31 Sup. Ct. 164, 55 L. ed. 167, 31 L. R. A. (N. S.) 7); but the decision therein rendered distinctly upheld the validity of the provision of the Carmack amendment imposing liability upon the initial carrier for loss occasioned anywhere en route, whether on its own lines or not, where it voluntarily receives such a shipment, and in spite of any agreement or stipulation limiting liability to injuries occurring on its own lines.

2. It also appears to be true that the act of Congress as amended, stipulating that “nothing in this act shall prevent the carriage, storage, or handling of property free or at reduced rates for the United States, State or municipal governments, or for charitable purposes, or to or from fairs and expositions for exhibition thereat,” etc., permits the shipper and the carrier to enter into a special contract governing the terms of such a shipment, and that since such a shipment does not fall within the provisions of the act regulating the publication of rates and schedules (see ruling to that effect by Interstate Commerce Commission, Watkins on Shippers & Carriers (2d ed.) 847), no presumption arises “from the terms of the bill of lading and of the published schedule filed with the interstate-commerce commission” that knowledge was had by the shipper that the rate was based on value.

3. What appears to be the main difficulty involved in this case lies in the question as to whether or not under the facts, the defendant was in fact an initial carrier. Grave doubt upon this question is likewise shared by Wade, C: J. All of the judges agree that if the defendant be not an initial carrier, then there would be nothing in the acts of Congress or in the record which would prevent giving effect to the provision in the defendant’s contract of shipment limiting its liability to acts of its own negligence. In their brief, counsel for the defendant say that “He [the shipper] received from said road [meaning the Western Eailway of Alabama at Montgomery] its bill of lading, which provided for carriage from Montgomery to Shreveport at the full rate, and it was expressly agreed that there would be no charge for the return carriage.” An examination of the bill of lading, however, does not disclose any provision or agreement whatever relative to a return ,shipment.- It is true that the record discloses that the Western Eailway of Alabama, which issued the original outgoing contract of shipment, had in fact previously filed with the interstate-commerce commission a classification sheet showing its tariff rates of freight, wherein it was provided that "Shipments intended for fairs or expositions shall pay tariff rates from point of shipment to point of destination, and may be returned' free via the same route,” subject to certain conditions therein named. Since, however, it was not incumbent upon the carrier to thus file with the commission a schedule governing any special rates by which such shipments might thus be returned without additional charge, it does not seem that such a schedule of tariffs, though actually filed, must be taken as if included in the original contract of shipment, and (under the authority of the Hooker case, cited in paragraph 3 of the decision in this case) "binding upon shipper and carrier alike.” Especially would this seem true where the record in no wise disclosed that the shipper had actual knowledge of the offer thus made by the filing of such proposal. If the Western Bailway of Alabama, as the- original outgoing carrier, had actually contracted with the shipper for a return carriage of "the property, it would seem clear to all of us that the defendant company, as its connecting carrier, would have been acting for it in issuing the return shipping receipt in accordance with the original contract had with the railroad company at Montgomery. It appears that the defendant company itself had issued and posted its circular whereby it had agreed that shipments for exhibition at fairs and expositions should be returned over its own lines free of charge. Though it had received its portion of the original freight charge from the other company, it in fact entered into a contract with the shipper himself, whereby it issued its bill of lading for the return carriage of the property consigned to Montgomery “D. H. Meridian a/c La. State Fair.” If the Alabama railway company was not obligated to make such return carriage, the contract thus made must have been on the part of- the defendant and on its own behalf, and under it the defendant became the initial carrier. While the point would seem a close one, I have concurred in the judgment rendered, for the reasons indicated.


text:
    8653.
    Alexander v. City of Atlanta.
    Decided February 7,
    — Rehearing denied February 27, 1918.
    Affidavit of illegality of execution; from Fulton superior court —Judge Ellis. November 4, 1916.

      B. B. Blackburn, for plaintiff in error.

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

1. The special grounds of the motion for a new trial, complaining of the admission and rejection of evidence, are without merit.

2. The burden was upon the defendant to sustain all the essential allegations in his affidavit of illegality; and the evidence being insufficient to show that the execution was proceeding illegally, a verdict against him was demanded, and the court did not err in so' directing.

Judgment affirmed.

Jenkins and Luke, JJ., concur.


text:
    8665.
    WESTERN UNION TELEGRAPH CO. v. MANSON.
    The damages alleged to have been sustained were too remote, uncertain, and conjectural to authorize a recovery.
    Decided February 7, 1918.
    Action for damages; from McIntosh superior court — Judge Sheppard. December 3Ó, 1916.

      William L. Clay, for plaintiff in error.

      Charles Mi Tyson, Hitch & Denmark, contra.
   Luke, J.

Eobert Manson sued the Western Union Telegraph Company in tort, alleging that the defendant is a foreign corporation, doing business in McIntosh county, Georgia, and having an office and place of business and agent therein; that by reason of its gross negligence, as hereinafter set out, said corporation has endamaged petitioner in the sum of $2,961.87, by reason of the facts hereinafter stated; that petitioner was at all the times hereinafter mentioned, a timber merchant, and was on March 6, 1915, the owner of approximately 1,400,000 feet of timber, which he desired to sell at that time for .the then market price, and to ship not later than April 1913, from Darien, Ga., to Europe; that on March 6, 1913, he was endeavoring to charter a steamer of about 700 standards for said purpose, and received on said date the following cable sent to him from London, to wit: “Boman, Darien, Have closed subject to your confirmation here 5 p. m. Charleston or substitute 700 10 112/6 Kingdom. Continent 115 two ports proper rotation Continent first if Kingdom same coast south and east or south and west considered same coast no hewn eighty discharge March 25, 15 April Watts;” to which cable the petitioner on the same date replied as follows: “Watts London confirm charter;” which cable was delivered to the agent of said Western Union Telegraph Company at its office in Darien, said county and State, by eleven o’clock a. m., for immediate transmission and delivery to Watts, London, petitioner paying- therefor the sum of $1.24, the usual charges. The cable message of March 6, 1913, above referred to, addressed “Koman, Darien,” and signed “Watts,” was from Messrs.’ Watts, Watts & Co. Ltd., ship brokers of London, Eng., was addressed to petitioner by his code name “Roman,” and the correct meaning thereof was as follows: “Robert Manson, Darien. Have closed subject to your confirmation here by 5 o’clock, p. m., steamer Charleston,’ or substitute steamer, capacity seven hundred standards or 1,386,000 superficial feet of timber, variation allowed 10% over or under, freight rate 112 shillings and 6 pence per standard of 1980 feet, or $13.80 per 1000 superficial feet, for one port of the Kingdom of Great Britain, or for one port of the continent of Europe; 115 shillings per standard ($14.61 per 1000 feet) for two ports in proper rotation, continental port to be first port of discharge; if going to two ports in the United Kingdom, they are to be on the same coast, south- and 'east coast considered same coast; no hewn timber to be shipped; 80 standards, or 158,400 superficial feet, to be discharged per day; vessel to arrive for loading not earlier than March 25th nor later than April 15th. Signed: Watts, Watts & Co., Ltd.”

The petition further alleges: The 1,400,000 feet of timber herein referred to consisted of sawn pitch-pine timber in four lots, to wit: lot No. 1, composed of 752 pieces, averaging 404 superficial feet each, having an average length of 26 1/3 feet, and amounting in the aggregate to 304,484 superficial feet; lot No. 2, composed of 4276 pieces, averaging 137 superficial feet each, having an average length of 23 1/2 feet and aggregating 575,810 superficial feet; lot No. 3, composed of 1275 pieces averaging 170 superficial feet each, having an average length of 26 3/4 feet and aggregating 217,215 superficial feet; and lot No. 4, composed of 1886 pieces, averaging 159 superficial feet, having an average length of 25 3/4 feet and aggregating 300,633 superficial feet. Said Western Union Telegraph Company, through its gross negligence, failed and neglected to transmit and deliver said cablegram to said Watts at London, and in consequence thereof petitioner failed to secure the said .steamer Charleston, or substitute, and was unable to make said contemplated shipment of 700 standards of timber. On or about said March 6, 1913, timber for shipment not later than April loading was bringing 68' shillings per load, and it was not until some time later, to wit, April' 17, 1913, when petitioner was able to secure another steamer for the shipment of said 1,400,000 feet of timber, and caused a delay of one month and eleven days in the shipment. Said timber was bringing the price referred to at any port in the United Kingdom of Great Britain and the continent of Europe, terms, four months less 2% for cash, conditions open market. The price referred to was 68 shillings per load of 600 superficial feet or $27.54 per thousand superficial feet. The steamer finally secured by petitioner to transport said timber was the “Portinglis,” which was procured on April 17, 1913, though the charter-party was dated at Savannah, Georgia, April 21, 1913. Said steamer “Portinglis” arrived for loading May 12, 1913, and finished loading and sailed May 16, 1913. During said time the market value of said timber rapidly declined. Petitioner used all due diligence in securing as quickly as possible, and on the best terms obtainable, another steamer to transport said charge of timber. On March 6, 1913, when petitioner, but for defendant’s gross negligence as above stated, would have secured the steamer “Charleston” for said shipment, the market value of said shipment, after deducting freight and other charges, was $17,850.50. By the time petitioner was able to secure another steamer, to wit, the “Portinglis,” on April 17, 1913, the market value'of said shipment had declined to $15,563.83, making a net loss in said market value of $2,287.67. Petitioner sold as quickly as possible, on the best terms and at the best prices obtainable, the four lots of timber comprising said shipment; the names of the purchasers, dates of sales, and prices obtained being as follows: lot No. 1, 752 pieces, aggregating 304,484 superficial feet, and lot No. 2, 4276 pieces; aggregating 575,810 superficial feet, to Bénnetts & Company of Grimsby, England, June 5, 1913, at 65 shillings per load, or $26.32 per thousand feet, and 54 shillings and 6 pence per load, or $22.07 per thousand feet, respectively; lot No. 3, 1275 pieces, aggregating 217,215 superficial feet to Societe des Bois of Bordeaux, France, April 19, 1913, at 65 shillings per load, or $25.51 per thousand feet, and Lot No. 4, 1886 pieces, aggregating 300,633 superficial feet to B. Bourbouley Aine, of Bordeaux, France, April 19, 1913, at 63 shillings per load, or $25.51 per thousand feet. The word “load” as herein used means 600 superficial feet of timber. By reason of the gross negligence of the defendant as above set forth, petitioner not only lost the amount of the decrease in value of said shipment, as above recited, aggregating $2,287.67, but also sustained, by reason of said negligence, the following losses, expenses, and damages: Boom expenses for one month and eleven days, March 6 to April 17, 1913, as follows: Boom expenses, including roll for labor, $623.64. Cost of cablegrams and telegrams in connection with steamer “Charleston” and securing steamer “Portinglis,” as per list and copies hereto attached, marked Exhibit “A,” $50.56; total 2,961.87.”

The defendant demurred generally to the petition, and insisted that the damages alleged to have been sustained are too remote, uncertain, and speculative to form the basis of a legal cause of action. The court overruled the demurrer, the case proceeded to trial, and the plaintiff recovered a judgment. The case came to this court on exceptions to the overruling of the demurrer and to the refusal of the defendant’s motion for a new trial. It will be noted that in the plaintiff’s petition it is nowhere alleged that he sold the timber at a price certain, and it is nowhere alleged that he had a purchaser, but he contents himself with the allegation that he could have sold in Europe at the market price. The certainty of the-sale is merely conjectural, and the opinion of Manson as to what he might have been able to do were the timber in Europe. The market price of the timber as fixed when it was sold, Manson being under no duty to sell at any specified time, can not be used as the basis of fixing his damages recoverable by law. The damages alleged are too remote and uncertain to be the basis of a recovery. Civil Code (1910), §§ 4394, 4508, 4509; Montgomery v. Alexander Lumber Co., 140 Ga. 51 (78 S. E. 413). See also Orr v. Farmers Alliance Warehouse Co., 97 Ga. 241 (4), 243 (22 S. E. 937); Goodin v. Southern Railway Co., 125 Ga. 630 (54 S. E. 720, 6 L. R. A. (N. S.) 1054, 5 Ann. Cas. 573). The court erred in overruling the general demurrer. What occurred thereafter in the trial of the ease was nugatory.

Judgment reversed.

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


text:
    8742.
    Smith et al. v. Downing Company.
   Luke, J.

1. This ease arose as a proceeding under the Civil Code of 1910, § 3276 et seq., to foreclose a mortgage on realty. The case was carried to the Supreme Court by writ of error dated March 26, 1917, but on April 12, 1917, the Supreme Court ordered that the ease be transferred to this court. In so transferring the case, the Supreme Court necessarily held that this court had jurisdiction of such a ease.

2. In a statutory proceeding to foreclose a mortgage on realty, the only “process” that is necessary is the rule nisi prescribed by the statute, and the only prayer for process that is necessary is a prayer for such a rule.

3. Where the plaintiff seeks a judgment in rem, and not a judgment in personam, service by publication, in accordance with the terms of the statute, is no less effective than personal service. Civil Code (1910), §§ 3276, 5554 (3); Roller v. Holly, 176 U. S. 399 (20 Sup. Ct. 410, 44 L. ed. 520).

4. Where service by publication has been properly perfected, the fact may be determined and entered on the record at'any time before the trial of the case. Civil Code (1910), § 5558.

5. A promissory note payable to a partnership may be transferred upon the individual indorsement of all the copartners, without any indorsement in the firm name, as well as in the firm name by any one or more ■of the partners having authority so to do. Civil Code (1910), §§ 3156, ' 3175, 3180.

6. The note and the mortgage given to secure it appear upon the same paper. At the end of the note are the words, “Witness our hands and seals.” On the same line is the signature of one of the makers, followed .by the word “Seal.” Under that is the signature of the other maker similarly followed. To the left of the signatures of the makers and directly under the words first above quoted appear simply signa- - tures of the two other persons. The mortgage ends in the same form - and with the same signatures as the- note, except that the -signatures other than those of the-makers clearly appear as subscribing witnesses, being there preceded by the .words, “Signed in presence of,” and one of them being followed by letters indicative of his official character. - The defendants contend that neither the note nor the mortgage is a sealed instrument, and that the action thereon is barred by the statute of limitations, because not commenced within six years after the maturity of the note. Held:

¡(d) The note and the mortgage given to secure it, being written upon the same paper and executed at the same time, must he construed as constituting but one contract. • Civil Code (1910), §§ 4266, 4268 (1).

(5) The signatures to the note that were made by the witnesses who attested the mortgage will be construed only as the signatures of attesting witnesses, and as having no more reference to the words “Witness our hands and seals” than to any other part of the note. Waterman v. Barclay, 10 Ga. App. 108 (72 S. E. 716).

(c) Both the note and the mortgage.were sealed instruments, under the Civil Code (1910), § 4359, and an action thereon would not be stale until the expiration of twenty years after the right of action accrued. Humphries v. Nix, 77 Ga. 98.

7. A mortgage is not void on its face for want of a sufficient description of the mortgaged property, where the property is described as “one tract of land in the 401st district, G. M., of Tattnall county, Georgia, said tract of land being bounded as follows: on the north, east, and south by E. M. Smith [not a mortgagor]; and on the west by Perry Sikes and Herschel DeLoach [not mortgagors], said tract of land containing one hundred and fifty acres, more or less, and being the same tract of land purchased by [the mortgagors] from Jas. W. Smith and described in a deed of conveyance made by the said Jas. W. Smith, dated on the first day of October, 1903.” Johnson v. McKay, 119 Ga. 196 (45 S. E. 992, 100 Am. St. R. 166); Derrick v. Sams, 98 Ga. 397 (25 S. E. 509, 58 Am. St., R. 309).

(a) In such a description the words, “bounded . . by E. M. Smith,” will be construed as meaning “bounded by lands of E. M. Smith.”

8. Where an indorsee holds notes as collateral security for a debt due from the payee, and there would be a valid defense against them if not indorsed, he can recover no more on them than the amount of the debt for which they are collateral. Hatcher v. Independence Natl. Bank, 79 Ga. 547 (5 S. E. 111) ; Linderman v. Atkins, 143 Ga. 366 (3) (85 S. E. 101). It was therefore error for the court to exclude evidence offered by the defendants to prove that part of their plea wherein they alleged that the note was executed without consideration in so far as the payee was concerned, and for the sole purpose of enabling the payee to indorse it to the plaintiff as collateral security, and that the debt thus secured had been fully paid.

9. A judgment is not conclusive as to one who was not a party to the proceeding in which it was rendered, nor as to one over whom the court acquired no jurisdiction, even though the latter may be named as a party defendant in the proceeding. Civil Code (1910), § 4336. If the original petition showed a total want of jurisdiction, and there was no . attempt to serve the amendment or the amended petition upon the defendant, and no appearance or waiver by him, he was not concluded by the final verdict and judgment rendered without proof, even though the amended petition may have alleged the necessary jurisdictional facts.

10. Grounds of demurrer not covered by the foregoing rulings are without substantial merit.

Decided February 7, 1918.

, Mortgage foreclosure; from Evans superior court — Judge Sheppard. March 9, 1917.

W. T. Burlchalter, for plaintiffs in error.

C. B. Conyers, W. G. Warnell, B. J. Conyers, contra.

11. As the other.questions raised by the motion for a new trial may not arise on another trial of the case, they are not here decided.

Judgment, reversed.

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


author: Jenkins, J.

text:
    8895.
    Travelers Insurance Co. v. Callaway, administrator.
    Decided February 7, 1918.
    Action on insurance policy; from city court of Atlanta — Judge Eeid. December 2, 1916.

      Smith, Hammond & Smith, for plaintiff in error.

      Robert C. & Philip H. Alston, H. E. Riddell, contra.
   Jenkins, J.

Where a special demurrer to a petition is sustained, with leave granted the plaintiff to amend within a specified time, in default of which amendment the case will stand dismissed, and within the time allowed by the order the plaintiff files an amendment which is allowed by the court, subject to objection on the part of the defendant, and the defendant files a motion to strike the amendment, and upon the hearing the grounds of objection presented' by the defendant are overruled, the original order of dismissal is to- be taken as conditional only, and can not be treated as an absolute and final disposition of the ease, such as would permit direct exceptions to be taken to the alleged error in failing to sustain the objection to the amendment. Olds Motor Works v. Olds Oakland Co., 140 Ga. 400 (78 S. E. 902); Clark v. Ganson, 144 Ga. 544 (87 S. E. 670); Steed v. Savage, 121 Ga. 84 (48 S. E. 689); Canuet v. Seaboard Air-Line Railway, 128 Ga. 41 (57 S. E. 92); Jackson v. Green, 58 Ga. 460.

Writ of error dismissed.

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


text:
    8909, 8910.
    Finch v. Southern Railway Co.; and vice versa.

    Decided February 7, 1918.
   Luke, J.

Upon the evidence submitted a verdict for the defendant was demanded; and the court did not err in so directing the jury to find.

Judgment on main bill of exceptions affirmed; cross-bill dismissed.

Wade, C. J., and Jenkins, J., concur.

Action, for damages; from Polk superior court — Judge Bartlett. February 38, 1917.

Mundy & Mundy, W. W. Mundy, for plaintiff.

Maddox, McCamy & Shumate, Bunn & TrawicTc, Irwin & Tison, for defendant.'


text:
    8966.
    Fulford et al. v. Downs.
    Decided February 7, 1918.
    Complaint; from city court of Wrightsville — Judge Blount. May 16, 1917.

      W. 0. Brinson, Moye & Shurling, for plaintiffs in error.
   Jenkins, J.

The motion for a new trial embraced only the general grounds. There was some evidence to authorize the verdict, which has the approval of the trial judge, and this court is without authority to set the verdict aside.

Judgment affirmed.

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


author: Harwell, J.

text:
    8070.
    ALMAND v. BOARD OF DRAINAGE COMMISSIONERS.
    Under the rulings of the Supreme Court on questions certified in this case, the trial judge did not err in sustaining the demurrer to the petition and in dismissing the action.
    Decided February 7, 1918.
    Action for damages; from Gwinnett superior court — Judge Hardeman presiding. January 31, 1916. •
    Almand brought suit against the Board of Drainage Commissioners of Haynes Creek Drainage District No. 1, alleging: that the defendant was duly incorporated and established under an act of the legislature of the State of Georgia, approved August 19, 19Í1, and that the corporation had damaged him in the sum- of $3,500, by reason of the facts set forth in his petition; that he owned valuable bottom lands along Haynes Creek, from which the district takes its name; that the drainage ditch was determined upon by the machinery of law set forth in the said act of the legislature, and a survey was made and viewers appointed, and that the ditch was constructed according to their report and according to the survey through his land, following the channel of Haynes Creek; and that the viewers and surveyors and defendant’s officers and agents in determining upon the construction of the ditch determined that there would be no damages flowing to petitioner by reason of the construction of said ditch, and no damages were-awarded to him by reason of said construction. The petition alleged that in the construction of said ditch,, the defendants damaged the petitioner by taking eighteen acres of his land, by changing the run of the creek, filling up collateral ditches, destroying certain bridges which he had over the creek, by building a. dam ,_and causing the water to overflow his land, by failing, to move rock in the channel of the creek at one place and causing the water to overflow and damage his land; and he claimed interest on said special damages. By amendment he alleged that all the damages claimed in this petition arose after the said drainage district was established, and after the final order establishing the same was passed, and were all caused by the negligent, construction of said ditch as herein set forth.

      L. B. Norton, J. T. Moore, E. J. Reagan, for plaintiff.

      1. L. OaTces, for defendant.
   Harwell, J.

(Aftér stating the foregoing facts.) The Court of Appeals asked for instructions from the Supreme Court upon the following questions:

“The Board of Drainage Commissioners of Haynes Creek District was duly created a body corporate under and by virtue of the provisions of the act of 1911 (Acts 1911, pp. 108 to 132, inclusive; Park’s Annotated Code, §§ 439 (a) et seq.) A, not. a petitioner for the creation of such drainage district, owns land within the district, and is served with a°summons as required by the act (Park’s Annotated Code, § 439 (b)). No. damages are awarded Him-- by the engineer and the viewers; and' no appeal is taken. by him to their report, as provided in the act. The district is duly established in strict compliance with the provisions' of the' act.".
. “1. In such case may A prosecute his common-law action on the ease for the value of his land taken, and for any inconvenience imposed, because of the construction of the- improvements by the board of drainage- commissioners, after the district has been- established, laid out, and the improvements completed, or are the. remedies provided in-the-act exclusive of all other remedies?
“2. In such case may A maintain against the board of drainage commissioners, as a body corporate, an action for damages, for the negligent'construction by the board of drainage commissioners of the improvements authorized to be made by it, where his lands lying within and without the drainage district have been damaged by acts of negligence and negligent omissions on the part of the board and its contractor in making the improvements in the district?”

The answer of the Supreme Court (the headnotes only being given here) was as follows

“1. A drainage district laid out, established, and incorporated under the act of 1911 (Acts 1911, pp. 108-132, Park’s Ann. Code, § 439 (a) et seq.) is hot liable in a common-law. action to one owning land within the district, for the value of his land taken, or for inconvenience imposed thereon by the construction of improvements after they have been completed, where the provisions of the act have been strictly complied with, and where such landowner has been served and made a party to the proceeding to establish such district, and has failed to appeal, as provided by the act, from the report of the engineer and viewers finding that his lands will not be damaged by the construction of the improvements. • In such case -the remedy provided in the act is exclusive.
“2. The act of 1911, authorizing the establishment and incorporation of drainage districts, is referable to the police power of the State. Such districts, when established and incorporated, are governmental agencies, with limited powers conferred upon them for the public benefit, and may not be held liable for the negligent acts of their officers and agents in the discharge of a governmental function, unless made so by statute.
“3. ' In so far as the eminent-domain power of the State is conferred upon such drainage districts, the same is merely incidental to the exercise of the powers and duties conferred and enjoined upon them for the public benefit. If, in the non-negligent and proper exercise of powers and performance of duties conferred and enjoined upon them for the public benefit, injury is necessarily inflicted upon private property which amounts to the taking or damaging of such property, within the meaning of the constitution of this State, the owners thereof are entitled to just and adequate compensation, and the drainage districts as such may be held liable. Where the injury is the result of an act of negligence of the officer or agent of such drainage district, liability as against the corporation does not exist.” 147 Ga. 532 (94 S. E. 1028).

It appearing, from the allegations of the petition, that the damages complained of arose from the construction of the ditch, and that they were all caused by, its negligent construction, we hold that under the facts as alleged, and the rulings of the Supreme Court as herein stated, the court did not err in sustaining the demurrer and dismissing the petition.

Judgment affirmed.

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


author: Per Curiam.

text:
    8071.
    McElroy v. Board of Drainage Commissioners.
    Decided February 7, 1918.
    Description and counsel as in case next preceding.
   Per Curiam.

This case is substantially controlled by the . decision in Almand v. Board of Drainage Commissioners ante, and where not so controlled, there is no merit in the assignments of error.

Judgment affirmed.

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


text:
    8477.
    Herring v. Southern States Phosphate and Fertilizer Company.
    Decided February 7, 1918.
    • Complaint; from city court of Bainbridge — Judge Spooner. January 29, 1917.

      T. 8. Hawes,' for plaintiff in error.

      Hartsfield & Conger, William H. Fleming, contra.
   Bloodworth, J.

1. When considered in connection with the entire charge of the court, there is not, in the excerpts complained of in the motion for a new trial, sufficient' error to authorize a reversal.- Mere inaccuracies of expression, or slight errors which are not likely to obscure the meaning of the court or mislead the jury, will not authorize this court to set aside a verdict, where the charge is otherwise correct.

2. There was evidence to support the verdict, and the court properly refused a new trial..

Judgment affirmed.

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


author: Bloodwokth, J.

text:
    8712.
    Tuxworth v. Barber.
    Decided February 7, 1918.
    Complaint; from DeKalb superior court — Judge Smith. March 5, 1917.

      J. B. Stewart, for plaintiff in' error.
    ‘ T. H. Scott, W. P. Coles, contra.
   Bloodwokth, J.

1. ‘‘The answer of a defendant will resist a general demurrer or motion to strike, no matter how defective in some respects the answer may be, if it contains any matter of substantial right which the defendant can properly present by plea.” Medlock v. Wood, 4 Ga. App. 368 (2) (61 S. E. 516); Hicks v. Hamilton, 3 Ga. App. 112 (2) (59 S. E. 331); Epstein Co. v. Thomas, 15 Ga. App. 741 (3) (84 S. E. 201); Baer v. Christian, 83 Ga. 322 (2) (9 S. E. 790); Higginbotham v. Conway, 113 Ga. 1155 (39 S. E. 550).

2. The amended plea contained some averments constituting, in substance, at least a good- partial defense against the plaintiff’s petition; and under the principles announced in the decisions cited above, the court erred in sustaining the demurrer and striking the plea, and the subsequent proceedings were nugatory.

Judgment reversed.

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


text:
    8789.
    MAYOR & ALDERMEN OF SAVANNAH v. WADE.
    The grounds presented by the affidavit of illegality set out no fact showing that the execution for the affiant’s proportion of the expense of street-paving was illegally issued; and it was error to overrule the demurrer to the affidavit.
    Decided February 7, 1918.
    Affidavit of illegality of execution; from Chatham superior court —Judge Meldrim. March 31, 1917.

      Robert J. Travis, David S. AtTcinson, for plaintiff in error.

      Osborne, Lawrence & Abrahams, contra.
   Bloodwokth, J.

1. Ground 1 of the affidavit of illegality in this case is as follows: “Deponent has never had his day in court, was never served with any process or other notice of the pendency of this suit whereon said execution is based, nor did he waive service, nor did he appear in or defend said suit.” Ground 11 alleges that the city attorney “agreed that in consideration of the defendant’s not filing an injunction, the mayor and aldermen would not urge this inaction as a defense, and agreed that every defense might be made by affidavit of illegality, or other appropriate remedy, that could have been made if deponent had begun action prior to the paving of the pavement.” No attack is made upon the form of this defense; the demurrer attácks its substance. That the deponent had a right to file an affidavit of illegality is settled by the act of 1885 (Ga. L. 1884-5, p._ 362); but before this right will avail, the affidavit of illegality must show some legal reason why the execution should not proceed.

2. The affidavit of illegality in this case presents no fact showing that the execution which it attacks was issued illegally, and none that would authorize us to reach the conclusion that the Mayor and Aldermen of the City of Savannah, in passing the ordinance providing for the pavement of Bay street, and in paving that street, abused the discretion given by law. See Ga.'L. 1890-91, vol. 1, p. 229; Ga. L. 1887, p. 537; Ga. L. 1884-5, p. 362. See also Bacon v. Savannah, 105 Ga. 62, 66 (31 S. E. 127), where it was held that the City of Savannah had the right, in its own discretion, to repave its streets, the matter being left entirely “to the sound discretion of the municipal authorities.” It is nowhere contended in the affidavit of illegality that the'evidence submitted upon the hearing before the mayor and aldermen did not demand the decision rendered, nor is there a suggestion that there was any conflict in the evidence. In the case of Burckhardt v. Atlanta, 103 Ga. 309 (30 S. E. 35), Justice Lewis said: “The question of improving, repairing or repaving the streets of Atlanta is left to the discretion of its municipal legislature. It is a well-established rule of law that the courts will not interfere with the exercise of such discretion unless the power conferred is exceeded, or fraud is imputed and shown, or there is an arbitrary and unreasonable invasion of private rights;” citing 1 Dill. Mun. Corp^ § 94; State v. Swearingen, 12 Ga. 23; Mayor &c. of Athens v. Camak, 75 Ga. 429; Speer v. Athens, 85 Ga. 49 (11 S. E. 802, 9 L. R. A. 402); Regenstein v. Atlanta, 98 Ga. 167 (25 S. E. 428). The fourth headnote in the ease of Danielly v. Oalaniss, 52 Ga. 212, is as follows: “When a town council is authorized by law to do a particular act at its discretion, the courts will not control this discretion, and inquire into the propriety, economy and general wisdom of the undertaking, or into the details of the mamw adopted to carry the project into execution.” In the ease of Huds peth v. Hall, 113 Ga. 7 (38 S. E. 359, 84 Am. St. R. 300), Presiding Justice Lumpkin said: “The law is well settled that where public officials 'are acting within the scope of their duties and exercising a discretionary power, the courts are not warranted in interfering, unless fraud or corruption is shown, or the power or discretion is being manifestly abused to the oppression of the citizen.’ ” A number of cases are cited to support this statement. See also Mayor &c. of Americus v. Eldridge, 64 Ga. 525, 527 (37 Am. R. 89); Macon Street Railroad Co. v. Macon, 113 Ga. 784 (38 S. E. 60); Hardwick v. Dalton, 140 Ga. 635 (79 S. E. 553).

3. The 10th ground of the affidavit of illegality is as follows: “And deponent further says that among the items constituting the amount of said execution of $131.44 herein complained of, besides the items charged for material and labor of said paving, a part of said $131.44 is for repairs to roller and other items which are not properly chargeable, even under the resolutions and ordinances of council in regard to repaving said street.” This ground fails to point out what portion of the $131.44 is “for repairs to roller and other items.” Besides, that a portion of the amount of the execution is not due, “even under the resolutions and ordinances of council in regard to repaving said street,” carries with it the necessary inference that the remainder thereof is due; and, under the law as construed in Hardwick v. Dalton, supra, this amount having neither been paid nor tendered, this ground of the affidavit of illegality must yield to the demurrer lodged against it.

. 4. Granting that an independent ground is set up by the concluding paragraph of the affidavit of illegality, to wit: “Wherefore deponent, denying that the whole and every part of the amount for which the said execution issued is due, presents this affidavit and prays that the same may be returned to the Superior Court of Chatham County, and there tried and the issue determined as in case of illegality,” it is settled by the decision in Dixon v. Savannah, 30 Ga. App. 511 (93 S. E. 274), that this allegation is not sufficient to withstand a special demurrer.

5. The court erred in overruling the demurrer to the affidavit of illegality, and the judgment must be

Reversed.

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


text:
    8850.
    Knowles v. Stewart.
    Decided February 7, 1918.
    Trover; from Bacon superior court — Judge Summerall. April 81, 1917.

      Chastain & Henson, for plaintiff.

      Levi O’Steen, for defendant.
   Bloodworth, J.

Section 5926 of the Civil Code (1910) is as follows: “Where there is no conflict.in the evidence, and that introduced with all reasonable deductions or inferences therefrom demands a particular verdict, the court may direct the jury to find for the party entitled thereto.” In the instant ease, while the evidence preponderates largely in favor of the defendant, there is some evidence from which the jury could infer that the wire fence was so constructed as to become a part of the realty, and that it was built with this intent. On account of this conflict in the evidence the case should have been submitted to the jury, and the court erred in directing a verdict.

Judgment reversed.

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


text:
    8919.
    Jowers & Son et al. v. Kirkpatrick Hardware Company.
   Bloodworth, J.

1. Where suit is brought in the superior court on an open account, and there is personal service and no plea is filed, a judgment rendered by the court without the intervention of a jury is void. “The court ean0enter up judgment without a jury only in ‘civil cases founded on unconditional contracts in writing, where an issuable defense is not filed under oath or ‘affirmation.’ ” Thornton v. Mutual Building & Loan Association, 113 Ga. 1141 (39 S. E. 481); Rodgers v. Caldwell, 112 Ga. 635 (37 S. E. 866); Erambert v. Scarborough, 46 Ga. 398; Fryer v. Cole, 70 Ga. 687; Stephens v. Gate City Gas-Light Co., 81 Ga. 150 (6 S. E. 838); Harris v. Woodard, 133 Ga. 104 (65 S. E. 250); Harrell v. Davis Wagon Co., 140 Ga. 127 (78 S. E. 713); Merritt v. Bank of Cuthbert, 143 Ga. 394 (85 S. E. 104); Clark v. Lunsford, 143 Ga. 513 (2) (85 S. E. 708); Thompson v. Bobo, 144 Ga. 713 (2) (87 S. E. 1056); Civil Code (1910), §§ 5655, 5660, 5661, 5662, 5663.

2. A void judgment “is a mere nullity and may be so held in any court when it becomes material to the interest of the parties to consider it.” Civil Code (1910) § 5964. “A ‘void’ judgment is in reality no judgment at all. It is a mere nullity. It is attended by none of the consequences of a valid adjudication, nor is it entitled to the respect accorded to one. It can neither affect, impair, nor create rights. As to the person against whom it professes to be rendered, it binds him in no degree whatever, it has no effect as a lien.upon his property, it does not raise an estoppel against him. As to the person in whose favor it professes to be, it places him in no better position than he occupied before; it gives him no new right, but an attempt to enforce it will place him in peril. As to third persons, it can neither be a source of title nor an impediment in the way of enforcing their claims. It is not necessary to take any steps to have it reversed, vacated, or set aside. But whenever it is brought up against the party, he may assail its pretensions and show its worthlessness. It is supported by no presumptions, and may be impeached in any action, direct or collateral.” Black on Judgments, § 170. "

Decided February 7, 1918.

Complaint; from Marion, superior court — Judge Howard. April 26, 1917.

W, B. Short, W. D. Qrawford, for plaintiffs'in error.

3. The fact that an execution was issued on a void judgment and levied does not give vitality to the judgment.

4. Where such an execution was issued and levied, and thereafter, on motion of the plaintiff, in which it was alleged “that said judgment was null and void for reason that it was obtained without a jury, said suit being based upon an open account,” the judge passed the following order: “It appearing that on the 20th day of February, 1915, judgment was obtained in the above-stated case, and that the same was void, it is therefore ordered and adjudged by the court that the said case be reestablished and be placed on issue docket in same manner it appeared before the void judgment was obtained, and dismiss judgment obtained,” the effect of the order was simply to declare the judgment void, and it was not necessary to give the defendant any notice of said motion. “A void judgment is really no judgment. It leaves the parties litigant in the same position they were in before the trial. It leaves them in exactly the same position as if no trial had taken place.” State v. Bates, 22 Utah, 71 (61 Bac. 906, 83 Am. St. R. 768).

5. Where a void judgment is entered, the original case stands for trial in its order on the docket, and it is not error for the court to call and dispose of it as though no judgment had been rendered.

6. In the instant case it appears from the record that at the time of the original judgment the case was in default, that the defendant was represented by attorneys at the time of the final trial, and filed certain objections to the proceedings before the trial, but filed no plea to the merits, and has never indicated that he has any defense or wishes to file any.

7. The court did not err in setting aside the original judgment and allowing a trial of the case.

Judgment affirmed,.

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