text:
    8409.
    MERRITT v. THE STATE.
    1. The deadly character of the weapon used in making an assault may be inferred from the nature and effect of the wound inflicted.
    2. On the trial of one accused of the offense of assault with intent to murder, the court should instruct the jury in effect that not only must all the essential elements necessary to constitute a case of murder, except the death of the party assaulted, be shown, but that in addition it must appear that the assault was made with a weapon likely to produce death, and with the specific intent to take human life.
    3. If the charge given be otherwise correct, the mere failure to inform the jury that the assault must have been committed with a weapon likely to produce death is not necessarily reversible error. The evidence in support of the verdict is well-nigh conclusive, and this court can not interfere.
    Decided March 23, 1917.
    Indictment for assault witb intent to murder; from Coffee superior court—Judge Summerall. December 2, 1916.

      D. E. Griffin, J. H. Dodgen, for plaintiff in error.

      M. D. Diclcerson, solicitor-general, contra.
   George, J.

Robert Merritt Jr. was convicted of assault with • intent to murder. He made a motion for a new trial on the usual general grounds, and on two special grounds.

1, 2. The charge of the court in submitting to the jury the law of assault with intent to murder is correct with one exception. The judge failed to inform the jury that, in order to warrant a conviction of the offense of assault with intent to murder, it must appear that the assault was made with a deadly weapon. Generally the jury should be specifically instructed, in a case of this character, that in order to warrant a conviction it must appear that the assault was made under such circumstances that, had death ensued to the party assaulted, the offense would have amounted to murder, and it must further appear that the assault was made with a deadly weapon and with the specific intent to take the life of the party alleged to have been assaulted. The omission in this case to specifically inform the jury that the State must show that the weapon named in the indictment was one likely to produce death, or deadly in character, will not require a reversal. The defense made by the accused was that the prosecutor (the person alleged to have been assaulted) was not cut by him at all. He claimed that the prosecutor was cut by some one else in a general difficulty. The evidence for the State clearly and almost conclusively shows that he did in fact cut the prosecutor with a knife, as alleged in the indictment. The prosecutor was stabbed in the neck and cut upon the arm. From fifty to sixty stitches were necessary in order to close his wounds. He was actually confined in the hospital for eleven days immediately following the infliction of the injuries upon him. The indictment alleged that the knife was a weapon likely to produce death. The judge expressly informed the jury that the burden was upon the State to establish beyond a reasonable doubt the truth of every material allegation made in the indictment. He informed the jury that the evidence must show, in order to warrant a conviction of the accused, that the assault was made upon the prosecutor as charged in the indictment, with the deliberate intent to kill the prosecutor'. The charge as a whole is fair and impartial, and we do not think that the mere omission of the court, under the particular facts of this case, to inform the jury that the weapon employed must have been one likely to produce death was error; certainly it was not such harmful error as would require the grant of a new trial.

3. The evidence establishes beyond question that the accused participated in an unprovoked and wholly unauthorized assault upon the prosecutor. In the assault the father of the accused likewise participated. Both were armed with knives. But for the timely interference of bystanders, the death of the prosecutor would likely have resulted. The trial judge gave the accused the benefit of every contention raised by his statement or authorized by the evidence. He charged the law of assault with intent to murder, the law of stabbing, the law of assault and battery, and the principles of justification. The jury found the defendant (as indeed they must have found, as conscientious jurors) guilty of the offense of assault with intent to murder. No error appears in this case, and the motion for new trial was properly denied.

Judgment affirmed.

Wade, O. J., and Luhe, J., concur.


source: Caselaw Access Project

author: Luke, J.

license: Public Domain

text:
    8410.
    Wright v. The State.
    Decided March 23, 1917.
    Indictment for arson; from Bulloch superior court—Judge Hardeman. December 28, 1916.

      Fred T. Lanier, for plaintiff in error.
   Luke, J.

The only assignment of error being that the evidence did not authorize the verdict, and there being some evidence upon which the jury could base their finding, and the verdict having the approval of the trial judge, this court can not set the verdict aside. Thomas v. State, 7 Ga. App. 337 (66 S. E. 964); Cottle v. State, 7 Ga. App. 337 (66 S. E. 809) ; Alexander v. State, 1 Ga. App. 289 (57 S. E. 996).

Judgment affirmed.

1Wade, G. J., and George, J., concur.


text:
    8418.
    Shelton v. The State.
    Decided March 23, 1917.
   Luke, J.

A father who, within this State, wilfully and voluntarily abandons his child before it is born, and persists in the abandonment after-wards, leaving it in a dependant condition, is guilty of a misdemeanor under section 116 of the Penal Code of 1910, but a father is not guilty under that section unless the child has been born. Accordingly, no offense was set out in an indictment charging the defendant with abandoning his minor child “not yet born;” and the court erred in overruling the demurrer thereto. Bull v. State, 80 Ga. 704 (6 S. E. 178); Boyd v. State, 18 Ga. App. 623 (89 S. E. 1091).

Judgment reversed.

Wade, O. J., and George, J., concur.

Indictment for .abandonment of child; from Bartow superior court—Judge Tarver. January 10, 1917.

M. B. Eubanks, for plaintiff in error.

J. M. Lang, solicitor-general, contra.


author: Wade, C. J.

text:
    8437.
    Brown v. The State.
    Decided March 23, 1917.
    Indictment for larceny of hog; from Bryan superior court— Judge Sheppard. December 18, 1916.

      Ben A. Way, for plaintiff in error.

      W. F. Slater, solicitor-general, contra.
   Wade, C. J.

1. “The right of formal arraignment and plea will be conclusively considered as waived, where the defendant goes to trial before the jury on the merits, and fails, until after verdict, to bring to the attention of the court that he has not been formally called upon to enter a plea to the indictment. Pol. Code, § 10; Hudson v. State, 117 Ga. 704 (45 S. E. 66); Bryans v. State, 34 Ga. 323.” Waller v. State, 2 Ga. App. 636 (58 S. E. 1106); Harris v. State, 11 Ga. App. 137 (74 S. E. 895).

2. There being some evidence to support the verdict, which was approved by the trial court, this court will not arbitrarily set aside the verdict.

Judgment affirmed.

George and Buhe, JJ., eoneur.


author: George, J.

text:
    8438.
    Perry v. The State.
    Decided March 23, 1917.
    Indictment for larceny of hog; from Bryan superior court— Judge Sheppard. December 18, 1916.

      Ben A. Way, for plaintiff in error.

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

1. “The right of formal arraignment and plea will be conclusively considered as waived, where the defendant goes to trial before the jury, on the merits, and fails, until after verdict, to bring to the attention of the court that he has not been formally called upon to enter a plea to the indictment.” Brown v. State, ante, 619, and cases cited.

2. The evidence in this case, while circumstantial, was sufficient to authorize the conviction of the accused of the offense of hog stealing. The exceptions taken to the charge of the court, so far as approved by the trial court, are without merit, and the verdict, approved by the trial judge, will not be disturbed by this court. Landrum v. Landrum, 145 Ga. 307 (89 S. E. 201).

Judgment affirmed.

Wade, O. J., and Buhe, J., concur.


text:
    8441.
    TRIMBLE v. CITY OF ATLANTA.
    The evidence did not authorize a conviction by the recorder’s court on the charge of disorderly conduct, and the judge of the superior court erred in overruling the certiorari.
    Decided March 23, 1917.
    Certiorari; from Pulton superior court—Judge Bell. January 17, 1917.

      Ralph McClelland, for plaintiff in error.

      J. L. May son, 8. B. Hewlett, contra.
   Luke, J.

The evidence upon which the defendant was convicted of the offense of disorderly conduct, under an ordinance of the City of Atlanta, is as follows: E. L. Jett, sworn in behalf of the city, testified as follows: that he was assistant chief of police for the City of Atlanta; that on Saturday night, on the.corner of Alabama and Broad streets, he arrested W. N.- Trimble, and that all he saw W. N. Trimble do was that he seemed to have hold of the conductor, who was an employee of the Georgia Railway and Power Company; that he did not see him hollering or doing any other acts that might be termed disorderly. L. Q. Meaders, sworn in behalf of the city, testified as follows: that 'he saw the defendant have hold of the hand of an employee of the Georgia Railway and Power Company on Saturday night, September 31; that it was near the corner of Broad and Alabama streets; that the defendant W. N. Trimble was standing behind the man he was holding by the hand; he saw.W. N. Trimble committing no other act of disorder, other than holding- the man’s hand as stated above. He further testified that he does not know whether the man was making any effort to release his hand from the hold of W. N. Trimble or not. W. N. Trimble, the defendant, made the following statement in his defense: “On last Saturday night, when I was arrested, I was down town, and there was a crowd around me of several thousand people. It was the night of the street-car strike, I am not a street-car striker, nor have I ever worked for the Georgia Railway and Power Company, whose men were out on a strike. If I touched the gentleman, as these men have stated, I did it unknowingly. The crowd was pushing and pulling, and I was simply trying to get out of the crowd, and it is possible that I might have touched this man in my effort to get' out, but I was not disorderly, and had no intention of taking hold of any one.” It will be noted that the conductor whose hand the defendant is alleged to have held at the time he is charged with the offense was not offered as a witness. ■ It can not be said that this defendant committed any acts which would make the offense of disorderly conduct. Merely holding hands is not necessarily disorderly conduct. The evidence was not sufficient to support a conviction, and the judge of the superior court should have sustained the certiorari.

Judgment reversed.

Wade, O. J., and George, J., concur.


text:
    8453.
    Jackson v. The State.
    Decided March 23, 1917.
    Indictment for sale of liquor; from Wayne superior court— Judge Highsmith. December 30, 1916.

      James R. Thomas, for plaintiff in error.

      Alvin V. Sellers, solicitor-general, contra.
   George, J.

1. There was direct evidence that the defendant sold whisky, as charged in the indictment, and the court did not err in overruling the motion for a new trial.

2. The argument of counsel for the State, excepted to in this case, was a legitimate inference from the facts proved.

3. If a trial court can make plainer the meaning of the words “reasonable doubt,” the request to give in charge “a full and complete explanation of the law of reasonable doubt, and the duty of the jury thereon,” does not illustrate the possibility, and amounts to no request.

Judgment affirmed.

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


text:
    8464.
    LATTY v. THE STATE.
    1. The evidence, although wholly circumstantial, was sufficient to warrant the conviction of the defendant of the offense of simple larceny.
    2. The charge of the court was not, for the reasons assigned, erroneous.
    Decided March 23, 1917.
    Accusation of misdemeanor; from city court of Hall.county— Judge Wheeler. January 13, 1917.

      E. B. Dunlap, W. B. Sloan, for plaintiff in" error.

      Hammond Johnson, solicitor, contra.
   George, J.

The defendant was convicted of the larceny of 600 pounds of seed cotton and of twelve sacks specifically described in the indictment. The evidence against the accused was wholly circumstantial. On a careful review of the evidence we are of the opinion that the defendant’s guilt was established beyond a reasonable doubt. The circumstances proved were sufficient to exclude every other reasonable hypothesis than that of his guilt.

During the trial of the case the court charged the jury as follows: “I charge you that the possession of stolen property within a short time after it is stolen, if that possession is unaccounted for and unexplained, affords a presumption of guilt, but this presumption is not one of law, and does not require a verdict of guilty, even though shown, and the jury will still acquit if there be a reasonable doubt of the defendant’s guilt.” It is said that there was no evidence to authorize this instruction. The evidence discloses that the sacks alleged to have been stolen, and which contained the cotton, also alleged to have been stolen, were found in the buggy of the defendant, upon his premises and at his home, shortly after the larceny. The evidence does not show that the defendant was in actual charge of tire buggy or that he at any time had actual possession of the sacks. The charge excepted to was followed by this statement of the judge: “As to whether there has been any possession of stolen goods shown in this case is a matter solely and exclusively for you to determine from the evidence, the court does not and can not express or intimate any opinion on the facts in the case, and the charge here -given is with reference to principles. I charge you that if any of the property alleged to have •been stolen should be found in the buggy or on the premises of the defendant, if that property was put there by some one else other than the defendant, without his knowledge, this would not be such possession as would authorize an unfavorable presumption against him.” We think the judge was right in giving the instruction excepted to, and that he was warranted by the evidence in so doing. The instructions given in immediate connection with the charge assigned as error were at once timely and proper.

After the jury had deliberated for some length of time, the court, on request, repeated the -charge above quoted. We do not think that the repetition of this part of the chasge, made upon the request of the jury, unduly emphasized the contentions of the State. The jury had the right to call upon the court for a recharge upon any principle of law or rule of evidence applicable to the facts of the case. There was no error in overruling the motion for a new trial.

Judgment affirmed.

Wade, O. J., and Lulce, J., concur.


text:
    8465.
    Mason v. The State.
    Decided March 23, 1917.
    Accusation of misdemeanor; from city .court of Eastman—Judge Griffin. January 30, 1917.

      W. M. Morrison, J. H. Milner, for plaintiff in error.

      D. D. Smith, solicitor, contra.
   Luke, J.

1. Where the defendant has not made a statement in his own behalf, it is not proper for the court to give in charge section 1036 of the Penal Code of 1910, as to a prisoner’s statement at the trial.

2. A ground of a motion for a new trial as follows: “Because the court charged the jury relative to the defendant’s right to make a statement, and the weight to be attached thereto by the jury, although the applicant made no statement,” without more, presents no question for determination by this court.

3. There is no meritorious assignment of error, and the evidence amply authorized the conviction of the accused.

Judgment affirmed.

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


author: Wade, 0. J.

text:
    8482.
    MILLS v. THE STATE.
    1. Assignments of error not argued in the brief of counsel for the plaintiff in error will be treated as abandoned. A statement in the brief of counsel that the plaintiff in error “insists on each and every ground” of the motion for a new trial does not amount to an argument.
    2. On the trial of one charged with selling'intoxicating liquor, testimony that a person who went to the defendant’s house and asked for whisky got from him two drinks of whisky and the remaining contents of the bottle from which it was taken, and left sixty cents on a table in the room with the defendant and went away, was sufficient to authorize a conviction, although the defendant had declined to accept pay for the whisky, and the witness could not say whether the defendant took the money or knew that it was left on the table.
    Decided March 23, 1917.
    Accusation of sale of liquor; from city court of Nashville—• Judge Christian. January 20, 1917.

      J. D. Lovett, for plaintiff in error.
   Wade, 0. J.

1. The grounds of the motion for a new trial other than the general grounds were not argued in the brief of counsel for plaintiff in error, and therefore axe treated as abandoned. Youmans v. Moore, 11 Ga. App. 66 (74 S. E. 710); Muse v. Hall, 18 Ga. App. 651 (90 S. E. 222); James v. Boyett, 19 Ga. App. 157 (91 S. E. 219). The statement in the brief of counsel that “plaintiff.in error insists on each and every ground of his original motion for new trial, also each and every ground of the amended motion,” does not amount to an argument. See Rounsaville v. Camp, 19 Ga. App. 336 (91 S. E. 446).

2. “Upon the trial of one for selling intoxicating liquor, testimony that the person to whom the liquor is alleged to have been sold went to the home of the accused and got a pint of whisky ‘from him and his wife,’ and thereupon laid seventy-five cents on the table in the room and went away, is sufficient to authorize a conviction.” Greer v. State, 13 Ga. App. 686 (79 S. E. 746). In this case the witness for the State testified: that he went to the house of the defendant and asked him for whisky, that the defendant had a bottle of whisky and. let the witness have two drinks from it, and the witness carried away the remainder of the whisky in the bottle;, that the defendant declined to accept pay for it, and the witness thereupon took 60 cents from his pocket and placed it on the table in the defendant’s room, and then left the house; that he only knew he left the money on the table, and he could not say whether the defendant took it or knew that it was left on the table. The evidence of the defendant’s guilt was weak, but the jury were authorized to infer that he had knowledge of the deposit of the money, which was made in his presence, and they might reasonably infer that a sale was effected, and this court therefore can not hold that the trial judge abused his discretion in overruling the general grounds of the motion for a new trial.

Judgment affirmed.

George and Luke, JJ., concur.


text:
    8483.
    Kinard v. The State.
   George, J.

1. “On the trial of a criminal ease, where the conviction depends entirely upon circumstantial evidence, it is the duty of the judge, whether requested or not, to give in charge to the jury the principles of law by which the weight of the circumstances is to be determined and under what circumstances a conviction on circumstantial evidence is warranted.” This rule has been often recognized and applied. Weaver v. State, 135 Ga. 317, 320 (69 S. E. 488) ; Hamilton v. State, 96 Ga. 301 (22 S. E. 528) ; McElroy v. State, 125 Ga. 39 (53 S. E. 759) ; Smith v. State, 125 Ga. 296 (54 S. E. 127) ; Hart v. State, 14 Ga. App. 714 (82 S. E. 164) ; Harden v. State, 13 Ga. App. 34 (2) (78 S. E. 681) ; Harris v. State, 18 Ga. App. 710 (90 S. E. 370), and cases there cited.

Decided March 23, 1917.

Accusation of larceny; from city court of Nashville—Judge . Christian. January 20, 1917.

J. C. Smith, William Story, for plaintiff in error.

2. “The recent possession of stolen goods, unexplained, is a strong circumstance to be considered by the jury, but raises no presumption of guilt as a matter of law.” Griffin v. State, 86 Ga. 257 (12 S. E. 409); Harris v. State, supra. In a case of larceny from the house, the recent possession of the stolen goods, unexplained to the satisfaction of the jury, is a circumstance from which the jury may infer the guilt of the party in whose possession the goods are found, but whether the jury should draw the inference from such circumstances is a matter entirely for them. Barlow v. State, 17 Ga. App. 728 (88 S. E. 212).

3. An incriminatory admission is not a confession of guilt, but is only a circumstance from which guilt may be inferred. A confession is direct evidence, but incriminatory admissions can logically be considered as indirect or circumstantial evidence only. In the instant case the evidence is sufficient to warrant the jury in inferring the guilt of the accused, but since the case depended entirely upon indirect evidence, the failure to give in charge to the jury the law of circumstantial evidence as embraced in section 1010 of the Penal Code-of 1910 requires a reversal of the judgment of the trial court.

Judgment reversed.

Wade, O. J., and Luhe, J., concur.


text:
    8498.
    Kennedy v. The State.
   Luke, J.

1. Exceptions pendente lite on which no error is assigned in the main bill of exceptions, and no assignment made by counsel before argument of the case, will not be considered by this court; and this is .true even though such exceptions may have been duly allowed and ordered filed as a part of the record. Shaw v. Jones, 133 Ga. 446 (66 S. E. 240); Smiley v. Smiley, 144 Ga. 546 (87 S. E. 668); Kent v. State, 18 Ga. App. 30 (88 S. E. 913); Southern Ry. Co. v. Williams, ante, 544 (91 S. E. 1001).

2. The other assignments of error are without merit; and, there being some evidence upon which the jury could have found the verdict, which is approved by the trial court, the conviction of the defendant will not be set aside.

Decided March 23, 1917.

Accusation of larceny; from city court of Jesup—Judge Clark. January 16, 1917.

James B. Thomas, for plaintiff in error.

W. B. Gibbs, solicitor, contra.

Judgment affirmed.

Wade, O. J., and George, J., concur.


text:
    8500.
    Jenkins v. The State.
    Decided March 23, 1917.
    Indictment for larceny; from Bibb superior court—Judge High-smith presiding. February 8, 1917.

      W. E. Martin Jr., Hubert F. Bawls, for plaintiff in error.

      John P. Boss, solicitor-general, contra.
   George, J.

1. None of the instructions of the court excepted to are erroneous for any reason assigned.

2. The grant of a new trial on newly discovered evidence is largely within the sound discretion of the trial judge. His discretion, unless abused, is not judicial error. The newly discovered evidence tends only to impeach one of the State’s witnesses, and the denial of the motion upon this ground was not error.

3. The evidence for the State amply sustains the verdict, and the verdict has been approved by the trial judge, and no reason appears why this court should interfere.

Judgment affirmed.

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


author: Beoodworth, J.

text:
    7869.
    Elder v. Woodruff Hardware & Manufacturing Co.
    Decided March 23, 1917.
   Beoodworth, J.

“The first grant of a new trial will not be disturbed by the Court of Appeals unless the plaintiff in error shows that the law and the facts require the verdict notwithstanding the judgment of the presiding judge. Civil Code (1910), § 6204; Hughes v. Atlanta Steel Co., 9 Ga. App. 510 (71 S. E. 934), and cases cited. This rule applies though two new trials have been granted, one to the plaintiff and the other to the defendant. Jordan v. Dooly, 129 Ga. 392 (58 S. E. 879). In this case the bill of exceptions and the record fail to show that the verdict rendered was demanded by the law and the evidence, and the judgment granting a new trial must be affirmed.” Owens v. Cocroft, 11 Ga. App. 235 (74 S. E. 1098); Butler v. Sansone, 138 Ga. 767 (76 S. E. 54).

Judgment affirmed.

Broyles, P. J., and Jenkins, J., concur.

Trover; from city court of Jefferson—Judge Mehaffey. August ’ 23, 1916.

Ray & Ray, for plaintiff. L. C. Russell, for defendant.


text:
    7852.
    Adams v. Jervis.
    Decided April 3, 1917.
    Dispossessory warrant; from city court of Floyd county—Judge Nunnally. September 13, 1916.

      M. B. Eubanks, for plaintiff in error.

      G. I. Carey, John W. Bale, contra.
   George, J.

Where the superior court and a city court in the same county have concurrent jurisdiction over a warrant for the eviction of a tenant holding over and the counter-affidavit thereto, and the sheriff returns the papers to the clerk of the-city court, and the judge of the city court, upon the motion of cormsel for the tenant, erroneously dismisses the proceeding and orders that it be transmitted to the superior court, and it is duly transmitted to the superior court of the county and entered upon the docket of that court and assigned by the judge of that court for trial, and counsel for the landlord affirmatively acquiesces in its removal from the city court to the superior court, the judge of the city court, after the adjournment of the term of the superior court, has not the authority to reinstate the case in his court and order that it be there tried. The case having been duly transferred to the superior court, it properly remains in that court until legally disposed of there. The judge of the city court has no power to take the case from the files of the superior court.

Judgment reversed.

Wade, G. J., and Luhe, J., concur. .


text:
    7996.
    SEABOARD AIR-LINE RAILWAY v. McDONALD.
    1. Under the provisions of the act of 1912 as to the taxation of dogs (Acts of 1912, p. 46), a dog is personal property; and a railroad company is liable for any damage done to a dog by the running of the locomotives or cars or other machinery of such a company, or for damage done by any person in its employment or service, unless the company shall make it appear that their agents have exercised all ordinary and reasonable care and diligence; the presumption in all cases being against the company.
    2. Whether or not the presumption of negligence in this case, created by proof of the killing of the dog by the running of the locomotive and cars of the defendant company, was rebutted was essentially for determination by the jury; and since there was testimony from which the jury might have inferred a lack of proper diligence on the part of the enginéer in charge of the defendant’s train, this court can not set aside the verdict.
    Decided April 3, 1917.
    Certiorari; from Liberty superior court—Judge Sheppard. November 4, 1916:

      N. J. Norman, for plaintiff in error. O. O. Darsey, contra.-
   Wade, C. J.

1. The act of 1912 (Acts of 1912, pp. 46, 47) expressly provides that “all dogs are hereby made personal property and shall be given in and taxed as other property of this State is given in and taxed.” Before the passage of this act it had been held several times by the Supreme Court and this court that, a railroad company was not liable for the negligent killing of a'dog, and that no presumption would arise against the company upon proof that a dog was killed by a railroad train, as in case of injury to person or property; but that the owner might maintain an action for trespass vi et armis for the wanton and malicious killing of his dog. See Seaboard Air-Line Ry. v. Parrish, 16 Ga. App. 254 (85 S. E. 200); Alabama Great Southern R. Co. v. Price, 17 Ga. App. 762 (88 S. E. 692), and cases there cited. In the cases just cited, the suits proceeded on the ground that the defendant had wantonly killed the dog for which a recovery was had; and in passing upon those cases it was held not necessary to decide how far the act of 1912, supra, might affect the previous rulings of the Supreme Court touching the right to recover for the negligent killing of a dog by the train of a railroad company, or to determine whether, upon proof of the killing of a dog by a railroad train, a presumption of negligence would arise, as in cases of injury to person or property.

The constitution of Georgia, article 7-, section 2, paragraph 1 (Civil Code of 1910, § 6553), authorizes the General Assembly to impose a tax upon “such domestic animals as, from their nature and habits, are destructive of other property;” and thus impliedly recognizes dogs as property, though this power to tax differs from the uniform ad valorem system of taxation. Nevertheless, the constitution clearly includes by its terms the dog as a domestic animal. It was held in the case of Graham v. Smith, 100 Ga. 434 (28 S. E. 225, 40 L. R. A. 503, 62 Am. St. R. 323), that the owner of a dog has such a property in it as will enable him to maintain an action of trover for its recovery, in case of its wrongful conversion; and it has long been the law of this State that a dog might be the subject of simple larceny. Penal Code of 1910, § 161. The act of 1912, by its precise terms, declares that a dog shall be personal property, and makes it subject to ad valorem taxation on the same basis prescribed for other property. It would appear, therefore, that since the passage of that act a dog is property in more than the “qualified sense” referred to in Jemisan v. Southwestern Railroad, 75 Ga. 444 (58 Am. R. 476), and therefore the same rule which is applied where a railroad company kills or injures other . live stock or domestic animals would apply in a case of a dog. A dog is now a subject of larceny, may be recovered by an action of trover, and must be returned for taxation at its actual value, just as. other property is returned; and no reason appears why any other or different rule should now exist touching its injury or destruction by the negligent running of a railroad train than that prescribed for other, animals. Section 2780 of the Civil Code provides: “A railroad company shall be liable for any damage done to persons, stock, or other property by the running of the locomotives, or ears, or other machinery of such company, or for damage done by any person in the employment and service of such company, unless the company shall make it appear that their agents have exercised all ordinary and reasonable care and diligence, the presumption in all eases being against the company.” We hold, therefore, that this section applies to the killing of a dog, precisely as it applies to the killing of a horse, cow, or other domestic animal; and the same presumption therefore arises upon proof of the killing or injury as where the damage is to stock or other property.

2. The evidence in this ease does not indicate that the killing of the dog was caused by the wanton, malicious, or intentional act of an agent of the railroad company; for there is no testimony that would authorize the inference that the engineer even saw the dog in time to prevent the killing; and therefore it becomes necessary to determine whether, under the testimony, it can be held, as a matter of law, that the presumption of negligence arising upon proof of the killing of the dog was completely rebutted by the evidence or explanation offered by the engineer in charge of the train of the defendant company. There was testimony that the track was straight, and the dog could have been seen thereon for a considerable distance before the locomotive reached the spot where it was struck and killed. There was also testimony (though this was disputed) that the train was running at a speed of from 50 to 60 miles per hour; and it does not appear that any attempt was made to slacken or check the speed of the train. The engineer testified that he saw no dog on the track, and that if his train killed a dog he did not know it at the time, and did not know it yet. The engineer did not testify that he saw the dog approaching the track, or near the track, but said that he never saw it on the track; and the jury may have legitimately inferred, from the fact that the track was straight and the view apparently unobstructed, and from the undisputed testimony that the dog was killed by the locomotive, that the engineer was not in fact looking out, at or before the time the dog was killed, and therefore that he was negligent; for had he been looking he would have discovered the dog approaching, near or on the track, and could have then lessened the speed of his train so as to prevent injury to the dog, or in the exercise of proper care and diligence he would have blown the whistle of the engine and thus prevented the dog from coming upon the track, or induced it to leave the track in-time to prevent killing it. At least, the jury were authorized to find that the presumption of negligence, created by proof of the killing, was not successfully rebutted. The determination of the question whether the presumption created by law upon proof of the killing of a domestic animal has been rebutted by testimony from the agents and employees of the railroad company in charge of the train is exclusively a matter for the jury and we can not interfere with the verdict as being unsupported by evidence, unless it clearly appears, from all the circumstances in- proof and all the testimony in the case, that the presumption of negligence was effectually and completely rebutted. In this case, while the testimony which tends to establish negligence on the part of the railroad company is somewhat weak, we can not say that it requires a finding in favor of the railroad company; for under the conditions shown by the evidence to have existed at the time the dog was killed, the jury were authorized to find (and evidently did find) that the engineer was not keeping a proper lookout, and hence, through his negligence, the presence of the dog on or near the track was not discovered in time to save it from destruction, or that the presumption of negligence was not rebutted.

Judgment affirmed.

George and Luke, JJ., concur.


text:
    8060.
    POOLE v. ELBERTON & EASTERN RAILWAY CO.
    1. A written contract of conveyance of a right of way to a railroad company, duly executed and delivered by an owner of land, can not be varied by oral testimony to the effect that he executed and delivered the contract upon agreement by the agent of the railroad company that the company would so construct its railroad as not to interfere with the use of his land, on either side of the right of way, for pasturage purposes.
    2. The plaintiff’s evidence did not establish a cause of action as pleaded, and the court properly granted a nonsuit.
    Decided April 3, 1917.
    Action for damages; from Wilkes superior court—Judge Park presiding. August 8, 1916.

      J. M. Pitner, Colley & Colley, for plaintiff.

      Z. B. Rogers, W. A. Slaton, for defendant.
   Luke, J.

The plaintiff sued the railway company for its failure, as he contended, to carry out a contract relating to certain land. The petition alleged: “They desired a right of way across the above-described premises. Petitioner told them that he was willing for them to have a right of way, but that he was using said premises for a pasture, and wished to continue that use of the same. The agent of said railway company taking the contract for a right of way and representing the company agreed that his rights and his use as to the said premises for the purpose of pasturage should be fully protected; that they would install good and sufficient cattle-guards in connection with said premises, so as to allow him to safely place his stock within the same, and that his use of the same should not be impaired or interfered with. The said .railway company also agreed that as they would have to have a considerable embankment across said premises, and one which could not be surmounted by his cattle, that they would provide him with a safe passageway across his pasture, so that his stock could use the pasture on either side of said right of way. . . Said railway company has entirely failed to carry out the said agreement and contract. No cattle-guards of efficient kind have been placed or provided for, nor has any passageway, as agreed in said contract, been prepared.” The plaintiff further alleged that by reason of the failure of the defendant to carry out its contract, he had been damaged seventy-five dollars each year for the three years next preceding the filing of the suit. The testimony discloses that the plaintiff had executed and delivered a warranty deed to the defendant, conveying fee-simple title, upon the consideration of one dollar, to a right of way one hundred feet wide across the land described in the plaintiff’s petition. The deed made no such reservation and agreement as alleged . by the plaintiff, and the court refused, over objection, to permit the plaintiff to vary the terms of the deed by testifying that it was a part of the contract of conveyance that the defendant was to erect certain cattle-guards, At the conclusion of this evidence the court granted a nonsuit, and the plaintiff excepts.

It is clear that the plaintiff sought by his evidence to vary the written contract. The promise of the agent before the execution of the written contract could not be admitted'in evidence for the purpose of varying the terms of the contract. There is nothing to show that there is an ambiguity in the deed, or that fraud was practiced upon the.plaintiff by the defendant. There is nothing appearing which brings the written contract within any one of the exceptions that would permit of the introduction of parol evidence. To have permitted the plaintiff to testify as proposed would'be a plain violation of section 5788 of the Civil Code of .1910, wherein it is provided that “Parol contemporaneous evidence is inadmissible generally to contradict or vary the terms of a valid written instrument.” Murray County v. Wilson, 140 Ga. 689 (79 S. E. 783), and cases there cited. The court did not err in granting the nonsuit.

Judgment affirmed.

Wade, C. J., and George, J., concur.


text:
    8201.
    Atlantic Coast Line Railroad Company v. Jenkins.
   George, J.

The railroad company had not the right to negligently reduce the. plaintiff’s hog to pork and pay for the hog on the basis of pork, since the value of a living hog is not necessarily confined to the market price of the meat which the hog would have produced. The railroad company admitted liability for the killing of the hog involved, and there was evidence, not objected to upon the trial, to support the jury’s finding that the hog was worth as much as $9. Accordingly, the judge of the superior court did not err in overruling the certiorari and refusing the railroad company a new trial.

Decided April 3, 1917.

Certiorari; from Worth superior court—Judge Cox. May 27, 1916.

Perry & Williamson, B. 8. Poy, for plaintiff in error.

J. II. Tipton, contra.

Judgment affirmed.

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


text:
    8288.
    Saint Mark's Methodist Episcopal Church v. Georgia Power Company.
    Decided April 3, 1917.
   George, J.

1. Suit can only be maintained by or in behalf of a natural person or an artificial person. The plaintiff in the present case was neither; and, the action not being a suit by one having capacity to sue, there was nothing in the petition to amend by, and hence the court did not err in refusing to allow the proposed amendment. Mutual Life Insurance Co. v. Inman Park Presbyterian Church, 111 Ga. 677 (36 S. E. 880), and cases there cited; Roberts v. Tift, 136 Ga. 90 (72 S. E. 234).

2. If a suit is brought in a name which is neither that of a natural person, nor of a corporation, nor a partnership, it is a mere nullity. In a suit by a corporation in fact, where the petition fails to so aver, an amendment alleging that the plaintiff is a corporation is proper. W. & A. R. Co. v. Dalton Marble Works, 122 Ga. 774 (50 S. E. 978) ; Collins v. Armour Fertilizer Works, 18 Ga. App. 533 (89 S. E. 1054).

3. The amendment, which the trial court refused to allow, averred that the Saint Mark’s Methodist Episcopal Church “is not a corporation, and has never in any way been authorized to sue in its own name; ’’ from which it necessarily follows that the suit was a nullity, under the authorities cited above. The provision contained in § 5689 of the Civil Code of 1910, as follows: “and when it becomes necessary for the purpose of enforcing the rights of such plaintiff, he may amend by substituting the name of another person in his stead, suing for his use,” does not apply in this case, because the suit as originally brought did not proceed in the name of any person, natural or artificial. If the suit were in the name of an actual plaintiff, the right given in the code section quoted would exist. The court properly dismissed the petition, on demurrer.

Judgment affirmed.

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

Action for damages; from Campbell superior court—Judge Smith. August 9, 1916.

W. A. James, J. S. James, J. F. Golightly, J. R. Bedgood, for plaintiff. King & Spalding, for defendant.


text:
    8306.
    HEYMAN v. HEYMAN.
    1. Under the statute law of Georgia a wife can not recover of a husband, with whom she is living in lawful wedlock, for a tort resulting from his negligent operation of an automobile in which they were riding at the time of the injury.
    2. The court erred in overruling the general demurrer to the plaintiff’s petition.
    Decided April 3, 1917.
    Action for damages; from Richmond superior court—Judge H. C. Hammond. June 8, 1916.

      William H. Fleming, for plaintiff in error.

      O. H. & R. S. Cohen, contra.
   Luke, J.

A wife filed suit against her husband, with whom she was living in lawful wedlock, to recover damages alleged to have been sustained by her by reason of the negligence of the husband-in driving his automobile while she was an occupant of the car with him. The defendant demurred on the ground that a husband is not liable in law for a negligent tort to his wife. The court overruled the demurrer, and the defendant excepts.

At common law, by marriage the husband and wife are one person in law; the legal existence of the wife is suspended during the marriage and consolidated into that of the husband; upon this principle, of a union of person in husband and wife, depend almost all the legal rights, duties, and disabilities that either of them acquires by the marriage. The husband is bound by law to provide his wife with necessaries, and if she contracts debts for them, he is obliged to pay them. If. the wife is indebted before marriage, the husband is bound afterwards to pay the debt, for he has adopted her and her circumstances together. If the wife be injured in her person or property, she can bring no action for redress without her husband’s concurrence, and in his name, as well as her own. Neither can she be sued without making her husband a defendant. 1 Bl. Com. 355. Keeping in mind that the common-law rule is of force in Georgia, except where changed, or varied by the statute law, and that statutes in derogation of common law must be construed strictly, what statute of this State can be so construed as to authorize the courts to say it is the letter, spirit, and intention of the lawmaking power to change the common-law rule so that a husband may be liable to the wife for a tort committed by his negligence? The “married woman’s act” of 1866, as embodied in the Civil Code (1910), § 2993, provides that “All the property of the wife at the time of her marriage, whether real, personal, or choses in action, shall be and remain the separate property of the wife; and all property given to, inherited, or acquired by the wife during coverture shall vest in and belong to the wife, and shall not be liable for the payment of any debt, default, or contract of the husband.” The wife may recover for a tort as provided in the Civil Code, § 2994,—that is: “If a tort be committed upon the person or reputation of the wife, the husband or wife may recover therefor; if the wife is living separate from the husband, she may sue for such torts, and also torts to her children, and recover the. same to her use. She may enforce contracts made in reference to her own acquisitions.” In construing §§ 2993 and 2994, supra, the courts have held that the wife may recover, while living with the husband, for physical injuries received by her. City of Atlanta v. Dorsey, 73 Ga. 479; Mayor &c. of Athens v. Smith, 111 Ga. 870 (36 S. E. 955). While the wife may recover for physical injuries, she can not ordinarily recover for the loss of earning capacity, the exception being where the husband has expressly or impliedly consented for the wife to have her own earnings, or where the wife is living separate from heT husband. Wrightsville & Tennille R. Co. v. Vaughan, 9 Ga. App. 371 (71 S. E. 691); Georgia R. & B. Co. v. Tice, 124 Ga. 459 (52 S. E. 916, 4 Ann. Cas. 200). The Civil Code (1910), § 3652, declares: “For every violation of a contract express or implied, and for every injury done by another to person or property, the law gives the right to recover, and a remedy to enforce it. Such a right is a chose in action, and such a remedy is an action or suit at law.” While a married woman living with her husband, since the enactment of the statutes hereinbefore quoted, may in many instances sue and be sued, neither the Supreme Court nor the Court of Appeals of Georgia has held that a wife, while she is living in lawful wedlock with her husband, may recover from her husband for an injury received by her resulting from his negligence.

The plaintiff contends that a proper construction of §§ 2993, 2994, and 3652, supra, would permit the wife to recover for the husband’s negligent tort to her. In some of the States the courts have, upon statutes more or less similar to our statutes, held that the wife can recover against her husband for a negligent tort. The Supreme Court of Connecticut, in Mathewson v. Mathewson, 79 Conn. 23 (63 Atl. 285, 6 Ann. Cas. 1027), said: “By common law the husband might restrain the wife of her liberty and might chastise her. The law which attached such subjection to the legal status of a married woman has been abolished, but not by direct legislation; it has disappeared under the continuous pressure of judicial interpretation or indirect legislation.” In Brown v. Brown, 88 Conn. 43 (89 Atl. 889, 52 L. R. A. (N. S.) 185, Ann. Cas. 1915D, 70), Mr. Justice Thayer, for the court, after quoting from Mathewson v. Mathewson, supra, said: “It is now as unlawful for him to beat or falsely imprison his wife as for another to do so, and he is amenable to the criminal law for such an offense. If another, prior to the recent statutes, committed these offenses against her, he was liable in an action for the injuries inflicted upon her by such torts, but the action had to be brought in the name of her husband and herself jointly, the real purpose of the action being to reduce the chose into the possession Of the husband. The wife was joined because, if her husband should die pending the suit, the damages would survive to her.” The Justice continuing said: “In the Mathewson case we held that a wife’s right to contract with her husband, and to sue him for breach of such contract, followed necessarily from the fact, established by the statute, that her legal identity was not lost by her coverture. It is an equally necessary consequence of her retention of her identity after coverture, that she has a right of action against her husband for a tort committed by him against her and resulting in her injury.' Such a tort gives rise to a claim for damages. Such claim is property not in her possession but which she may by action reduce into her possession, just as she might before her coverture have had an action against him for such a tort committed before that event. .The husband’s delict, whether a breach of contract or personal injury, gives her a cause of action.” We do not think that the statutes of this State can possibly be so construed as to give the wife while living with her husband the right of action which the Supreme Court of Connecticut construed to be her right under the statute of that State.

In Missouri a wife contended that under the statutes of that State she could maintain an action against her husband for a personal tort; the court held that she could not. The statutes upon which she relied and upon which the court denied her right to recover were: Eevised Stat. 1909: “§ 1735. A married woman may, in her own name, with or without joining her husband as a party, sue and be sued in any of the courts of this State having jurisdiction, with the same force and effect as if she was a feme sole, and any judgment in the cause shall have the same force and effect as if she were unmarried.” “§ 8304. A married woman shall be deemed a feme sole so far as to enable her to carry on and transact business on her own account, to contract and be contracted with, to sue and be sued, and to enforce and have enforced against her property such judgments as may be rendered for or against her, and may sue and be sued at law or in equity,, with or without her husband being joined as a party; provided, a married woman may invoke all exemption and homestead laws now in force for the protection of personal and real property owned by the head of a family, except in cases where the husband has claimed such exemption and homestead rights for the protection of his own property.” In Rogers v. Rogers, 265 Mo. 200 (177 S. W. 382), Mr. Justice Walker said: “These sections do not attempt to confer greater rights of action upon a married woman than are possessed by her husband, and it has been expressly held in another juris- ' diction, under a statute similar in its material features to the law here, that a husband can not maintain an action against his wife for injuries inflicted upon him by her deliberately wounding him, under a statute giving her the right to separate property and permitting her to contract with him; that this statute, which authorized her to sue and be sued alone, does not in an action between him and her authorize him to sue her for a personal tort inflicted upon him by her.” Eecently and in the case of Butterfield v. Butterfield (Mo.), 187 S. W. 295, Presiding Justice Ellison, speaking for the court, having under consideration the same sections referred to in Rogers v. Rogers, supra, said: “The married woman’s act lias not changed the common-law rule that neither husband nor wife is liable to the other in a civil action for a-personal tort.”

A wife instituted an action against her husband in the Supreme Court of the District of Columbia, alleging that he had committed an assault and battery upon her. The statute under which it was contended she had a right to maintain such an action is as follows: “Married women shall have power to engage in any business, and to contract, whether engaged in business or not, and to sue separately upon their contracts, and also to sue separately for the recovery, security, or protection of their property, and for torts committed against them, as fully and freely as if they were unmarried ; contracts may also be made with them; and they may also be sued separately upon their contracts, whether made before or during marriage, and for wrongs independent of contracts committed by them before or during their marriage, as fully as if they were unmarried; and upon judgments recovered against them execution may be issued as if they were unmarried; nor shall any husband be liable upon any contract made by his wife in her own name and upon her own responsibility, nor for any tort committed separately by her out of his presence without his participation or sanction: Provided, that no married woman shall have power to make any contract as surety or guarantor, or as accommodation drawer, acceptor, maker or endorser.” In determining the question whether under this statute the wife could maintain such action, Mr. Justice Day, delivering the opinion of the court, in Thompson v. Thompson, 218 U. S. 611, 616 (31 Sup. Ct. 111, 54 L. ed. 1180, 30 L. R. A. (N. S.) 1153, 21 Ann. Cas. 921), said: “By this District of Columbia statute the common law was changed, and, in view of the additional rights conferred upon married women in § 1155 and other sections of the code, she is given the right to sue separately for redress of wrongs concerning the same. That this was the purpose of the statute, when attention is given to the very question under consideration, is apparent from the consideration of its terms. Married women are authorized to sue separately for the ‘recovery, security, or protection of their property, and for torts committed against them, as fully and freely as if they were unmarried.’ That is, the limitation upon her right of action imposed in the requirement of. the common law that the husband should join her was removed by the statute, and she was permitted to recover separately for such torts, as freely as if she were still -unmarried. The statute was not intended to give a right of action as against the husband, but to allow the wife, in - her own name, to maintain actions of tort which at common law must be brought in the joint names of herself and husband. This construction we think is obvious from a reading of the statute in the light of the purpose sought to be accomplished. It gives a reasonable effect to the terms used, and accomplishes, as we believe, the legislative intent, which is the primary object of all construction of statutes.”

The rule stated by Judge Cooley is as follows: “For a personal tort by the husband to her person or reputation the wife can sustain no action. She must rely upon the criminal law for her protection, or seek relief in separation or in proceedings for divorce. When the wife is by statute given full control over property acquired by her, the marital relations will not protect the husband against an action for unlawfully interfering with the property; but under such a statute the wife can not maintain an action against the husband for a personal injury.” Cooley on Torts (3 ed.), 474 and note; Peters v. Peters, 42 Iowa, 182; Freethy v. Freethy, 42 N. Y. 613, 641 (1 Am. R. 601). The rights of the wife are purely statutory, and, 'broad as our laws are, in granting to the wife the right to own property, 'to contract and sue and be sued,- and to sue without joining the husband, for torts resulting from the negligence of others, the lawmaking power has given her no right to sue her husband, with whom she is living in lawful wedlock, for a-tort committed by him.

The court erred in overruling the general demurrer.

Judgment reversed.

Wade, G. J., and George, J., concur.


text:
    8499.
    LOACH v. CITY OF LaFAYETTE.
    1. An act penalized by a law of the State may be penalized also by a municipal ordinance, if there is in the municipal offense some essential ingredient not essential to the State offense, or if the municipal offense lacks some ingredient essential to the State offense.
    2. A municipal ordinance which prohibits keeping open any store or other place' of business within the corporate limits of a city on the Sabbath day for the purpose of selling or vending any article of merchandise is not subject to attack on the ground that it penalizes an act forbidden by section 416 of the Penal Code (1910), which declares that “any person who shall pursue his business, or the work of his ordinary calling, on the Lord’s day, works of necessity or charity only excepted, shall be guilty of a misdemeanor.” Pursuing one’s business, or the work of his ordinary calling, on the Sabbath is distinct from keeping open a place of business within a municipality for the purpose of carrying on such business or work. A municipality may by ordinance penalize an act performed by one for the purpose of enabling him to accomplish another and distinct act which itself constitutes a violation of a State statute.
    Decided April 3, 1917.
    Certiorari; from Walker superior court—Judge Wright. January 23, 1917.

      Rosser & Shaw, W. M. Henry, -for plaintiff in error.

      Shattuclc & Shattuclc, contra.
   Wade, 0. J.

The plaintiff in- error was tried before the mayor of the City of LaFayette for the offense of “keeping open place of business on the Sabbath day for the purpose of selling goods in violation of city ordinance.” It appears, from the answer of the mayor, that the ordinance upon which this charge was based is as follows: “Be it ordained by the mayor and council of the City of LaFayette, and it is hereby ordained by the authority of the same, that, from and after the passage of this ordinance, it shall be unlawful for any person, firm, or corporation to keep open any store, stall, market shop, or other place of business within the corporate limits of said city on the Sabbath day for the purpose of selling or vending any article of merchandise, soft drink, or anything kept or sold in a market; or by offering for sale any article of merchandise or soft drink, or by following any usual business or occupation on any Sabbath day, the same not being an act of charity or necessity. Any person or persons violating this ordinance or any part thereof shall be punished as prescribed in section 22 of the Code of the City of LaFayette—adopted October 22, 1903.” A judgment of guilty was rendered and a fine of $25 imposed. The defendant sued out certiorari, the certiorari was overruled, and he brought the case to this court.

Eliminating from our consideration the assignments of error expressly abandoned in the brief of counsel for the plaintiff in error, or not specifically argued, and hence, under the rulings of this court, in effect abandoned (Rounsaville v. Camp, 19 Ga. App. 336, 91 S. E. 446, and cases there cited; Mills v. State, 19 Ga. App. 623, 91 S. E. 918), the only questions remaining for determination are: whether the ordinance under which the accused was convicted is a valid ordinance; and, if so, whether the evidence supports the judgment of guilty thereunder. The rule laid down in Kassell v. Savannah,' 109 Ga. 491 (35 S. E. 147), that a municipal corporation can not, without express legislative authority so to do, enact a valid ordinance for the punishment of an act which constitutes an offense against the penal statutes of the State, is so well'fixed by repeated adjudications of the Supreme Court and this court as.to require no more than bare mention, and it only remains to determine whether the ordinance under which the defendant was convicted in this case attempts to punish an act made penal by a statute of the State. Section 416 of the Penal Code of 1910 declares that “Any person who shall pursue his business, or the work of his ordinary calling, on the Lord’s clay, works of necessity or charity only excepted, shall be guilty of a misdemeanor.” The ordinance under review in this ease attempts to penalize several different and distinct acts: It declares that it (1) “shall be unlawful for any person, firm, or corporation to keep open any store, stall, market shop, or other place of business within the corporate limits of said city on the Sabbath day for the purpose of selling or vending any article of merchandise, soft drink, or anything kept or sold in a market;” and it further penalizes (2) “offering for sale any article of merchandise or soft drink, or . . following any usual business or occupation on any Sabbath day, the same not being an act of charity or necessity.” The defendant in this case was convicted of keeping open his place of business on the Sabbath day for the purpose of .selling goods in violation of the city ordinance. We are therefore only concerned with the offense covered by the first division of the ordinance; and as to the second division it is enough to say that if the acts thereby prohibited should come within the scope of the ordinary vocation of any person prosecuted thereunder, no conviction could legally be had in the municipal court. The State law prohibits any person from pursuing his business or the work of his ordinary calling on the Sabbath, “works of necessity or charity only excepted,” and the first division of the ordinance we are eonsidering makes it an offense against the City of LaFayette to keep open any store, etc., or other place of business within the limits of that city on the Sabbath day “for the purpose of selling or vending any article of merchandise, soft drink or anything kept or sold in a market.” It is apparent that a radical difference exists between the offense penalized by the State law and that penalized by the division of the city ordinance under which the defendant was convicted.

It seems to be well settled that “An act penalized by a law of the State may be penalized also by a municipal ordinance, if there is in the municipal offense some essential ingredient not essential to the State, offense, or if the municipal offense lacks some ingredient essential to the State offense.” Morris v. State, 18 Ga. App. 684 (90 S. E. 361); Howell v. State, 13 Ga. App. 74, 76 (78 S. E. 859); Callaway v. Mims, 5 Ga. App. 9 (62 S. E. 654); Athens v. Atlanta, 6 Ga. App. 245 (64 S. E. 711); Alexander v. Atlanta, 6 Ga. App. 329 (64 S. E. 1105); Callaway v. Atlanta, 6 Ga. App. 354 (64 S. E. 1105); Dorn v. Atlanta, 6 Ga. App. 529 (65 S. E. 254). The test to be applied in determining whether or not the State law and the municipal ordinance cover the identical offense is whether the one can be violated without violating the other. It was said in Karwisch v. Atlanta, 44 Ga. 205, that “The Christian Sabbath is a civil institution older than our government, and respected as a day of rest by our constitution; and the regulation of its observance as a civil institution is within the power of the legislature as much as any regulations and laws having for their object the preservation of 'good morals, and. the peace and good order of society: 33 Barbour, 543; 1 Speer, 305. And it is within the right of the city of Atlanta to punish keeping open doors by dealers generally, in the limits of the city upon Sunday, for the purpose of preventing the violation of the State laws, as well as preserving the public respect for the Lord’s day.” In that case an ordinance which prohibited any dealer in any commodity or thing from keeping open his doors on Sunday was under review, and the court held, that although the city could not pass an ordinance upon any violation of the Sabbath day which was punished by State law, it was “competent for the city, by its ordinances, to compel all dealers to keep the doors of their houses of business shut on the Sabbath. This in itself constitutes an offense. . . The party may not be engaged in his ordinary calling, or he may. The ordinance leaves his guilt on these matters to the State laws, but punishes the keeping of such stores open as an act independent of the violation of the State laws or Sunday statutes.” In Rothschild v. Darien, 69 Ga. 503, it was held that “A provision in a city ordinance making it penal to 'open any store for the sale of merchandise of any kind or sort, works of necessity, etc., excepted,’ was not covered by the State law, and could be enforced.” In that case and in the Karwisch case, supra, as was said in Calla-way v. Mims, supra, “the action of the municipality in penalizing the preparative act of keeping open any store for the sale of merchandise on Sunday is differenced from the State’s action in punishing the consummation, the carrying on of an ordinary calling on the Sabbath day.”

The ordinance now under review is apparently somewhat different from the ordinance construed in the Karwisch case, supra, in that this ordinance declares that it shall be unlawful to keep open any store,..etc., “for the purpose of selling or vending any article of merchandise,” etc. In other words, it is apparently not a violation of the ordinance to keep open a store unless it is kept open for the purpose of effecting the sale of merchandise. It becomes necessary, therefore, to determine whether the evidence disclosed that the store of the defendant was kept open on Sunday for the purpose of selling articles or things prohibited by the ordinance. The entire evidence was delivered by the city marshal, who testified in substance as follows: I know the defendant’s place of business, and was about his place on “yesterday, the 19th day of March.” His place was open and he was selling merchandise other than medicine. He conducts a drug business, but I saw him sell coca-cola, and also saw him sell- cigars, and saw him sell some medicine. All that I saw him sell was in the line of his usual every-day business, just what he sells every day. It appears to be conceded that the day testified about was the Sabbath, at least there is no contention to the contrary. Hnder the provisions of the State law it is clear that necessary drugs may be dispensed on Sunday, and therefore a municipality could not make it criminal so to dispense them. Whether a drug-store might therefore keep open its doors to the general public for the sole purpose of dispensing drugs or other such like articles of necessity, notwithstanding a municipal ordinance declaring that no doors 'to any place of business within the limits of such municipality shall be kept open on the Sabbath, need not be decided. In this case not only does the ordinance penalize the keeping open of a place of business solely where it is kept open for the purpose of selling merchandise, but the testimony authorizes the conclusion that the drug-store df the defendant was not kept open for the sole purpose of dispensing drugs or other such merchandise as would constitute articles of necessity within the meaning of the State statute. In other words, under a strict construction of the ordinance, or of that part thereof with which we are concerned, the keeping open of any store, etc., within the limits of the city of LaFayette is prohibited only where such store is so kept open for the purpose of selling or vending any article of merchandise, etc.; and, giving a reasonable construction to the ordinance, the articles of merchandise therein referred to, and which one may not keep open a store for the purpose of selling or vending, must be held to be such articles of merchandise as would not come within the clear exception provided for in section 416 of the Penal' Code. That is, the merchandise must not be such merchandise as can be legally sold or dispensed in furtherance of works of necessity or charity on the Sabbath. Clearly one may sell necessary medicines on Sunday without violating the State law, and could not be punished therefor under a municipal ordinance penalizing such an act, since the State law itself expressly authorizes such sales. So, too, since it is practically necessary to keep open a drug-store on Sunday in order that the general public in need of necessary medicines may have ready access thereto, it would seem to -follow that notwithstanding an ordinance which prohibited the keeping open of all stores or places of business on Sunday for the purpose of vending any article of merchandise, a drug-store might be kept open on Sunday without violating the ordinance, provided it is so kept open for the sole purpose of dispensing medicines or selling other articles of necessity or charity. Where, however, it appears that one sale of an article not coming within the exception in the statute which authorizes the dispensing of necessary medicines or the sale of necessary articles was in fact made on the Sabbath day, and that the doors of the store where the sale was effected were kept open when the sale was made, it can be legally inferred that the doors were so kept open for the purpose of effecting a sale or sales declared to be unlawful by the State law; and, under a proper ordinance, the keeping open for such a purpose can be punished ■ by a municipality.

A municipality can not punish for the sale of whisky, since such an act is penalized by the State law, but prior to the adoption of the prohibition act of 1915 (whatever may be the present status of the law) an ordinance penalizing the keeping of liquor for the purpose of sale could be adopted by a -municipality without infringing upon the State statute prohibiting sales. In fact our courts have frequently recognized a distinction between a State statute prohibiting the keeping of intoxicants at the place of business of the defendant and municipal ordinances penalizing the keeping of such liquors anywhere (including the defendant’s place of business) for the purpose of sale. It has often been held that in prosecutions under municipal ordinances for the storage of whisky for 'the purpose of sale, proof of one sale was sufficient to establish the purpose for which at least the whisky sold was kept. Coming, therefore, to the evidence in the case under consideration, in order to apply it to the ordinance, we find that on the Sabbath day the defendant kept open his place of business in the City of LaFayette; that his place of business was a drug-store, and on the day in question he not only dispensed drugs, but also sold cigars and soft drinks. If the purpose in storing whisky can be inferred from one sale of whisky, so likewise can the purpose in keeping open a place of business on Sunday be inferred from proof of one sale of an article or thing, the sale of which on that day is prohibited by law. In the case of Penniston v. Newnan, 117 Ga. 700 (45 S. E. 65), it was held that a sale of tobacco and cigars on the Sabbath does not constitute a work of necessity; and it may be said, in passing, that nothing in that case (which was based on a different ordinance) is opposed to the ruling made in this case. It has been often held that every person is presumed to intend the natural and necessary consequences of his acts, and that every criminal act is presumed to rest on criminal intent, though such presumption may of course be rebutted. In fact our statute itself declares (Penal Code, § 32) “intention will be manifested by the circumstances connected with the perpetration of the offense.” Where one, therefore, keeps open the doors of a drug-store and sells cigars and soft drinks, it may be- fairly inferred that his store was kept open for this exact purpose, notwithstanding he may have also sold drugs or other articles or things which under the law he had 'a right to sell. At all events, the mayor, passing upon the facts, was authorized to find that the purpose of the defendant in keeping open his store was in part at least to effect sales of various articles, the sale of which on the Sabbath was not authorized by law, and to declare him guilty of a violation of the ordinance which made it an offense against the city to keep open a store on that day for the purpose of vending or selling any article of merchandise other than articles of necessity. As «already said, any fair construction of the ordinance must read into the language thereof the proviso that works of necessity or charity are excepted; and, so construed, the statute does not prohibit the sale of articles of necessity within the meaning of the law.

The whole matter may be thus summed up: ■ A municipality may by ordinance penalize an act performed by one for the purpose of enabling him.to accomplish another and distinct act which itself constitutes a violation of a State statute.

Judgment affirmed.

George and Luke, JJ., concur.


author: Bloodworth, J.

text:
    7739.
    Duffey v. Harris, Governor.
   Bloodworth, J.

1. The assignments of error in tlie bill of exceptions are sufficient to give this court jurisdiction. The motion to dismiss is without merit, and is overruled. Roddenbery v. Patterson, 136 Ga. 187 (71 S. E. 138).

2. While the general rule is that “where the court declines to allow an amendment which is offered it does not become a part of the record in the case, and this court can not consider what purports to be a copy of it appearing in the transcript of the record” (Wallace v. State, 17 Ga. App. 434, 87 S. E. 681), yet both this court and the Supreme Court have held that an amendment can be allowed by an order and become a part of the record though thereafter stricken by another order. There is no I'eason why the same end can not be reached by one order covering both propositions. When such an order is passed it can be authenticated by the certificate of the clerk. Therefore, where an amendment is overruled and rejected, and the court enters and signs thereon an order as follows: “The foregoing amendment not allowed; ' let the same be filed and become a part of the record in said case,” and it is at once filed, it thereupon becomes a part of the record and may be specified in tlie bill of exceptions as a part thereof. See Schaeffer v. Central Ry. Co., 6 Ga. App. 282 (64 S. E. 1107).

Decided April 3, 1917.

Forfeiture of recognizance; from city court of Carrollton—• Judge Beall. June 24, 1916.

On the ground that the assignments of error were too vague and indefinite, the defendant in error moved to dismiss the writ of error. The bill of exceptions states that there was an oral motion to strike the defendant’s answer, for want of issues of fact to be determined by a jury, and that a certain amendment to the answer was then offered by the defendant and was not allowed, but the court ordered that it be filed and become a part of the record in the case; and error is assigned as follows: “To the disallowance of said amendment defendant excepted, now excepts, and assigns the same as error. Whereupon the judge of the said court then and there sustained the motion to strike the answer, and entered up judgment against your defendant in the said ease, to which rulings and entering up judgment your defendant excepted, now excepts, and assigns the same as error.”

3. An allegation in an answer to a rule nisi to forfeit a bond given for the appearance of a.person charged with the violation of a criminal statute, that at a certain term prior to the term at which the rule was issued, he appeared in court to answer the accusation in said case, and at that term was informed that he was discharged, together with all the witnesses, is not a sufficient ground to prevent the rule being made absolute against him, where it does not appear that the person who gave the information had any authority to make such announcement. Massey v. Allen, 48 Ga. 21.

4. It not being alleged that the ease was called out of its order on the docket, there is no merit in a plea, filed in response to a rule nisi to forfeit a bond in criminal case, “that at the call of said ease, prior to the issuing of the rule nisi in said case, the solicitor of the said court did not announce ready for the State, nor were the State’s witnesses there at that time.” The ruléis that “all causes shall be’called and tried in the order in which they are docketed” (Civil Code of 1910, § 6284) ; and, unless it appears to the contrary, it will be presumed that the judge complied with this rule. A solicitor-general is not required to announce ready when a ease is called in its regular order. Collins v. Smith, 7 Ga. App. 653 (67 S. E. 847). The foregoing ruling is not in conflict with the statement, in the decision just cited, that “If, as a matter of fact, the action against the principal on the bond was called out of its order, and if the State failed to announce ready, this was a matter of affirmative defense, and should have been set up in the answer; ” for the reason that the plea in the instant case does not urge that the case was called out of its order.

5. Where an accusation which seeks to charge a person with the violation of a criminal statute is void upon its face,- advantage may be taken of the defect, by a plea to the rule nisi to forfeit the bond given for the appearance of the person accused, filed by one who signed the bond as security. Cleveland v. Brown, 141 Ga. 829 (82 S. E. 243) ; Williams v. Candler, 119 Ga. 179 (45 S. E. 989). But when an accusation and the affidavit upon which it is based are perfect in form and substance, yet subject to attack by plea in abatement, this defense can be set up only by the defendant in person and in a direct attack on the accusation; and such an answer to a rule nisi to forfeit will not avail the security who fails to produce the defendant. In the instant case the accusation appears upon its face to be good, and the court did not err in striking the paragraph of the answer relating thereto. Sharp v. Smith, 59 Ga. 707 (1).

Judgment affirmed.

Broyles, P. J., and Jenhins, J., concur.

Shirley 0. Boylcin, B. F. Boylcin, for plaintiff in error.

G. E. Boop, solicitor, contra.


text:
    7740.
    Duffey v. Harris, Governor.
    Decided April 3, 1917.
    Forfeiture of recognizance; from city court of Carrollton— Judge Beall. June 24, 1916. .

      Shirley 0. Boylcin, B. F. Boylcin, for plaintiff in error.

      Q. E. Boop, solicitor, contra.
   Bloodworth, J.

This case is practically a counterpart of the case of Duffey v. Karris, ante, 646, and the ruling in that case controls this.

Judgment affirmed.

Broyles, P. J., and Jenlcins, J., concur.


author: Jenkins, J.

text:
    7783.
    Warren v. Georgia Fertilizer and Oil Company.
   Jenkins, J.

Defendant by his plea showed that he was indebted to plaintiff for fertilizers in a sum evidenced by a promissory note due October 1, 1914, and that on November 10, 1914, he delivered to plaintiff, as collateral security for this indebtedness, three bales of cotton, described in his plea, taking from the agent of plaintiff the following receipt therefor: “Received of A. J. Warren three bales of upland cotton to secure guano note.. 11/10, 1914, J. A. Barrow.” His plea set forth that at the time this collateral security was given it was expressly agreed between defendant and the said agent for the plaintiff that the said cotton was not to be sold by the plaintiff until the defendant should so agree. The plea set up that, the said cotton having been sold without his authority, he was entitled to the stated value thereof on a date named as prior to the bringing of the suit, and asked that the sum so named be allowed as a set-off against the amount owing on the note. The note shows an entry as follows: “By sale of cotton 1/8/1915, $71.37.” It was admitted that at the time of the trial Barrow, the agent of plaintiff corporation, was deceased.

Decided April 3, 1917.

Complaint; from city court of Quitman—Judge Long. July 10, 1916:

Bennet & Ilarrell, for plaintiff in error.

Brartch & Snow, contra.

Held: Conceding- that the plea set up a good defense (see Pickett v. Andrews, 135 Ga. 299, 69 S. E. 478; Frost v. Powell, 10 Ga. App. 95, 72 S. E. 719; Wood v. Jones, 10 Ga. App. 735; Georgia So. & Fla. Ry. Co. v. Knight, 11 Ga. App. 489, 75 S. E. 823), still, under the provisions of the Civil Code, § 5858 (3), the defendant was properly denied the right to testify in his own behalf as to the terms of the verbal agreement . pleaded by him as having been made with the deceased agent of the corporation; and since the terms of the alleged agreement are not otherwise proved, it does not appear that the refusal of the trial judge to allow him to testify that he had never purchased any fertilizer from Barrow individually, and was not individually indebted to him in any sum, resulted in his injury. Under the evidence in the case the judge did not err in directing a verdict for plaintiff. Leffler Co. v. Pearson, 17 Ga. App. 57 (86 S. E. 256) ; Meinhard-Ferst-Dodge Co. v. DeLoach, ante, 323 (91 S. E. 446).

Judgment affirmed.

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


text:
    7832.
    Jones et al. v. Shores-Mueller Company.
    Decided April 3, 1917.
    Complaint; from city court of Floyd county—Judge Nunnally. August 4,' 1916.

      Huíanles & Melóme, I. F. Mundy, for plaintiffs in error.

      Lipscomb & Willingham, Nathan Harris, contra.
   Jenkins, J.

This case was tried before the court without a jury, under authority given by the act creating the city court for Floyd county. Exceptions are taken only upon the general ground that the judgment was contrary to evidence. There being ample evidence to sustain the finding, under the repeated rulings of this court the judgment of the trial judge, refusing the motion for a new trial, will not be disturbed.

Judgment affirmed.

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


author: Bloodwobth, J.

text:
    7929.
    Tedcastle & Company v. Brewer & Company et al.

    Decided April 3, 1917.
    Complaint; from city court of Elberton—W. D. Tutt, judge pro hac vice. October 28, 1916.

      Z. B. Rogers, for plaintiffs. J. T. Sish, for defendants.
   Bloodwobth, J.

1. Section 5656 of the Civil Code of 1910, providing for the opening of defaults, should be given a liberal construction, in the promotion of justice and the establishment of the truth; and the discretion of the trial judge in opening a default and permitting the defendant to plead will not be interfered with by this court unless manifestly abused, to the injury of the plaintiff. Thompson v. Kelsey, 8 Ga. App. 23 (68 S. E. 518) ; Bass v. Doughty, 5 Ga. App. 458 (63 S. E. 516) ; Brawner v. Maddox, 1 Ga. App. 332 (58 S. E. 278) ; Polerack v. Gordon, 102 Ill. App. 356; Tucker v. Harris, 13 Ga. 1 (58 Am. D. 488); Gray v. McNeal, 12 Ga. 424; Davis v. Bray, 119 Ga. 220 (46 S. E. 90) ; Burch v. Pope, 114 Ga. 334 (40 S. E. 227).

2. This court can not say that in this case the trial judge abused his discretion in opening the default and in allowing the defense to be filed.

3. There was evidence to support the verdict, and the trial judge did not err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, ,P. J., and. Jenkins, J., concur.


author: Broyles, P. J.

text:
    8003.
    BREMEN FOUNDRY & MACHINE WORKS v. McLENDON et al.

    1. An individual can in an assumed or trade name maintain a suit. The words “Bremen Foundry & Machine Works, by L. E. Bailey, owner and manager thereof,” import an individual doing business under a trade name, and are sufficient to support an amendment alleging that the Bremen Foundry & Machine Works is “a trade name under which L. E. Bailey does business.”
    2. The court erred in sustaining the demurrer and dismissing the petition.
    3. The error in the ruling on the demurrer being controlling, the rendition of a judgment against the plaintiff for the costs of the suit was nugatory.
    Decided April 3, 1917.
    Complaint; from Haralson superior court—Judge Bartlett. October 6, 1916.

      Taylor Smith, O. E. Moore, for plaintiff.

      M. Bullard, Griffith & Matthews, for defendants.
   Broyles, P. J.

The petition in this ease was brought in the name of the “Bremen Foundry & Machine Works, by L. E. Bailey, owner and manager thereof.” The defendants interposed a.demurrer setting up that there was no proper or legal party plaintiff to the suit, as the name “Bremen Foundry & Machine Works, by L. E. Bailey, owner and manager thereof,” imported “neither a corporation, a partnership, or an individual.” The plaintiff offered an amendment to his petition, striking the words “L. E. Bailey, owner and manager thereof,” and inserting in lieu thereof the following words: “the same being.a trade name under which L. E. Bailey does business.” The court sustained the demurrer and dismissed the petition, and the plaintiff excepted.

To sustain this judgment of the court 'counsel for the defendants in error rely mainly upon the case of Western & Atlantic Railroad Co. v. Dalton Marble Works, 122 Ga. 774 (50 S. E. 978). We do not think, however, that the instant case is controlled by that decision. In that case the suit was brought in the name of the “Dalton Marble Works,” and, upon demurrer, the plaintiff amended the petition by inserting after the words “Dalton Marble Works” the words “H. B. Colvard, proprietor,” and the ruling made by the Supreme Court was that even if the name “Dalton Marble Works” could be construed as importing a corporation or partnership, the admission made in the amendment showed that in fact it was neither, and that, therefore, the suit as brought was a nullity and there was nothing to amend by, and the lower court erred in allowing the amendment. It was not held in that case that the petition as amended did not show a real party plaintiff, it was held merely that the original petition did not, and therefore it could not legally be amended. In the instant case the original petition contains in principle substantially the same words as the amended petition in the Dalton Marble Works case, and hence a vital distinction between the two cases is clearly apparent. In our opinion the words, “Bremen Foundry &' Machine Works, by L. E. Bailey, owner and manager thereof,” import an individual doing business under a trade name, and the court erred in not allowing the amendment which set up that it was “a trade name under which L. E. Bailey does business.” An individual can in an assumed or trade name maintain a suit. Charles v. Valdosta Foundry Co., 4 Ga. App. 733 (62 S. E. 493). In that case this court held that the word “company,” as used in the name of the plaintiff, imported a corporation, and that an amendment, similar to the one in the case at bar, should have been allowed, although it was held that, as the name of the plaintiff, as set out in the petition, imported a corporation, no amendment was really necessary. Likewise, in our judgment, as the words “Bremen Foundry & Machine Works, by L. E. Bailey, owner and manager thereof,” import an individual doing business under a trade name, no amendment to the petition was essential, although when offered it should have been allowed.

Judgment reversed.

Jenlcins and Bloodworth, JJ., concur.


author: Per Curiam.

text:
    8009.
    CLARKE v. ALLEN, constable.
    Where the trial judge, on tender of a bill of exceptions for certification within the time prescribed by law,- returned, it to counsel for the excepting party because he did not then have time to read it, the judge stating that he would “take it up later” and would consider it as presented on the day on which it was originally tendered, and it was presented to him again nearly three months later, and he then signed it, reciting these facts, without further 'explanation than that he was “busy holding courts since out of the county, except Saturdays” on, which he held “motion courts” in the city in which the excepting counsel resided, and during that time was busy, and had never called for the bill of exceptions, the writ of error must be dismissed.
    Decided April 3, 1917.
    Money rule; from Hall superior court—Judge J. B. Jones. July 29, 1916.
    The exceptions were to a judgment rendered on July 29, 1916. The date of the judge’s certificate to the bill of exceptions was November 14, 1916. His signature to the certificate was preceded by a note as follows: “This bill of exceptions was presented to me during the recess of a trial on August 26th, 1916. Not having time to read the exceptions at that time, I told counsel for plaintiff in error to make a memorandum of its having been presented that day, take the bill of exceptions, and that I would take it up later, and that I would consider it presented that date. I have been busy holding courts since out of the county, except Saturdays that I would hold motion courts in Gainesville, during which time I have been busy. I have never called for the bill of exceptions from the counsel for plaintiff in error. It was given to me this day to have this certificate made.”

      A. 0. Wheeler, W. N. Oliver, for plaintiff.

      William M. Johnson, for defendant.
   Per Curiam.

Motion to dismiss is made in this case on the ground that the judge failed to certify the bill of exceptions within the statutory time. It is well settled, by numerous decisions of our Supremo Court and of this court, that failure of the judge to certify the bill of exceptions within the time provided by the statute will not cause a dismissal of the case, unless such failure be occasioned by the act of the plaintiff or his counsel. Civil Code, § 6187; Walker v. Equitable Mortgage Co., 100 Ga. 84 (26 S. E. 75); Jones v. State, 100 Ga. 579 (28 S. E. 396); Moore v. Kelly & Jones Co., 109 Ga. 798 (35 S. E. 168); Thompson v. Stephens, 138 Ga. 205 (75 S. E. 136); Nation v. Jones, 3 Ga. App. 83 (59 S. E. 330); Bennett v. Half, 4 Ga. App. 484 (61 S. E. 887); Harnage v. State, 7 Ga. App. 573 (67 S. E. 694); Acts of 1896, 45. But the certified facts of this case are similar to those in Parkman v. Dent, 109. Ga. 289 (34 S. E. 559), and Sutton v. Valdosta Guano Co., 115 Ga. 794 (42 S. E. 94). In those eases the writ was dismissed where it appeared that it had been returned by the judge to the movant's counsel for correction and was held out by them for an extended and unnecessary length of time. See also Clay v. State, 4 Ga. App. 142 (1), 144-5 (60 S. E. 1028). In this case the writ, though originally presented in time, was returned by the judge to counsel, because at the time it was handed to him he was.engaged in another case, he then making the statement that he would take it up later and consider it as presented on that day. ■ Nearly three months elapsed before counsel for the plaintiff in error again presented the writ to the judge for his certification, though it is stated in his certificate that on each subsequent Saturday he had held motion court in the town of the residence of said counsel. It thus appearing that there had been ample opportunity to present the same in reasonable time, and no cause being shown to the contrary, this court feels compelled to grant the motion to dismiss, and it is ordered accordingly.

Writ of error dismissed.

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


text:
    8021.
    Adams v. Georgian Company.
    Decided April 3, 1917.
    Complaint; from city court of Albany—Judge Clayton Jones. November 16, 1916.

      B. J. Bacon, B. H. Ferrell, for plaintiff in error.

      L. L. Ford, contra.
   Jenkins, J.

“Against one wlio, before the goods were sold and delivered, guaranteed in writing payment therefor, on the faith of -which guaranty the sale was made, a recovery may be had upon a petition setting forth the account, a copy of the contract of guaranty, a refusal to pay the account by the principal debtor, notice by the creditor to the maker of the guaranty, before the goods were sold and delivered, that the same was accepted, and alleging that on the faith of said guaranty the goods represented by the account sued on were sold and delivered as requested in said guaranty. . . This would be true whether said writing, called a guaranty in the suit, was technically a guaranty, or was a contract of suretyship. In either case there was a valid consideration for said contract; and it would be wholly immaterial, in determining the liability of the party who made the written obligation referred to, whether he did so as guarantor or as surety. . . Where the terms of a written contract of guaranty, or suretyship, are ambiguous, they will be construed most strongly against the maker of the contract.” Small v. Claxton, 1 Ga. App. 83 (57 S. E. 977).

Under the foregoing rule of construction, the contract sued on in this case was one of continuing guaranty, and bound the maker thereof for all goods sold and furnished the principal under the terms of his contract with the plaintiff as' guaranteed by the defendant. See also.: Sims v. Clark, 91 Ga. 302 (18 S. E. 158); Manry v. Waxelbaum Co., 108 Ga. 14 (33 S. E. 701) ; Musgrove v. Luther Pub. Co., 5 Ga. App. 279, 284 (63 S. E. 52); Kalmon v. Scarboro, 11 Ga. App. 547 (75 S. E. 846). The trial judge did not err in overruling the demurrer to the plaintiff’s petition.

.Judgment affirmed.

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


author: Broyles, P. 3.

text:
    8037.
    Sikes v. Edwards.
    Decided April 3, 1917.
    Foreclosure of mortgage; from Bryan superior court—Judge Sheppard. May 2, 1916.

      J. Hartridge Smith, for plaintiff in er-ror.
   Broyles, P. 3.

Under the facts of the case the court did not err in dismissing the-affidavit of illegality.

Judgment affirmed.

Jenkins and Bloodworth, JJ., concur.


text:
    8039.
    HARVEY v. LEWIS.
    Where a landlord makes a contract with a cropper, under which the landlord is to furnish the land and fertilizer, and the cropper is to do “all the work in connection with planting, making, and gathering the crop,” the cropper is not entitled to enforce a laborer’s lien before the completion of his contract, unless for some sufficient legal reason he is prevented from carrying out the contract.
    Decided April 3, 1917.
    Foreclosure .of lien; from Evans superior court—Judge Sheppard. May 31, 1916.
    P. M. Anderson, for plaintiff in error.

      Daniel & Daniel, contra.
   Bloodworth, J.

Lewis, a cropper, made an affidavit that he was employed by Harvey, the landlord, “as a laborer and cropper for the year 1915, to prepare, plant, cultivate, and gather the crop on a farm” which he described; that he had “completed said contract of labor and earned the sum of $375,” which he alleged was a fair valuation of one half of the crop which he was to receive for his services, and that “he has demanded payment of the same from the said P. N. Harvey, since the same has become due, and the same has been refused.” Execution was issued and levied, and a counter-affidavit filed denying indebtedness. The trial resulted in favor of the plaintiff. The defendant moved for a new trial on the general grounds; it was refused, and he excepted. The plaintiff testified, that, under the contract, the defendant was to furnish the land and fertilizer, and he (the plaintiff) was to do all of the work in planting, making, and gathering the crop. The evidence of the defendant as to the terms of the contract was practically the same as that of the plaintiff. The plaintiff further swore, that “in pursuance to this contract plaintiff went to work on said land, planted and made said crop, and partly gathered same; that after he had gathered a part of said crop he abandoned it and left it with the defendant, P. N. Harvey; that when he abandoned said crop there was yet ungathered about two bales of cotton, about four acres of corn, and about four acres of fodder; the reason he abandoned said crop was becarise he had nothing on which to support his family, and the defendant, P. N. Harvey, would not furnish him any supplies; that witness furnished his own supplies during the whole year and never failed to get credit any time he sought it. P. N. Harvey was not bound under the contract to furnish any supplies to witness. Witness could have gotten all the supplies he wanted, and it was not necessary for him to abandon the crop to get supplies.” He testified further, that he had not received his portion of the crop, and this was one reason for the abandonment, and that the defendant refused to make an accounting for his portion of the crop. It appears that after the cropper abandoned the crop it was levied on under an execution against the landlord, who gave bond and gathered the remainder of the crop.

The reasons alleged by the cropper for abandoning the crop are not sufficient to show that the' landlord had breached the contract, and would not legally authorize the cropper to abandon it. The cropper sought to enforce the right to a laborer’s lien, and his right to recover must be determined by the law applicable to such proceedings. Before a laborer can enforce his lien under the laws of this State it must be alleged in the affidavit, and the evidence must show, that he has fully completed his contract. “Liens of laborers shall arise upon the completion of their contract of labor.” Civil Code of 1910, § 3339. In Wall v. Rutherford, 60 Ga. 440, it is said: “Not a single day before completion does the lien have any existence.” The evidence of the plaintiff himself shows that he contracted to do all the work in connection with gathering the crop. Unless the crop was gathered his contract would not be completed, and he would, therefore, have no lien. When he swore that he abandoned the crop, and this was before all of the crop was gathered, and showed no legal reason for so doing, his own evidence destroyed his right to enforce a laborer’s lien. What is here decided is not in conflict with the decision in Lewis v. Owens, 124 Ga. 228 (52 S. E. 333). In that ease the cropper was prevented from completing the contract, by the levy of a valid process against the landlord. In the instant case the cropper, had abandoned the crop before the levy was made. As the evidence shows that the plaintiff abandoned the crop before it was gathered, and as he had no lien at that time, a verdict for the defendant was demanded, and the court erred in refusing to grant a new trial. Wall v. Rutherford, supra; Tanxley v. Lampkin, 113 Ga. 1007 (39 S. E. 473); Faircloth v. Well, 125 Ga. 230 (5), 231 (53 S. E. 592).

Judgment reversed.

Broyles, P. J., and Jenkins, J., concur.


text:
    8073.
    Atkins National Bank v. Harmon.
    Decided April 3, 1917.
    Motion to dismiss writ of error.

      W. A. Charters, H. H. Perry, for plaintiff in error.

      A. J. Griffin, C. B. Faullcner, W. W. Starlc, contra.
   Broyles, P. J.

The bill of exceptions in this case was filed in the office of the clerk of the lower court on January 25, 1916, and should have been transmitted (with the record) to the March term, 1916, of the Supreme .Court, but was not transmitted until September 29, 1916, upon which date it was filed in the office of the clerk of the Supreme Court. The bill of exceptions having reached the Supreme Court after the close of the term to which it was returnable, the writ of error must be dismissed. The fact that the delay was not occasioned by the fault of the plaintiff in error or its attorneys is not sufficient to change the rule. Earnhart v. Atlanta & West Point R. Co., 133 Ga. 59 (65 S. E. 138).

(a) The constitutional amendment adopted in 1916, which changed the appellate jurisdiction of the Supreme Court and of the Court of Appeals as to certain classes of cases, does not affect this ruling. This case was dead when it reached the Supreme Court, and its lifeless body only was transmitted to this court, and the order transferring it had no miraculous power to restore life to the dead.

Writ of error -dismissed.

Jenlcins and Bloodworth, JJ., concur.