author: Broyles, P. J. Stephens, J.,

text:
    10154.
    HIGGINBOTHAM v. ROME RAILWAY & LIGHT COMPANY.
    Decided May 16, 1919.
    • The undisputed evidence clearly showing that, even if the defendant company was negligent as alleged, the direct and proximate cause of the homicide sued for was the intervening act of a separate and in-pendent agency, the verdict for the defendant was.not only authorized but demanded, and the court did not err in overruling the motion for a new trial.
    Action for damages; from Eloyd superior court—Judge Wright. September 17, 1918.

      Harris & Harris, for plaintiff. Dean & Dean, for defendant.
   Broyles, P. J.

Vinnie Higginbotham sued the Romo Railway & Light Company for damages on account of the homicide of her husband, Tom nigginbotham.. A verdict for the- defendant was returned, and the plaintiff excepted to the court’s refusal to grant a new trial. Her counsel stated in their brief that the evidence showed the following state of facts: “The defendant had a line of wires, heavily charged with electricity, strung along the side of the Summerville road, within the limits of the City of Koine, on a pole about twelve or fourteen feet in height. This pole was about seventy-five feet from a railroad trestle. The wires stretched from this pole to a knob underneath the trestle. The pole was at the base of a five-foot embankment, and between the pole and that part of the trestle where the wires were attached there was an embankment or elevation several feet above the mean level of the base of the aforesaid pole. About midway between this pole and the trestle there was a much-used pathway, which had been in constant use for fifteen or twenty years. Ordinarily, prior to the intervening cause that was responsible for the death of Tom Higginbotham, the wires were only four and one half to five feet (according to different witnesses) above the ground. The wires had been in this condition for a considerable length of time. Every witness who testified as to this fact stated that a man could reach the wire at any time over this pathway. One Saturday afternoon, about three o’clock, a blast was shot by the City of Koine gang, and a rock knocked one of the wires from its mooring on the pole and caused it to sag or bow to within a few feet of the ground, the height being less than the height of an ordinary man. Immediately a'volunteer, at the request of the guard of the city gang> called the head office of the defendant and notified jt of the accident, and asked that a man be sent to repair the same. The party answering the telephone agreed to do this. However; the defendant denied receiving the message, and the plaintiff was never able to show that such a message was received by defendant. The wire remained down until the next day, although the current was cut off soon after the homicide of plaintiff’s husband. The wire had been strung there for twelve or fifteen years an€ the" insulation had rotted off. The company admitted that it made no regular inspection rounds, and had no inspector, but depended on its regular employees, in their rounds, discovering and making known any defects or accidents. About midnight on the date on which the wire was knocked off plaintiff’s husband was walking along this pathway, as had been his custom, for a number of years [italics ours], and came in contact with the fallen wire and was instantly killed. He was not taken loose from the wire until one of the defendant’s employees cut off the current. The defendant admitted that it owned the wires and furnished the current, but defended solely on the ground that the primary cause of the accident was the direct or proximate result of the act of the City of Eome in shooting the blast.”

Adopting as our own this statement of facts, it clearly appears to us that, even if the defendant was negligent as alleged in the declaration, the effective and proximate cause of the homicide of the plaintiff’s husband was the intervening act of a separate and independent -agency, the City of Eome, and that the verdict in favor of the defendant was not only authorized but demanded. See, in this connection, Perry v. Central Railroad, 66 Ga. 746 (5); Mayor &c. of Macon v. Dykes, 103 Ga. 847 (31 S. E. 443); Andrews v. Kinsell, 114 Ga. 390 (40 S. E. 300, 88 Am. St. E. 25); Beckham v. Seaboard Air-Line Ry., 127 Ga. 550 (2), 551 (56 S. E. 638, 12 L. R. A. (N. S.) 476); Postal Telegraph-Cable Co. v. Kelly, 134 Ga. 218 (67 S. E. 803; Southern Ry. Co. v. Barber, 12 Ga. App. 286 (77 S. E. 172); Atlantic Coast Line R. Co. v. Adeeb, 15 Ga. App. 842 (84 S. E, 316); Anderson v. Baltimore & Ohio R. Co., 74 W. Va. 17 (81 S. E. 579, 51 L. R. A. (N. S.) 888); Harton v. Forest City Tel. Co., 146 N. C. 429 (59 S. E. 1022, 14 L. E. A. (N.S.) 956, 14 Ann. Cas. 390); American Bridge Co. v. Seeds, 75 C. C. A. 407 (144 Fed. 605, 11 L. R. A. (N.S.) 1041); Cole v. German Savings & Loan Society, 59 C. C. A. 593 (124 Fed. 113) ; Stone v. Boston & Albany E. Co.,171 Mass. 536 (51 N. E. 1, 41 L. R. A. 794, 4 Am. Neg. E. 490); Leeds v. New York Telephone Co., 178 N. Y. 118 (70 N. E. 219); Curtis on Law of Electricity, §§ 435, 439, 441, 443, 444; 1 Thompson on Negligence, §§ 55, 56, 57.

The above being controlling in the ease, it is unnecessary to consider the special grounds of the motion for a new trial, as they complain only of errors in the charge of the court and of the court’s refusal to comply with certain requests to charge.

Judgment affirmed. Bloodworth, J., concurs. Stephens, J., dissents.

Stephens, J.,

dissenting.

It is undisputed that an electric wire belonging^ to the defendant company was knocked from its fastening on a pole, and fell to the ground, as a result of blasting in the vicinity, done by the City of Home. While this alone was an independent agency, yet I do not think' that it can be said that, under the undisputed evidence, it was the proximate cause of the injury to plaintiff’s husband, who was killed by coming in contact with the wire while it lay, heavily charged with electricity, in close proximity to the ground, across a path over which the deceased was traveling.

Plaintiff charges that it was negligence upon the part of the defendant company to have so erected its pole and strung its wire that the latter was only five and one-half feet above the ground across said pathway; to have so erected the pole and strung the wire that the latter was less than twenty to thirty feet above the ground at places where pedestrains were accustomed to travel; to have allowed the wire to be so constructed that the insulatíon was worn and rotted and furnished no protection against harm to any one who might come in contact with the wire; to have erected the wire for the purpose of conducting electricity of' a heavy voltage in such a manner that the wire would, if it should fall from the pole, sag or swing in close proximity to the ground so as to become a dangerous menace to people passing over the ground; to have failed to remove or repair the wire after’'defendant had been informed of its having been knocked down; in not attaching the wire to a pole thirty feet from the ground, so that even though the glass knob was broken, the-wire would not have sagged to within five and a half feet of the ground. It is charged that by reason of these acts of negligence the plaintiff’s husband was killed.

There was evidence to ' the effect that the wire, after it was knocked from the pole by the blasting, lay in dangerous proximity to the ground for several hours, from about the middle of the afternoon until about the middle of the following night, when deceased came in contact with it and was killed, that the wire at the place where it fell, and before it was knocked from its fastening on the pole, was strung upon a pole of the height of about ten or twelve feet over the pathway, where plaintiff’s husband was killed; that the insulation on the wire was worn at this place; and that the place where the wire fell and the deceased came in contact with it was a frequently traveled pathway over an open lot. As there was-evidence to support any of the aforesaid aliev gations of negligence it was sufficient to raise an issue of fact for the jury. The fact alone that a wire charged with electricity, as the evidence in this case shows, sagged and lay near the ground, from sometime in the afternoon until the middle of the night, was sufficient to raise an issue of negligence for the jury to pass upon, and it cannot be said that the evidence demanded the inference that the prior act of blasting was the proximate cause of the injury. See Joyce on Electric Law, §§ 438Tb, 450. There being an issue of fact upon any one of the allegations of negligence, a new trial should be granted for failure of the court to properly submit 'any one of the plaintiff’s contentions to the jury. The particular allegation of negligence, and which was supported by the evidence, and which the court failed entirely to submit to the jury, was that defendant company was negligent in having its heavily charged wire strung on a pole “only about ñve and one-half feet above the ground across the pathway,” causing the wire, after it was dislodged from the pole, to reach near to the ground by sagging. It was a reasonable inference for the jury to draw from the evidence, that, if the wire should fall from the height at which the evidence shows it was strung, it would reach within several feet of the ground and come so close thereto as t.o become an instrument of death and be a menace to human life. It certainly could have been reasonably anticipated that the wire might fall or be knocked from the pole by some cause—whether from the particular cause shown by the evidence in this case or not is immaterial. ■' This raises an issue as to whether or not the wire being dangerously strung in close proximity to the ground, or whether the blasting, constituted the proximate cause of the homicide. From the evidence the question of proximite cause was clearly one for the jury. In addition, and by way* of strengthening plaintiff’s contention, it might be said that the defendant could have reasonably anticipated that the wire might be knocked from its fastening from such a blasting as disloged it in the present ease, since the City of Eome had been intermittently blasting in this immediate vicinity for a number of years, and the defendant in the exercise of ordinary care might have known of it.

The Supreme Court of Georgia in the case of Southern Railway Co. v. Webb, 116 Ga. 152 (42 S. E. 395, 59 L. R. A. 109), held that “while the general rule is that if, subsequently to an original wrongful or negligent act, a new cause has intervened, of itself sufficient to stand as the cause of the misfortune, the former must be considered as too remote, still if the character of the intervening act claimed to break the connection between, the original wrongful act and the subsequent injury was such that its probable or natural consequences could reasonably have been anticipated, apprehended, or foreseen by the original wrong-doer, the causal connection is not broken, and the original wrong-doer* is responsible for all the consequences resulting from the intervening act.” .In an elaborate opinion by Judge Cobb in that case many authorities are ' quoted with approval. Among the' quotations are the following: “A tortious act may have several Consequences, concurrent or successive, for all of which the first tortfeasor is responsible. It is not intervening consequences, but intervening causes which relieve. The test is.to be found, it has been said, not in the number of intervening events or agents, but in their character, and in the natural and probable connection between the wrong done and the injurious consequences. So long as it affirmatively appears that the mischief is attributable to the original yrong as a result which might reasonably have been foreseen as probable, legal liability continues.” Watson’s Personal Injuries, § 58. “Some authorities have formulated rules on this subject designed for general application, as that the defendant is not responsible where there has intervened the wilful wrong of a third person, or is liable where such act is of a negligent character merely. But the better doctrine is believed to be that whether or not the intervening act of a third person will render the earlier act too remote .depends, simply, upon whether the concurrence of such intervening act might reasonably have been anticipated by the defendant.” Id. § 71. In Pittsburgh Railway Co. v. Taylor, 104 Penn. St. 315 (49 Am. E. 580), it is said: “In determining what is proximate cause the true rule is, that the injury must be the natural and probable consequence of the negligence, such a consequence as under the surrounding circumstances of the case might and ought to have been foreseen by the wrong-doer as likely to flow from his act.” In Lane v. Atlantic Works, 111 Mass. 139, it is said: “The injury must be the direct* result of the misconduct charged; but it will not be considered too remote if, according to the usual experience of mankind, the result ought to have been apprehended. The act of a third person, intervening and contributing a condition necessary to the injurious effect of the original negligence, will not excuse the first wrong-doer, if such act ought to have been forseen. The original negligence still remains a culpable and direct cause of the injury. The test is to be found in the probable injurious consequences which were to be anticipated, not in the number of subsequent events and agencies which might arise.” In Seale v. Ry. Co., 65 Tex. 278 (57 Am. E. 602), it is said: “If the intervening cause and its probable or reasonable consequences be. such as could reasonably have been anticipated by the original wrong-doer, the current of authority seems to be that the connection is not broken.”

In the case of Valdosta Street Railway Co. v. Fenn, 11 Ga. App. 586 (3), 587 (75 S. E. 984), the Court of Appeals held: “The question of proximate cause depends upon the facts of each particular case, and, in ascertaining in a particular case what was the proximate cause of the injury, the conclusion reached depends upon whether the injury alleged was such a natural and probable consequence, under the circumstances of the case, as that it might and ought to have been forseen by the wrong-doer as likely to ensue from his act. The jury were authorized to find in this, case that the act of the child was not a proximate cause, but that the motorman, in leaving his car in such condition that a child could set it in motion, was the prime and underlying essential and efficient cause of the injury.” See also, in this connection, Atlantic Coast Line R. Co. v. Barton, 14 Ga. App. 160 (5), 164 (80 S. E. 530) : Bonner v. Standard Oil Co., 22 Ga. App. 532 (96 S. E. 573), and cases cited.

A number of authorities along this line could be quoted, but the above are sufficient. There being clearly an issue of fact for the jury, and the trial judge having failed, as set out in the amendment to the motion for a new trial, to properly submit to the jury, after having been timely requested to do so, the question as to whether or not the close proximity in which the wire was erected to the grouiid was the proximate cause of the injury, a new trial should be granted.


source: Caselaw Access Project

author: Broyles, P. J.

license: Public Domain

text:
    10158.
    SOVEREIGN CAMP OF THE WOODMEN OF THE WORLD v. WINN.
    Decided May 16, 1919.
    1. The assignment of error upon the overruling of the demurrer to the original petition, not having been argued in the brief of counsel for the plaintiff in error, is treated as abandoned.
    2. The court did not err in excluding from the evidence a portion of the record of the coroner’s inquest.(held upon the body of the insured), containing testimony given at the inquest. This was offered for the purpose of showing that the death of the insured was caused by his own hand or act, and it was not admissible for that purpose. In civil actions, nowhere (except in England) is testimony given at a coroner’s inquest competent proof of the cause of the death of the deceased. 3 Enc. Ev. 573 (2-B), 574, and cases cited in note 29; 13 Corpus Juris, 1255 (§ 34, par. 16), 1256, 1257 and notes 13, 14, 15, 16, 17; Queatham v. Modern Woodman, 148 Mo. App. 33 (7, 9, 10) (127 S. W. 651) ; Knights Templars’ &c. Indemnity Co. v. Crayton, 209 Ill. 550 (8) (70 N. E. 1066); Grant v. Chicago &c. R. Co., 176 Ill. App. 292 (3). See also Supreme Council Royal Arcanum v. Quarles, 23 Ga. App. 104 (97 S. E. 557).
    3. The court did not err in overruling the ground of the motion for a new trial which was based upon alleged newly discovered evidence. This evidence was cumulative in its character, and moreover was of such, a nature as to show -in itself that by proper diligence of the movant’s counsel it could havF become known to them before the trial, - notwithstanding the conclusion stated in their affidavits that it could not have been discovered by the exercise of ordinary diligence.
    Action on insurance policy; from city court of Savannah—Judge Freeman. October 4, 1918.
    , W. B. Hewlett, H. P. Cobb, for plaintiff in error.

      W. B. Stubbs, contra.
   Broyles, P. J.

This ease has been passed upon by three different juries. The first trial resulted in a verdict for the plaintiff, and a new trial was granted by the trial court. Upon the second trial there was a mistrial. The third jury found in favor’ of the plaintiff; the court refused a new trial, and the defendant excepted. -

Upon the trial now under review no exception is taken to the charge of the court, and no error of law appears. Hnder the pleadings the only issue was, whether the death of the insured was caused by his own hand or act, or, in other words, whether he committed suicide. While perhaps, there was evidence which would have authorized a finding that he had intentionally killed himself; we can not hold, as a matter of law, that the evidence was sufficient to overcome the presumption of law that he did not kill himself, or that his death was accidental. Moreover, “when an insurance company defends upon the ground of suicide, the burden is upon the company to establish such contention by a preponderance of the evidence.” Mutual Life Insurance Co. v. Durden, 9 Ga. App. 797 (1) ; 14 R. C. L., § 416, and cases cited.

In our opinion the court did not err in refusing to grant a new trial.

Judgment affirmed.

Bloodworth and Stephens, JJ., concur.


text:
    10175.
    Whitlock Printing Press Manufacturing Company v. Williams.
   Broyles, P. J.

1. The defendant’s plea, .properly construed (most strongly against him), is based solely on the alleged breach by the plaintiff of certain alleged express warranties. Therefore, conceding (but not deciding) that all implied warranties were not excluded by these express warranties, the court erred in instructing the jury upon the subject of implied warranties. Such a charge was not authorized by the pleadings.

2. It was error to charge as follows: “Look to the evidence in this case and see whether or not the machinery or. printing press so sold was free from such defects as' I have stated at the time of the delivery; and, if so, then it would be your duty to return a verdict in favor of the plaintiff.” One error of this charge was that the court failed to tell-the jury (and the error was not cured elsewhere in the charge) that the defects, if any existed, must be the specific defects stated in the defendant’s plea. The charge was also misleading in that it virtually instructed the jury that' the burden was on the plaintiff to show that the press was free from “such defects,” when, as a matter of law, the burden was upon the defendant to sustain’ his plea by showing that the defects therein alleged did exist.

3. It was error to instruct the jury as follows: “Where, by a breach of contract or negligence, one is injured, he is bound to lessen the damages as far as practicable by the use of ordinary care and diligence. That is, if the defendant in this case discovered that the article sold was of inferior value, it was his duty to do everything possible to overcome these defects at as little expense as possible, and to protect to that extent the plaintiff in this case.” This charge was inaccurate and misleading, in that it instructed the jury in effect that they could consider the general value,of the article sold and were not restricted to a consideration of the specific defects alleged in the defendant’s plea.

4. Under the written contract under which the machine was sold, and the plea of the defendant and the other facts of the case, the defendant was not entitled to a verdict in his favor, unless the jury should find that there were 'defects in the machine as set forth in the defendant’s plea, and which would, constitute a breach of the express warranties relied on by the defendant and stated in his plea, and which_ had caused damage to the defendant equal to or greater than the balance of the purchase-money sued for. This being true, the charge of the court, as complained of in the 7th special ground of the motion for a new trial, was erroneous. ,

Decided May 16, 1919.

Attachment; from city court of Waycross—Judge Crawley. October 21, 1918.

Parks & Reed, for plaintiff. Parker & Parker, for defendant.

5. The court erred in permitting the defendant, over timely and appropriate objections of the plaintiff, to testify: “I always looked upon J. H. Schroeter & Brother and the Whitlock Printing Press Company as one and the same thing.”

6. Undér the circumstances stated in the 10th special ground of the motion for a new trial, the court did not err in excluding from the evidence certain letters as therein complained of.

7. As there must be another trial of the case, on account of the several errors referred to, the sufficiency of the evidence to support the verdict is not passed upon.

Judgment reversed.

Bloodworth and Stephens, JJ., concur. '


author: Beoyles, P. J.

text:
    10239.
    Daniels v. The State.
    Decided May 16, 1919.
    Indictment for perjury; from Haralson superior court—Judge Bartlett. October 21, 1918.

      Griffith & Matthews, for plaintiff in error.

      J. R. Hutcheson, solicitor-general, contra.
   Beoyles, P. J.

1. The 1st and 2d special grounds of the motion for a new trial are so incomplete in themselves that it is impossible for this court to determine, without referring to other portions of the record, whether the admission of the evidence therein complained of was material error. These grounds, therefore, under repeated rulings of the Supreme Court and of this court, can not be considered.

2. The defendant was tried for perjury, it being charged in the indictment, in substance, that as a witness before the grand jury, upon a pending indictment for murder, he falsely swore that he was not present at the scene of the murder, and did not see the killing, nor any one shoot. Upon the trial he admitted that he appeared as a witness before the grand jury and there testified that he was not present at the scene of the murder, and did not see the killing, nor any one shoot, but contended that his testimony was true.' Under these circumstances the law of alibi was not involved in the case, and the judge erred in giving it in charge to the-jury; and a new trial is required.

Judgment reversed.

Bloodworth and Stephens, JJ., concur.


author: Bloodworth, J.

text:
    10255.
    AUTREY v. THE STATE.
    Decided May 16, 1916.
    On the trial of one charged in the indictment with having had on a given date in 1918 unlawful possession of twenty-five gallons of corn whisky, testimony that about two or three months before that time he had in his possession a flask containing corn whisky was relevant and material; and the admission of this testimony after the close of the evidence introduced by the defendant and the defendant’s statement was a matter within the discretion of the trial judge.
    The evidence demanded the verdict of guilty; and therefore the admission of other testimony as to which complaint was made, even if it was improperly admitted, was not cause for a new trial.
    Indictment for possession of liquor; from Eorsytb superior court —Judge Morris. November '2, 1918.
    Autrey was tried on August'30, 1918, and convicted, under an indictment which charged that on the 27th of the same month he unlawfully had in his possession twenty-five gallons of corn whisky. The witness referred to in division 2 of the decision was introduced for the State after the close of the testimony introduced by the defendant and the defendant’s statement, and testified that he was deputy sheriff and caught the defendant “two or three months ago, hauling a still used to make liquor, in his car.” The admission of this statement of the witness was objected to, and in the motion for a new trial is assigned as error, on the ground that it was irrelevant and was not in rebuttal. This statement was followed by the one quoted in the decision and complained of in the remaining special ground of the motion for a new trial.

      R. P. Russell, J. P. Brooke, for plaintiff in error.

      John T. Dorsey, solicitor-general, William Bulb, contra.
   Bloodworth, J.

1. The defendant was indicted for having in his possession intoxicating liquors. The evidence for the State showed that on two different occasions he was in possession of such liquors. In his statement at the trial he denied that he was in possession of such liquors on one of these occasions; and by evidence he sought to impeach the chief witnesses for the State, and also to establish an alibi. There was a verdict of guilty. He filed a motion for a new trial, and insisted that the verdict should be set aside as being without evidence to support it. There was evidence sufficient to authorize the verdict, and, under the repeated and uniform rulings of this court, the verdict must stand.

2. In the motion for a new trial it is insisted that the court erred in allowing a.witness to testify: “When Autrey got out of the car I saw him drop a flask of whisky from his pocket. It was a pint-bottle about half full of corn whiskey.” The objection urged to this testimony was that it was “irrelevent and immaterial, and not in rebuttal of any evidence sought to be established by the defendant.” In permitting this evidence to go to the jury the court did not err. When a person is indicted for having in his possession intoxicating liquor the State may prove such possession at any time prior to the finding of the indictment and subsequent to March 28, 1917, the date of the approval of the act under which defendant was indicted. (When the act is two years old the proof of possession must be within two years immediately prior to the time the indictment is returned.) In Bryant v. State, 97 Ga. 105 (25 S. E. 451), Mr. Justice Atkinson says: “In misdemeanor cases, it is the constant practice to submit, to the jury evidence of several misdemeanors of the same character, perpetrated by the same person. No harm can result from this practice; inasmuch as the State is permitted to give in evidence before the jury testimony showing the commission of the alleged misdemeanor at any time within two years next before the finding of the indictment, the defendant must be prepared to answer for himself as to each occasion upon which the State may elect to prove his guilt, but with the resulting advantage that but one judgment can be given upon the same indictment, and, though he may have committed many misdemeanors of like character, a judgment of conviction as to one will protect him as to all, the indictment being general and not specific in its descriptive averments.” See also Craig v. State, 108 Ga. 776 (2) (33 S. E. 653). The correctness of the above ruling has never been challenged, and in misdemeanor cases it is still the practice, and a correct one, “to submit to the jury evidence of several misdemeanors of the same character, perpetrated by the same person.” The indictment in this case is a general one, and under it the State would be allowed to show any number of “possessions” of liquor since the passage of the act. This being true, had the evidence quoted above, to the introduction of which objection was made, been offered “in chief,” it would clearly have been admissible. It is both relevant and material.

Then, should this evidence have been rejected as “not in. rebuttal of any evidence sought to be established by the defendant”? This question is answered in the negative by rulings of the Supreme Court. In Bigelow v. Young, 30 Ga. 121, the 3d headnote is as follows: “It is within the discretionary power of the court to allow a witness to be sworn, after the evidence on both sides has been announced closed, and the argument has been commenced; and a liberal practice in this respect is most favorable to the ends of justice.” In Orr v. Garabold, 85 Ga. 373 (11 S. E. 778). The 5th headnote reads thus: “The admission of testimony after plaintiff' has closed his evidence, over objection that it is not in rebuttal and should have been introduced in chief, is within the discretion of the trial court.” See also Watson v. Barnes, 125 Ga. 733 (2) (54 S. E. 723); Green v. State, 119 Ga. 120 (3) (45 S. E. 990); Georgia Railroad & Banking Co. v. Churchill, 113 Ga. 12 (3) (38 S. E. 336); Huff v. State, 104 Ga. 521 (5) (30 S. E. 808); Johnson v. State, 85 Ga. 562 (3) (11 S. E. 844); Augusta & Summerville Railroad Co. v. Randall, 85 Ga. 297 (4) (11 S. E. 706). This evidence being properly before the jury and not being contradicted, the verdict found was demanded.

As this' evidence demanded a verdict of guilty, even if the testimony referred to in the other special ground of the motion for a new trial was improperly admitted, the admission of that testimony would not warrant the granting of a new trial. The motion for a new trial shows no error and was properly overruled, and the judgment must be

Affirmed.

Broyles, P. J., and Stephens, J., concur.


text:
    10296.
    SEWELL v. THE STATE.
    1. The indictment sufficiently charged that the offense was committed in Eranklin county, Georgia, where the defendant was indjcted and tried.
    2. The offenses defined in sections 189 and 192 of the Penal Code (1910) are kindred offenses, and may be charged in separate counts of the same indictment.
    (a) The 9th count of the indictment, when properly construed, is not based upon the second clause of section 189 of the Penal Code. Therefore the allegation in that count, as to a demand and a refusal to pay, was immaterial and should be treated as surplusage.
    3. While joint owners of property can not be guilty of larceny if either merely takes .the property to Ms exclusive use, unless the person from whom it was taken had the right to its exclusive possession at the time, yet one joint owner may be guilty of larceny if he takes the entire property with the felonious intention of depriving the other joint owner of his share. 17 E. C. L. 23, § 25. Thus, where A and B are joint owners of a promissory note, and A collects the entire amount of the note, with the felonious intention of depriving B of his share of the proceeds, and actually does so deprive him, A is guilty of larceny. And in .such a case, if A has been entrusted by B with the note for the purpose of collecting the entire amount due and of paying over to B his share of the proceeds, A is guilty of larceny after trust, where, after collecting the entire amount of the note, he converts to his own use B’s share of the proceeds, instead of paying it over to B.
    Decided May 16, 1919.
    4. The court did not err in overruling the demurrer to the indictment.
    5. The indictment containing nine counts, and the evidence not authorizing a finding of guilty under the 5th, 6th, or 7th count, which charged separate and distinct offenses from those charged in the other counts, the general verdict of guilty was unauthorized.
    Indictment for larceny after trust; from Franklin superior court—Judge W. L. Hodges. November 30, 1918. '

      Wolver M. Smith, Thomas & Thomas, for plaintiff in error.

      A. S. Shelton, solicitor-general, H. H. Chandler, contra.
   Broyles, P. J.

Mrs. Sarah A. Sewell prosecuted the defendant, her son, for larceny after trust. The indictment contained nine counts. The defendant demurred to it on general and special grounds, the demurrer was overruled, and exceptions pendente lite were filed. Upon the trial a general verdict of guilty was returned. A motion for a new trial was made, to the overruling of which the defendant excepted.

The evidence shows that the prosecutrix was a widow, that she could not write her name or read writing, and that the defendant was a married man, a dentist by profession, and his mother’s favorite son. While in some respects the evidence is conflicting, we think the jury were authorized to find that Mrs. Sewell had, in the county of Franklin, at various times before the indictment was found, entrusted the defendant with the notes and the various amounts of money as charged in the 1st, 2d, 3d, 4th, 8th, and 9th, counts of the indictment, for the purpose of collecting the notes and applying the proceeds and the various sums of money for her use and benefit. It is true that the evidence shows that most, if not all, of this money was collected by the defendant in 1912, and deposited to his mother’s credit in a bank at Lavonia, Georgia, in the same year, and that all of it was drawn out by April.of the following year by checks to which Mrs. Sewell’s name had been signed by him. It is contended by the learned counsel for the defendant that if any crime was committed it was barred by the statute of limitations, the indictment not having been found until the September term, 1917, of the superior court of Franklin county. It is also contended that the defendant’s trust ended when he collected the money for his mother and deposited it to her credit in the bank; and that if he thereafter drew out the money from the bank, by signing his mother’s name to the checks without her authority, he would be guilty of the offense of forgery, and not of larceny after trust. Under all the peculiar and particular facts of this case we do not think that either of these contentions is' sound. The evidence does not show that the defendant’s trust was ended when the money collected by him on the notes in question had been deposited to his mother’s credit in the bank at Lavonia. When the apparently conflicting parts of Mrs. Sewell’s testimony are construed and reconciled in the light of her entire testimony, the jury were authorized to find that she had unreservedly placed her entire business affairs in the hands of the defendant, that she had entrusted him with all her money, and with her notes, for the purpose of collecting them and placing the proceeds to her credit in the bank at Lavonia, and, after that, of keeping the money safely for her in the hank, or drawing it out and applying it to her wants and necessities. The fact that when the money was placed in the bank to the general credit of Mrs. Sewell the bank became the owner of this particular money, and the relation of debtor and creditor between Mrs. Sewell and the bank then arose, would not, under these circumstances, alter the legal status of the trust' relationship as between Mrs. Sewell and her son. The jury were authorized to find, from Mrs. Sewell’s evidence, that although she had never expressly given him specific authority to withdraw this money from the bank, after it had been deposited to her credit, he did have general authority, as her agent, to do so; and it was shown by other evidence that, acting as her agent, he had withdrawn this money with her implied authority, and that afterwards he was still holding it in trust for her, and that he did not convert it to his own use until about a year before the finding of the indictment against him.

In our opinion the evidence sufficiently showed that the ofEenses charged, except those alleged in the 5th, 6th, and 7th counts of the indictment, were committed in .Franklin county, within four years of the finding of the indictment against the defendant. While the evidence showed that a demand upon the defendant for the return of the .money had been made in Franklin county and was refused, this evidence was immaterial, as the indictment, when properly construed, was not based on the second clause of section 189 of the Penal Code, and no demand was necessary. Innes v. State, 19 Ga. App. 271 (91 S. E. 339).

The special grounds of the motion for a new trial are merely amplifications of the general grounds, and, except that the allegations in the 5th, 6th, and 7th counts of the indictment were not supported by any evidence, the general verdict of guilty was aúthorized. Inasmuch, however, as the charges in those- counts were unsupported by any evidence, the general verdict of guilty was unauthorized and must be set aside. The indictment contained nine counts, and the 5th, 6th, and 7th counts charged that the defendant had been entrusted with certain specific sums of money which he unlawfully converted to his own use. These specific amounts of money were not mentioned in any of the other counts of the indictment, and these three counts charged separate and distinet offenses from those charged in the other counts. The general verdict of guilty, in law, meant guilty under each and every count of the indictment; and the court, therefore, erred in overruling the motion for a new trial. See, in this connection, Tooke v. State, 4 Ga. App. 495 (61 S. E. 917); Hall v. State, 8 Ga. App. 747, 750 (70 S. E. 211); Innes v. State, supra.

Judgment reversed.

Bloodworfh and Stephens, JJ., concur.


author: Broyles, P. J. Stephens, J.

text:
    10322.
    Wooten v. The State.
   Broyles, P. J.

1. The 1st special ground of the motion for a new trial, not having been argued” in the brief of counsel for the plaintiff in error, is treated as abandoned.

2. The 2d special ground is without merit.

3¡. The request to charge upon the penalty for the offense of seduction contained an incorrect statement as to the law, and was properly refused. • i

4. The court did not err in declining to give the requested instructions set out in the 4th special ground of the motion for a new trial, as they were sufficiently covered by the charge given.

Decided May 16, 1919.

Indictment for seduction; from Jeff Davis superior court— Judge Highsmith. September 4, 1918.

The-requested charge referred to in paragraph 3 of the decision was, that “seduction is a felony involving a penalty of from one to twenty years in the penitentiary of Georgia, and where one is convicted of seduction the punishment can not be for a misdemeanor, nor by fine, nor otherwise except by sentence to a term in the penitentiary of Georgia.”

W. W. Bennett, R. B. Chastain, for plaintiff in error.

Alvin V. Sellers, solicitor-general, contra.

5. The excerpt from the charge, complained of in the 5th special ground of the motion for a new trial, is not erroneous for any reason assigned. The definition, of seduction as therein contained embraced so much of the language of the statute (Penal Code, § 37S) as covered the charge in the indictment, and was adjusted to the facts of the case.

6. There is no merit in the 6th, 7th, and 9th special grounds of the motion for a new trial, which complain, in effect, that the court erred in failing to charge the jury that the alleged persuasions and promises of marriage must have been false and fraudulent, to constitute the crime, of seduction. The indictment charged the accused with committing the 'crime of seduction- by “persuasion and promises of marriage.” only, and the court charged in the language of the code.

7. The excerpt from the charge of the court, complained of in the 8th special ground of the motion for a new trial, when considered with its context, is not erroneous for any reason assigned. It could not have misled the jury, into believing that fornication merely would make the defendant guilty of seduction.

8. The 10th and 12th special grounds of the motion for a new trial are without merit.

9. The court did not err in overruling the 11th special ground of the motion for a new trial; the alleged newly discovered evidence being cumulative and impeaching in its character, and having been met by a counter-showing on the part of the State.

10. Under the ruling in Durrence v. State, 20 Ga. App. 192 (92 S. E. 962), the evidence was sufficient to authorize the verdict; and the court did not err in refusing to grant a new trial.

Judgment affirmed.

Bloodworth J., concurs. Stephens, J., concurs specially.

Stephens, J.

I concur in all except the ruling contained in paragraph 3. I am of the opinion that the request to charge referred to therein was substantially a correct statement of the law, but concur in- the conclusion that it was properly refused by the trial judge. I do so, however, on the ground that it was covered in the general charge. ~


text:
    10357.
    McCall v. The State.
    Decided May 16, 1919.
    Rehearing denied June 9, 1919.
    (Certiorari granted by tbe Supreme Court.)
    Indictment for seduction; from Crisp superior court—Judge Crum. December 31, 1918.

      E. F. Slrozier, D. E. Griffin, F. A. Hooper, for plaintiff in error.

      J. B. Wall, solicitor-general, Max F. Land, Hal Lawson, contra.
   Broyles, P. J.

1. Under repeated decisions of this court and of the

Supreme Court, each special ground of a motion for a new trial must be complete within itself; and when so incomplete as to require a reference to the brief of the evidence, or to some other portion of the record, in order to determine what was the alleged error and whether such error was material, the ground will not be considered by the reviewing court. Under this ruling the 1st, 2d, 3d, 4th, 5th, and 7th special grounds of the motion for a new trial will not be considered. Some of these grounds are also defective in other particulars.

2. “Prejudicial remarks made by the court in the hearing of the jury furnish no ground for a new trial, but in such a ease a motion to declare a mistrial should be made, and upon the judge’s refusal to grant this motion his ruling would be subject to review. Counsel having failed to make such a motion and having proceeded with the trial without objection, he can not in a motion for a new trial raise a question as to the prejudicial nature of the remarks complained of.” • Stapleton v. State, 19 Ga. App. 36 (13), 38 (90 S. E. 1029), and authorities there cited. Under this ruling there is no merit in the 6th special ground of the motion for a new trial.

3. Under all the facts of the case it does not appear that the judge abused his discretion in refusing to allow the defendant to make a second statement to the jury.

4. A correct statement of law embraced in a charge to the jury is not erroneous because the court failed in the same connection to give to the jury other appropriate instructions. Hill v. State, 18 Ga. App. 259 (89 S. E. 351), and cases there cited. Under this ruling the instruction set out in the 9th special ground of the motion for a new trial is not erroneous for any reason assigned.

5. The 10th special ground of the motion for a new trial complains that the sentence, “under the facts of the case, was unusual and excessive.” This question can not be raised in a ground of a motion for a new trial. Sable v. State, 22 Ga. App. 768 (97 S. E. 271).

6. The verdict was authorized by the evidence, and, having been approved by the trial judge, this court has no authority to interfere.

Judgment affirmed.

Bloodworth, J., concurs. Stephens, J., concurs specially.

Stephens, J.

I concur in all except the rulings stated in paragraphs I, 2, and 4. None of the assignments of error, however, contains any merit, and the judgment denying a new trial should be affirmed. If there was any error as set out in the 9th special ground of the motion for a new trial, it was cured elsewhere in the charge.


text:
    10284.
    Battle v. The State.
    Decided June 9, 1919.
    Conviction of attempt to make liquor; from Coweta superior court—Judge Terrell." December 7, 1918.

      W. G. Post, for plaintiff in error.

      C. E. Roop, solicitor-general, contra.
   Bloodworth, J.

There is no merit in any of the grounds of the amendment to the motion for new trial; there is evidence to support the verdict, and the judgment is

Affirmed.

Broyles, P. J., and Stephens, J., concur.


text:
    10289.
    ASKEW et al. v. WILSON, tax-collector, ei al.

    Decided June 9, 1919.
    1. The sufficiency of the description of the property embraced in a mortgage is a question of law for the court,' and the identity of the property mortgaged is a question of fact for the jury. First National Bank v. Spicer, 10 Ga. App. 503 (73 S. E. 753).
    2. Where a case involving questions both of law and of fact is decided by the judge, without the intervention of a jury, and no motion for a new trial is made, but a direct bill of exceptions is sued out, complaining of the decision or order rendered, a statement in the bill'of exceptions that the order of the court is assigned as error “upon the grounds that said order is contrary to law” is not a specific or valid assignment of error, and can not be considered by this court. Newberry v. Tenant, 121 Ga. 561 (49 S. E. 621); Lyndon v. Georgia Ry. & El. Co., 129 Ga. 353 (58 S. E. 1047).

      (a) In such a case, however, this court will consider a specific assignment of error upon any antecedent ruling which entered into and affected the final result. Stewart v. Marietta Trust & Banking Co., 129 Ga. 417 (59 S. E. 231).
    Money xule; from city court of Newnan—Judge Post. December 13, 1918.

      W. Y. Atkinson, W. L. Stallings, for plaintiffs in error.

      Garland M. Jones, contra.
   Broyles, P. J.

Under the rulings in the headnotes the only assignment of error which can be considered in the instant ease is the exception to the admission in evidence of a certain mortgage. As shown by the bill of exceptions, the mortgage was objected to “upon the grounds that the description of the articles sought to be mortgaged was too vague, indefinite, and uncertain, to constitute a valid mortgage.” The description of the mortgaged property was as follows: “I mortgage and convey to the payee and his assigns the following property, which is mine, in my possession and unencumbered: Blacksmith tools and auto tools owned by me.” It is well settled that the law does not require a mortgage to describe the property .so as to identify it without the aid of parol evidence. In our opinion .the judge was authorized to construe this description as meaning all of the blacksmith and. auto tools owned by the mortgagor, and, under the rulings in International Harvesler Co. v. Davis, 13 Ga. App. 1 (78 S. E. 770), and Jones & Damren Co. v. Lott, 17 Ga. App. 834 (88 S. E. 719), the description was sufficiently definite to constitute a valid mortgage.

The contention in the brief of counsel for the plaintiff in error, that upon the trial there was no parol evidence to aid in identifying the mortgaged property, is not raised in the. bill of exceptions or in the record, and can not be considered.

Judgment affirmed.

Bloodworth and Stephens, JJ., concur.


author: Stephens, J.

text:
    10295.
    Sharp v. The State.
    Decided June 9, 1919.
    Indictment for murder; from Berrien superior court—Judge Thomas. November 30, 1918.
    Peter Sharp killed Henry Inman, and, under an indictment for murder, was convicted of voluntary manslaughter. Two eyewitnesses testified,—Dave Jackson for the State, and Oren King for the accused. Jackson, in his testimony, said: “I saw Peter Sharp at Oren King’s .dwelling house. , . Henry Inman came and sat down there, was talking, and Peter Sharp said, 'Well that little you. owe me, I want it. I am going away Friday, and want what you fellows owe me.’ He was talking to Henry Inman, and he laughed and said, ‘Do you want it to-day, Pete? I have not got it with me, have not got over 50 or 75 cents.’ Pete said, ‘Give me that then.’ Henry said, ‘I could not give you the last cent I got; I have got to have something;” and he laughed and said, ‘I guess I better go;’ and Pete said, ‘Well, aren’t you going to pay me?’ They had spoken a word or two, and Henry said, ‘I reckon I will have to go before I have to kill me a man;’ and Pete said, ‘I can beat you doing that,’ and reached round and got his gun, a shotgun. I ran and the lamp went out. . '. The gun fired before the light went out. Peter was holding it when it fired, pointed straight at the breast of Henry Inman, about three or four feet apart. Henry Inman did not have anything in his hand as I know of. . . Henry Inman did not do anything to Peter Sharp just at that time more than I have just told you. Henry was standing after he spoke that word,—‘before I have to kill me a man.’ He made no more threats than I have said. That was all that was done there up to the shooting, that I heard. . . I came back in about five minutes. . . Henry was lying right where he had fallen right backwards; . . he was dead. . . Henry Inman had put his hand in his pocket . . and had not taken it out when he said he had better go or he would have to kill him a man. Inman was sitting right by one door and Pete by the other. He did not start out the door next to him,—looked like he made, a move to go around the other door toward Pete Sharp, still had his hand in that position, looking toward Pete, and Pete said, T will beat you doing that,’ and reached for his gun, and instantly the gun shot. . . It was Henry Inman’s left hand, and he put it in his side pocket, did not put any hand in his hip-pocket. . . He was in his shirt-sleeves at that time; and there had been' no more, cross words between them than I have said. They did not seem to be perfectly friendly; . . they made one or two curse words, both of them did. Henry spoke first. Peter Sharp brought the gun there that did the shooting.” The witness said that after Henry Inman had fallen “one of them said, ‘Here is 50 cents/ and picked it up and laid it on him.”
   Stephens, J.

1. It is well settled, by repeated rulings of the Supreme Court and of this court that on a trial for murder, if there is anything deducible from the evidence or the defendant’s statement that would tend to show manslaughter,' voluntary or involuntary, it is not error for' the court to instruct the jury on the law of manslaughter. Applying the above rulings to the fact? in the instant case, the judge did not err in instructing the jury on voluntary manslaughter.

2. No error of law appearing, and'as there was ample evidence to authorize the verdict, which has the approval of the trial judge, this court is powerless to interfere.

Judgment affirmed.

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

Oren King testified: “I was at my home the night Henry Inman was killed there. . . Sharp came first; . . then Henry Inman came. . . It was something like "half an hour before the trouble happened. . . The first I noticed was when Inman said he guessed he had better go before he had-to kill a. man. ' I heard a scuffling. I looked around at Sharp. I heard a scuffle, heard him just pick up his chair. Henry was sitting by one door and Sharp at the other one, next to the stove; . . Inman looked like he was going to come out the door by Sharp. He had to come round the table first to make his turn toward Sharp, and was coming in that direction. There was another door right by him that he could have gone out at, but he did not make any effort -to go out that door. . . I was looking at Sharp and did not have time to see his hand. I do not remember hearing Sharp say anything at that time. They' had been talking a little that night,—did not notice in particular. It seemed like Inman did not like Pete very much, and anywhere they met in the road they would have some little words. It seemed like Inman would be in the wrong on these occasions; they would be quarreling. . . Henry Inman had a pistol; . . he did not have it that night; the reason I know is, when the sheriff came he searched him and did not find it. . . When P heard the scuffle I glanced back, saw Henry Inman going round the table toward where Pete was,— looked like to come out the door by him. Pete had got his gun. About that time the gun fired, which put the light out, and I went out too. . . Just before the shooting one said, ‘I better go before I have to kill a man/ then got up and started out the door. . . The door nearest the stove was the one always used and the one he started through. He said he had better go before he had to do something, and then got up and started. When he shoved his chair back after he made the remark, I looked around about that time at Sharp, and the gun fired. At the time Inman said he better be going before he would have to shoot, hurt, or kill somebody, Pete did not have his gun then, and did not get it until Inman got up and started to go, and then he got it from the floor somewhere and shot him just as quick as he could point it at his breast, and Inman fell right where he was shot. . . I have been present along the road when Henry Inman and Peter Sharp would meet in the road and have some words; that was something like a couple of weeks prior to the shooting.” Another witness testified that after the killing he picked np fifty cents on the floor near where Henry Inman was- lying. It was about four or five inches from his pocket, on the left side, and between his hand and his pocket. It was testified that Henry Inman haT the reputation of being a little overbearing, and that the defendant was peaceable.

The defendant’s statement at the trial was as follows: “This here man, I asked him about the money. He held me up .on the road and took $7.53 away from me. He had a 32 four-inch-barrel lemon-squeezer pistol. And I asked him for that money, I thought he had it that night. If I had not I would not have shot him for nothing in the world. That is the money I wanted frofn him. There at the house that night I asked him fpr my money, and when he threw his hand in his pocket I thought he was going after his pistol. I knowed he had it, because he kept it all the time.

He had it in his clothes, and he threw his hand back there [indicating to his side or hip-pocket], and I thought he was getting his pistol. I reached and got my shotgun and shot him.”

It was contended that under the evidence and the defendant’s statement, he was either guilty of murder or not guilty of any crime, and that it was not proper to charge the -jury on the law of voluntary manslaughter.

J. P. Knight, for plaintiff in error, cited:

Ga. R. 97/428 (2); 104/502 (2); 109/506 (1); 113/279 (1); 122/737 (1); 123/548 .(1); 125/48 (4), 745 (1); 135/351 (4); 138/336 (1), 767 (1),; 139/594 (2); 140/225 (7); Ga. App. R. 2/414; 3/606; 4/486 (3, 4). ,

Clifford K. Hay, solicitor-general, contra, cited:

Ga. R. 56/113; 76/478; 90/118 (1); .109/142 (1); 130/865; 133/76 (1) 77; Ga. App. R. 9/559, 569.


text:
    10316.
    Price v. The State.
    Decided June 9, 1919.
   Stephens, J.

Where two parties fall to fighting, and during the encounter one of them is shot and killed, it is for the jury to say, under all the circumstances, whether or not the homicide was voluntary manslaughter. The evidence supports the verdict, and the trial judge did not err in submitting the issue of voluntary manslaughter to the jury.

Judgment affirmed,.

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

Indictment for murder—conviction of manslaughter; from Calhoun superior court—Judge Harrell. August 17, 1918.

A. L. Miller, for plaintiff in error.

B. 0. Bell, solicitor-general, F. A. Hooper-, B. W. Forison, contra.


author: Broykes, P. J.

text:
    10327.
    WEIGHT v. CALDWELL LUMBER COMPANY et al.

    Decided June 9, 1918.
    Rehearing denied June 27, 1919.
    1. The assignment of error in the bill of exceptions is sufficiently certain and specific to give this court jurisdiction of the ease.
    2. The court erred in striking the defendant’s pleas.
    Action on bond; from city court of Thomasville—Judge W. H. Hammond. January 13, 1919.

      T. S. Hawes, for plaintiff in error. C. E. Hay, contra.
   Broykes, P. J.

1. No motion for a dismissal of the bill of exceptions was made, but counsel for the defendant in error in their brief insist that the assignment of error in the bill of exceptions is too uncertain and indefinite to give this court jurisdiction of the case. The bill of exceptions recites that the court “sustained a general demurrer, striking the plea of Bryant II. Wright [the defendant in the trial court] and the amendment thereto, and the court passed an order to that effect, to which action of the. court and order of the court the plaintiff in error then and there excepted, here and now excepts, and assigns the same as error upon the ground that it was contrary to law, for the reason that the said plea and amendment thereto set forth a good and valid defense to the cause of action of the plaintiffs.” The record shows that two separate general demurrers were interposed, one to the original plea and the other to the amended plea and answer, and that the court sustained each of these demurrers in a separate order and struck both the original plea and the amendment. ' -

It is obvious from the assignment of error that the judgment complained of is the striking of the. original plea and the amendment; and the bill of exceptions will not be dismissed, on the ground that it is uncertain as to which of the two general demurrers and orders thereon is referred to in the assignment of error, and that both general demurrers should have been specifically referred to therein. Both of the general demurrers were interposed by the same persons—all of the plaintiffs in the case,— and not by separate persons, as in Burns v. Horkan, 126 Ga. 161 (54 S'. E. 946). 'None of the other cases cited by counsel for the defendant in error holds contrary to the present ruling.

2. The. Caldwell Lumber Company et al. filed suit in the city court of Thomasville against Bryant H. Wright, alleging that on May 10, 1916, a hearing was had before the judge of the superior court of the Albany circuit in an injunction case of S. E. Hutchinson against the present plaintiffs, being a petition by Hutchinson to enjoin the Caldwell Lumber Company from condemning, his land for the purpose of extending a tramroad across it; that upon the hearing the temporary restraining order was dissolved and the interlocutory injunction denied; that Hutchinson requested the right to give a supersedeas bond preserving the status pending a review by the Supreme Court of the judgment denying the injunction; that a bill of exceptions was sued out, and that pending the filing of the bill Hutchinson filed a supersedeas bond with Bryant H. Wright as security, the said bond being intended as a compliance with the order of the judge^ of the superior court, and to operate ás a supersedeas of the judgment denying the injunction sought by Hutchinson; 'that the status of the ease was preserved, that the judgment was not reversed, and that the plaintiffs were damaged $500 per month from May 18, 1916, to the date that the judgment of the Supreme Court was made the judgment of the trial court; that Hutchinson is a non-resident of the State and can not be served with process; consequently suit is filed against Wright only.

Wright filed a plea, denying the material allegations of the petition. He admitted signing the bond with Hutchinson, but denied any liability as a result thereof, explaining that while the Supreme Court had affirmed the judgment of the lower court, the affirmance was made conditional, and the condition was that further proceedings in the condemnation case be stayed until the final determination of another case between Hutchinson and the Caldr well Lumber Company, pending in the superior court of Thomas county; that the case in the superior court of Thomas county had finally terminated favorably to Hutchinson, and the Caldwell Lumber Company was permanently enjoined by the verdict and the judgment from condemning the lands of Hutchinson for the purpose intended, and, as the supersedeas bond was given to pay the lumber company such damage as it sustained as a result of being delayed in proceeding with its condemnation, and as it, under the judgment, had no right so to proceed, it could not have been damaged by being delayed in enforcing that which it had no right to enforce. The plea, further showed, that the case in Grady county, in which the supersedeas bond was given, was considered by the Supreme Court along with and in connection with the case pending in Thomas county, and the Supreme Court made its decision in the case from Grady county depend upon the final termination of the ease in Thomas county, and by the order of the Supreme Court the proceedings by the lumber company in the Grady county case were stayed until the final terminátion of the Thomas county case. Wright filed also an amendment to his plea, which was duly allowed, setting forth the complete records in both of those cases. General demurrers to the original plea and to the -plea as amended were sustained by the court, and the pleas were stricken. Thereupon the court directed a verdict for the plaintiff for the full amount sued for, and the defendant excepted.

In our opinion, under all the facts of the case, the court erred in striking the defendant’s pleas. The bond is as follows:

“Whereas a Bill of exceptions has been tendered on behalf of-the plaintiff, S. E. Hutchinson, to the decision and judgment of the court in the above-stated case, pending in the superior court of Grady county, and all costs having been paid and the judge of the superior court having, ordered that a supersedeas be granted in said cause pending the decision of the Supreme Court, upon condition that plaintiff give to the defendants supersedeas bond for $500 per month, conditioned to pay such sum to the defendants each and every month that said cause be delayed, provided it is not reversed, now,, therefore, we, S. E. Hutchinson, principal, and B. W. Wright, security, do acknowledge ourselves jointly and severally held and bound unto H. 0. Copeland, W.W. Felkel, W. T. Crawford, Caldwell Lumber Company, J. R. Caldwell Jr., E. H. Caldwell, and R. Iff. Caldwell, their heirs and assigns, in the sum of $500 per month, conditioned to pay such sum to the defendants each and every month that the condemnation proceedings are delayed by virtue of said cause being carried to the Supreme Court, in the event the plaintiff fails in reversing said.cause.”

The order of the judge providing for the giving of the bond contained the following statement: “Whereas the damage to said. Caldwell Lumber Company, approximately $500 per month, that will be caused by any further delay of their condemnation pi’Oceedings [italics ours], are impossible of exact computation, it is therefore ordered,” etc. In this order the judge necessarily meant “any further delay of their condemnation proceedings” provided the Supreme Court should decide 'that they had the lawful right to proceed with the condemnation. The only proper and reasonable construction of the order of the court and the bond given in pursuance thereof is that if the lumber company, under the decision of the Supreme Court, should be held not to have the right to condemn the defendant’s property, then the delay to the condemnation proceedings would not give a right of action upon the bond. In 'our opinion the pleas of the defendant, if true (and upon general demurrer the allegations of fact therein must be taken as true),- were a good defense to the suit. The Supreme Court having decided that the lumber company had no right to condemn the defendant’s lands, the plaintiffs had no cause of action upon the bond.

This ruling-is not in conflict with the previous holding of this court in this case (Caldwell Lumber Co. v. Wright, 22 Ga. App. 411, 96 S. E. 391). ’It was there merely held, as shown by the opinion on the motion for á rehearing, that the petition of the Lumber Company was not subject to the demurrers interposed. That opinion was as follows: “In its decision in this case the ’ court passed upon such questions only as were raised by the demurrer and the exceptions to the rulings thereon. The decision went only to the extent that the petition set out a cause of action. The other questions raised by the motion for rehearing were not passed upon, and are for determination in the future progress of the case.” “The other questions raised by the motion for rehearing,” and which were not passed upon, were: (1) To recover on a bond, more than a_ breach of the bond must be shown; damages must specifically appear. (2) While the judgment of the Supreme Court affirming- the judgment of the trial court was nominally a judgment of affirmance, it was actually, as to that feature of the case to which the bond related (viz., whether the condemnation proceedings should be stayed), a judgment of reversal.

While some rather broad rulings, apparently in conflict with. the present rulings, were made by this court in the original opinion in the decision just referred to, those rulings were subsequently expressly modified or withdrawn by this court in its opinion on the motion for a rehearing of- the case, in.which it was distinctly stated that the only question passed upon was that the petition set out a cause of action. Some of the grounds of the demurrer were overruled by the trial court, and that judgment was not excepted to; other grounds of the demurrer were sustained, and that judgment was reversed by this court. So it is the law of the case that the petition was not subject to any ground of the demurrer. While this is true, it is not, under all the facts of the case, controlling upon the question now under consideration. The defendant’s pleas showed that he had finally succeeded in obtaining a decision from the Supreme Court which was substantially a reversal of the decision of the lower court in the case in which the bond sued upon was given. In our opinion the defendant should have been allowed to set up that fact 'in his' plea as a good defense to the suit upon- the bond. Upon the next trial of the case, if the .allegations in the defendant’s pleas are sustained by uncontradieted evidence, a verdict for the defendant should be directed. . •

The error in striking the defendant’s pleas rendered the further proceedings in the case nugatory.'

Judgment reversed.

Bloodworth and Stephens, JJ., concur.


text:
    10332.
    Corbin v. McCrary.
    Decided June 9, 1919.
    Eviction; from Taylor superior court—Judge Kent presiding. June 13, 1919.

      C. W. Foy, for plaintiff in error. Jule Felton, contra.
    On making the judgment of this court the judgment of the lower court in this case, that court erred in rendering another judgment for a ' sum of money additional to the amount of the original judgment.
   Broyles, P. J.

The plaintiff brought a dispossessory warrant against the defendant for failure to pay rent and for holding beyond his term of rental. The defendant filed his counter-affidavit and gave the bond required by the statute. The verdict was in favor of 'the plaintiff for the premises in dispute and $310 as double rent for the time the defendant held over, to the time of the trial. The case came to this court, and the judgment of the lower court overruling the motion for a new trial was unconditionally affirmed. Corbin v. McCrary, 22 Ga. App. 472 (96 S. E. 445). Upon making the judgment of tin's court the judgment of the lower court, the latter court rendered another judgment against the defendant and his sureties on the original eventual condemnation-money bond, for the sum of $542.47, double rent of the premises since the rendition of the verdict and the original judgment in the ease. The court clearly had no authority to render this judgment, and it is accordingly

Reversed.

Bloodworth and Stephens, JJ., concur.


text:
    10335.
    GRIFFIN v. MAY.
    Decided June 9, 1919.
    1. The court did not err in overruling the amendment to the defendant’s motion for a new trial, or in refusing to set aside the verdict and judgment as therein requested, on the ground that by reason of the breaking down of an automobile in which he was traveling, he was unable to reach the court or communicate with his counsel or the court before the trial of the case.
    2. The verdict was authorized by the evidence.

      Complaint; from city court of Thomasvilje—Judge W. H. Hammond. January 27, 1919.

      Clifford E. Hay, for plaintiff in error.

      James L. Dowling, Erie R. Askew, contra.
   Broyles, P. J.

Suit was brought in the city gourt of Thomas-ville to recover a balance alleged to be due on the purchase-price of a mule. The case was duly set for trial on Monday morning, .January 6, 1919. When the ease was called for trial in its order on that date the defendant was not in court, and his sole counsel, who was present, called the defendant and announced to the court that he was without knowledge as to why the defendant was absent, and was without any information on which to base an application for a continuance or a postponement of the case. The court thereupon ordered the case to trial, and the plaintiff testified in his own behalf, and, there being' no other evidence in the case and no contradiction of the plaintiff’s testimony, the court directed a verdict in favor of the plaintiff for the full .amount sued for, and judgment was entered in accordance therewith. In due time the defendant moved for a new trial on the usual general grounds, and filed an amendment in which he asked the court to grant him a new trial and also to set aside the verdict and judgment, for the alleged reason that he was', without fault or negligence on his part, providentially prevented from attending court. In support of this special ground of the motion an affidavit, signed by the defendant, was submitted, the material portions of which were as follows: “That deponent has a complete and bona fide de-

fense to the suit of the plaintiff in said case, which defense is fully set forth in the plea of the defendant duly and regularly of file in said case, in said court, and that if deponent could have been present at the said trial he would have testified of his own knowledge to the facts constituting the said. defense. That this deponent was not present at the said trial, as he desired to be and as he endeavored to be, and the sole reason for and cause of his said absence was providential hindrance and circumstances wholly and absolutely beyond the control of this deponent, as follows: During the week before the trial of said case, deponent being in Decatur county, Georgia, on business, between forty and fifty miles ' from Thomasville, and knowing that the said case was assigned for trial on Monday, the 6th day of January, 1919, he started from the town of Jabin, in said county of Decatur, in an automobile to Thomasville on Sunday, the 5th. day of - January, 1919, expecting and having the right to expect, by such means of conveyance, to reach Thomasville, Georgia, before the opening of court on the morning of January 6, 1919. The roads over which deponent were travelling are fair, and by the said means of conveyance it should not have taken and does not usually, take more than two or three hours to make the trip, and but for an unusual and. unexpected occurence deponent so started to. Thomasville in plenty of time to have made the trip three or four times. While on the way, however, and while deponent was still 25 or 30 miles from Thomasville and ten miles from any railroad or any means of any communication with' his counsel or the court before the said case could and would be reached for trial, his said automobile broke down and refused to run, leaving this deponent where it was physically impossible for him to get to the said court in time for the trial of the said case, or communicate with the court or his counsel in said ease until after the said case had been tried in the absence of this deponent, and had resulted in a verdict and judgment in favor of the plaintiff and against this deponént for the full amount sued for. Said case was called for trial in the city court of Thomasville on the morning of January 6, 1919, and deponent’s sole counsel in the case, namely C. E. Hay, Esq., could not and did not make any motion for a continuance or for a postponement of the case, for the reason that deponent’s said counsel did not know and could not know the cause of the absence of this deponent, and was not then and there in position to make any legal showing, all of which was the natural result of the circumstances then surrounding this deponent as above stated. When this deponent finally arrived at said court in the afternoon the case had already been tried, and a verdict and judgment had already been rendered as aforesaid. Deponent further says that he had previously filed a meritorious defense in said case, which if supported by evidence would have relieved him from any liability under the plaintiff’s suit, and would have entitled him to a judgement against the plaintiff, and that the chief object and purpose of this deponent in so endeavoring to attend the said trial was to testify to the facts constituting the said defense, and that if this defendant could have attended the said trial he would have testified to the said facts; and that if the said verdict and judgment are set aside, this deponent now expects to attend the next trial of said case and to testify to -the facts constituting the. said defense. Eor these reasons this deponent prays that -the said verdict and judgment be set aside.”

1. In our opinion it is not shown that the defendant, by the exercise of due diligence, could not have arrived at the court before his case was called. The case was not called until Monday morning. Some time on' Sunday, the preceding day (it may have been early Sunday morning), the defendant was within 25 or 30 miles of Thomasville and within 10 miles of a railroad, when his automobile “broke down and refused to run.” It does not affirmatively appear, as it should, that he could not have telephoned from some farm-house, or other place, to the court or his counsel, or that he endeavored to get another conveyance, or a riding animal, from some farm-house or elsewhere, or that he could not have walked the ten miles to the railroad and boarded a train there which would have carried him to Thomasville in time, or that he could not have walked the entire 25 or 30 miles to Thomasville before his case was called, no physical disability of the defendant as a pedestrian being shown, and it being alleged, that the ro.ads were “fair.” The trial judge, in view of the facts shown and the failure to show others in the affidavit submitted, did not abuse his discretion in overruling the amendment to the motion for a new trial, or in refusing to set aside the verdict and judgment as therein requested. The facts given in the movant’s .affidavit were insufficient to support his mere conclusion therein stated that “ft was physically impossible for him to get to. the said court in time for the trial of the said case, or communicate with the court or his counsel in said 'case, until after the said case had been tried.”

In Wright v. Bank of S. W. Ga., 13 Ga. App. 347 (79 S. E. 184), cited and relied on by counsel for the plaintiff in error, the defendant was unable to attend the court on account of serious illness, the affidavit of her attending physician stating that she was unable to leave her home for any purpose whatever. That case is quite different from the case before us.

2. The direction of the verdict in this case is not excepted to; and the verdict itself being amply authorized by the evidence, the court did not err in overruling the general grounds of the motion for a new trial.

Judgment affirmed.

Bloodworlh and Stephens, JJ., concur.


text:
    10367.
    Amason v.The State.
    Decided June 9, 1919.
    Indictment for larceny; from Eulton superior court—Judge Hill. December 21, 1918.

      Ernest G. Bentley, for plaintiff in error.

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

The conviction of the accused depended wholly upon circumstantial evidence. The court therefore erred in failing, even in the absence of a timely written request, to charge the law of circumstantial • evidence. While “it is immaterial what language is employed to convey this instruction” (Mangum v. State, 5 Ga. App. 445, 63 8. E. 543; Bush v. State,: 23 Ga. App. 126, 97 S. E. 554), there was no language in the charge in the instant case which sufficiently presented it. Because of this error a new trial is required.

Judgment reversed.

Bloodworth and Stephens,.JJ., concur.


author: Brotles, P. J.

text:
    10406.
    Self v. The State.
    Decided June 9, 1919.
    Indictment for manufacture of liquor; from Harris superior court—Judge Howard. January 27, 1919.
    Self was convicted under an indictment charging him with having manufactured- intoxicating liquor. From the evidence it appeared, that a few days before December 28, 1917, he moved to a house from which one Chapman had-just moved, and on the 28th the sheriff found in a cane-brake about 200 yards from the house a smutty kettle, and found in the bank of the creek there a hole which, he testified, appeared to have been dug for the kettle to go- in, and near it a pile of wood and kindling. He testified that he looked for a worm, but did not find a worm or a furnace, and “there hadn’t been any whisky made at that particular distillery place;” the only thing he “found there to indicate a distillery was a kettle black on tlie outside, and a hole that the kettle could have been put in.” He found two barrels of beer there, which seemed to have been made with sorghum syrup and to be of the kind used for distillation of whisky. He destroyed this beer, and, after going to the house of Babe Oliver, near there, in a search for whisky, he went to the defendant’s house aiid told the defendant he had information that some beer was in the crib there and he wanted to see about it. The defendant said, “All right,” and told him the beef was there, that he found it when he moved there. The defendant too.k him to the corn-crib, which was locked, opened the door, and showed it to him. There was a barrel in the corn-crib and another in the corner of the stove-.room chimney (outside the dwelling house), containing beer of about the same age and apparently of the same ingredients ■ as that found at the place where he had found the kettle. He destroyed it and the defendant told him he would find four more barrels in the swamp east of the house; and he went a distance of about 250 or 300 yards east of the house and found four barrels of “pretty much the same beer,” except that it was a little sweeter. .He “considered that the beer in the barn and corner of the house was in the right stage for distillation.” The defendant did not-tell him whose beer .it was, and was not asked whose it was. There was a recently traveled trail in plain view leading from the defendant’s barn to the cane-brake where the kettle was found. The witness stated that there was no other path leading from “the distillery.” He could not stand at the defendant’s house and see “the distillery;” “the distillery was . . ten or fifteen feet in the cane-brake.” There was a road leading from Babe Oliver’s house to the defendant’s and it was “about twice the distance from the distillery to Mr. Oliver’s that it was to where Mr. Self lived at that time.” The witness said that he tasted the be4r, but “not enough to have any effect;” he could tell from tasting it that it was good, strong beer, and had alcohol in it, and would say it was intoxicating, but he did not drink enough to feel it. He considered that it would make whisky; he had found at whisky stills similar beer in that stage. He could not tell what was in the barrel at the corner of the kitchen except that it tasted like syrup beer; it had bran at the bottom of it. No other- witness testified for the State.
   Brotles, P. J.

Tlie record in this case contains no evidence authorizing the defendant’s conviction, and the court erred in overruling the motion for a new trial.

Judgment reversed.

Bloodworth and Stephens, J.J., concur.

Chapman testified that when he moved away from the house into which the defendant moved, he (the witness) left “a bárrel of stuff” which he had fixed up for his hogs, consisting of water and syrup, corn shorts, “the take out of the kitchen, scraps and things like that,” and it was not beer when he left there. He knew nothing of the other beer referred to, or of the kettle and the hole at the cane-brake; he did not go in the cane-brake; he was “out that path every day or two,” and he “never saw any smoke in there.” When he gave possession of the crib to the defendant, to move corn and stuff there, he (the witness) had possession of a )part of the crib; and Will Oliver had a right to go in and use the crib; it was not a locked crib. No path led from the cane-brake to Babe Oliver’s house. Will Oliver testified that just before the defendant moved to-the house there was some beer in the barn, or “something or other called beer;” he was’ invited to drink some of it, and at first had an idea that it was beer, but he “found out different” when he tasted it; it was more like sweetened water. Babe Oliver lived about 200 yards from the crib, and was the nearest neighbor to the defendant. Chapman had moved about a half or three quarters of a mile from there. The defendant, in his statement at the trial, said that when he started to move his fodder into the barn he found the barrel of beer covered up under fodder, and never touched it; that his wife advised him to pour it out, but he replied that he had no right to do so, and that he would keep the barn locked and would find the man it ‘belonged to if he came after it; and soon after ho found it the sheriff came, and he told the sheriff about the beer; he did not know of any still on the creek or that there were two barrels of J)eer down there; he had not been down there in some time.

A. L. Hardy, for plaintiff in error.

G. F. McLaughlin, solicitor-general, contra.


author: Broyi.es, P. J.

text:
    10431.
    Hobgood v. The State.
    Decided June 9, 1919.
    Accusation of receiving stolen goods; from city court of Tifton— Judge Price. February 18, 1919.

      B. C. Williford, for plaintiff in error.

      J. S. Bidgdill, solicitor, R. D. Smith, contra.
   Broyi.es, P. J.

The verdict was authorized by the evidence, and, as the motion for a new trial contains only the usual general grounds, the judgment below is Affirmed.

Bloodworih and Stephens, JJ., concur.


text:
    10437.
    WlSENBAKER v. THE STATE.
    Decided June 9, 1919.
    Accusation of misdemeanor; from city court of Tifton—Judge Price. March 18, 1919.

      R. D. Smith, for plaintiff in error.

      J. S. Ridgdill, solicitor, contra.
   Stephens, J.

The only assignments of error are the general grounds. The verdict is supported by the evidence, and no error of law appears.

Judgment affirmed.

Broyles, P. J., and Bloodworth, J., concurs.


text:
    10438.
    Golden v. The State.
    Decided June 9, 1919.
    Indictment for sale of liquor'; from Jefferson superior court— Judge Hardeman. February 19, ’ 1919.

      M. C. Barwick, Frank Hardeman, for plaintiff in error.

      Walter F. Grey, solicitor-general, contra.
   Broyles, P. J.

1. The'conviction of the defendant not depending wholly upon circumstantial evidence, the court, in the absence of a timely and appropriate written request, did not err in failing to charge the, law of circumstantial evidence.

2. The verdict was authorized by the evidence, and having been' approved by the trial judge, and no -error of law appearing, this court is without authority to reverse the judgment overruling the motion for a new trial.

Judgment affirmed.

Bloodworth and Stephens, JJ., concur. '


text:
    10494.
    Amos v. The State.
    Decided June 9, 1919.
    Accusation of misdemeanor (revocation of probation); from city court of Madison—Judge Anderson. .April 12, 1919.

      E. R. Lambert, for plaintiff in error.

      A. G. Foster, solicitor, contra.
   Stephens, J.

The bill of exceptions contains no assignment of error. It therefore presents no question for this court to determine.

Writ pf error dismissed.

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


author: Wade, C. J.

text:
    9958.
    KNIGHT v. GASKINS.
    Decided June 12, 1919.
    Although an affidavit made for the purpose of requiring bail from the defendant in trover be defective in that the affiant does not swear positively but qualifies it by the words “to the best of his knowledge and belief,” it is amendable, under the Civil Code of 1910, § 5706; and such an irregularity affords no ground for attaeldng by affidavit of illegality a judgment rendered against the principal and the surety on the bond in that proceeding.
    Affidavit of illegality; from city court of Nashville—Judge Christian. June 14, 1918.

      R. A. Hendricks, J. P. Knight, for plaintiff in error.

      J. W. Powell, J. D. Lovett, W. D. Buie, contra.
   Wade, C. J.

1: While • the statute. (Civil Code of 1910, § 5150) applicable to bail-trover requires that when “any person who is about to commence an action for the recovery of personal property shall require bail, such person, his agent, or attorney shall make affidavit that the property is in the possession, custody, or control of the defendant, and that he has reason to apprehend that the said’ personal property has been or will be eloigned or moved away, or will not be forthcoming to answer judgment, execution or decree that shall be made in the case,” etc., such an affidavit does not render the bond void because not sworn to postively but to the best of the attorney’s “knowledge and belief,” since there is no statute which expressly makes the proceeding void for such an irregularity. “All-affidavits that are the foiindation of. legal proceedings, and all counter-affidavits shall be amendable to the same extent as ordinary declarations, and only with the restrictions, limitations, and consequences now obtaining in the case of ordinary declarations and pleas.” Civil Code, § 5706. See also Penn v. McGhee, 6 Ga. App. 631 (65 S. E. 686); Dolvin v. Hicks, 4 Ga. App. 653 (62 S. E. 95); Busby v. Elliott, 22 Ga. App. 391 (95 S. E. 1014); Levins. American Furniture Co., 133 Ga. 670 (66 S. E. 888). The case of Krutina v. Culpepper, 75 Ga. 602, and cases there cited, are not in conflict with anything here ruled, since those eases were decided prior to the enactment of the statute from which section 5706, supra, relative to amendment of affidavits, is taken.

(a) ,Therefore the judgment in the main case against both the principal and the surety cured this amendable defect; and the surety on an eventual condemnation-money bond in an action of tro,ver will not, after judgment, be heard to raise by affidavit of illegality any question which could have been raised by his principal before judgment. Waldrop v. Wolff, 114 Ga. 620 (40 S. E. 830); Middletons. Johnson, 19 Ga. App. 478 (3), (91 S. E. 785).

2. The trial judge erred in directing a verdict sustaining the affidavit of illegality.

Judgment reversed.

Jenleins and" Lulce, JJ., concur.


author: Luke, J.

text:
    9966.
    JOHNS v. JONES et al.

    Decided June 12, 1919.
    The evidence in the forcible entry and detainer proceeding authorized the verdict in favor of the defendants; and the plaintiff’s petition for certiorari does not show such error as would require a reversal of the judgment refusing to sanction the certiorari.
    Petition for certiorari; from Jeff Davis superior court—Judge Highsmith. 'June 8, 1918.

      W. W. Bennett, for plaintiff.

      M. D. Dickerson, J. Mark Wilcox, S. D. Dell, for defendants.
   Luke, J.

This case arises by reason of the judge of the superior court refusing to sanction a certiorari. In his order refusing sanction he says: “The question presented is whether the within petition for certiorari should be sanctioned. It appears that petitioner was put out of possession of certain realty by the sheriff of Jeff Davis county, acting under a writ of possession against J. W. Hinson; whereupon petitioner instituted a forcible entry and detainer proceeding against the persons put in possession by the sheriff. Hpon the trial of the issue the jury found in favor of the defendants, and the question is whether under the evidence the jury was authorized to find in favor of the right of the sheriff to dispossess petitioner under the writ of possession against Hinson. The writ of possession appears to have been issued some months before being finally executed. If judicial cognizance may be taken of Supreme Court judgments, it would appear that just prior to the time of executing the writ of possession a case involving the property and between the parties indicated by the writ of possession was disposed of in the Supreme Court. The evidence indicates that Hinson was in possession of the property until just prior to the time when it was sought to execute the writ of possession. It further shows that just a few days prior to that time, Hinson vacated and petitioner entered into possession. The testimony is, that Hinson did not surrender to any person; that petitioner went into possession under Mrs. Ward, administratrix; that the stock, plow tools, - and other things uf Hinson were left on the place. No explanation is offered as to why Mrs. Ward undertook to put petitioner in possession. So that we have the case of a man against whom a writ of possession was about to be enforced quite suddenly in the month of April abandoning a farm without explanation, without surrendering it to any person or making any arrangement about it, and another man quite suddenly, and immediately in connection, taking possession of the farm, the stock, the tools, the produce on the place, without any other explanation than that he was put in possession by Mrs. Ward, administratrix, on whose part the evidence does not in anywise indicate possession or the right of possession. It appears to me that under these and other circumstances appearing in the record the jury was authorized to infer that petitioner entered into possession under Hinson, and, if so, having been put out of possession by the sheriff under a writ of possession against Hinson, could not regain possession by a forcible entry and detainer proceeding. As to the alleged disqualified juror, the evidence upon the trial did not anywhere indicate the presence upon the property of J. L. Turner. The circumstance, of putting an outside person on the property with a rifle would appear to me to be anything but commendable; but if the original entry was lawful, I do not think this circumstance would affect the result. It appears proper to deny sanction, and accordingly it is so ordered.”

The evidence of what was done to hold possession of the property by the defendant after he was placed in possession does not indicate force in the obtaining of possession. The evidence fails to disclose any right of possession in Johns. The jury was summoned by agreement; and we do not think the petition for certiorari shows such error as requires us to reverse the judgment refusing to sanction the certiorari.

Judgment affirmed.

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


text:
    9995.
    Case-Fowler Lumber Co. v. Good Roads Machinery Co.
    Decided June 12, 1919.
   Luke, J.

This ease has been in this court before. 21 Ga. App. 717 (94 S. E. 901). The law of the ease as to the merits of the pleadings was then settled. The case was tried by a jury and the issues were fully and fairly submitted. There was no reversible error in the rulings on the admissibility of evidence. The charge of the court as a whole was full and fair. The evidence authorized the verdict, which has the approval of the trial judge; and for no complaint and error assigned should the judgment overruling the motion for a new trial be reversed.

Judgment affirmed.

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

. Complaint; from Bibb superior court—Judge Mathews. July 9, 1918.

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


text:
    10003.
    Exchange Bank of Valdosta v. Newton.
    Decided June 12, 1919.
    Complaint; from city court of Valdosta—Judge Cranford. July -13, 1918.

      Whitaker & Dukes, for plaintiff.

      E. K. Wilcox, Dan R. Bruce, for defendant.
   Luke, J.

1. Where the creditor, at the time a debt is created, really intends in good faith to extend the credit to the wife and not to the husband, and the consideration of the loan passes legally and morally . from the creditor to the wife, and where the writings then executed are such as purport to bind her for the debt as her own, then, whatever may he the private understanding between the wife and the husband, in which the creditor is not concerned and in which he has no interest, . as to the disposition by the wife .of the proceeds of the loan so received by her, the writings are to be treated as embracing the true substance of the contract. See Longley v. Bank of Parrott, 19 Ga. App. 701, (92 8. E. 232), and cases there cited.

2. When a lender of money to a married women not only knows that she borrows it to pay a debt of her husband, but aids him in forming and executing a scheme by which the loan is to be made upon security of her property-, he being the real borrower, the debt for the loan is not her debt; and if the debt be that of the husband, the wife cannot assume its payment. It is the purpose of the law to prevent the appropriation of the wife’s property to the payment of a secondary or collateral liability. Gross v. Whitley, 128 Ga. 79 (57 S. E. 94)., and cases there cited.

(a) Upon such a loan being made, the taking by the wife of her husband’s note for the amount of the loan, and subsequent suit thereon by her, will not estop her from pleading the statute in her favor; and this is true even though upon such suit there be ah entry of “settled,” etc.

3. The court did not err in the admission of the evidence complained of. The charge of the court, when read as a whole, was full and fair. The evidence authorized the verdict, which has the approval of the trial judge. Eor no reason assigned did the court err in overruling the motion for a new trial.

Judgement affirmed.

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