author: Luke, J.

text:
    8433, 8434.
    DeBow v. Vicksburg, Shreveport and Pacific Railway; and vice versa.

    Decided May 13, 1919.
    (Certiorari granted to review judgment as to costs.)
   Luke, J.

1. “It is essential to the legal rendition of a personal judgment against a foreign corporation, otherwise than by its voluntary appearance, that the corporation be doing business within this State. A foreign railroad corporation which neither owns, leases, nor operates any line of road within the State of Georgia is not doing business within the State, in the sense that liability to service is incurred because it maintains an office and employs an agent, resident in the State, for the merely incidental business of soliciting freight; especially where the transitory cause of action did not grow out of, and had no connection with, business so initiated.” DeBow v. Vicksburg, Shreveport & Pacific Railway, 148 Ga. 738 (98 S. E. 381). Under this holding the trial court was without jurisdiction to entertain and try this case, and this renders unnecessary any further statement than that the Supreme Court ruling overrules the decision in the case of Bell v. New Orleans &c. R. Co., 2 Ga. App. 812 (59 S. E. 102), and therefore that case will not now or hereafter be followed.

2. Where a case was brought to the Court of Appeals by a bill of exceptions in which were assignments of error requiring for their determination a consideration of the evidence introduced on the trial, and which specified as material to an understanding of the case a brief of the evidence, and such a brief was sent up in the transcript of the record, and, after the rendition of a judgment by the Court of Appeals, reversing the judgment of the court below, the defendant in error took the case to the Supreme Court by certiorari, upon a petition in which were assignments of error requiring a consideration of the evidence, and to which was attached a certified copy of the entire record of the case in the Court of Appeals, the fact that the decision of the Supreme Court was based upon a ground which rendered unnecessary a consideration of the brief of the evidence was no reason for relieving the losing party from the costs of the certiorari to the extent of the cost of the transcript of the brief of the evidence. On motion it is ordered that the costs of the certiorari in this case be taxed against J. D. B. DeBow, defendant in certiorari.

Judgment on cross-hill of exceptions reversed. Main hill of exceptions dismissed.

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

Action for damages; from' Fulton superior court—Judge Bell. November 11, 1916. (See 21 Ga. App. 732).

Atkinson & Born, for plaintiff.

Anderson, Rountree & Crenshaw, for defendant.


source: Caselaw Access Project

author: Wade, C. J.

license: Public Domain

text:
    9685.
    Maryon v. City or Atlanta.
    Decided May 13, 1919.
   Wade, C. J.

1. In reply to a question propounded to the Supreme Court in this ease that court held: “It is not a prerequisite to suit against a municipal corporation in this State, for injury to person or property, that the written notice required under the Civil Code, § 910, should specify any amount of money claimed as damages.” 149 Ga. (99 S. E. 116).

(a) Under this ruling the trial judge erred in sustaining a general demurrer to the plaintiff’s petition, upon the ground that the antecedent notice required under the provisions of section 910 of the Civil Code was insufficient in that it failed to specify any amount of money as damages.

2. It was said by this, court' in Mayor &c. of Macon v. Stringfield,, 16 Ga. App. 480, 481, 482 (85 S. E. 684) : “The paper which this section of the code [Civil Code, § 910] requires to be presented is there designated as ‘a claim for money damages;’ and a claim for money should state the amount of money claimed. One of the things required by this section is a statement of the ‘extent’ of the injury. The reason for this requirement is obvious. The object and purpose of the statute was to require such information as would apprize the governing authority of the municipality of the amount of the claim and enable the proper officials to investigate the injury complained of and determine whether or not to adjust the demand without suit. . . The word ‘extent,’ as used in this section of the code, bearing in mind the object to be accomplished, by the notice [italics ours], must include not only the nature and character of the injury for which payment is demanded, but also the amount of the damage, measured in the only terms by which the city could adjust the same, to wit, in dollars and cents.” It was further held, however,'in Williamson v. Mayor &c. of Savannah, 19 Ga. App. 784 (92 S. E. 291), that “it is not essential that the amounts - [italics ours] claimed in both the notice and the suit should be identical.” The constitutional amendment which created this court provides that “The decisions of the Supreme Court shall bind the Court of Appeals as precedents.” The above-quoted ruling of the Supreme Court in this case, though directly contrary to the previous ruling of this court in Mayor &c. of Macon v. Stringfield, supra, must therefore control this question, so long as adhered to by that court; and anything to the contrary to be found in the eases of Mayor &c. of Macon v. Stringfield, supra, or elsewhere, will not be followed.

Judgment reversed.

Jenkins and Luke, JJ., concur.

Action for damages; from city court of Atlanta—Judge Eeid. April 6, 1918.

The notice referred to in the decision described an injury to the plaintiff’s, person, stated the time and place of the injury, and the negligence which caused it, and concluded with a prayer that, upon consideration of the claim, "just compensation for such injuries” be awarded.

Hines & Jordan, for plaintiff.

J. L. May son, S. D. Hewlett, for defendant.


author: Jenkins, J.

text:
    9974.
    JARRELL v. SEABOARD AIR-LINE RAILWAY.
    Decided May 13, 1919.
    1. As to the insufficiency of the evidence to authorize a recovery for destruction of the plaintiff’s property by fire alleged to have been caused .by emission of sparks from either of two locomotives of the . defendant, the decision of the Supreme Court on review of a former trial of this case .(Seaboard Air-Line Railway v. Jarrell, 145 Ga. 688, 89 S. E. 718) governs the case on the present writ of error, the material evidence on that trial and on the trial, now under review being substantially the same. The proffered evidence as to clinkers found along the right of way of the railroad could not alter the law of the case as laid down in that decision.
    2. The refusal to exclude positive testimony as to the inspection of an engine by a witness whose testimony in this respect was based on book entries made by himself, and not on independent recollection of the inspection, was not error for any reason assigned.
    Action for damages; from'Effingham superior court—Judge Sheppard. June 15, 1918.

      W. B. Stubbs, Gordon Saussy, A. N. Keifer, for plaintiff.

      Anderson, Cann, Cann & Walsh, for defendant.
   Jenkins, J.

On a former writ of error in this case it was held by the Supreme Court that the evidence then submitted did not authorize the jury to find that the fire which consumed the plaintiff’s property was caused by the emission of sparks from either of the two locomotives which it was alleged occasioned the injuries, there being also uncontradicted proof to show that these locomotives were at the time properly equipped with approved spark-arresters. 145 Ga. 688 (89 S. E. 718). When the case was tried again, and subsequently appeared in this court on exceptions taken by the plaintiff to the grant of a nonsuit, it was held that the court below erred in making such a disposition of the suit, since at the second trial “not only was there no uncontradicted evidence ‘to show that the two engines which passed on the day of the fire and prior thereto were properly equipped with approved spark-arresters/ but there was no evidence whatever to this effect.” 21 Ga. App. 415 (94 S. E. 648). The plaintiff now brings his exceptions to the direction of a verdict in favor of the defendant on a third trial, on which, it appears, the- same proof was furnished as to the use of approved spark-arresters and as to their being in good cqndition as was made at the first trial; but the plaintiff contends that there were substantial and material differences between the evidence submitted at the third trial and that which was offered at the first trial, and that consequently the law., of the case as fixed by the Supreme Court under the testimony first submitted can not be taken as now governing. The additional evidence thus relied upon by the plaintiff as being sufficient to take'the case from under the ruling made by the Supreme Court,, that the jury were then authorized to find in favor of the plaintiff, is to the effect: (1) that when the defendant’s engine which it is alleged caused the fire passed the point where the fire occurred, it was exhausting heavily, in such manner as is usual when sparks are being emitted; (2) that such a fire could have originated from coals dropping from the ash-pan, or from clinkers which the fireman could have thrown from the engine; although the petition does not allege any such grounds of negligence by reason of which the fire was brought about, and the undisputed evidence for the defendant is to the effect that the ash-pan was in good condition, and that no clinkers or coals were thrown out by the fireman; (3) that the plaintiff offered to show that large clinkers or cinders too. big to come through a proper spark-arrester netting covered the right of way along the point where the fire occurred and about the time of the fire; although the plaintiff did not offer to show by what means such cinders or clinkers were deposited, or, if from the smoke-stack of an engine, from what 'engine they were emitted, or at what time they were deposited along the right of way.

(a) Since the record of the 'case as it was presented to the Supreme Court shows that substantially the-same evidence was then before it as is now presented relative to the exhaust noise made by the engine, with similar testimony relative to the alleged necessary result as to the attendant emission of sparks, the ruling made by the Supreme Court will be taken as having been made with that testimony in view; and so far as the law of this case is concerned, such evidence must be taken as being without probative value; especially so since it does not appear that the attention of the Supreme Court was called to such testimony as having been overlooked in the adjudication made by it. Carr v. Neal Loan & Banking Co., 99 Ga. 322 (25 S. E. 655).

(5) The specific allegations of negligence contained in the petition all having reference to the emission of sparks, ;in which specified way it was contended the fire was occasioned,, and furthermore there being no evidence substantiating the theory that the fire in fact originated by reason of such coals having dropped from the ash-pan or from clinkers thrown out by the fireman, and since the c'ontrary evidence for the defendant on this point is uneontradicted, the theories of negligence which it is thus sought to raise solely from the testimony can not be the basis of a recovery. Central Railroad Co. v. Hubbard, 86 Ga. 623 (4), 627 (12 S. E. 1020). See also Ga. Brewing Asso. v. Henderson, 117 Ga. 480, 482 (43 S. E. 698); Palmer Brick Co. v. Chenall, 119 Ga. 837 (5, 7), 844 (48 S. E. 329); C. & W. C. Ry. Co. v. Patton, 22 Ga. App. 554 (96 S. E. 504), and cit.

(c) The proffered evidence as to the clinkers found along the right of way as stated in the third division of the foregoing statement is without probative value, and could not alter the law of the case as originally laid down by the Supreme Court. See Western & Atlantic R. Co. v. State, 23 Ga. App. 225 (97 S. E. 878 (3)

The witness for the defendant having testified that he himself made the entry in the book upon which he based his positive testimony as to the inspection of the defendant’s engine, though he had no independent recollection of such inspection, the court did not err in refusing to exclude his testimony for any of the reasons assigned in the fifth ground of the motion for a new trial. See Smith v. Atlanta, 22 Ga. App. 511 (4) (96 S. E. 334), and cases cited.

Judgment affirmed.

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


text:
    9976.
    Scott et al. v. Wells et al.

    Decided May 13, 1919.
    Action for damages; from Fulton superior court—Judge Pendleton. June 5, 1918.

      Westmoreland, Anderson & Smith, for plaintiffs.

      Rosser, Slaton, Phillips & Hopkins, Dodd & Dodd, for defendants.
   Luke, J.

The court overruled some of the grounds of the demurrer to the petition, but sustained others, and allowed the plaintiff ten days in which to amend her petition so as to meet the grounds sustained. To this ruling no exception was taken, nor is error assigned thereon in the bill of exceptions. ,The plaintiff, within the time allowed, filed an amendment to her petition. However, this amendment failed to meet the objections raised by the sustained grounds of the demurrer, and, there being no further effort to amend the petition, these facts authorized the action of the trial judge in sustaining the demurrer and dismissing the case. Albany Phosphate Co. v. Hugger, 4 Ga. App. 775 (62 S. E. 533); Cowart v. Powell, 5 Ga. App. 43 (62 S. E. 664); Central Railway Co. v. Waldo, 6 Ga. App. 840 (65 S. E. 1098) ; John Church Co. v. Ætna Indemnity Co., 13 Ga. App. 827 (80 S. E. 1093) ; Hinson v. Mutual Fertilizer Co., 19 Ga. App. 121 (91 S. E. 241) ; Baker v. City of Atlanta, 22 Ga. App. 483 (96 S. E. 332).

Judgment affirmed.

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


text:
    10064.
    Guarantee Trust and Banking Company v. Dickson.
   Jenkins, J.

1. The Supreme Court having held that this case was an action at law (148 Ga. 311, 96 S. E. 561), the court below erred in not submitting to a jury the exceptions of fact taken to' the auditor’s report. Weed v. Gainesville Railroad Co., 119 Ga. 576 (6, 7), 577 (46 8. E..885); Anderson v. Blair, 121 Ga. 120 (48 8. E. 951, 2 Ann. Cas. 165) ; Griffin v. Collins, 122 Ga. 102, 110 (49 S. E. 827).

(a) It is insisted, however, by the defendant in error, that notwithstanding the adjudication by the Supreme Court that the ease is one of law and not one in equity, the exception to the refusal to submit the questions of fact to the jury is not good and can not be considered by this court, for the reason that no brief of the evidence has been brought up in the record, and that it does not. therein affirmatively appear that there were any disputed issues of fact in the case, although the exceptions of fact filed by the plaintiff in error do specify certain portions of the evidence, and might so indicate; the contention .being that the judgment is presumed to be correct, and that the burden is on the plaintiff in error to show the contrary, and that, since no brief of the evidence is embodied in the record, it must be presumed that the evidence of the defendant in error was uncontradicted in the court below, and there-lore that the judgment as rendered was demanded. It is the opinion of this court, however, that when exceptions of fact to an auditor’s report in an action at law are filed, the court has no power to disallow them and dispose of the case without the intervention of a jury, unless the parties expressly waive their right to trial by jury. Civil Code (1910), § 5141. Thus, assuming or conceding that there is no material conflict in the evidence, and that all of it demands the auditor’s finding as made, even then, while the court might, as in other cases, properly direct a verdict, still it has no right in such a ease to strike the exceptions of fact and enter up a judgment without the verdict of a jury. Weaver v. Cosby, 109 Ga. 310, 312 (34 S. E. 680).

Decided May 13, 1919.

Exceptions to auditor’s report; Fulton superior court—Judge Bell. July 12, 1917.

Tye, Peeples & Tye, Rosser, Slaton, Phillips & Hopkins, Napier, Wright & Wood, for plaintiff in error.

Westmorland, Anderson & Smith, Marie Bolding, contra.

2. Whether the original contract in writing set out in exhibit “B” to the plaintiff’s petition, which, according to its terms, was terminable upon thirty days’ notice, could have been modified by parol agreement, as set out in the amendment to plaintiff’s petition, so as to render it a contract for a stated term of five years, does not seem to be a material question in this case, so as to render the petition as amended subject to demurrer, since the petition shows that the contract at the time of its alleged surrender to and purchase by the defendant was still of force, and, in the language of the auditor, such alleged alteration “is not a point upon which the decision could turn; it affects but the consideration for the surrender; the thing given up by the plaintiff and acquired by the defendant, and not the contract [of sale or surrender] acquired by the plaintiff. Whether the contract given was for five years, or one terminable at thirty days’ notice, as a consideration, it was sufficient.”

Judgment reversed.

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


text:
    10081.
    Sikes v. Payton.
   Luke, J.

1. Where the actual consideration of an unconditional promise to pay is not integrated in the instrument, its only recital as to consideration being the general phrase “for value received,” the general rule, that the real consideration is ordinarily a proper subject-matter of inquiry where the controversy is between the original parties, does not authorize the promisor, unless fraud, accident, or mistake exist, to plead that his unconditional obligation to pay was conditional upon the happening of contingencies; and such a plea, being fatally defective, was properly stricken on motion. Hirsch v. Oliver, 91 Ga. 554, 560 (18 S. E. 354); Dinkler v. Baer, 92 Ga. 432 (3) (17 S. E. 953) ; Byrd v. Marietta Fertilizer Co., 127 Ga. 30 (56 S. E. 86) ; Pryor v. Ludden, 134 Ga. 288 (67 S. E. 654, 28 L. R. A. (N. S.) 267); Daniels v. Smith, 144 Ga. 561 (87 S. E. 774) ; Rheney v. Anderson, 22 Ga. App. 417 (96 S. E. 217); Planters Bank v. Brown, 22 Ga. App. 495 (96 S. E. 328).

Decided May 13, 1919.

Appeal; from Tift superior court—Judge Eve. August 8, 1918.

James H. Price, for plaintiff in ertor.

Fulwood & Hargett, contra.

2. The ruling stated in the case of Gibbs v. Fourth National Bank, 17 Ga. App. 388 (87 S. E. 155), is abstractly correct, but is-not altogether applicable to the facts there 'stated; and in so far as- that case- conflicts with the ruling here made, it is overruled. -

Judgment affirmed.

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


text:
    10263.
    Walker v. Cliff Drug Company.
   Jenkins, J.

1. The act creating the municipal court of Atlanta .(Acts . 1913, p. 145, § 37) provides that “suits in this court, except as herein provided, or as may be provided by rules of the court, shall proceed as suits or actions in justices’ courts, under the practice thereof existing under the laws relating thereto.” There being in this act nothing that requires that exceptions pendente lite be takgn to a.ruling upon a motion to dismiss pleadings, such exceptions are not necessary, and the ruling thus made may be assigned as,error in the petition for certiorari without such exceptions pendente lite having been first taken. The ruling in Brooke v. Cunningham, 19 Ga. App. 21 (90 S. E. 1037), is not in conflict with what is here held, for that case was decided before the constitutional amendment of 1916 (Acts 1916, p. 19), when a direct writ of error would lie. from the municipal - court of Atlanta to this court, and in that case the overruling of a demurrer was sought to be made the ground of a motion for a new trial.

2. “While the municipal court of Atlanta has'jurisdiction of suits involving larger amounts than those formerly within the jurisdiction of the justice’s courts, the procedure in the municipal court of Atlanta, so far as the necessity for pleadings is concerned, does not-differ from that of the justice’s courts;. . . and a mere misjoinder of causes of action is immaterial.” Shippey v. Owens, 17 Ga. App. 127 (86 S. E. 407); Moon v. Brandt, 20 Ga. App. 396 (93 S. E. 43). The trial judge did not err, therefore, in overruling the ipotion tp dismiss plaintiff’s petition.

3. Under the act creating the municipal court,of Atlanta (Acts 1913, p. 145) .and the decisions of the Supreme Court in Johnston v. Brenau College, 146 Ga. 182 (91 S. E. 85), and Taylor v. Mutual Benefit Industrial Life Ins. Asso., 146 Ga. 660 (92 S. E. 47), the losing párty'in the municipal court may pursue either of the three following remedies to ,, review the decision of the trial judge or the verdict of the jury'therein: - 1st. He may make a .motion for a new trial before the trial judge, and, upon the overruling of the motion, may enter’ an- appeal to the appellate division of that court; and if the decision of the appellate division be adverse, he may carry the case to the superior court by certiorari. 2d. He may make a motion for a new trial before the trial judge in the municipal court, and the judgment of the trial judge in overruling the oral motion for a new trial may be reviewed on direct writ of certiorari by the superior court, without first taking an appeal to the appellate division. 3d. He may by certiorari except-directly to the judgment of the trial judge of the verdict of the jury in the municipal court, without first making an oral motion for a new trial before the trial judge, and without entering an appeal to the appellate division of the municipal court. If the remedy last stated be pursued, he can have reviewed the question of whether the finding is contrary to law because not -supported by the evidence; but if he pursue either of the other two remedies, under section 42 (6) of the act of 1913 (Acts 1913, p. 168) he can not, in his petition for certiorari, urged as a ground for reversal the insufficiency of the evidence (Johnston v. Brenau College, supra) ; for, as was said in Dunlop Milling Co. v. Collier, 19 Ga. App. 725, 727 (92 S. E. 296), the discretion to grant a new trial upon the grounds (1) that the verdict found or the judgment rendered is contrary to the evidence and the principles of equity, and (2) that said verdict or judgment is decidedly and strongly against the weight of the evidence, is exhausted when the judge of tlie municipal court who tried the case; refuses to grant a new trial thereon. The plaintiff in error in this ease having pursued the second remedy, the superior court did not err in overruling the petition for certiorari, based upon the ground that the judgment rendered was contrary to law because not supported by the evidence.

Decided May 23, 1919.

Certiorari; from Fulton superior court—Judge Pendleton. October 29, 1918.

Jack C. Savage, Moore & Pomeroy, for plaintiff in error.

George B. Rush, contra.

Judgment affirmed.

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


text:
    10264.
    Walker v. Palace Pharmacy.
    Decided May 13, 1919.
    Description and counsel as in the ease cited above.
   Jenkins, J.

This ease is controlled by the ruling made by this court in Walker v. Cliff Drug Co., ante, 722; the only point insisted upon by counsel for plaintiff in error being that the evidence was insufficient to authorize the judgment rendered.

Judgment affirmed.

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


author: Blood-worth, J.

text:
    9300.
    Jones et al. v. Owens, executrix.
    Decided May 13, 1919.
    Complaint; from city court of Atlanta—Judge Eeid. October 4, 1917.

      Hewlett & Dennis, for plaintiffs in error.

      Mayson & Johnson, contra.
   Blood-worth, J.

This case (22 Ga. App. 558, 96 S. E. 444) was carried by writ of certiorari to the Supreme Court, and that court held:

“1. The Court of Appeals properly affirmed the judgment of the court below sustaining the demurrer to the defense based upon.the defendants’ contention that they were mere sureties -«upon the notes given for the purchase money of the property in question and sued upon by Owens, the holder.

“2. But we are of the opinion that the defense set up by way of amendment, based upon the ground that the notes were unenforceable because they were based upon an illegal and immoral consideration, was meritorious, and the trial court erred in sustaining the demurrer thereto, and the Court of Appeals, instead of affirming the judgment of the court below, should have reversed it.” Eor full opinion of the Supreme Court see 149 Ga. (99 S. E. 121). Under, the latter ruling “the defendants, the original makers of the notes sued on, are entitled to have the issue made by their answer submitted to a jury. And exceptions to the ruling of the trial judge upon this question in the case should have been sustained. ”

The ruling of this court on this iásue having been reversed, so far as it relates'" to Charles C. and Mrs. Ola E. Jones, and, under the principle announced, the plea of illegal and immoral consideration filed by Buchanan being improperly stricken by the trial judge, the judgment originally entered by this court is vacated, and as to all the defendants the judgment of the trial court is

Reversed.

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


author: Broyles, P. J.

text:
    9812.
    KENNEDY v. SMITH.
    “],. Where one occupies land under a bond for title, builds thereon a dwelling-house, and subsequently (but before the entire purchase-price of the land has been paid) detaches the house from the land and attaches it to other land not belonging to the owner of the land upon which the house was first erected, and such owner brings an action in trover to recover the house, and his only way to show his title to the house, or his right of possession thereto, is by showing his title to the land upon which it was first built, this is not a ‘case respecting title to land.’ Proof of title in such a case can not-affect the ownership of the land. It is pertinent alone as a basis for the recovery of the chattel. Anything detached from the realty becomes personalty instantly. Civil Code, § 3622.

      Decided May 13, 1919.
    “2. An action of trover will lie to recover a dwelling-house which was detached from the land under circumstances as stated in the preceding headnote, although subsequently (but before the bringing of the suit) it was attached to the land of the wrong-doer. Wood v. McCall, 67 &a. 506; Michigan Mutual Life Ins. Co. v. Cronk, 93 Mich. 49 (52 N. W. 1035). See Ogden v. Stock, 34 Ill. 522 (85 Am. D. 332, and annotations).” Kennedy v. Smith, 149 Ga. (99 S. E. 27).
    3. Under these rulings the court did not err in overruling the motion to dismiss the action in 'trover, or in overruling the motion by ■ the defendant to dismiss the bond required of him.
    4. The court did not err in overruling the motion for a new trial.
    Trover; from Evans superior court—Judge Sheppard. March 35, 1918.

      W. B. Stubbs, for plaintiff in error.

      M. A. Smith Jr., P. M. Anderson, contra.
   Broyles, P. J.

Certain questions involved in this case were certified by this court to the Supreme Court, and the first and second headnotes contain the answers of that court. The special grounds of the motion for a new trial are without merit; the evidence authorized the verdict, and the court did not err in refusing to grant a, new trial.

Judgment affirmed.

Bloodworth and Stephens, JJ., concur.


author: Bp.oyles, P. J.

text:
    10110.
    Jones v. Western and Atlantic Railroad Company.
   Bp.oyles, P. J.

1. There is no material error in any of the excerpts from the charge ■ of the court complained of, when the entire charge is considered.

2. The sole negligent act of the defendant, according to the petition, was the sudden starting of its train just as the plaintiff entered. In the light of this allegation of the petition, and when the charge given by the court is considered, it was not error for the court to refuse a request to charge as follows: “If you find, from the evidence, that the defendant company failed to stop its train sufficiently long for the -plaintiff to get aboard said train in safety, and she was injured as alleged, she would be entitled to recover whether the train was properly started or not, it being the duty imposed by law upon the company to stop its trains long enough for passengers to board them in safety; provided the plaintiff’s injury was not the result of her own negligence” (italics ours). -

3. Under repeated rulings of this court and of the Supreme Court, a ground of a motion for a new trial, assigning error upon the refusal of a written request to charge, must affirmatively show that the request was tendered to the judge before the jury retired to consider the case. The statement in such a ground that the request was “properly submitted” is a mere conclusion of the plaintiff in error and does not come up to the rule. .Under this ruling the 3d, and a portion of the 4th, special ground of the motion for a' new trial can not be considered.

Decided May 13, 1919.

Action for damages; from city court of Cartersville—Judge Aubrey. August 9, 1919.

J. B. Whitaker, A. W. Fite, for plaintiff.

Neel, Finley & Neel, for defendant.

4. If the court erred in allowing H. E. Duckett, a witness for the defendant, to testify, after refreshing his memory from records not made by him, that he was the engineer of the train in question, this error was not harmful to the plaintiff, since the conductor of the same train testified, without objection, after refreshing his memory from records made and kept by him, that Duckett, the witness just mentioned, was the engineer of the train; and the records showing the same fact were admitted in evidence without objection.

5. The testimony of the engineer,—“If there had been an unusual jar or jerk I would have remembered it,”—was admissible. It was not a mere conclusion of the witness, but was a statement of a positive fact, viz., that if there had been an unusual jar or jerk he would have remembered it. It was admissible for what it was worth.

6. The following testimony of the conductor of the train was admitted over the defendant’s objection: “In leaving Emerson that afternoon, if there had been any unusual jar or jerk, I think I would have remembered it up to the time I was called to the office to make a statement about this case.” If the admission of this testimony was error, it was not so prejudical as to require a new trial.

7. It does not appear that the trial judge abused his broad legal discretion in allowing the defendant, over the objections of the plaintiff, to recall one of its witnesses for the second time, for the purpose of explaining his testimony given on the previous day. It is immaterial that the witness recalled may have conferred with the,defendant’s counsel about the case before he was put back on the stand.

8. The verdict was amply authorized by the evidence, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Bloodworth and Stephens, JJ., concur. ■


author: Bloodworth, J.

text:
    10195.
    Smith v. Fuller Loan Company et al.

   Bloodworth, J.

1. When read in connection with the charge as given and applied to the facts of this case, the court did not err in charging as complained of.

2. The ground of the motion for new trial that the judge in Ms charge “did not give the jury any measure of damages under said contract, and did not charge the jury on the question of the amount plaintiff would be entitled to recover under the contract,” is without merit. Instructions. given by the judge covered substantially the issue raised, and were sufficiently clear. If a fuller charge was desired by the defendant, he should have made a proper and timely written request therefor. Moreover, this assignment of error is “too genera], vague, and indefinite to be considered.” Odum v. Rutledge, 16 Ga. App. 350 (3) (85 S. E. 361).

Decided May 13, 1919.

Action on contract; from Wilkes superior court—Judge Walker. October 17, 1918.

W. A. Slaton, for plaintiff in error. F. H. Colley, contra.

3. This being a suit on contract for $360, for commissions only for securing a loan as provided in said contract, the court' did not err in failing to instruct the jury in reference to another contemporaneous contract, which provided that the borrower should “pay all expenses exceeding $360.”

’4. There was evidence to support the verdict, and, no error of' law appearing, the judgment is

Affirmed.

Broyles, P. J., concurs. Stephens, J., disqualified.


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

text:
    10240.
    WILKES v. THE STATE.
    Decided May 13, 1919.
    A conviction of the offense of maintaining a lewd bouse was not authorized by the evidence. '
    Accusation of misdemeanor; from city court of Swainsboro— Judge Kirkland. November 2, 1918.

      I. L. Price, I. W. Rountree, for plaintiff in error.

      Alfred Herrington Jr., solicitor, contra.
   Stephens, J.

“To authorize conviction in a prosecution for the offense of keeping a lewd house, it is not enough to prove the general reputation of the house, or of its inmates, or both; for the gist of the offense is that the house was kept Tor the practice of fornication or adultery;’ and the jury must be satisfied that acts of lewdness were practiced in the house, and that it was maintained for the purpose of prostitution: Reputation' for lewdness, however, may be a circumstance tending to show the character of the house, and may be considered by the jury in corroboration of such facts and circumstances as may reasonably satisfy them of the essential fact that fornication or adultery was actually committed therein.’’ Smith v. State, 13 Ga. App. 241 (2) (79 S. E. 51). The above is a correct statement of the law applicable to cases of this kind. In the case under consideration the evidence shows that the defendant and her house, where she had resided only a few months, bore a reputation for lewdness. "Such evidence alone, wholly uncorroborated, is not sufficient ft) establish the offense of keeping and maintaining a lewd house.” Jones v. State, 2 Ga. App. 433 (7) (58 S. E. 559). The only attempt at corroboration is evidence of an admission of the defendant that she had suffered from a venereal disease (but it is not shown when she was. so afflicted) and evidence from a number of witnesses that men were seen at her house on several occasions, but nowhere was there a scintilla of evidence that the least immoral conduct transpired there. The men visiting the house did so in the daytime, and were observed at the place by passers-by; which latter fact refutes rather than corroborates the idea that immoral conduct was carried on. One of the witnesses visited the Rouse and saw three men JR ere. He stated that "there was nothing wrong done there that I saw.” This was substantially the testimony for the State. None of it authorizes the inference that acts of fornication or adultery were practiced in the house.' The circumstances corroborative of reputation for lewdness, that would under the authorities authorize a conviction of the offense of maintaining a lewd Rouse, must be such circumstances as tend to show lewd and lascivious conduct at such house, and from which it might reasonably be inferred that fornication or adultery took place there.

The case of Ward v. State, 14 Ga. App. 110 (80 S. E. 295), sustains this view. The evidence adduced upon the trial there was held insufficient to authorize a conviction of maintaining a lewd house. Judge Russell in the opinion in that case said: “It appears from the record that the defendant lives with her daughter in the outskirts of the City of Rome, and that the house she occupies has the general reputation of being a lewd house. According to the testimony her daughter, though quite young, has the general reputation of being a lewd woman. The defendant’s son and one John Fowler also live at the house, which the defendant states she purchased with her own labor. There is no direct evidence that any act of adultery was committed in the house, nor any circumstance indicating that such an act was committed there, unless it can be assumed that Fowler was capable of, and, having had the opportunity by reason of his propinquity, was guilty of, the sexual act, with either the mother or the daughter. There is evidence of noise and disorder which might authorize the conviction of the defendant of the offense of keepings a disorderly house; but the defendant was not accused of keeping a disorderly house, and she has been accused and convicted of keeping a lewd house. We think the learned trial judge erred in ruling upon the testimony to which objection was made, and that the pertinent evidence submitted by the State is insufficient to l\ave authorized the conviction of the defendant. Testimony as to the • general .reputation of the house for lewdness was properly admitted, and there was no objection to the testimony in regard to the general reputation of the defendant’s daughter who lived with her at the house, and who was proved to have a bad reputation; but timely objection was made to the testimony of each of the witnesses who testified that the defendant herself had the reputation of being a lewd woman. . .

“We do not think the evidence in the present case was sufficient to authorize the conviction of the defendant. There is no circumstance which, to the exclusion of every other reasonable supposition, could satisfy the jury that the house was used for the practice of fornication or adultery. Even if it had been proved that a single act of immorality such as referred to above was committed, this alone would not have been sufficient to show that the house was kept or maintained for that purpose; though had there been such proof, we think the circumstances and the reputation of the defendant’s daughter, and of the house, might have supplied sufficient corroboration to sustain the charge, by authorizing the in-' ference that what was done was, in all human probability, repeated. The incriminatory proof in this case is confined to the matter of reputation, and, as was held in Coleman v. State, 5 Ga. App. 166 (63 S. E. 344), and in Smith v. State, supra, this alone is insufficient to authorize conviction. There was evidence that men were seen to go to this house by day and by night, and that there was some boisterousness and other noise likely to disturb the neighborhood. This might have authorized a conviction of the statutory offense of keeping a disorderly and. ill-governed house (Pena: Code, § 383), because the defendant admitted that it was her house and in her charge; but the mere fact that men went to the house and came away under the influence of liquor, and during their' stay were noisy and boisterous, would as reasonably suggest the inference that they visited the house to obtain intoxicating liquor,' in violation of law, as that their visit was with the intent to be guilty of immoral practice, which ordinarily is not accompanied by much .noise. ■ ■ , .

“Evidence of the general character of the inmates of the house is. merely corroboratory evidence, and - is of itself insufficient to authorize conviction. The point can well be illustrated by the case of numerous reformatory institutions which a progressive and most commendable philantropy is attempting to maintain. A case can be conceived of where all of the immates except the matron might be girls or women whose reputation for chastity was bad; and in the work of reformation it might be economical, convenient, or otherwise desirable to use a house which had not borne a good reputation. If the rule were as contended on the part of the State in the present ease, those at the head of each of these institutions could very promptly be convicted of keeping a lewd house on proof of the general reputation of the inmates.’.’

The facts in the Fitzgerald ease, 10 Ga. App. 71 (72 S. E. 541), and in the Basil case, 22 Ga. App. 765 (95 S. E. 25.9), are entirely different from the facts in the case now under consideration. In each of these cases the evidence shows that the house in question was a city hotel of a bad reputation, infested with numerous notoriously lewd women, who made dates with men to meet them 'there, and occupied rooms there and slept there with men who were not their husbands. Such evidence, of course, authorized a conviction of maintaining a lewd house, as was held in both of those cases. It not only authorized but even demanded the inference that acts of fornication and adultery were, practiced there. In the Coleman case, supra, the question of whether the evidence was sufficient to support the verdict was not decided.. Judgment in that case was‘reversed on an erroneous charge of the court. It was there held to be error to instruct the jury that “it would be sufficient if the State proves to your reasonable satisfaction that she bears the general reputation of being a lewd woman, and that the house or place kept by her iiears the general reputation qf being a lewd house or place of prostitution, and that the women there at that house bear the general reputation of being lewd .women, and that men were seen to frequent the’place by day and by night.”

According to the authorities above cited, the mere presence of men at the defendant’s house, who could be seen from the streets, and whose conduct was in nowise improper or suggestive of lewdness, was not sufficient corroboration of the evidence that either the house or the defendant possessed a bad reputation, to authorize her conviction of the offense of maintaining a lewd house. She was convicted upon bad reputation alone, which is not sufficient. .She certainly could not be condemned for indulging in the company of men visitors at her home who visited there at seasonable hours, and whose conduct on such occasions was perfectly exemplary so far as the evidence shows. The evidence, moreover, shows that the defendant did some farm work, and therefore presumably had some means of support.'

In our opinion the evidence was wholly insufficient to authorize the verdict, and the court erred in overruling the motion for a new trial.

Judgment reversed.

Bloodworth, J., concurs. Broyles, P. J., concurs specially.

Broyles, P. J.

I agree that under the particular facts of this case the conviction of the defendant was unauthorized. I do not, however, concur in all that is said in the opinion of the majority of the court.


text:
    10087.
    Youngblood v. Armour Fertilizer Works.
   Broyles, P. J.

1. “In an action to recover specific chattels, no counterclaim is possible, unless, perhaps, equitable relief may be awarded under some very exceptional circumstances.” Pomeroy, Code Remedies, § 767; Harden v. Long, 110 Ga. 392, 399 (36 S. E. 100).

2. In an action of trover, recoupment in the nature of damages can not be pleaded by the defendant, nor adjudicated, unless some special equity, such as non-residence or the insolvency of the plaintiff, is shown. Bell v. Ober, 111 Ga. 668 (3), 673 (36. S. E. 904).

3. A foreign corporation doing business in this State and having agents located therein for -.that purpose is a non-resident corporation within the * meaning of the decision in Bell v. Ober, supra. Reeves v. Southern Ry. Co., 121 Ga. 561 (49 S. E. 674, 70 L. R. A. 513, 2 Ann. Cas. 207).

■4. Under the principles of law stated above and the facts of this case, the cross action of the defendant could not be maintained. .It was therefore not error for the court in granting the.motion of the plaintiff to dismiss its action in trover, to rule that this dismissal carried with it the defendant’s cross action for* damages. .

Decided May 14, 1919.

Rehearing Denied May 16, 1919.

Trover; from Taylor superior court; Judge Howard. March 29, 1918.

Jere M. Moore, C. B. Marshall, for plaintiff: in error.

C. W. Foy, contra.

5. The only assignment of error in the bill of exceptions is as follows: “After the submission of the foregoing evidence the court passed the following order: ‘Upon motion of counsel for the'plaintiff it is ordered and adjudged by the court that the petition in this case be, and the same is hereby, dismissed, carrying with said dismissal the cross-bill filed by the defendant.’ To the judgment of the court dismissing said petition and the answer of the defendant therein the plaintiff in error excepted, and now excepts and assigns the same as error, upon the ground that the same was contrary to the law.” This exception does not raise the point (argued in the brief of counsel for the plaintiff in error) that the dismissal of the plaintiff’s action operated as a judgment of restitution and that the defendant was entitled to “either a verdict by the jury restoring his property to him, or a judgment by the court for the value thereof.” Moreover, this principle of law is not applicable in the instant ease, as the property was never replevied by the plaintiff. Compare Barfield Music House v. Harris, 20 Ga. App. 42, 44, 45 (92 S. E. 402).

Judgment affirmed.

Bloodworth. and Stephens, JJ., concur.


author: Broyles,

text:
    10151.
    ROPER v. ROBERTS et al., administrators.
    Decided May 14, 1919.
    The allegations of paragraph 14 of the plaintiff’s petition as amended,, as to the acts which caused the ditch to become obstructed and fill up with sand and debris, were sufficiently specific and were not subject to demurrer on the ground that a mere conclusion was stated therein. The court erred in sustaining the special demurrer to that paragraph and striking it.
    Action for damages; from Cherokee superior court—Judge Morris. August 22, 1918.

      Howell Brooke, R. H. Baker, O. J. Lilly, for plaintiff.

      George D. Anderson, William Butt, for defendants.
   Broyles,

P. J. J. A. Eoper brought an action for damages against the administrators of the estate of J. M. Eoberts. The petition alleged that Eoberts, about ten years before this suit was brought, cut a ditch through his land and thereby changed the channel of Yellow Creek, which flowed through it; that this creek also ran through the plaintiff’s land; that in the spring of 1912, after the plaintiff’s land had been plowed for planting, the new or artifieial channel became obstructed so that the water in it overflowed not only on Roberts’ land but on the plaintiff’s land, and caused the plaintiff’s land to become so wet that it could not be planted or cultivated, and damaged the plaintiff in a large amount, to wit. $5,750. Paragraph 14 of the petition was as follows: “14th. That the said J. M. Roberts continued to divert the waters of said creek through said ditch or canal until the winter of the year 1913, when he negligently allowed said ditch or canal to become obstructed and filled up with sand and other debris in places, ’preventing the waters of said creek from flowing through the same, and causing the waters of said stream to flow at random over his said lands, thereby causing back-water in the channel of the stream on the lands of your petitioner and causing the natural channel of said stream on the lands of your petitioner to fill up with sand and other debris, and thereby causing the waters of said stream to abandon the natural channel and flow in various directions over petitioner’s said lands, and accumulate and stand in ponds thereon and render your, petitioner’s said bottom land wet, soggy, and incapable of cultivation or use for any purpose whatever, and thereby causing petitioner the loss of all crops,' rents, or income from said 30 acres of bottom lands during the years 1913, 1913, 1914, 1915, 1916, of the net value and to his loss and injury in the full sum of $750 per annum, and to the aggregate amount of $3,750.” To this paragraph the defendant demurred specially, as follows: “It is a conclusion; it does not set forth specifically the act complained of. The allegations in said paragraph are not sufficient to be the basis of a recovery against these defendants.” The judge ruled that he would sustain this special demurrer “unless the plaintiff amend by alleging specific acts that it is contended that the defendants did that caused the ditch or canal to become obstructed and fill up with sand and other debris in places.” The plaintiff, to comply with this ruling, amended paragraph 14 by adding, after the^word “places,” the following: “and by allowing cattle to go into and across said ditch and trample on and cave in the banks thereof, and by constructing wire fences across said ditch, on which accumulated trash and limbs, and by cutting and felling into said ditch brushes and brush thereby.” After this amendment had been allowed, the defendant renewed his special demurrer to the paragraph as amended, and it was sustained and the paragraph was stricken. To this judgment the plaintiff excepted pendente lite> and assigned error - thereon in his main bill of exceptions.

In our opinion the court erred-in sustaining this special demurrer and in striking this paragraph of the declaration. The paragraph. alleged physical facts and was not subject to that ground of the special demurrer which set up that it stated mere conclusions. Nor was the paragraph defective because it failed to set forth. specific acts that Roberts did to cause the channel to become obstructed. The very language of the pleader,- in this ■.paragraph, to wit, “he [Roberts] negligently allowed said ditch or canal to become obstructed and filled up with sand and other debris in places,” negatives the idea that the plaintiff intended to charge Roberts with any overt acts of commission. Instead, it .shows in this paragraph that he bases his suit upon acts of omission by. Roberts, in negligently allowing or permitting the canal to become obstructed and unable to carry the waters of the creek. To set forth a. cause of action it was not necessary to allege jovert acts of negligence on the part of Roberts. See, in this connection, Mayor &c. of Savannah v. Cleary, 67 Ga. 153; Sharp v. Parker, 108 Ga. 805 (34 S. E. 135); City of Augusta v. Lombard, 93 Ga. 284 (20 S. E. 312); Parrish v. Parrish, 21 Ga. App. 275 (94 S. E. 315); 40 Cyc. 659, 661, 663. Certainly, after the amendment to paragraph 14 had been allowed, the paragraph was not subject to the demurrer. Paragraph 14 was a very material portion of the petition, and the error in striking that paragraph rendered the further proceedings in the case nugatory.

Judgment reversed.

Bloodworth o,nd Stephens, JJ., concur.


text:
    10164.
    WILSON v. BRICE, guardian.
    1. Neither a residuary legatee of a person deceased nor his guardian can maintain an action to enforce the right of contribution of the estate of the decedent, growing out of a cosuretyship. Such a right is a chose in action of the estate and can be exercised only by the personal representative of the estate. This is true although the administrator has paid all the debts of the estate and has fully administered the estate, and has transferred the judgment and execution (the payment of which by the administrator gave him the right of contribution) to the guardian of the legatee, and although, under, the will of the decedent, the legatee was the sole legatee of the residuum of the estate, and the money which paid the judgment and execution referred to would otherwise have gone to the legatee as a part of his legacy. Under such circumstances an action against another for contribution could be maintained only by the administrator of the estate, and could not be assigned to any other person, except by a sale ordered by the ordinary as a part of the administration of the estate. Smith v. Turner, 112 Ga. 533 (37 S. E. 705) ; People’s National Bank v. Cleveland, 117 Ga. 908 (5), 918 (44 S. E. 20) ; Brown v. Mutual Life Insurance Co., 146 Ga. 123 (59 S. E. 856); Bill v. Maffett, 3 Ga. App. 89 (59 8. E. 325); Buchholz v. Sapp, 148 Ga. 352 (96 S. E. 858).
    Decided May 14, 1919.
    2. Under the foregoing ruling the court erred in overruling the 1st and 2d grounds of the demurrer to the plaintiff’s petition, and in not dismissing the petition.
    3. The error in the judgment upon the demurrer'rendered the further proceedings in the case nugatory.
    Complaint; from Brooks superior court—Judge Thomas. September 14, 1918.

      Bennet & Harrell, Branch & Snow, for plaintiff in error.

      E. K. Wilcox, Dan R. Bruce, contra.
   Broyles, P. J.

The headnotes need no elaboration. We can not forbear saying, however, that, under the facts of this case, it looks as if justice,' expediency, and common sense would all answer yes to the question whether the plaintiff should be allowed to maintain her action; but, as was said by Powell, J., in Hill v. Moffett, supra: “Expediency, in such cases, loudly argues for an affirmative answer, but the law says no. The dictates of the law are superior to the dictates of expediency. The title to personal property, including choses in action, belonging to the estate of a decedent passes at his death, not to his heirs, but to his administrator; the heirs have merely an equitable interest in such assets; and they can sue for the recovery of such property or for the collection of such debts only when, on the part of the administrator, there is collusion, insolvency, unwillingness to collect the assets when called on, or some other like special circumstance. Worthy v. Johnson, 8 Ga. 236; Morgan v. Woods, 69 Ga. 599; Smith v. Turner, 112 Ga. 533 (37 S. E. 705). Many more citations to the same effect could be given, if necessary.”

Judgment reverséd.

Bloodworth and Stephens, JJ., concur'.


text:
    10167.
    Puckett v. Georgia Railway & Power Company.
    Decided May 14, 1919.
    Rehearing denied June 9, 1919.
    Action for damages; from Fulton superior court—Judge Ellis. September 25, 1918.

      Loving & Poole, for plaintiff.

      Colquitt & Conyers, for defendant.
   Broyles, P. J.

1. Under the pleadings and the evidence, the court did not'err in directing a verdict for the defendant, or in refusing to grant a new trial.

2. Even if the rejection of testimony as complained of in’ the motion for a new trial was error, it does not, under all the facts of the case, require a reversal of the judgment below.

Judgment affirmed.

Bloodworth and Stephens, JJ., concur.


text:
    10182.
    DeLoach et al. v. Kennedy, sheriff, for use, etc.
    Decided May 14, 1919.
    Complaint; from city court of Reidsville—Judge Collins. August 13, 1918.

      C. L. Cowart, H. H. Elders, for plaintiff in error.

      H. C. Beasley, contra.
   Broyles, P. J.

1. Under the facts of the case, the discharge in bankruptcy of the principal upon the forthcoming bond did not release the sureties upon the bond, and was not a good' defense as to the sureties in the suit upon the bond. See, in this connection, Steinhauer & Wight Inc. v. Adair, 20 Ga. App. 733 (2) (93 S. E. 280), and authorities there cited; Collier on Bankruptcy (11th ed.), § 16, pp. 417, 420.

2. Under the above ruling, the court did not err in charging as complained of in the motion for a new trial; and the verdict for the plaintiff was authorized by the evidence.-

Judgment affirmed.

Bloodworth and Stephens, JJ., concur.


text:
    9386.
    NATIONAL BANK OF SAVANNAH et al. v. EVANS et al., receivers.
    “1. In an action on the case for conspiracy, the conspiracy is not the gravamen of the charge, but may be both pleaded and proved as aggravating the wrong of which the plaintiff complains, and enabling him to recover in one action against all as joint tort-feasors. Woodruff v. Hughes, 2 Ga. App. 361 (58 S. B:”551); Van Horn v. Van Horn, 56 N. J. L. 318 (28 Atl. 669) ; s. c. 52 N. J. L. 284 (28 Atl. 485, 10 L. R. A. 184); Parker v. Huntington, 2 Gray (Mass.), 124; 8 Cye. 673.
    Decided Mat 16, 1919.
    “2. Accordingly, a petition which alleged that three named persons, at a time stated, ‘entered into a conspiracy for the purpose’ of wrongfully withholding from the plaintiff certain commercial securities ‘and for the purpose of converting them [the securities] to the joint use and benefit of the said’ named persons; that the said defendants ‘in furtherance of said conspiracy’ did withhold the described securities from the plaintiff, and on a day named did convert the same ‘to their own joint use and benefit,’ ” to the loss and injury of the plaintiff in a sum alleged as the actual value of the securities on the date of their con- version, sufficiently set forth a conspiracy as .against general demurrer. Nor was such petition subject to special demurrer which attacked it because of the alleged lack of sufficient facts or overt acts to support a charge of conspiracy between the three defendants.
    “ (a) So far as the conspiracy is concerned, no further specification is required than the general terms in which it is pleaded in the declaration; and this is true although the jurisdiction of the court to render judgment against one or more of the defendants depends upon allegations and proof of conspiracy.” 149 Qa. (99 S. E. 123).
    3. The petition was good as against the general grounds of the demurrers, and as against the special grounds thereof which attacked it because of the alleged lack of sufficient facts or overt acts to support a charge of conspiracy between the three defendants.
    4. The petition showed that the superior court of Screven county had jurisdiction of all the defendants.
    5. The petition was subject to some of the special grounds of the demurrers, and the court erred in overruling those grounds.
    Action for damages; from Screven superior court—Judge Hardeman. November 19, 1917.

      Garrard & Gazan E. S. Elliott, E. K. Overstreet, M. R. Lufburrow, for plaintiff in error.

      T. J. Evans, contra.
   Broyles, P. J.

This was a suit brought to the superior court of Screven county by the receivers of the Citizens & Screven County Bank against the National Bank of Savannah, J. E. Jaudon, and "W". J. Walker. According to the petition Walker was a resident of Screven county, while the other two defendants were residents of Chatham county. The petition charged that the three defendants had conspired to, and actually did, in pursuance of such conspiracy, withhold from the plaintiffs certain collateral notes and other securities which had previously been fraudulently pledged by the Citizens & Screven County Bank-to the National Bank of Savannah to secure an antecedent indebtedness of the former bank to the latter bank. Separate demurrers, substantially identical, containing both general and special grounds, were interposed by the defendants, and were overruled, and the defendants-excepted.

The question as to whether the alleged conspiracy of the defendants was sufficiently set out in the petition to enable the petition to withstand a general and special demurrer was certified by this court'to the Supreme Court, and the 1st and 2d head-notes contain the affirmative answer of the Supreme Court.

The petition, properly construed as a whole, does not allege that the National Bank of Savannah alone converted the property in October, 1915, or at any other time, but alleges that the bank, jointly with the other two defendants, converted it to their joint use on or about November 27, 1915.On the subject of the alleged conspiracy the petition is not defective because it avers that the National Bank of Savannah had possession of the securities at the-time of the appointment of the receivers and fails to allege that, the securities were transferred to the other two defendants. If there was a conspiracy as alleged, the act of the bank in withholding the'securities was also the act of the other two defendants. It was not necessary for all three of the defendants to have actual physical possession of the securities, or for all three to actually physically withhold them from the receivers. The act of one was the act of all. The petition was not demurrable because it alleged a refusal on the part of the National Bank of Savannah to. turn over the securities to the receivers and failed to allege a like refusal on the part of the other defendants. If the securities had been converted as alleged, it was unnecessary to show a demand upon, and a refusal of,- any one of the defendants. - Accordingly, the allegations as to the refusal of the bank (after a demand) to turn over the securities should have been treated as mere surplusage. Under the preceding rulings the superior, court of Screven county had jurisdiction of all the defendants.

The petition was, however, subject to the special ground of the demurrers which set up a misjoinder of actions, since the plaintiff sought a recovery in a single count upon two contradictory theories, to wit: (1) because the defendants had converted the securities; and (2) because, after the conversion had oecured, the securities depreciated in value on account of the negligent handling of the same by the defendants. If the securities were thus converted, the defendants became immediately -liable for their ■ full value; and the alleged subsequent depreciation in value was immaterial, and the claim therefor was inconsistent with the theory of conversion. The court should have sustained this ground of the demurrers and have ordered the plaintiffs to strike one of the two conflicting claims from the petition, or to put them in separate counts. Moreover, the 19th and 20th paragraphs of the petition, which set up the claim for the negligent handling of the securities, were also subject to the special grounds of the demurrers as set forth in the 15th and 16th paragraphs thereof. The petition was also subject to the special ground of the demurrers which pointed out that it was not stated in the petition when the Citizens & Screven County Bank was placed in the hands of the receivers. With the exceptions stated, the petition was not subject to any of the special grounds of the demurrers. The court having overruled all of the grounds of the demurrers, both general and special, and the petition being subject to some of the special grounds, the judgment is

Reversed.

Bloodworth and Stephens, JJ., concur.


text:
    9415.
    National Bank of Savannah et al. v. Evans et al., receivers.
    Decided May 16, 1919.
    Description and counsel as in case next preceding.
   Luke, J.

1. This case is controlled by the’ decision in National Bank of Savannah v. Evans, ante, 736, and, for the reasons therein stated, the judgment overruling the special demurrers therein pointed out is reversed. See also the answer of the Supreme Court to certified questions in National Bank of Savannah v. Evans, 149 Ga. (99 S. E. 123).

2. Under the foregoing ruling the court did not err in allowing the amendment to the petition.

,Judgment reversed.

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


text:
    9941.
    BUFORD v. SOUTHERN COTTON OIL COMPANY.
    Decided May 16, 1919.
    The second grant of a new trial by the trial judge in this ease was not warranted.
    Complaint; from city court'of Savannah—Judge Freeman. June 17, 1918.

      Oliver & Oliver, for plaintiff. George W. Owens, for defendant.
   Luke, J.

This is a second grant of a new trial, the order of the court being as follows: “There have been three trials of this case. On each trial the evidence was substantially identical. Upon consideration of the record on the first motion for new trial, it seemed to me that there was no ease made authorizing a recovery, and therefore the motion was granted. Being still of this opinion when the second trial was had, I directed a verdict for the defendant. Exceptions to the direction of the verdict were sustained by the Court of Appeals, and the case remanded. Buford v. Southern Cotton Oil Co., 20 Ga. App. 581 (2) (93 S. E. 318). The charges of the court on the first and third trials were practically identical. It does not yet'seem to me that on this record plaintiff is entitled to recover, and I am constrained to grant a new trial on all of the grounds thereof, and it is so ordered.”

No error of law appears, and it being clear that the trial judge granted the second new trial on the idea that the plaintiff was not entitled to recover on the evidence submitted, which the above-quoted order shows was substantially the same as that introduced on- a previous trial, and which this court on review held to be sufficient to warrant a submission of the case to a jury (Buford v. Southern Cotton Oil Co., supra), and this being the law of the case, we are constrained to hold that the trial judge abused his discretion in granting a second new trial; the settled rule of the Supreme Court and of this court being that the grant of a second new trial will be closely examined to see that the court’s discretion was cautiously, justly, and wisely exercised. Vassie v. Central of Ga. Ry. Co., 135 Ga, 8 (68 S. E. 782); Morgan v. Lamb, 16 Ga. App. 484 (85 S.. E. 792), and numerous cases there cited.

Judgment reversed.

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


text:
    10246, 10247.
    Richie v. Louisville and Nashville Railroad Company; and vice versa.

    Decided May 16, 1919.
    Action for damages; from city court of Cartersville—Judge Aubrey. October 12, 1918.

      A. W. Fite, J. R. Whitaker, R. R. Arnold, for plaintiff.

      D. W. Blair, Neel, Finley & Neel, for defendant.
   Luke, J.

It appears to be conclusively settled that, notwithstanding the return of a second verdict in favor of the same party, the trial judge may still exercise his discretion in granting or refusing a new trial, though that discretion may not then be as ample as on the hearing of the motion for a first new trial (Morgan v. Lamb, 16 Ga. App. 484, and cases there cited, 85 S. E. 792) ; and under the particular, facts of the instant case the second grant of a new trial was not an abuse of the discretion vested in the trial judge.

Judgment affirmed on both bills of exceptions.

Wade, C. J., and Jenkins, J., conewr.


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

text:
    10099, 10100.
    Adams v. Shewmake Brothers Company and vice versa.

    Decided May 16, 1919.
    Eviction; from Hall superior court—Judge J. B. Jones. September 7, 1918.

      W. N. Oliver, H. H. Perry, for plaintiff in error.

      William M. Johnson, W. A. Charters, contra.
   Broyles, P. J.

This was an issue formed by a dispossessory warrant and a counter-affidavit. In an amendment to the counter-affidavit the defendant admitted a prima facie case for the plaintiff, set up an affirmative defense, and assumed the burden of proof. The evidence adduced • failed to overcome the prima facie case thus admitted and to sustain the affirmative defense. On the contrary, the evidence, as disclosed by the record, showed that the defendant was the tenant of the plaintiff during the year 1916, and was holding over as such when the dispossessory warrant to evict him was sworn out, and that the plaintiff was not chargeable with any laches in demanding possession of the property. The court, therefore, did not err in directing a verdict for the plaintiff, or in thereafter refusing to grant a new trial.

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

Bloodworth, J., concurs. Stephens, J., dissent's.

Stephens, J., dissenting.

This being a proceeding to dispossess a tenant, the sole issue here is whether Adams, the defendant, was ■ the tenant of Shewmake Brothers Company, the plaintiff. I cannot agree with the conclusion of the majority of the court that the ■undisputed evidence, as a matter of law, established this relationship. Defendant’s original entry upon the premises was not as a tenant, but as a purchaser under bond for .title as to one parcel, and as to the other parcel as owner and holder of the title until he executed a deed to secure debt from one whose title plaintiff succeeded to. Before the alleged relationship of landlord and tenant arose, which defendant disputed, the relationship between the parties was clearly and undisputedly that of debtor and creditor, the defendant as debtor in possession of the premises, with the plaintiff as creditor out of possession holding legal title as security for’ the indebtedness. How the indebtedness originally arose is immaterial here. Defendant was indebted to plaintiff, under various deeds and conveyances to said property for the purpose of securing such indebtedness. This relationship was equivalent to that of mortgagor and mortgagee, and all the rights and equities between the-parties were those of a mortgagor and mortgagee.

The case turns upon the question of whether a certain alleged agreement by defendant to pay rent to plaintiff, and a quitclaim deed afterwards executed from defendant to plaintiff to the premises, destroyed the relationship of debtor and creditor and created the relationship of landlord and tenant. The quitclaim deed was not introduced in evidence. It was not in the pleadings, and, while physically attached to defendant’s answer, does not appear as an exhibit thereto and was not referred to therein. This deed should properly be disregarded, and should not be considered in determining the questions in the case. Counsel for defendant in error, however,, insist that this- deed is a part of the record and should be' given due consideration. To do so, however, I do not think would alter the result. The execution of the alleged rent agreement and the execution of the quitclaim deed together were not sufficient as a matter of law, as I understand it, to establish the relationship of landlord and tenant between the plaintiff and the defendant.

■ Let it be noted here that defendant, by admitting title in plaintiff and the agreement to pay rent, admitted a prima facie case for the plaintiff, which without more was sufficient to establish the relationship of landlord and tenant and entitle plaintiff to a verdict. The prima facie case thus made was met by defendant with evidence tending to establish the fact that, since the relationship of debtor and creditor had once existed, the agreement to pay “rent” and other acts of the defendant did not, under all the circumstances and the relationship between the parties, constitutes or create the relationship of landlord and tenant. The evidence showed that there was an arrangement financed by plaintiff by which the defendant worked the place and canned vegetables raised thereon, which were taken over by the plaintiff, and that through this and other transactions there arose a mutual indebtedness between the parties; that defendant’s indebtedness to plaintiff continually increased; that with this indebtedness hanging over trim defendant made the “rent” note or agreement to pay “rent” for the premises to plaintiff, and afterwards made to plaintiff the quitclaim deed covering the same. Defendant contended that the “rent” note was not in reality given for rent, but was given for interest due by defendant, as he contended all the facts and circumstances surrounding the relations and various transactions between him and plaintiff and those whom plaintiff succeeded would show. All of these circumstances are detailed minutely and at length in the evidence.

Where a debtor is in possession of property, title to which is held by the creditor as security for the debt, an agreement-by the debtor to pay “rent” to the creditor does not as a matter of law convert the debtor into a tenant of his creditor. In referring to such an agreement the Supreme Court of the United States in Hervey v. Rhode Island Locomotive Works, 93 U. S. 672 (23 L. ed. 1003), said: “Nor is the transaction ■ changed by the agreement assuming the form of a lease. In determining the real character of a contract, courts will always look to its purpose, rather then to the name given it by the parties.” The Supreme Court of Georgia, in the casé of Blitch v. Edwards, 96 Ga. 606 (24 S. E. 147), in referring to a contract to pay “rent,” speaking through Mr. Justice Atkinson, said: “The first great essential in the interpretation of contracts is to arrive at what was the real intention of the parties. . . The contract itself, as stated in the record, aside from the promissory notes, contains a recital, though there was a stipulation for the payment of fifty dollars rent, that in the event the notes were paid, then no rent would be charged. It is difficult for us, in reading this contract, to determine whether it was a contract really designed to secure the' payment of a store account, or whether' the defendants intended to treat it as a contract of rental. At all events, the plaintiff entered under a contract of purchase. "He paid a certain amount of the purehasé-money. This new contract was entered into, and the defendants accepted his notes for the purchase money of that land.. It is not every written contract which uses the word rent, by way of description of sums to be paid for the use of .the property, that creates in cases of personal property a case of bailment, nor in case of real estate a case of landlord and tenant. To determine what the real status between the parties is, it is necessary to look behind mere technical terms employed in drawing a contract, £nd gather from the whole instrument what was the real legal relation established between them.” See also Hays v. Jordan, 85 Ga. 741 (2), 748 (11 S. E. 833, 9 L. R. A. 373); Horne v. Mullis, 119 Ga. 534, 537 (46 S. E. 663). “While a tenant cannot dispute the title of his landlord, still upon the levy of a distress warrant and the filing of a counter affidavit he may defend by showing that the contract denominated as one of rental is in fact a contract of purchase.” Leverette v. Jefferies, 8 Ga. App. 798 (70 S. E. 177). If the alleged tenant did not obtain possession from the alleged landlord and there has been no adjudication of the question, even though a nominal contract of renting has been reduced to writing, the alleged tenant may still show that the relation of landlord and tenant never existed. See Powell on Actions for Land. § 372. “What 'is called rent may be shown to be usury. What is called rent may be shown to be unreasonable liquidated damages. What is called rent may be shown to be purchase money.” Lytle v. Scottish American Mtge. Co., 122 Ga. 458 (7), 467 (50 S. E. 402).

A contract to pay “rent” being susceptible to a construction otherwise under all the surrounding facts and circumstances attending its execution, it was therefore a question of fact in this case, to be determined by the jury, whether defendant’s agreement • to pay rent converted him into a tenant, it being shown that he was in possession as owner and debtor to plaintiff, the latter holding legal title to secure debt, that the relationship between the parties was one of confidence and mutual trust, that defendant, being a debtor, was at a disadvantage at the time of making such agreement, and all. of the other circumstances surrounding the transaction.

As to the quitclaim deed, it confers upon the plaintiff no better title than he already possessed. He had title as security for a debt, and the quitclaim deed could only benefit him by stripping defendant of his equity of redemption. Where the relationship of debtor and creditor or mortgagor and mortgagee existed, the courts are loath to construe any subsequent ’ contract or conveyance of title, though absolute on its face, as a forfeiture of the grantor’s right to redeem upon payment of the indebtedness. Where the grantor still retains the possession which he acquired as owner and after-wards held as mortgagor, such a subsequent -conveyance will be regarded as additional security for the debt, rather than as a forfeiture of the grantor’s equity of redemption. Such a conveyance will not under such circumstances, as a matter of law, be construed as abrogating the relationship of debtor and creditor or mortgagor and mortgagee, and giving to the grantee full and complete dominion over the premises in question.

Once a mortgage always a mortgage is a well-recognized maxim of our law. How and in what manner can a mortgagee or holder of the legal title to secure debt subsequently acquire any further interest or right in the mortgaged property from a debtor? Unquestionably it can be done by contract. Equity, however, will closely and carefully scrutinize such a transaction before allowing it to stand. “It is perfectly competent for the mortgagor to sell, and for the mortgagee to buy, the equity of redemption, by a subsequent and independent contract entered into in good faith and for a good consideration, or for the mortgagor to surrender the absolute ownership of the premises to the. mortgagee as payment of the debt. But courts of equity will scrutinize such a transaction between the parties closely and with jealous care, and will not allow it to stand unless shown to be entirely fair and honest; for the bargain will be set aside if it appears to have been induced by any fraud, artifice, overreaching, or' advantage taken by the mortgagee of his commanding position with reference to the property, or of the ignorance, inexperience, or necessitous circumstances of the mortgagor.” 27 Cyc. 1373. Where it appears that a conveyance releases the equity of redemption to a mortgagee, “it must unequivocally appear that both parties intended that the conveyance should so operate.” 11 Am. &. Eng. Enc. Law (3d ed.), 346. “ Contracts made with the mortgagor [by the mortgagee] to lessen, embarrass, or restrain the right of redemption are regarded with jealousy and generally set aside as dangerous agreements, founded in uneonscientious advantages assumed over the necessities of the mortgagor.” 4 Kent’s Com. 159. The law, where-the mortgagor has conveyed to the mortgagee his' equity of redemption,, is that which covers the sale by a cestui que trust to his trustee. “It must be shown that the conduct of the mortgagee was in all things fair and frank. . . He must take no advantage of the fears or poverty of the other party.” Villa v. Rodriguez, 13 Wall. (U. S.) 333, 339 (30 L. ed. 406); 3 Pomeroy’s Equity; Darst v. Murphy (1887), 119 Ill. 343 (9 N. E. 887); Hoffman v. Ryan (1883), 31 W. Va. 415; Williams v. Reggan (1895), 111 Ala. 631 (30 So. 614); Haggerty v. Brower (1898), 105 Iowa, 395 (75 N. W. 331).

Under the above authorities, I am of the opinion'that, under all of the facts and circumstances disclosed by the evidence, it was for the jury to determine whether or not the agreement to pay “rent” and the quitclaim deed established the relation of landlord and tenant, and that the trial judge should not have directed a verdict for the plaintiff. I dissent from the judgment of affirmance in the main bill of exceptions; but since this judgment is affirmed, I concur in the dismissal of the cross-bill.


text:
    10114.
    MUTUAL CANNING COMPANY v. DeGUENTHER.
    Decided May 16, 1919.
    Where one buys outright a negotiable promissory note, the transaction is not rendered usurious because the discount amounts to more than the • maximum lawful rate of interest.
    ■The exclusion of testimony referring to other notes than those sued on was proper. The excluded testimony set out in special grounds 4, 5, and 7 of the motion for a new trial was immaterial. Special grounds' 1 and 3 as to the exclusion of testimony are not in proper form for consideration.
    The evidence authorized the verdict in favor of the- plaintiff.
    Complaint; from city court of Nashville—Judge Christian. August 31, 1918.

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

      Patterson & Copeland, E. K. Wilcox, contra.
   Broyles, P. J.

1. Under repeated rulings of the Supreme Court and of this court, when a special ground of a motion for a new trial sets forth a lengthy excerpt from the testimony of a witness, and complains that the court erred in excluding it as a whole, and some of the testimony so excluded is clearly hearsay and inadmissible, and it is not specified in the ground of the motion what parts of the testimony are admissible, the ground is too defective to be considered by the reviewing court. This ruling disposes of the 1st special ground of the motion for a new trial.

2. The testimony set forth in the 2d special ground of the motion for a new trial, referring to other notes than, the ones sued on, was properly excluded.

3. The assignment of error in the 3d special ground of the motion for a new trial, failing to give’ the name of the witness whose testimony was excluded, is insufficient in form and can not'be considered. Sims v. Sims, 131 Ga. 262 (62 S. E. 192).

4. No error appears in the exclusion of the testimony complained of in the 4th, 5th, and 7th special grounds of the motion for a new trial. The testimony excluded, under the facts of the ease, was irrelevant and immaterial.

5. The remaining special grounds of the motion for a new trial are merely amplifications of the general grounds.

6. It does not appear from the evidence that the notes sued upon were infected with usutfy. Where one buys outright a negotiable promissory note, the transaction is not rendered usurious because the discount upon the note amounts to more than the maximum lawful rate of interest. Campbell v. Morgan 111 Ga. 200 (36 S. E. 621).

7. The evidence demanded, and the court properly directed, a finding for the plaintiff on four of the notes sued upon; and the evidence authorized the finding of the jury for the plaintiff on the remaining note. The court did not err in overruling the motion for a new trial.

Judgment affirmed.

Bloodworth and Stephens, JJ., concur.


text:
    10131.
    Talley v. Matthews.
    Decided May 16, 1919.
    Complaint; from DeKalb superior court—Judge Smith. August 30, 1918.
    The suit was based on an agreement alleged to have been made by the defendant when Mrs. Talley, the plaintiff, transferred to him a bond for title, the written transfer of which was as follows: "For value received I hereby sell, transfer, and assign all my right, title, and interest in and to the within bond for title to C. A.. Matthews upon conditions recited in said bond, and the said R. F. Davis [maker of the bond] is authorized and instructed to execute deed in accordance with terms set forth within. Given under my hand and seal, this April 21, 1916. Mrs. Jessie I. Talley (L. S.).” The condition of the bond was that title to a certain lot of land, which Davis had agreed to sell to Mrs. Talley for $300, should be made to her on payment of the amount due thereon, evidenced by her promissory note for $60, payable April 26, 1916. The petition alleges: (paragraph 7) that on April 21, 1916, the defendant entered into an agreement with the plaintiff to assume certain indebtedness of the plaintiff to DeKalb Feed & Supply Company (on a note for $123.05 and an open account for $739.71), provided the plaintiff would transfer to him the bond for title mentioned above; and (8) that "under said agreement and according to the terms thereof” the said bond for title was, on April 21, 1916, transferred by the plaintiff to the defendant “upon the following conditions, which were understood by both parties: Defendant was to pay R. F. Davis the $50 note signed by plaintiff and due April 26, 1916, and have a warranty deed executed in his own name in order that he might put a loan on the place, thereby procuring the money due DeKalb Feed & Supply Company and the $50 to be paid to said Davis, after which said C. A. Matthews was to have no interest in said real estate;” (9) “that [if?] a loan could not be placed upon said house and lot sufficiently large to pay off said indebtedness, said C. A. Matthews was to sell said house and lot, reimburse himself, and turn over to plaintiff all money received in excess of the indebtedness to DeKalb Feed & Supply Company and to R. F. Davis, and in no event was said defendant authorized to sell said house and lot for less than $280 more than was required to reimburse him, which sum was at all events to be paid to plaintiff when a sale was made by defendant;” (10) “that no consideration passed from C. A. Matthews to petitioner for said transfer and none was contemplated other than is set forth in the three preceding paragraphs, and that the recitation in said transfer, ‘For value received I hereby sell, transfer, and assign/ etc., is not true;” (11) “that petitioner’s part of said agreement to transfer said bond for title for the purpose and on the terms and conditions herein alleged has been fully executed;” (12) “that on June 1st, 1916, defendant sold said house and lot to E. T. Echols for $1,500, which is $587.24 more than plaintiff owed DeKalb Feed & Supply Company and R. F. Davis, as herein shown, and which sum should have been turned over to plaintiff immediately after said sale, according to the terms of the contract entered into between petitioner and defendant, and which contract was fully executed on petitioner’s part on the 21st day of April, 1916, when she executed the transfer set forth;” (13) “that defendant refused to pay petitioner said $587.24, or any part thereof, and in so doing has injured and damaged her in the sum of $587.24, with interest from June 1st, 1916, to date; for which she prays judgment against defendant,” etc.
   Broyles, P. J.

1. The court did not err in dismissing the petition on general demurrer.

2. As this ruling controls the case, it is unnecessary to consider the judgment overruling the special demurrers.

Judgment affirmed.

Bloodworth and Stephens, JJ., concur.

The defendant demurred generally and specially, contending that the petition was an attempt to modify, add to, or alter by oral testimony the written contract by which the bond for title was transferred to the defendant. The court sustained the demurrer and dismissed the petition, and the plaintiff excepted.'

Hill & Adams, for plaintiff, cited:

Civil Code (1910), §§ 4179, 4188, 5736, 5789, 4268 (1), 3901; 128 Ga. 180; 138 Ga. 233; 134 Ga. 704; 106 Ga. 327; 72 Ga. 69; Id. 713; 67 Ga. 448,

Green, Tilson & McKinney, for defendant, cited:

146 Ga. 824; 147 Ga. 185, 189 (2); 5 Ga. App. 226; 81 Ga. 808 (4); 112 Ga.' 199 (6), 210 (6-7).


text:
    10142.
    Griffin et al. v. Smith, solicitor.
    Decided May 16, 1919.
    Condemnation of vehicle conveying liquor; from city court of Carrollton—Judge Beall. September 34, 1918.

      Boykin & Boykin, for plaintiffs in error.

      Willis Smith, solicitor, contra.
   Bloodworth, J.

1. When proceedings to condemn an automobile are instituted under the provisions of section 20 of the act of the General Assembly of 1917 (Act Ex. Sess. 1917, p. 17), the owner of the car has'the right to intervene,—file a “defense.” Bernstein v. Higginbotham, 148 Ga. 110 (96 S. E. 1) ; Gunn v. Atwell, 148 Ga. 137 (96 S. E. 2).

2. Under proceedings such as are referred to above, the intervenor is not required to make affidavit and give bond as in claim cases. Bernstein v. Higginbotham, 148 Ga. 353 (96 S. E. 866).

3. Under the foregoing rulings the court erred in dismissing, “for the reason that no bond' or affidavit is made or given,” the “defense” filed in this case by L. H. Griffin, in which he alleged in part: “Your claimant further shows that the said automobile described in paragraph 1 is not ' the property of the .said Dave Cook, but is the lawful property of your claimant, and that your claimant did not know, nor consent, nor would he have allowed the said automobile to have been used, if the same was used, in conveying any liquor or beverage in this State, the sale or possession of which is prohibited by law, and that he had no knowledge that said Dave Cook -would use the automobile for any such purpose, and if he had he wbuld not have allowed it to be used, is [ ?] it was used”' (Dave Cook being the person having possession of the automobile when seized by the sheriff, and against whom the original proceedings were instituted).

4. The court having erred in striking the defense filed by L. H. Griffin, the further proceedings were nugatory. In this connection see Whites v. State, 23 Ga. App. 174 (98 S. E. 171), and Shrouder. v. Sweat, 148 Ga. 376 (96 S. E. 81), both being proceedings to condemn automobiles for illegally transporting liquor. In the former case the owner had taken notes reserving title, and in the latter the note was secured by mortgage.

Judgment reversed,.

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


text:
    10043.
    Troup Company v. Speer et al.

   Jenkins, J.

1. An instrument in the form of an ordinary warranty deed, except that it contains a provision that “This mortgage deed is the second mortgage on these lands, said grantor having heretofore given mortgages on these lands to George K. Johnson and John W. Hamer, trustees of Penn Mutual Life-Insurance Company, of Philadelphia, and this deed is given subject to those mortgages,” and which does not contain a defeasance clause, will be construed not as a mortgage, but as an instrument passing title to secure a debt in the amount stated as the consideration of the deed.

2. While, under the provisions of section 3257 of the Civil Code (1910), one of the requisites to the validity of a mortgage is that the debt which it is given to secure shall be therein specified, a different rule obtains as to a deed given to secure a debt, and it is not necessary that such a conveyance shall specify the amount of the indebtedness that it is given to secure (McClure v. Smith, 115 Ga. 709, 712, 42 S. E. 53); but where an instrument made in the form of a security deed does in fact and by its own language specify and thus limit a debt in a named amount as being the one which it is actually intended to secure, the record of the instrument will not suffice tb give to the grantee thereunder any priority over third persons who may have subsequently and in good faith acquired a lien upon the same property, except as to the amount of the particular indebtedness thus specified. See American National Bank v. Brooks, 143 Ga. 320, 322 (85 S. E. 117) ; Bank of Cedartown v. Holloway-Smith Co., 146 Ga. 700 (92 S. E. 213) ; Leffler Co. v. Lane, 146 Ga. 741 (92 S. E. 214); Skinner v. Elliott, 17 Ga. App. 511 (2) (87 S.'E. 759). As between the parties themselves the rule would be different, and although a deed may be given as security for a named indebtedness in a specified amount, it is-competent for the parties to extend the security by agreement so that as between them it shall cover an additional indebtedness. Wylly v. Screven, 98 Ga. 213 (25 S. E. 435) ; Hester v. Gairdner, 128 Ga. 531, 534, 538 (58 S. E. 165). Where the instrument is written in the form of an absolute conveyance and does not within itself disclose that title is passed merely as security for a debt, the record of the conveyance puts the world upon notice that no interest or equity in the land remains in the grantor, and one subsequently dealing with him could not' be misled or injured by the statement of the consideration as contained therein (McClure v. Smith, supra; McIntire v. Garmany, 8 Ga. App. 802 (70 S. E. 198) ; Bank of Chatsworth v. Patterson, 148 Ga. 367, 96 S. E. 996) ; and in such a case a parol agreement extending the security to an additional indebtedness is not to be taken as varying the written terms of the instrument, and is good, since where the form is that of an ordinary warranty deed, the mere naming of a con.sideration is not to be taken as stating any amount of security or limiting it to any particular sum. Hester v. Gairdner, supra; Wiggs v. Hendricks, 147 Ga. 444 (94 S. E. 556).

3. Under the ruling stated in the preceding paragraph, the record of an instrument such as is described in paragraph 1, which on its face must be taken as a security deed only, and which makes no reference whatever to the fact that the indebtedness thereby secured was represented by a promissory note or other written evidence of indebtedness, - would not give priority to the-grantee thereunder over a third person who subsequently and in good faith acquired a lien upon the' same property, except as to the amount stated therein as the consideration, - together with subsequent interest at the legal rate of seven per cent. per annum, and the ordinary or non-eontractual cost of court incurred in its collection. The record of such a security deed, as given to secure such an indebtedness thus specified in amount, would not of itself impart notice to such third person of a claim to seven years’ previously accrued interest on the said indebtedness, nor of a claim for attorney’s fees. Had the recorded deed shown that the debt thereby secured was evidenced by written contract of indebtedness, the rule would be different, and the record of the deed would have been notice to one dealing with the grantor therein of all the rights which the grantee had under such contract of indebtedness to which reference was thus made, according to its actual terms and provisions, to the extent that such terms are not actually inebnsistent with the statements contained in the recorded deed. Mattlage v. Mulherin, 106 Ga. 834 (32 S. E. 940); Hardy v. Truitt, 20 Ga. App. 529, 534 (93 S. E. 149).

Decided April 19, 1919.

Adhered to on rehearing, June 12, 1919.

Money rule; from Troup superior court—Judge Terrell. July 10, 1918.

For the purpose of securing the payment of his promissory note to Eady-Baker Company for $6,130.88, and interest thereon at the rate of eight per cent, per annum from a date several years prior to the date of the note, and attorney’s fees for collection, Hogg executed an instrument reciting a consideration of $6,130.88 and in the form of a warranty deed, except that it contained the statement that “This mortgage deed is the second mortgage on these lands, said grantor having heretofore given mortgages on these lands to George K. Johnson and John W. Hamer, trustees of Penn Mutual Life Insurance Company of Philadelphia, and this deed is given subject to those mortgages” (meaning security deeds). Some time after this instrument had been recorded, the maker executed a deed to the same lands as security for a debt to the Troup Company. Judgments were afterwards obtained against him for the amounts of these debts, the lands mentioned were sold under the Penn Mutual Life Insurance Company’s judgment, and from the proceeds of the sale, after payment of that judgment, the above-mentioned sum of $6,130.88 was paid to George A. Speer as transferee of Eady-Baker Company’s judgment, leaving due thereon the intérest and attorney’s fees provided for in the note.' On a rule to distribute the remainder of the proceeds in the hands of the sheriff, the Troup Company contended that it was entitled to have the fund applied to its judgment instead of to the interest and attorney’s fees included in the EadyBaker Company judgment, which judgment it. contended had priority only to the extent of the amount named in the above-mentioned instrument executed as security to the Eady-Baker Company. This contention was not sustained, the court holding that the claim of the transferee of the Eady-Baker Company’s judgment, for interest and attorney’s fees, was entitled to priority. The Troup Company excepted.

Judgment reversed,.

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

Cited in brief for plaintiff in error:

37 Cyc. 991; 1 Jones on Mortgages (7th ed.), §§ 357, 360, 530, 531, 533; 19 R. C. L. 433, 434; 19 Ga. App. 487 (3); 146 Fed. 187; Civil Code (1910), §§ 3257 3259, 3260; 4 Pa. 178; 53 U. S. 139; 80 Ala. 16; 13 Ark. 113; 117 U. S.679; 13 Ga. 443-5; 135 N. Y. 543; 54 Wis. 636; 117 Ga. 76; 30 Ga. App. 593 (3); 13.7 Ga. 848; 144 Ga. 53 (5); 9 Am. Dec. 459; 10 Ga. App. 548; 17 Ga. App. 513; 188-Ga. 531; 6 Md. 53; 41 Am. Dec. 434; 30 Ark. 417; 113 U. S. 814; 115 Ga. 709; 8 Ga. App. 803.

Cited contra:

Civil Code (1910), §§ 3306, 3357; 130 Ga. 396 (3), 401; 69 Ga. 453, 614.; 115 Ga. 709, 713, 713; 138 Ga. 531 (3), 534; 147 Ga. 44.4; 17 Ga. App. 511 (3); 8 Ga. App. 803; 30 Ga. App. 539; 106 Ga. 834; 37 Cyc. 1065.

A. Ii. Thompson, B. W. Freeman, for "plaintiff in error. Hatton Lovejoy, Arthur Greer, F. T. Moon, contra.