text:
    7904.
    SOUTHERN RAILWAY COMPANY v. WILLIAMS.
    1. It is not, as a matter of law, negligence to alight from a moving train at or near a station at which it is the duty of the railroad company to bring the train to a stop, unless it appears that the danger attending the attempt to alight is so great as to be obvious to any person of common prudence and ordinary intelligence. The facts alleged in the petition in this case do not take it out of the general rule that negligence is a question for the jury. Accordingly, the court did not err in overruling the demurrer to the petition.
    2. While the plaintiff may not have been negligent as a matter of law in attempting to alight from a moving train, yet, under the evidence, negligence on the part of the railway company was not the proximate cause of his injury, and its motion for a new trial should have been granted.
    Decided March 15, 1917.
    Action for damages; from city court of Baxley—Judge Sellers. July 23, 1916.
    The plaintiff was a passenger on the defendant’s’ train from Brunswick to Baxley. There was a large crowd to get off the train at Baxley. He was riding at the rear end of the coach. When the train stopped at Baxley the passengers for that station weré in front of him, except his companion, Herndon. It was necessary for them to alight from the front end of the car. When about a third of the distance from the rear end of the coach an employee of the railway company, whom the plaintiff took to be a flagman, stopped him and his companion and asked if a certain passenger who then appeared to be asleep did not “belong to get off” at Baxley, to which the plaintiff replied in the affirmative, and the employee requested him and his companion to assist in waking the passenger. This they did, and while they were still engaged in their efforts to arouse the sleeping passenger, the train moved off. The plaintiff said to his companion: “If we are going to get off here we better do it,” and started at a rapid rate to the front end of the car,' and went to the steps for the purpose of getting off. His companion got off first, but they attempted to alight from the train at practically the same time. Before attempting to alight from the train the plaintiff was able to observe, in the fairly adequate light of the night,' that the ground at the jooint where he attempted to alight appeared smooth and clear of obstructions, and he thought that he could get off safely. The train had not moved far from the point where it had stopped, and there was nothing to indicate that he could not safely alight. While he was in the act of stepping from the train, the rapidity of its movement, its speed being increased, or a sudden jerk of the engine pulling it away from the station, caused him to fall violently to the ground. The character and extent of his injuries need not be here stated, because it is conceded by the defendant that “if the plaintiff was entitled to recover at all he was entitled to recover the amount of the verdict rendered.” The specific negligence alleged in the petition is: (1) that the defendant’s agents and officers had full knowledge that the plaintiff was upon the train and expected to alight at Baxley, his proper place of destination, and did not stop the train long enough to enable him to alight safely; (2) that the defendant’s agents caused the train to move forward and gain a rapid speed while he was in the act of alighting from it; and (3) that they caused the train to be jerked forward while he was in the act of alighting from' it, so that he was thrown violently against the ground and injured. A general demurrer to the petition was overruled, and, after a verdict in favor of the plaintiff, the defendant made a motion for a new trial, upon the general grounds only. The bill of exceptions alleges error in the overruling of the demurrer to the petition, and in the refusal to grant the motion for a new trial. The testimony of the plaintiff, who alone appeared as a witness at the trial, so far as material on the question for decision here, will be found in the opinion.

      J. B. Moore, W. W. Bennett. Bennet, Twitty & Reese, for plaintiff in error. Padgett & Watson, contra.
   George, J.

(After stating the foregoing facts.) Belatively to the question for decision here, the true doctrine is enunciated in Thompson on Negligence, vol. 3, p. 344, as follows: “It may . . be affirmed, on the one hand, that when a train stops at a station to which the company contracts to carry a passenger, .the company is liable if reasonable time to leave is not afforded, and the passenger is injured in an attempt to leave after it has started and while in motion, if he does not, in getting off, incur a danger obvious to the mind of a reasonable man; and on the other hand that, although the company has failed in its duty of stopping the train at the station for a reasonable time to allow the passenger to alight, yet if he attempts to do so after the train has acquired such a rapid motion as to make it obvious to a man acting reasonably under the same circumstances that an attempt to alight would be attended with danger, he can not make the negligence of the company a ground for recovering damages from' it in ease he is hurt, but his hurt will be imputed to his own negligence as the proximate cause of it.” To the same effect is Hutchinson on Carriers (3d ed.), § 1179 et seq. The doctrine stated by these text writers has been approved by the Supreme Court of this State in Turley v. A., K. & N. Ry. Co., 127 Ga. 594 (56 S. E. 748, 8 L. R. A. (N. S.) 695), and Louisville & Nashville R. Co. v. Edmondson, 128 Ga. 478 (57 S. E. 877). In the case of Bailey v. Ga. & Florida Railway, 144 Ga. 139 (86 S. E. 326), and in many earlier cases decided by the Supreme Court of Georgia, the rule is applied. In the Turley case, supra, Justice Beck, speaking for the court, refers to the decision in the case of Simmons v. Seaboard Air-Line Railway, 120 Ga. 225 (47 S. E. 570, 1. Ann. Cas. 777), and says, “if that decision conflicts with rulings made in this case, it must yield to older decisions, by whose rulings we are controlled,” and refers to the case of Súber v. G., C. & N. Ry. Co., 96 Ga. 42 (23 S. E. 387). The opinion in the Simmons case, supra, written by Justice Lamar, recognizes that “it is ordinarily a question for the jury to determine whether it is negligence, barring a recovery, for a passenger to step from a moving train.” He points out that such conduct has in several instances been held “not to prevent a recovery where the passenger was injured as the result of a sudden or negligent jerk given the train while'he was in the act of alighting;” and he cites the cases of Atlanta Railway Co. v. Randall, 117 Ga. 165 (43 S. E. 412); Central Railroad v. White, 74 Ga. 453; Walters v. Collins Park R. Co., 95 Ga. 519 (20 S. E. 497); Poole v. Georgia R. Co., 89 Ga. 320 (15 S. E. 321); Central R. Co. v. McKinney, 118 Ga. 535 (45 S. E. 430); Suber v. Georgia, C. & N. R. Co., supra, and Augusta So. Ry. Co. v. Snider, 118 Ga. 146 (44 S. E. 1005). He says, however, that “in all these cases . . the mere fact that the passenger may not have been guilty

of negligence was not the basis of his right to recover. Even if he was free from fault in stepping from the moving train, that did not make the company liable. It had also to appear that the carrier was guilty of negligence, and that negligence must have been shown to have been the cause—the proximate cause of the injury. Hardwick v. Georgia R. Co., 85 Ga. 509 [11 S. E. 832]. Here the company was bound to announce the station. Its failure so to do might have given rise to a cause of action in favor of the plaintiff for the loss of time, inconvenience, labor of traveling back, expenses, and all proximate damages consequent on his being carried past his destination. Watson v. Ga. Pacific Ry. Co., 81 Ga. 476 [7 S. E. 854]. If the petition is construed most favorably for the pleader, and to mean not that the plaintiff saw the conductor, but that the conductor saw the passenger attempting to alight from the moving train, it was an act of negligence to signal the engineer forward. The conductor had no right to add to the danger, or to increase the peril of one leaving a train under the circumstances alleged in the petition. And if the plaintiff had been injured as a result of a jerk so caused, and the plaintiff then or thereafter had no opportunity to avoid the consequences of the alleged negligent signaling, the company would have been liable, in view of the other facts stated.” The conclusion reached by the learned Justice is that “the petition claims no damage and sets out no cause of action by reason of the failure to announce the station, nor on account of the signal to go forward,” but that when the plaintiff was attempting to get off the moving train, “a jerk, not alleged to be negligent, and to be expected as usual, precipitated him upon the ground to his injury.” It was there ruled that the proximate cause of the'plaintiff’s in jury. was. not the negligence of the railroad company in failing to stop at the proper destination of the plaintiff, and that since the petition did not allege any act of negligence on the part of the railroad company in the operation of its train, the plaintiff’s injury resulted from his own negligence.

While the reasoning in the Simmons case, supra, has been criticized by the Supreme Court, it is proper to observe that in no case decided by that court, so far as we know, other than that of Bailey v. Ga. & Fla. Ry., 144 Ga. 139, has a recovery been allowed a passenger on substantially the same facts, except where some act of negligence in the operation of the train was shown, which the jury were authorized to find to be the proximate cause of the injury. The general doctrine that it is not, as a matter of law, negligence to attempt to alight from a moving train at or near a station at which it is the duty of the railroad company to bring its train to a stop, unless it appears that the danger attending the attempt to alight is so great as to be obvious to any person of common prudence and ordinary intelligence, is established beyond question, both by the decided eases in this State and upon general authority. Something more is necessary in order to fix liability on the railroad company. The passenger may not be negligent in attempting to step from a moving train, where the railroad company has violated its duty to stop its train at the proper destination of the passenger, or where the train has not stopped a sufficient length of time to enable the passenger to alight. Excusing him from any imputation of negligence, he must' allege some act of negligence in the operation of the train at the time of the infliction of the injury, which produced, as the prime or proximate cause, his injury. The act of negligence committed by the railroad company .in failing to stop its train a sufficient length of time to enable the passenger to alight is not, without more, the proximate cause of a physical injury to the passenger in attempting to step from the moving train. The Simmons case was followed in Ga., C. & N. Ry. Co. v. Hutchins, 121 Ga. 317 (48 S. E. 939), and in Hill v. L. & N. R. Co., 124 Ga. 243 (52 S. E. 651, 3 L. R. A. (N. S.) 432.) The decision in Bailey v. Ga. & Fla. Ry., supra, apparently goes further than any previous decision of our Supreme Court on this subject. In that case it was held to be error to grant a nonsuit where the evidence disclosed that, at the time the passenger undertook to alight from the moving "train, - it was “moving along slowly” and was not going fast enough to be obviously dangerous, although no act of negligence in. the operation of the train at the time of the infliction of the injury upon the plaintiff was alleged in the petition or shown by the evidence. Chief Justice Eish concurred specially in this ruling, upon the ground that, while the railway company had demurred to the petition and had filed exceptions pendente lite to the -overruling of its demurrer, it had failed to file a cross-bill of exceptions, and that the judgment overruling the demurrer must be treated by the Supreme Court as a final adjudication that the petition set forth a cause of action, and, inasmuch as the allegations of the petition were supported by the evidence, the grant of a nonsuit was error. The Chief Justice said that “the petition did not set forth a cause of action, and the court should not have overruled the general demurrer,” and he based his conclusion upon previous decisions of the Supreme Court in a number of cases, including the Simmons case, supra.

The Court of Appeals has apparently followed the general doctrine announced in the Suber case, supra. See especially Pierce v. Georgia R. Co., 9 Ga. App. 666 (72 S. E. 66); Southern Ry. Co. v. Parham, 10 Ga. App. 531 (73 S. E. 763); Evans v. Southern Ry. Co., 12 Ga. App. 319 (77 S. E. 197). It is to be especially noted, however, that in each of these cases, as well as in the Súber case, it appeared that there was some negligent act, or negligent omission to act, by the railroad company in the operation of the train, after the company had failed in its duty to stop the train at the proper destination of the passenger, or had failed to stop the train at such destination for a sufficient length of time to enable the passenger to alight. In the Evans case, supra, it is instructive to note that Judge Bussell uses this significant language (p. 325) : “According to the allegations of the petition the plaintiff thought he could alight in safety, and no reason appears why ordinarily he could not have done so. Under the circumstances as related by him, however, the train began to increase its speed just as he stepped from the bottom step of the car. This may be found by the jury to be the main contributing cause of his injury, the prime negligence, which, in connection with the.negligence of the company in not stopping the train, although it knew that the station was his destination, caused the injury of which he complains.” A clear and concise statement of the doctrine of liability in cases of this character is found in the decision of this court in Gosnell v. Central of Ga. Ry. Co., 17 Ga. App. 67 (86 S. E. 90), where it was said: “In case of a jerk or sudden start by which one alighting from a train is thrown to the ground, it will be presumed that there was a negligent act in the operation of the train; and where one alights from a moving train by the order of the conductor, the consequences chargeable to the conduct of the conductor will be imputed to the company itself. In this case there was no negligent act in the operation of the train, and there was no negligent order on the part of the conductor to the plaintiff, which caused the plaintiff'to fall or induced him to assume the obvious risk of alighting from a moving train, but he voluntarily undertook the risk himself.”

Our conclusion of the matter is this: Although a passenger, in attempting to step from a moving train, may not have been negligent, yet, before there can be liability on the part of the carrier, there must be negligence on its part, and such negligence must be the proximate cause of the injury. In the absence of negligence on the part of the carrier in the operation of .the train, or on the part of its servants in control thereof in directing, requesting, or permitting the passenger to attempt to alight from the train while in motion, its antecedent negligence in merely failing to stop its train, or in merely failing to stop the train long enough for the passenger to alight, can not rightly be regarded as the proximate cause of an injury such as was received under the circumstances appearing in this case. The real underlying reason upon which the decision in the Simmons case, supra, is based is that, while a jerk was alleged, it was not alleged to be a negligent jerk, or a sudden jerk, but was only what was to be expected. The conclusion reached in that case, on the facts there stated, may be erroneous, and in our opinion is erroneous under Gosnell v. Central of Ga. Ry. Co., supra, but the reasoning employed by Justice Lamar seems to us to be essentially sound.

The petition in the case at bar, as amended, set forth a cause of action. No witness was called except the plaintiff, and upon his testimony the case rested. He said that before attempting to get off the train he observed the situation as best he could. It was tolerably light. The lay of the land looked all right to him. It looked smooth enough. There were no obstructions. It looked like he could get off in safety. In his exact language: “The reason I fell was because the train was—that is, I think was the reason—I know it was—.the train was moving too fast for me to get off safely. It was moving faster than I thought it was. I don’t know the distance the train had moved. It hadn’t moved very far. I made no observation to ascertain how fast it was moving, nothing special, no more than it hadn’t been started but a very short time, and from that time I didn’t think was one of the reasons, and then I saw—I thought I saw—I could get off safely.” He admitted that his companion, who preceded him from the train, partially fell in stepping from the train, catching himself on' one hand. The plaintiff, however, was in the act of stepping from the train and was too far gone to recover himself, at the time he observed his companion in the act of falling. He did not testify that the train suddenly increased its speed, or that there was any perceptible increase in its speed, nor does he testify that a jerk, jolt, or jar of the train occurred at the time when he undertook to step from the coach. On the contrary, his testimony shows that the train moved off in the usual and ordinary manner, and completely rebuts the presumption against the railway company. Construing the plaintiff’s testimony most strongly against him, it is evident that the proximate cause of his injury was his negligence in miscalculating the speed of the train, or that the injury was the result of a mere accident. It is true that the railroad company was negligent, but its negligence consisted merely in failing to stop its train a sufficient length of time to enable the plaintiff to alight, and this. negligence, known to the plaintiff, was not the proximate cause of his injury. It can not be held in this case that an implied ihvitation was given to the plaintiff by the unnamed employee of the railroad company to attempt to alight from the train while in motion. So far as the evidence discloses, this employee was nothing more than a brakeman or a flagman, and it does not appear that he had or exercised any control whatever over the movement or management of the train. The plaintiff himself does not intimate that he was induced even remotely by the silence of this employee to attempt to leave the train while in motion. The evidence failed 'to sustain the vital allegation in the declaration, to wit, that at the time the plaintiff undertook to alight from the moving train, the company negligently increased the speed of the train, or negligently caused the train to be suddenly jerked, jolted, or jarred. The court, therefore, erred in overruling the defendant’s motion for a new trial.

Judgment reversed.

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


source: Caselaw Access Project

author: Wade, C. J.

license: Public Domain

text:
    7913.
    Bell v. Evans.
   Wade, C. J.

1. This was a suit on an account, for $26.50, the alleged value of certain permanent fixtures, to wit, about a half of a small privy, a little more than one roll of fence wire, and some planking and fence posts, all attached by the plaintiff to land which (according to parol testimony of the defendant, admitted without objection) belonged to the defendant, and which were removed from the land by the defendant. The verdict in favor of the defendant was therefore not without evidence to support it.

2. The assignments of error based upon the allowance of an amendment to the plea of the defendant, and also upon the admission of certain documentary evidence, can not be considered, since the exact nature and effect of the amendment do not appear, and the contents of the documents are not disclosed, either by the assignments themselves, or by any recitals in the petition for certiorari. The petition alleging error must itself show error, and where the assignments of error therein are insufficient to accomplish this purpose they can not be considered.

Decided March 15, 1917.

Certiorari; from Cherokee superior court—Judge Patterson. September 29, 1916.

Howell Broolce, for plaintiff.

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

Judgment affi¡-med.

George and Luke, JJ,, eoneur.'


author: Luke, J.

text:
    7944.
    Johnson v. Holt.
    Decided March 15, 1917.
    Certiorari; from Fayette superior court—Judge Searcy. October 19, 1916.

      J. W. Gulpepper, for plaintiff in error.

      W. B. Hollingsworth, contra.'
   Luke, J.

1. A justice of the peace has the power to amend a judgment rendered by himself, where the amendment is in a mere matter of form; and this may be done at a term of court subsequent to the trial term. N., C. & St. L. Ry. v. Brown, 3 Ga. App. 561 (3), 565 (60 S. E. 319); Elliott v. Wilkes, 16 Ga. App. 466 (85 S. E. 679); Bell v. Bowdoin, 109 Ga. 209 (34 S. E. 339); Rucker v. Williams, 129 Ga. 828 (60 S. E. 155).

2. The amendment to the judgment by the justice of the peace in the instant ease was as to a matter of form, and the court did not err in overruling the certiorari.

Judgment affirmed.

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


text:
    8005.
    Terry v. City of Greensboro.
   Luke, J.

1. Motions for continuance are left to the sound discretion of the court; and where in a recorder’s court, on the call of the case of ' one charged with the violation of a municipal ordinance, the defendant made a motion for a continuance, on the ground that he had been recently arrested, and the court then offered to procure the attendance of any witnesses he might need, and he replied that he had no special witnesses that he could name, the refusal of the court to continue the case was not an abuse of discretion.

Decided March 15, 1917.

Certiorari; from Greene superior court—Judge Park. November 4, 1916.

J. G. Faust, for plaintiff in error. Nod P. Parle, contra.

2. Upon the petition for certiorari and the answer thereto the court did not err in .overruling the certiorari.

Judgment affirmed.

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


author: Jenkins, J.,

text:
    7450.
    ANDERSON, administrator, v. KING.
    1. When in a suit on a promissory note in the city court of Atlanta the petition recites the giving' of the statutory notice for the collection of attorney’s fees, and the case is in default, the judge may, without further proof than the admission implied by the failure .of the defendant to answer, direct a verdict in favor of the plaintiff for the amount sued for. Ivey v. Payne, 8 Ga. App. 760 (70 S. E. 140) ; Valdosta éc. R. Co. v. Citizens Banh, 14 Ga. App. 329 (80 S. E. 913).
    2. Where such a judgment has been rendered, the statute relating to the opening of default has no application, although a motion to vacate the judgment might be made upon proper grounds. Nesmith v. Peeples, 14 Ga. App. 145.
    Decided March 15, 1917.
    Complaint; from city court of Atlanta—Judge Reid. March 10, 1916.

      J. S. James, J. B. Bedgood, for plaintiff in error.

      Bryan, Jordan & Middlebrooks, contra.
   Jenkins, J.,

R. R. King filed suit in the city court of Atlanta, returnable to the March term, 1916, against Mrs. Anna E. Rags-dale, upon a promissory note which stipulated for the payment of ten per cent, of the principal and interest as attorney’s fees. The defendant was served personally. The plaintiff prayed for the establishment of his special lien upon certain land in Pulton county, Georgia, created by a certain loan deed made by the defendant to secure the payment of the note sued on. The petition set out the terms of the loan deed, and contained allegations showing that the defendant was duly served with notice in accordance with section 4252 of the Code of Georgia of 1910, for the purpose of collecting attorney’s fees, and a copy of the notice was attached to the petition. No answer or appearance or pleading of any kind was filed by the defendant, and at the call of the appearance docket for the March term, 1916, of the city court of Atlanta, the case was in default. Afterwards the court directed a verdict for the plaintiff for the amount of the principal, interest, attorney’s fees, and costs, and setting up the plaintiff’s special lien as prayed for; and a judgment signed by the court and by the plaintiff’s attorneys was rendered in accordance with the verdict. The defendant filed a motion for a new trial, on the grounds, that the verdict and judgment are contrary to law and to the evidence, decidedly and strongly against the weight of the evidence, and without any evidence to support them. At the hearing of the motion the defendant .filed an amendment alleging that she was at her home in Atlanta, sick, on the first Monday in March, 1916,—the last day for filing pleadings in the said case,—and therefore was unable to file a defense. Attached to the amended motion for a new trial was a copy of a plea which the defendant desired to file, setting up usury. The motion for a new trial as amended was overruled, and the defendant filed- a bill of exceptions to the judgment overruling the motion.

It is not necessary to add anything further to what is ruled in the headnotes.

Judgment affirmed.

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


author: Broyles, P. J.

text:
    7614.
    FARKAS et al. v. COHN & SON.
    1. The court did not err in oven-uling the motion to dismiss the petition.
    2. The first ground of the amendment to the motion for a new trial is not referred to in the brief of counsel for the plaintiff in error, and is therefore treated as abandoned.
    3. The court did not err in excluding the testimony set out in the 2d ground of the amendment to the motion for a new trial, there being no plea of “no partnership.”
    4. The refusal of the court to repel the evidence set out in the 3d, 4th, 5th, and 6th grounds of the amendment to the motion for a new trial was not erroneous. Although the several witnesses were not shown to have been expert real-estate men, their evidence was admissible for what it was worth, on the subject of the rental value of the store in question, with and without a “glass front,” notwithstanding they mentioned no particular kind of glass front.
    5. The assignment of error based upon the court’s refusal of a written request to give certain instructions to the jury can not be considered, as it is not alleged that the request was presented to the court before the jury had retired to consider their-verdict. Civil Code (1910), § 6084.
    6. Under the facts of the case, including the amount of the verdict, even if the court, in the absence of a timely written request, erred in failing to charge section 4398 of the Civil Code (as to the duty of an injured person to lessen damages), the error was harmless.
    7. The verdict was supported by the evidence.
    Decided March 15, 1917.
    Rehearing denied March 27, 1917.
    Action on contract; from city court of Albany—Judge Clayton Jones. June 17, 1916.

      Leonard Farkas, for plaintiffs in error.
   Broyles, P. J.

S. Cohn & Son brought suit for damages for the alleged breach of a written contract. The petition alleged, in substance, that under the terms of the contract the plaintiffs were to pay the defendant Farkas for the rent of a certain storehouse in the city of Albany, Georgia, $60 per month for a period of three years, and in consideration of such payment Farkas was to put in a new “glass front” to the building, without any cost to the plaintiffs; and that he had failed and refused to carry out this part of the contract, thereby damaging the plaintiffs in the sum of $1,000. A copy of the contract was attached as an exhibit to the petition. The material parts of the contract, so far as this action is concerned, are as follows: “The party of the first part hereby leases unto the parties of the second part . . . for a period of three years, beginning July 1, 1913, and expiring with July 1, 1916, . . . one brick storehouse and lot and building on lot in rear thereof on Broad street, in the city of Albany, said State and county, said storehouse being No. 237 North Broad street. The said party of the first part hereby agrees to do all the necessary repairing on said property, for its protection, during the term of this lease, and said party of the first part further agrees, as a part of the consideration of this lease, to put in a new glass front-to the said building, all of which is to be done without cost to the said parties of the second part. The consideration of this lease contract is the assumption of repairs and improvements above mentioned, by the party of the first part, and the payment of sixty dollars per month as rental, which sum is to he paid by the parties of the second part, their heirs and assigns, on the first day of each month, beginning July 1, 1913, and continuing on the first day of each, month thereafter during the three years of this lease.”

On the trial an oral motion to dismiss the petition was made on the ground that it failed to set out a cause of action, in that the contract was too vague and uncertain to be enforced,. The motion was overruled, and there were exceptions pendente lite to this ruling, upon which error is assigned in the final bill of exceptions: That part of the contract which stipulates that the defendant Farkas is to “put in a new glass front to the storehouse,” when considered alone, is rather vague and indefinite. A well known principle of law, however, is that in construing any part of a contract, the whole contract must be considered. Tillman v. Webb, 17 Ga. App. 620 (87 S. E. 904). In our opinion it is inferable from the entire contract that it meant that Farkas was to put in an ordinary, usual, “glass front,” or “show window,” in the front of the building, for the purpose of displaying goods, similar to “glass fronts” in other stores in that locality in the city of Albany. That this is the proper construction of the contract is, we think, shown by the testimony adduced both for the plaintiffs and the defendants. Witnesses on both sides testified clearly and definitely as to the difference in rental values generally, in the vicinity of the storehouse in question, of such buildings with and without “glass fronts.” The expression “glass front” was apparently not too vague and indefinite for these business men of the city of Albany to know exactly what was meant thereby, and it is a legitimate inference from this evidence that the parties to the contract in question understood what kind of “glass front” was called for therein. Thus construed, the contract is not too uncertain to b.e the basis of a suit for the breach thereof,- and the petition was not subject to general demurrer. The oral motion to dismsis the petition was of the nature of such a demurrer, and the court did not err 'in overruling it.

It is not necessary to elaborate what is said in the headnotes as to other questions. The court did not err in overruling the motion for a new trial.

Judgment affirmed.

Jenkins and Bloodworlh, JJ., concur.


author: Jenkins, J.

text:
    7717.
    Pittman v. Alexander.
    Decided March 15, 1917.
    Certiorari; from Fulton superior court—Judge Pendleton. June 22, 1916. ■

      W. A. James, for plaintiff in error. Moore & Pomeroy, contra.
   Jenkins, J.

1. The only issue involved in this case being as to whether the defendant in the municipal court of Atlanta was entitled to a set-off in the suit against him, and the evidence upon this issue being conflicting, but ample to justify the judgment of the trial court disallowing the set-off, the judge of the superior court did not err in overruling and dismissing the certiorari.

2. Under section 4201 of the Civil Code (1910), when the superior court sustains a certiorari it has no authority to render also a final judgment, if issues of fact are involved and the case does not necessarily depend upon a controlling question of law. Almand v. Ga. R. Co., 102 Ga. 151 (29 S. E. 159) ; Ga. R. Co. v. Partee, 107 Ga. 789 (33 S. E. 668) ; Williams v. Bradfield, 116 Ga. 705 (43 S. E. 57) ; Patterson v. Central Ry. Co., 117 Ga. 827 (45 S. E. 250) ; Atlantic Coast Lime R. Co. v. Shuman, 121 Ga. 113 (48 S. E. 680); Bass Dry Goods Co. v. Electric Battery Co., 123 Ga. 640 (51 S. E. 579); Langley Mfg. Co. v. Frey, 10 Ga. App. 753 (4) (73 S. E. 1074). But when the finding of the trial court should be and is sustained and the certiorari overruled, there is no error. in rendering final judgment in the case. Ford v. Price, 116 Ga. 793 (2) (43 S. E. 69) ; Ga. So. & Fla. Ry. Co. v. Giddens, 117 Ga. 799 (45 S. E. 67). Indeed, where a certiorari bond has been given, this would seem the better and more proper procedure. See Bailey v. Ware, 19 Ga. App. 255 (91 S. E. 275).

Judgment affirmed.

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


text:
    7741.
    Cherokee Sawmill Company v. Nashville, Chattanooga and St. Louis Railway.
   Broyles, P. J.

1. A stipulation in a bill of lading issued by a common carrier, that the carrier can not be held liable for any injuries inflicted upon live stock transported by it, unless suit therefor is brought within six months aftér the right of action accrues, is not unreasonable, and is valid and binding. Missouri, Kansas & Texas R. Co. v. Harriman, 227 U. S. 657, 673 (33 Sup. Ct. 397, 57 L. ed. 690, 698); Maxwell v. Liverpool Ins. Co., 12 Ga. App. 127 (76 S. E. 1036).

2. Such a stipulation as is mentioned above takes the place of the statute of limitations and is governed by the same rules; and where fraud is relied upon to prevent the bar of the statute or the superseding stipulation from attaching, it must be such fraud as involves moral turpitude. Austin v. Raiford, 68 Ga. 201; Maxwell v. Walsh, 117 Ga. 467, 471 (43 S. E. 704). In the instant case no such fraud was alleged in the plaintiff’s petition, nor were any facts therein shown which disclosed actual fraud of any kind.

Decided March 15, 1917.

Action for damages; from city court of Floyd county—Judge Nunnally. July 19, 1916.

Soscos Luke, Eubanks & Mebane, for plaintiff. Tye, Peeples & Tye, Dean & Dean, L. H. Covington, for defendant.

3. Under these rulings the court did not err in dismissing the plaintiff’s petition on general demurrer.

Judgment affirmed.

Jenhvns and Bloodworth, J.J., concur.


author: Bloodworth, J.

text:
    7747.
    Shore v. Brown.
   Bloodworth, J.

1. “If the plaintiff fails to make out a prima facie case, or if, admitting all the facts proved and all reasonable deductions from them, the plaintiff ought not to recover, a nonsuit will be granted. ” Civil Code, § 5942.

2. Where the plaintiff fails to make out a prima facie case as stated above, and the defendant does not move for a nonsuit, the court may, in the economy of time and money, on its own motion enter judgment of non-suit. Moody v. Davis, 10 Ga. 403 (3) ; Moore v. Cameron, 12 Ga. 265; Kelly v. Strouse, 116 Ga. 872 (8), 893 (43 S. E. 280).

3. Where the only evidence for the plaintiff was his own depositions, and during the reading thereof to the jury the attention of the judge was temporarily diverted, “which prevented a clear understanding of the evidence read,” and where the case was allowed to proceed and evidence for the defendant was introduced, and “the court called for the depositions and read them over carefully,” and called attention of counsel for the plaintiff to the fact that the evidence showed’ that the defendant went into possession of the property by agreement of the parties, and that no demand had been proved, and, in the opinion of the court, no conversion shown, and the judge asked counsel for the plaintiff if he had anything further to offer, and was answered in the negative, and thereupon the court on its own motion entered judgment of nonsuit, there was in this no error hurtful to the plaintiff, especially as the evidence, taken as a whole, would have authorized the judge to direct a verdict for the defendant. Zipperer v. Savannah, 128 Ga. 135 (4), 139 (57 S. E. 311); Barnes v. Carter, 120 Ga. 895 (2), 898 (48 S. E. 387) ; Equitable Manufacturing Co. v. Davis, 130 Ga. 67 (4), 71 (60 S. E. 262).

4. In this case the evidence of the plaintiff shows that the sawmill and fixtures for which suit was brought had been hired by him to the defendant for an indefinite period, and where there is such a bailment, before the plaintiff can recover in an action of trover, a demand and refusal must be shown. Baston v. Rabun, 115 Ga. 378 (41 S. E. 568) ; Loveless v. Fowler, 79 Ga. 134 (4), 136 (4 S. E. 103, 11 Am. St. R. 107) ; Dunn v. Cox, 85 Ga. 141 (11 S. E. 582).

Decided March 15, 1917.

Trover; from city court of Hall county—Judge Wheeler. July 7. 1916.

E. D-. Kenyon, for plaintiff. J. 0. Adams, for defendant.

5. In trover conversion is the gist of the action. There must be some act of malfeasance, not mere nonfeasance, some positive wrong, and not the mere omission of what is right. Mere neglect of duty will not support an action of trover. Southern Express Co. v. Sinclair, 130 Ga. 372 (60 S. E. 849) ; Savage v. Smythe, 48 Ga. 562 (2) ; Roll v. Black, 2 Ga. Dec. 18; Bristol v. Burt, 7 Johns. (N. Y.) 254 (5 Am. D. 264) : Fernald v. Chase, 37 Maine, 289-291; Sturgis v. Keith, 57 Ill. 451 (11 Am. R. 28).

6. An application to reinstate' a case after a nonsuit is addressed to the sound discretion of the trial judge, and this court will not interfere unless that discretion is abused. This court can not say in this case that the judge abused his discretion. Cooper v. Jones, 24 Ga. 473 (3) ; Brown v. Wyeth, 119 Ga. 687 (46 S. E. 823); City of Atlanta v. Miller, 125 Ga. 495 (54 S. E. 538); Bird v. Burgsteiner, 113 Ga. 1012 (39 S. E. 425) ; Harrison v. Tate, 100 Ga. 317 (27 S. E. 179).

Judgment affirmed.

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


author: Beoyles, P. J.

text:
    7756.
    Williams Brothers & Powers Company et al. v. Maddox-Rucker Company.
   Beoyles, P. J.

1. The admission in evidence of the contract sued upon was not erroneous for any of the reasons assigned.

2. The letter of the defendants to the plaintiff' was in the nature of an admission, and was properly admitted in evidence, notwithstanding it was written after the alleged breach of the contract sued upon.

3. Under the facts of the case the statement of the judge to counsel in the presence of the jury, complained of in the third ground of the amendment to the motion for a new trial, was not error.

4. The seventh ground of the amendment to the motion for a new trial complains of an excerpt from the charge of the court; and yet in the brief of counsel for the plaintiff in error it is stated that “the court erred in not charging the jury as set out in seventh ground of amended motion.” In such a conflict between the ground of the motion and the contentions of counsel for the plaintiff in error, this court is unable to intelligently consider this ground of the motion.

5. The other special grounds of the motion for a new trial are not argued in the brief of counsel for the plaintiff in error, and consequently are treated as abandoned.

Decided March 15, 1917.

Action on contract; from city court of Greenville—Judge Eevill. July 20, 1916.

M. F. Culpepper, J. B. Terrell, for plaintiffs in error.

McLaughlin & Jones, contra.

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

Judgment affirmed.

Jenhins and Bloodworth, JJ., concur.


author: Bloodwobth, J.

text:
    7759.
    Middleton v. Johnson.
    Decided March 15, 1917.
    Affidavit of illegality; from city court of Baxley—Judge Sellers. November 27, 1916.

      W. W. Bennett, for plaintiff in error, J). M. Parker, contra.
   Bloodwobth, J.

1. Before judgment can be rendered upon a bond dissolving a garnishment, two prior judgments are necessary, first a judgment in the main action, and then a judgment declaring the money or property subject. National Surety Co. v. Medlock, 2 Ga. App. 665 (58 S. E. 1131).

2. After the two judgments referred to in the preceding paragraph are obtained, the plaintiff may enter up judgment against the principal and the surety on the bond to dissolve the garnishment, as judgment may be entered against sureties on bail; and while the judgment may be against the principal and the surety jointly and severally, yet “a second judgment against the principal can add nothing whatever to the strength of plaintiff’s position, for at the time he seeks to enter judgment on the bond he actually has the principal’s property bound by as efficacious a judgment lien as he could possibly obtain.” Maddox v. American Trust & Bkg. Co., 109 Ga. 787 (35 S. E. 155) ; Civil Code, §§ 5280, 5937.

3. “It is too well settled now to admit of any discussion, that a surety on an eventual condemnation-money bond in an action of trover is bound by the judgment against his principal, and will not be heard after judgment to raise any question which could have been raised by his principal before judgment.” Waldrop v. Wolff, 114 Ga. 620. The record in this case shows that the alleged payments for which the plaintiff in error claims his principal should be given credit were made before the judgment was rendered against him. Craig v. Herring, 80 Ga. 709 (6 S. E. 283) ; Jackson v. Guilmartin, 61 Ga. 544.

4. The trial judge' did not err in sustaining the demurrer to the affidavit of illegality and dismissing the affidavit.

Judgment affirmed.

Broyles, P. J., and Jenhms, J., concur.


text:
    7766.
    Mulinix v. Davenport Brothers et al.

    Decided March 15, 1917.
    Complaint; from city court of Cartersville—Judge Moon. July 10, 1916.

      I. F. Muncly, Neel & Neel, for plaintiff in error.

      Paul F. Akin, contra.
   Broyles, P. J.

1. Documentary evidence set out in the pleadings or attached thereto as exhibits should no't be included in the brief of evidence otherwise than by reference thereto. Civil Code of 1910, § 6093; Oconee Oil Co. v. Planters Oil Co., 6 Ga. App. 413 (65 S. E. 144); Slappey v. Charles, 7 Ga. App. 796 (68 S. E. 308).

2. As all the grounds of the exceptions to the judgment rendered by the trial judge (sitting by consent without the intervention of a jury) depend upon a consideration of the evidence, and as what purports to be a brief of the evidence, both oral and documentary, contained in the bill of exceptions, is interspersed with objections to testimony and the rulings thereon, and there being apparently no effort to brief the documentary evidence, but the same being included in extenso in the brief of evidence, notwithstanding such documentary evidence is attached as exhibits to the pleadings in the case, the exceptions can not be considered, and the judgment of the trial court must be affirmed. Civil Code, § 6093; Ingram v. Clarke, 96 Ga. 777 (22 S. E. 334) ; Roberts v. City of Cairo, 133 Ga. 642 (66 S. E. 938); Mewborn v. Weitzer, 15 Ga. App. 668 (84 S. E. 141), and cases there cited.

Judgment affirmed.

JenMns and Bloodworth, JJ., concur.


text:
    7881.
    Spikes v. Sassnett..
    Decided March 15, 1917.
   Bloodworth, J.

1. Where a person left a certain number of stalks of sugar-cane in a bed, and another person, without consent of the owner, took up the cane and planted it, and subsequently the parties agreed that the cane should be cultivated by the one planting it, and that the original owner could “come and get her one-half of it in the fall,” trover would not lie against the person who planted it, for “about twenty-five hundred stalks of sugar-cane raised on a certain patch grown by” him, where there had been no segregation of these twenty-five hundred stalks from the whole amount raised, so as to render the same subject to identification. Camp v. Casey, 110 Ga. 262 (34 S. E. 277).

2. “If a nonsuit must necessarily have been awarded, although' the reason assigned for its grant may have been wrong, yet the grant itself will be upheld.” Tompkins v. Phipps, 68 Ga. 155.

Judgment affirmed.

Broyles, P. J., and JenMns, J., concur.

■ Trover; from city court of Dublin.—Judge Hicks. June 15, 1916.

W. A. Dampler, for plaintiff.


text:
    7663.
    Citizens Bank of Waynesboro v. Timmons et al.

    March 16, 1917.
    Rehearing denied April 5, 1917.
    Complaint; from city court of Tifton—Judge Eve. May 26, 1916.

      E. J. FullbrigM, B. S. Foy, for plaintiff.

      Fulwood & Eargrett, J. E. Price, J. J. Murray, for defendants.
   Wade, C. J.

1. “A contract with a building contractor stipulated that he should be paid a specified sum for the work, payable in monthly installments in such sums as the architects might in writing certify to be due. The owner reserved the right to withhold the payment of any installment when necessary to protect liimself against any outstanding claims or liens for either labor or material. Held: (1) When the architects issued a certificate that a specified sum was due under the terms of the contract, the certificate was assignable, and the. assignee could enforce it in a court of law, as a legal assignment of a particular fund. (2) In such a suit by the assignee it was not necessary that the petition should negative the existence of liens for labor or material. This was matter of defense.” Timmons v. Citizens Bank, 11 Ga. App. 69 (74 S. E. 798).

(a) The plaintiff in error acquired from the contractor, by assignment, a certificate signed by the architects to the effect that he was entitled to $1,300 as a payment under the terms of the building contract, which was broad enough to include by its language, not only perfected and recorded liens, but any valid “claims” for labor or material used in the construction of the building by the contractor'.

(&) The certificate was assignable, but, not being a negotiable instrument, the transferee occupied no better position than the contractor, and the claim in its hands was subject to all the defenses that could have been interposed if suit had been brought by the contractor.

(c) The undisputed evidence showed that the contractor abandoned his contract, leaving unpaid claims for material furnished and labor done that were potential liens and debts assumed (not barred by statute when assumed) for an amount which, added to sums already paid under the contract, largely exceeded the contract price. There was no averment or proof that the work had been performed in accordance with the conditions of the contract, or that full performance was in any manner waived.

2. The judgment rendered by the court without the intervention of a jury was authorized by the evidence, and the court therefore did not err in overruling the motion for a new trial, based on the general grounds only. Judgment affirmed.

George and Luke, JJ.-, concur.


text:
    7675.
    Rowland v. Devon Manufacturing Company.
    Decided March 16, 1917.
    Certiorari; from Floyd superior court—Judge Wright. June 27, 1916.
    The Devon Manufacturing Company sued in a justice’s court for $30.99, on an account from which it appeared that this sum was a balance due on the price of “1 Devon’s 10c A punch asst. No. 8, $40.00.” Liability was denied by the defendant on the ground that the account was for “a lottery or gambling device.” . At the trial on appeal in the justice’s court the defendant was introduced as a witness for the plaintiff, and from his testimony it appeared that the property described in the account was sold to him on a written order signed by him (which was introduced in evidence), directing the plaintiff to ship to him “one assortment' No. 8, at $40.00,” consisting of “8 watches, 92 pieces of jewelry and cutlery, and 400 packages of chewing gum.” The order contained stipulations as to the return of unsold goods, offered for sale “as per printed directions” for sixty days from date of invoice, and the payment of 80 per cent, of the gross receipts, “which is 8c for each sale.” It concluded as follows: “You agree to place in center of tray an extra watch, for which no charge is made; this watch to be used as per printed directions or returned by me with the unsold goods. No salesman has authority to collect money or goods or make settlement of this account. It is understood that I have no agreement with you [except ?] as herein stated.” (The bracketed word “except” in the preceding sentence does not appear in the contract as copied in the record, but appears in the brief of counsel, in what purports to be a quotation from the contract.) In the writing referred to it was stated that the signer’s “line of business” was “lunch counter.” It did not appear what were the “printed directions” referred to. The defendant testified: “The account sued on was contracted for a device as follows: You pay a dime and punch a hole in a board that pushes out a number. With each payment of ten cents you get a package of chewing gum. There is one grand prize—a watch. The person drawing the-number that corresponds to the number on the watch gets the watch, in addition to the gum and the other prizes that he may draw, but you do not necessarily get a prize with every purchase of a draw. The gum, exclusive of any prize, is not worth five cents per package. Most of the prizes are of small value. Very few of them are worth as much as ten cents each. I bought the board under the terms of the written contract shown me. I have not paid the plaintiff anything on said board. I sold some of the articles through the process explained, and collected for the same, but have never remitted to the plaintiff for the same, otherwise than . . the check which was returned to me.” “I sent them a check for $20.80, and they returned the check to me, stating that I owed them more and they would not accept the cheek in full settlement. I do not consider that I owe the plaintiff anything.” A letter was introduced in which the defendant said to the plaintiff: “I have sold from the board received by me your goods to the amount of $26.00. Under our contraet-I am entitled to 20% on goods sold. Therefore, deducting the 20%, amounting to $5.20, from the amount of the sales, leaves $20.80, for which sum I am sending you check in full settlement of my account. I am also expressing back to you the board with the unsold goods as per contract.” There was no other evidence than the written order and this letter and the defendant’s testimony as a witness for the plaintiff. The trial resulted in a verdict and judgment against the defendant for $20.80; which, in a petition for certiorari, he alleged to be contrary to law and the evidence. The certiorari was overruled by the judge of the superior court, and error is assigned on this judgment.
   Wade, C. J.

The evidence did not demand a finding that the contract sued upon was based upon a gambling, immoral, or illegal consideration; and the judge of the superior court did not err in overruling the cer-. tiorari. Judgment affirmed.

George and Lulce, JJ.¡ concur.

Counsel for the plaintiff in error

cited: Alexander v. Allanta, 13 Ga. App. 354 (79 S. E. 177); Townsend v. State, 14 Ga. App. 757, 761 (82 S. E. 253); Meyer v. State, 112 Ga. 20 (37 S. E. 96, 51 L. R. A. 496, 81 Am. St. R. 17); Equitable Loan &c. Co. v. Waring, 117 Ga. 599 (44 S. E. 320, 62 L. R. A. 93, 97 Am. St. R. 177); DeFlorin v. State, 121 Ga. 593 (49 S. E. 699, 104 Am. St. R. 177); Russell v. Equitable Loan &c. Co., 129 Ga. 154, 161 (58 S. E. 881, 12 Ann. Cas. 129); Whitley v. McConnell, 133 Ga. 738 (66 S. E. 933, 27 L. R. A. (N. S.) 287, 134 Am. St. R. 223); Garland v. Isbell, 139 Ga. 34 (76 S. E. 591). Counsel for the defendant in error contended that the written contract was on its face complete and legal, and could not be added to or varied byparol proof; that there was no evidence that the seller was a party to any illegal scheme or purpose; and that even if the purchaser used the purchased articles for such a purpose and the seller knew of that purpose, mere knowledge of the purpose would not prevent the seller from recovering their value. In support of the latter contention counsel cited: 2 Elliott on Contracts, § 703; Watkins v. Curry, 103 Ark. 414 (147 S. W. 43, 40 L. R. A. (N. S.) 967); Rose v. Mitchell, 6 Colo. 102 (45 Am. E. 520) ; Hodgson v. Temple, 5 Taunt. 181; Armfield v. Tate, 7 Ired. 259; Hedges v. Wallace, 2 Bush, 442 (92 Am. D. 497).

Harris & Harris, for plaintiff in error.

Sharp & Sharp, contra.


text:
    7678.
    Finkelstein v. Ingram.
    Decided March 16, 1917.
    Certiorari; from Fulton superior court—Judge Bell. March 23, 1916.

      Morris Maclcs, for plaintiff in error. Yirlyn B. Moore, contra.
   Luke, J.

1. All issues raised in a petition for certiorari must be determined upon the answer to the petition; and where the answer does not verify the allegations of the petition, the trial court will consider only the issues shown by the answer.

2. Upon the petition for certiorari and the answer the judge of the superior court did not err in overruling the certiorari.

Judgment affirmed.

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


text:
    7768.
    Central of Georgia Railway Co. v. Napier.
   Wade, C. J.

1. The garnishee was required to answer what amount it owed to “E. B. Johnson,” and at the time the summons was served it did in fact owe to E. B. Johnson more than the amount of the plaintiff’s demand. The fact that it was only as -“Ed Johnson” that the garnishee knew the defendant E. B. Johnson, and that his name was entered upon its books as “Ed Johnson,” could not relieve the garnishee from the liability created by service of the summons, as the garnishee did in fact owe the person named therein, and there was enough to put it on notice and require it to ascertain whether the person designated in the summons of garnishment as “E. B.” Johnson was the person to whom the garnishee was indebted, known to it as “Ed” Johnson; and upon proper pleadings this issue could have been raised and determined at the trial.

Decided March 15, 1917.

Rehearing denied April 5, 1917.

Certiorari; from Bibb superior court—Judge Mathews. June 16, 1916.

Dean Newman, for plaintiff in error.

2. No other question being raised by the petition for certiorari, the judge of the superior court did not err in overruling the certiorari.

3. Briefs not having been filed for the defendant in error in accordance with the order of January 16, providing for the submission of this case • on February 12, 1917, and stipulating that “no briefs will be received on behalf of defendants in error which are not filed within the time limited by this order,” under the ruling announced in Savannah &c. Ry. v. McCoy, 17 Ga. App. 82, 84 (86 S. E. 282); no appearance for the defendant in error will be entered or allowed.

Judgment affirmed.

George'and LuJee, JJ., concur.


text:
    7774.
    Quinn v. Neal et al.

    Decided March 16, 1917.
   Wade, C. J.

The court did not err in awarding a nonsuit. Though agency may sometimes be implied from circumstances in proof (Griffin v. Russell, 144 Ga. 275, 87 S. E. 10, L. R. A. 1916F, 216), there was nothing to show that the automobile that inflicted the injury for which the plaintiff sued, and that was driven by the unaccompanied minor daughter of one defendant (the father of the other defendant, the owner of the car), was being operated with the knowledge or consent of either defendant; nor did it appear, from the evidence, that the automobile was in fact being used on the particular occasion in carrying on or aiding the business of either or both of the defendants. There was testimony that the fathfer admitted that his daughter “had been in the habit of driving down to his office at lunch time and taking him home in the car,” but how often or how long this habit had been indulged in does not appear, nor does it appear that the owner of the car ever knew of its -use by his sister on this or any other occasion, for this or any other purpose; and from the evidence it may only be surmised• that she was on the way to the place of business occupied by her father and brother at the time of the accident, and, if so, that she was perhaps driving in that direction for the purpose and with the intention of conveying her father to lunch, since it is not disclosed by any undenied allegation in the plaintiff’s petition, or by any evidence in his behalf, even at what hour in the day the accident occurred, or to what place or for what purpose the automobile was being driven.

Judgment affirmed.

George and LuJee, JJ., concur.

Action for damages; from city court of Atlanta—Judge Eeid. May 30, 1916*

D. K. Johnston, M. Eerzberg, for plaintiff.

E. V. Garter, Frank Garter, for defendant.


author: Etjke, J.

text:
    7797.
    Ledbetter v. Gibbs.
    Decided March 16, 1917.
    Action for damages; from city court of Savannah—Judge Davis Freeman. July 7, 1916.

      Robert L. Golding, for plaintiff.

      U. E. McLaws, Adams & Adams, for defendant.
   Etjke, J.

1. A landlord is not liable for injuries sustained by the tenant’s wife because of the defective condition of certain steps, unless it be shown that the landlord had notice of the defective condition of the steps, and failed to repair within a reasonable time. Civil Code (1910), § 3694; Ocean Steamship Co. v. Hamilton, 112 Ga. 901 (38 S. E. 204); Roach v. LeGree, 18 Ga. App. 250 (89 S. E. 167).

■ 2. When rented premises become out of repair it is the duty of the tenant to abstain from the use of that part of the premises, the use of which is attended'with danger. It is his duty to use ordinary care; and if by the use of such care the consequences even of the defendant’s negligence could have been avoided, he can not recover. Civil Code (1910), § 4426; Bell v. Walsh, 137 Ga. 350 (73 S. E. 585); Stack v. Harris, 111 Ga. 149 (36 S. E. 615) ; Donehoe v. Crane, 141 Ga. 224 (80 S. E. 712); Alexander v. Owen, 18 Ga. App. 326 (89 S. E. 437).

3. The notice to the landlord as testified to by the tenant.was not such notice under the law as would call the landlord’s attention to any defects in the steps which caused the plaifitiff’s alleged injury in May; and the court did not err in confining the jury to the issues raised as to the alleged injury of December, occasioned by the alleged defective condition of the porch.

4. The issues were fully and fairly submitted to the jury, and upon the questions of fact the jury found against the plaintiff. This verdict having the approval of the court, and there being no errors of law in the charge of the court or in the admission of evidence, the court did not err in overruling the motion for new trial.

Judgment affirmed.

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


text:
    7839.
    Driscoll v. Redwine Brothers.
    Decided March 16, 1917.
    Certiorari; from Fayette superior court—Judge Searcy. August 12, 1916.

      W. B. Hollingsworth, for plaintiff in error.

      J. W. Culpepper, contra.
   Wade, C. J.

1. The place of holding a justice’s court can not be changed otherwise than by giving a duly published notice of the proposed change of location as required by law; and a judgment rendered at any other place than that fixed by law is void. Hilson v. Kitchens, 107 Ga. 230 (33 S. E. 71, 73 Am. St. R. 119) ; Carter v. Atkinson, 12 Ga. App. 390 (77 S. E. 370).

(a) Prom the magistrate’s answer it appears that the judgment in ques- ■ tion was rendered at the place fixed by law, and that this had been the “regular place” of holding the justice’s court for this district for the past eighteen or twenty years. The case is not altered by the fact that the justice’s court for the district had been previously held at a place other than that legally fixed as the place of holding that court.

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

Judgment affirmed.

George and Luke, JJ., concur.


text:
    7845.
    Bedingfield v. Lamb.
    Decided March 16, 1917.
    Certiorari; from Emanuel superior court—Judge Hardeman. August 2, 1916.

      T. N. Brown, for plaintiff.

      I. L. Price, Baffold & Jordan, for defendant.
   Luke, J.

A promise to answer for the debt of another must be in writing, in order to bind the promisor. Civil Code (1910), § 3222. This case falls squarely within the rule laid down in Harris v. Paulk, 10 Ga. App. 334 (73 S. E. 430), and Foote v. Reece, 17 Ga. App. 799 (88 S. E. 689), and is distinguished by the facts from the eases of Evans v. Griffin, 1 Ga. App. 327 (57 S. E. 921), and Palmetto Manufacturing Co. v. Parker, 123 Ga. 798 (51 S. E. 714), and Ferst v. Bank of Waycross, 111 Ga. 229 (36 S. E. 773). Under the facts the court did not err in sustaining the certiorari.

Judgment affirmed.

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


text:
    7866.
    Massillon Engine & Thresher Company v. Burnett.
    Decided March 16, 1917.
    Certiorari; from Gordon superior court—Judge Fite. September 1, 1916.

      A. L. Henson, for plaintiff. J. G. B. Brwin Jr., for defendant.
   Luke, J.

1. An instrument in the usual form of a security deed under section 3306 of the Civil Code of 1910, but containing a clause providing that should the grantor “faithfully perform and keep all the covenants and agreements herein set out, this conveyance shall cease, determine, and be void,” is a mortgage, and not a deed. Burckhalter v. Planters Loan & Savings Bank, 100 Ga. 428, 432 (28 S. E. 236); Scott v. Hughes, 124 Ga. 1000 (53 S. E. 453).

2. Especially is the instrument construed in this case a mortgage and not a deed passing title, because its first words are: “This mortgage, made this the 18th day of September, 1915,” and in several other places therein it is described as “this mortgage;” indicating that it was the intention of the parties that the instrument be construed to be a mortgage.

3. The construction of the contract upon which the claimant based title being the only question presented for determination, and the trial court having correctly construed the instrument to be a mortgage and not a deed, the court did not err in overruling the certiorari.

Judgment affirmed.

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


author: George, J.

text:
    7972.
    Belk v. Cannon.
   George, J.

1. A motion to dismiss the bill of exceptions is made upon the grounds: (1) that there is no proper pauper’s. affidavit attached to the exceptions; (2) that service was acknowledged by defendant in error after the filing of the bill of exceptions with the clerk of the superior court and after the certificate of -the trial' judge; (3) that there is no sufficient assignment of error in the bill of exceptions. The assignments of error are sufficient, the cost in this court has been paid, the service of the bill of exceptions was in time, and nothing else-matters. Civil Code (1910), § 6179. The motion must be denied.

2. When a party applies for the writ of certiorari under section 5187 of the Civil Code of 1910, he must make affidavit not only that he is advised, but that he believes, that he has a good cause for certiorari. The provision of this code-section is that if the party is unable to give the bond and security required by section 5185, he may make and file with his petition for certiorari “an affidavit in writing that he is advised and believes that he has good cause for certioraring the proceedings to the superior court, and that owing to his poverty he is unable to pay the costs or give security as the case may be.” When this affidavit is made it shall in every respect answer instead of the certificate and bond required under section 5185. Dorsey v. Black, 55 Ga. 315 (1). In the present ease the affidavit does not state that the petitioner believes that he has good cause for certiorari. The judge of the superior court, therefore, erred in overruling the motion to dismiss the petition for certiorari.

Decided March 16, 1917.

Certiorari; from Fulton superior court—Judge Bell. September 29, 1916.

W. H. Terrell, for plaintiff in error. E. 0. Buchanan, contra.

Judgment reversed.

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


text:
    8018.
    Pickert v. Jones.
    Decided March 16, 1917.
    Certiorari; from Fulton, superior court—Judge Bell. October 10, 1916.

      B. B. Blackburn, O. F. Wells, for plaintiff.

      Joseph W. & John D. Humphries, for defendant.
   George, J.

1. “A justice’s court has no jurisdiction of a suit brought to foreclose a lien on real estate for work done or for material furnished in the improvement of the same.” McAuliffe v. Baum, 142 Ga. 590 (83 S. E. 239).

2. Where an owner of real estate is sued in a justice’s court for the price of material used by the defendant in the improvement of the property, and in the same suit the plaintiff claims a lien on the real estate and prays for both a general judgment against the defendant and a special judgment against the property, that part of the petition which relates to the lien will be regarded as surplusage..

3. Where on the trial of such a case the plaintiff introduced a way-bill showing that the material was shipped to the defendant, and testified that he “furnished the material as per itemized bill and shipped to” the defendant, and that he “made repeated efforts to collect the bill, but it has not been paid,” and there was no other evidence in the case, it can not be held that the evidence demanded a verdict for the plain tiff. The suit was upon an implied contract to pay for material furnished to the defendant, and the itemized statement attached to the suit enumerated the material, but did not fix the value thereof. Although it was undisputed that the material was shipped to the defendant, there was no proof that it was ordered or accepted by her, or that she was bound to accept it, or that it was used for the improvement of her property, either with or without her knowledge or consent; and the evidence for the plaintiff wholly fails to show the value of the material, or to furnish any data from which its value might be inferred. Accordingly, the judge of the superior court did not err in sustaining the certiorari sued out by the defendant and in granting her a new trial.

Judgment affirmed.

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


author: Bloodwoeth, J.

text:
    7594.
    Matthews & Son v. Richards.
   Bloodwoeth, J.

-1. All paragraphs of the plea as amended which were lacking in legal sufficiency were stricken by the court on demurrer. There was no error in refusing to strike the other paragraphs.

2. Even if testimony as to a certain promissory note, that the note “was given for the purpose of renewing the old note and extending the time of payment,” was a conclusion of the witness, and improperly admitted, it was harmless, as the record discloses that other evidence' in practically the same words was admitted without objection; and there was positive evidence of the same fact. Daughtry v. Savannah &c. Ry. Co., 1 Ga. App. 393 (58 S. E. 230); County of Butts v. Hixon, 135 Ga. 26 (2), 27 (68 S. E. 786) ; Southern Ry. Co. v. Ward, 131 Ga. 21 (4) (61 S. E. 913).

3. A witness was asked, “If in answer to the last question you say a new note was given, state for what amount, who signed the new note, and was it given for the purpose of renewing the old note and extending the time of payment? When was the new note to become due?” The witness answered: “Yes, I gave a new note at the time the old note became due, which note was signed by myself and Mr. Matthews, and it was given for the purpose of renewing the old note and extending the time of payment. I don’t exactly remember when it was to become due, but think about three months from the date it. was renewed.” Counsel objected to the question, on the ground that it was leading; and objected to the answer, on the ground that it, was a conclusion of the witness; and the judge replied: “That’s the very issue in the case. I will let it go in. They decide it on the evidence. I will let it go in.” In the motion for a new trial it was contended that this statement was the expression of an opinion by the judge on the evidence, and was “an erroneous and improper invasion by the court of the province of the jury.” Beld, that in this statement the judge neither expressed nor intimated his opinion as to what had or had not been proved.

4. “I think” means, according to Webster, to recollect or call to mind; and, as used by the witness, the sentence, “I think I placed the Leak note there as collateral or additional security,” is to be taken as a statement of what the witness remembered. Galveston &c. Ry. Co. v. Parrish (Tex. Civ. App.), 43 S. W. 536: Humphries v. Parker, 52 Maine, 502-504. In addition to this there was direct testimony by this witness and others to the same fact.

4. Under the rulings of this court when this case was first here (13 Ga. App. 412 (49 S. E. 227), there was no error in permitting the defendant to testify that he “never did receive any notice relative to the payment of the note sued on in this case.” .Besides, the new note was given in January, 1911, and this witness swore that up to April 25 following he “did not receive any notice relative to the payment of the note.”

5. Testimony of the original payee of the note sued on, that after the maturity of the note (January 1) he was told by the person to whom he had traded it that it had not been paid, and replied, “I thought you was going to get that note when it come due, for Jenkins [the maker] was to pay that note off when he got his money for building a house, and would get it by the first of the year,” was not subject to the objection that it sought to alter and vary the terms of the note.

Decided March 16, 1917.

Complaint; from city court of Cartersville—Judge Moon. May 1, 1916.

W. T. Townsend, for plaintiffs. J. B. Whitaker, for defendant.

6. There was no error in the excerpt from the charge of the court in the 6th ground of the motion for a new trial, when considered in connection with the note of the judge, explaining and qualifying that ground, and when read in connection with the entire charge.

7. “It is not error requiring a new trial to fail to charge upon the subject of the burden of proof, when there is no written request for such instruction.” Whittle v. Central of Georgia Ry. Co., 11 Ga. App. 257 (74 S. E. 1100); Southern Ry. Co. v. Wright, 6 Ga. App. 172 (7), 184 (64 S. E. 703) ; Martin v. Gibbons, 14 Ga. App. 136 (2), 138 (80 S. E. 522); Johnson v. Reeves, 133 Ga. 822 (2) (66 S. E. 1081).

8. The evidence authorized the verdict, and there was no error in refusing a new trial.

Judgment affirmed,.

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


text:
    7699.
    Central of Georgia Ry. Co. v. O'Neill Mfg. Co.
   Bloodworth, J.

.1. The freight charges for the transportation of an interstate shipment are fixed by the schedules and joint tariffs then in effect, and filed and posted in accordance with the act of Congress of June 29, 1906, known as the “Hepburn act;” and'though a common carrier, by mistake or otherwise, delivers goods upon the payment of a lower rate than that stated in the tariffs, it may thereafter demand and recover of the consignee (who has adopted the carrier’s contract of affreightment with the shipper) the difference between the amount of freight charges actually paid to the transportation company and the amount due upon the basis of the correct rate for the service rendered via the route selected by consignee and specified in the bill of lading by the shipper. Upon the refusal of the consignee to pay such difference the transportation company may maintain and recover in an action therefor. Georgia R. v. Creety, 5 Ga. App. 424 (63 S. E. 528) ; Central of Georgia Ry. Co. v. Willingham, 8 Ga. App. 817 (70 S. E. 199); Central of Georgia Ry. Co. v. Curtis, 14 Ga. App. 716 (82 S. E. 318); L. & N. R. Co. v. Maxwell, 237 U. S. 94 (35 Sup. Ct. 494, 59 L. ed. 853, L. R. A. 1915E, 665); Seaboard Air-Line Ry. v. Luke, 19 Ga. App. 100 (90 S. E. 1041); S., F. & W. Ry. Co. v. Bundick, 94 Ga. 775 (21 S. E. 995) ; Barnes on Interstate Transportation, §§ 194, 195.

[a) Attention is directed to Ruling 286 (f), May 10, 1910, of the interstate-commerce commission, as shown in Conference Rulings Bulletin No. 6, p. 91 (issued April 1, 1913); Watkins on Shippers & Carriers (2d ed.), 882; and to the decision in the case of Ludowici-Celadon Co. v. Missouri Pac. Ry. Co., 22 I. C. C. Rep. 588.

Decided March 16, 1917.

Certiorari; from Floyd superior court—Judge Wright. July 6, 1916.

Freight charges at the rate of 56 cents a hundred pounds, instead of the correct rate of 66 cents fixed by schedule filed with the interstate-commerce commission, were collected from the consignee by the Central of Georgia Railway Company on goods routed and shipped from Clarksburg, West Virginia, to Rome, Georgia, on a through bill of lading, over the Baltimore & Ohio Railroad, the Queen and Crescent Line, and the Central of Georgia Railway. Suit against the consignee for the difference in amount between these rates was brought in a justice’s court by the Central of Georgia Railway Company, and the trial of the case on appeal in that court resulted in a verdict in favor of the defendant, which, by petition for certiorari, the plaintiff complained of as contrary to law and the evidence. The judge of the superior court overruled the certiorari, and the plaintiff excepted. The facts stated above were shown at the trial, and from undisputed evidence it appeared that before the goods were shipped, a freight agent of the plaintiff requested the defendant to have them shipped over the route mentioned above, stating that the rate for shipment over that route would be 56 cents a hundred pounds. It was testified that the goods could have been shipped for that rate over another route of about the same mileage. The plaintiff’s agent stated that in giving the incorrect rate he acted in good faith, thinking it was the correct rate.

Maddox & Boyad, for plaintiff. Benny & Wright, for defendant.

2. The undisputed evidence demanded a finding for the plaintiff (the plaintiff in error here) and the judge of the superior court erred in overruling the certiorari.

Judgment reversed.

Broyles, P. J., and Jenloms, J., concur.


text:
    7718.
    Cook v. McMurria.
   Bloodworth, J.

1. “This court, by the constitutional amendment creating it, is limited in jurisdiction to the correction of errors of law alone, and therefore has no power to grant a new trial on the ground that the verdict is strongly contrary to the weight of the evidence, if there is any evidence at all to support it.” Edge v. Thomas, 9 Ga. App. 559 (71 S. E. 875).

Certiorari; from Miller superior court—Judge Worrill. June 17, 1916.

Billie B. Bush, for plaintiff in error. P. D. Rich, contra.

2. No other error being complained of in the instant case, and there being some evidence to support the verdict, the trial judge did not err in refusing to sanction the certiorari.

Judgment affirmed.

Broyles, P. J., and J enjoins, J., concur.


author: Bloodworm:, J.

text:
    7727.
    Murphy v. Chipley Home Mixture Guano Company.
    Decided March 16, 1917.
    Complaint; from city court of LaGrange—Judge Harwell. June •15, 1916.

      Meadors & Wyatt, for plaintiff in error. Henry Beeves, contra.
   Bloodworm:, J.

1. “Whether a judgment by default will be set aside or not is a question addressed to the sound discretion of the court below, •and this court will not, as a general rule, interfere, unless such discretion has been grossly abused.” Lambert v. Smith, 57 Ga. 25 (1).

2. The court did not abuse its discretion in refusing to set aside a verdict on the ground-set out in the defendant’s motion as follows: “The defendant had conversation in December, 1915, with Mr. Henry Reeves, attorney for plaintiff, by the terms of which agreement the above proceedings were to be suspended until after one Will Crawford, who was then present, could see Mr. Tom Wisdom, from whom defendant had been purchasing similar goods to those sued for, and to whom payment had been made for the goods in question, and who was also a member of the firm claiming said indebtedness, for the purpose of having Mr. Wisdom rectify the error in the account sued on; that said Will Crawford was to see Wisdom and have him see defendant, but that before such, had been done the court entered default judgment at the same term at which the case was in default;” the purported agreement being denied by the attorney. for the plaintiff. Civil Code of 1910, § 6251; Penn v. McGhee, 6 Ga. App. 631 (5) (65 S. E. 686) ; Exchange Bank v. Elkan, 72 Ga. 197; Mathews v. Bishop, 106 Ga. 564 (2) (32 S. E. 631) ; Moore v. Kelly & Jones Co., 109 Ga. 798 (2) (35 S. E. 168).

Judgment affirmed.

Broyles, P. J., and Jenjoins, J., concur.


text:
    7905.
    Empire Cotton Oil Co. v. Maxwell.
    Decided March 16, 1917.
    Complaint; from city court of Cairo—Judge Willie. October 17, 1916.
    The action was on a promissory note in which the consideration recited was “value received.” The defendant’s answer, which the court refused to strike on general demurrer, admitted the execution of the note, but denied liability thereon, and proceeded as follows : “Defendant, for further answer, says that the note sued on is without any consideration whatever and is totally void. Eor further answer the defendant says, that for some time prior to the execution of the note-sued on the defendant had been buying cottonseed for plaintiff, and plaintiff claimed that defendant had not shipped all the seed bought, when in fact plaintiff knew that it had received all the seed purchased by defendant for it; the note sued on was given for said alleged shortage; and defendant shows that he was not indebted to plaintiff in any sum whatsoever, and had delivered to plaintiff all the cottonseed purchased by defendant for plaintiff, and said note is wholly without consideration and totally void.”

      W. V. Custer, for plaintiff, cited: Turner v. Pearson, 93 Ga. 515.

      S. P.'Cain, for defendant,
    cited: Seawright v. Dickson, 16 Ga. App. 436; Friedman v. Ware, 17 Ga. App. 677; Gibbs v. Fourth Nat. Bank, 17 Ga. App. 388.
   Jenkins, J.

1. “It is a good defense to an action on a negotiable promissory note, under seal, in the hands of the original payee," that it was executed without any lawful consideration.” Lacey v. Hutchinson, 5 Ga. App. 865 (64 S. E. 105); Saul v. Southern Seating &c. Co., 6 Ga. App. 843, 847 (65 S. E. 1065); Toller v. Hewitt, 12 Ga. App. 496 (77 S. E. 650); Strickland v. Farmers Supply Co., 14 Ga. App. 661, 664 (82 S. E. 161); Seawright v. Dickson, 16 Ga. App. 436, 442 (85 S. E. 625).

2. The defense filed was sufficient to withstand the general demurrer of plaintiff, and the trial judge did not err in refusing to strike the plea.

Judgment affirmed.

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


text:
    7925.
    Rogers et al. v. Sword.
    Decided March 16, 1917.
    Complaint; from city court of Nashville—Judge Christian. October 16, 1916.

      Hendricks, Mills & Hendricks, for plaintiffs in error.

      Joseph A. Alexander, contra.
   Broyles, P. J.

It does not appear, either from the transcript of the record or by a recital in the bill of exceptions, that the brief of the evidence has ever been approved by the trial judge, and, there being- no suggestion that there is such an approved brief of file in the office of the clerk of the trial court, and that which purports to be a brief of the evidence in the case, sent up with the record, not being approved or au thenticated in any way by the trial judge, and there being no assignment of- error which can be determined without a consideration of the evidence in the case, no reversal of the judgment of the court below is legally possible, and it must accordingly be affirmed. Morrison v. Dodge, 94 Ga. 730 (20 S. E. 422) ; Mayor &c. of Waycross v. Neal, 94 Ga. 731 (19 S. E. 758) ; Ingram v. Clarke, 96 Ga. 777 (22 S. E. 334) ; Kirby v. Lippincott, 98 Ga. 426 (25 S. E. 267) ; Moss v. Birch, 102 Ga. 556 (28 S. E. 623); Sayer v. Brown, 119 Ga. 539 (46 S. E. 649); Douglas County v. Sayer, 119 Ga. 551 (46 S. E. 654) ; Price v. Price, 122 Ga. 321 (59 S. E. 91); Hawkins v. Tanner, 129 Ga. 497 (59 S. E. 225). Moreover, it fails to appear, either from the bill of exceptions or from the record, that the trial judge approved any of the grounds of the amendment to the motion for a new trial, or the purported charge of the court, sent up with the record.

Judgment affirmed.

Jenkins and Bloodworlh, JJ., concur.


text:
    8032.
    McCarty et al. v. Keys.
   Jenkins, J.

1. There being evidence to sustain the verdict, this court can not disturb the finding of the jury by overruling the refusal of the trial judge to grant a new trial upon the ground that the verdict was contrary to evidence or without evidence to support it. Davis v. Kirkland, 1 Ga. App. 5 (58 S. E. 209) ; Stricklin v. Crawley, 1 Ga. App. 139 (58 S. E. 215) ; Charles v. Brooker, 1 Ga. App. 219 (58 S. E. 218) ; Daughtry v. Savannah &c. Ry. Co., 1 Ga. App. 393 (58 S. E. 230) ; Edge v. Thomas, 9 Ga. App. 559 (71 S. E. 875).

2. The motion for a new trial does not show that a motion for a continuance was made by the defendant, nor what the six absent witnesses would have testified to, except that they would have corroborated the six other witnesses who had already testified’ in his behalf; and therefore no error appears in the failure to discontinue the trial of the ease and grant a continuance thereon. Wiggins v. State, 101 Ga. 501 (29 S. E. 26); Moon v. Wright, 12 Ga. App. 659 (78 S. E. 141).

Decided March 16, 1917.

Complaint; from Whitfield superior court—Judge Fite. November 27, 1916.

George G. Glenn, for plaintiffs in error.

M. G. Tarver, W. C. Martin, contra.

Judgment affirmed.

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


text:
    8243.
    Morris v. Southern Railway Company.
    Decided March 16, 1917.
    Action fox damages; from Fulton superior court—Judge Bell. October 7, 1916.

      W. W. Gaines, Hewlett, Dennis & Whitman, for plaintiff in error.

      McDaniel & Blade, Edgar A. Neely, contra.
   Bloodwoeth, J.

1. It is now settled by the ruling of the Supreme Court of the United States in the case of Georgia, Florida & Alabama Ry. Co. v. Blish Milling Co., 241 U. S. 190 (36 Sup. Ct. 541, 60 L. ed. 948), that the remedy -of one whose property has been lost or damaged in the course of interstate transportation is not confined exclusively to the initial carrier. The decisions in Southern Ry. Co. v. Savage, 18 Ga. App. 489 (89 S. E. 634), and Southern Ry. Co. v. Bennett, 17 Ga. App. 162 (86 S. E. 418), holding that the remedy against the initial carrier is exclusive, and relied upon by the defendant in error, were expressly overruled by the decision of this court in Central of Georgia Ry. Co. v. Waxelbaum, 18 Ga. App. 489 (89 S. E. 635). See also Cincinnati, Hamilton & Dayton Ry. Co. v. Quincey, 19 Ga. App. 167 (91 S. E. 220).

2. The court erred in sustaining the demurrer to the petition, and in dismissing the suit.

Judgment reversed.

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


text:
    7676.
    McCLENDON v. WARD-TRUITT COMPANY.
    1. The filing of the-petition is treated as the commencement of a suit only when followed by due and legal service. If there is no service of the petition and process, and the plaintiff is guilty of laches, the writ becomes abortive and the court loses jurisdiction to amend the process and to have service perfected.
    2. If the plaintiff is active in his efforts to remedy the failure of the sheriff to make service of the petition and process, and endeavors to have service made at .his first opportunity after he, in the exercise of . due diligence, discovers that service has not been perfected, the jurisdiction of the court continues for the purpose of having service perfected after the'first term.
    3. The motion to amend the process and to perfect service upon the defendant in this case was properly allowed, and, the petition having been amended so as to meet the grounds of special demurrer, the court did not err in overruling the defendant’s demurrer.
    Decided March 19, 1917.
    Affidavit of illegality; from city court of LaGrange—Judge Harwell. June 6, 1916.
    On February 22, 1913, Ward-Truitt Company filed suit on account in the city court of LaGrange against J. H. McClendon. The sheriff of that court, on March 2, 1913, made an entry that he had served the defendant personally with a copy of the said suit and process. The case was marked in default, and on March 20, 1913, the court rendered judgment against the defendant. A fi. fa. on the judgment was issued.on March 25, 1913, and was on December 30, 1914, levied on certain property of the defendant; and the defendant filed an affidavit of illegality, upon the ground that he had never been served with any notice of the suit, and had never had his day in court. The issue made by the affidavit of illegality was regularly continued to the October term, 1915, when the issue was submitted to a jury and a verdict returned finding in favor of the illegality; whereupon, at the same term of the court, the Ward-Truitt Company filed its petition for an order to perfect service and to require the clerk to amend the process and make it returnable to the next November term, 1915. The petition alleged that the plaintiff had exercised all diligence in having service perfected, and recited the facts hereinbefore stated. The court heard evidence, found the facts to be as set forth in the petition, and ordered that the process be amende'd as prayed, and that service be perfected on the defendant. Thereupon the defendant waived service of the original suit and of the petition and order to perfect service, process, copy, and copy process. At the November term, 1915, the defendant filed certain demurrers and pleas, and the demurrers were amended at the January term, 1916. Plaintiff amended its petition so as to meet certain special grounds of demurrer, and the court overruled the general demurrer, in which it was contended, that the court was wanting in authority to order the process amended and service perfected on the defendant; that the cause of action accrued more than four years prior to the amendment of the process and the order to perfect service upon the defendant, and that the cause of action was therefore barred by- the statute of limitations. The defendant brought the case to this court on exceptions to the overruling of the demurrer.

      Meadors & Wyatt, for plaintiff in error. E. T. Moon, contra.
   George, J.

(After stating the foregoing facts.) The court had the right, and it was its duty, under the facts in this case, to grant the order to perfect service at the term subsequent to the appearance term. As soon as it came to the plaintiff’s knowledge that service had not been perfected, it moved to have service perfected, and it should not suffer by the conduct of the sheriff, whose entry had misled the plaintiff. In Branch v. Mechanics Bank, 50 Ga. 413, 416, it was said by Judge Trippe that “five terms of the court had passed after the filing of the declaration and the return made by the sheriff of non est inventus and of the death of the president of the corporation. In the meantime no step whatever had been taken by the plaintiff. At the sixth term the motion was made to perfect service under § 3370 of the new Code [of 1873]. This, of course, involved the necessity of amending the process, or rather the issuing of a citation by the clerk as required by that section. No legal reason was shown for such long delay. In fact, none whatever has been given.” The right.to amend the process and to have service perfected was therefore denied. In the case of Brunswick Hardware Co. v. Bingham, 110 Ga. 526 (35 S. E. 772), it was held that “it is too late for the trial judge to pass an order to perfect service on the defendant after seven terms of the court have elapsed since the filing of the declaration, when no legal reason is given for the delay.” In that case there was a return by the sheriff “to the effect that the defendant corporation had no public place of business in the county, nor any office nor any officer or agent upon whom service could be perfected.” At the appearance term, when the foregoing entry of the sheriff was made, the plaintiff undertook to make an affidavit as prescribed by the code, in order to perfect service by publication. The so-called affidavit was sworn to before some one attesting it as a notary public of Wayne county, Michigan. On the filing of this affidavit the court ordered that service be perfected by publication, and thereafter judgment by default was rendered against the defendant. At a subsequent term the defendant made a motion to set this judgment aside on the ground that the defendant had never been served according to law. At the March term, 1899, the Supreme Court held that no legal service had been made upon the defendant company, that the so-called affidavit should not be treated as such, because there was nothing to authenticate the official character of the person attesting it as a notary public, and that all subsequent proceedings were unauthorized. 107 Ga. 270 (33 S. E. 56). Attention is called to the opinion in that case (110 Ga. 527), in which it is said: “No legal steps to perfect service.were taken until the seventh term of the court after the declaration had been filed. It •is true that an attempt was made to perfect service immediately after the return of the sheriff, but in this very case it was held that the proceeding was a nullity. Plaintiff and his counsel were chargeable with a knowledge of the law, and ought, therefore, to have known that an affidavit made before a notary public in Michigan, with nothing to authenticate his official character, could not in this State be the basis of any judicial action. Treating them as having knowledge of this, it can properly be said that they did nothing to perfect service from August 13, 1896, to June 17, 1899.” In neither of the foregoing cases was proper diligence shown by. the plaintiff. The rule announced in those cases is clearly based upon that fact. In Allen v. Mutual Loan & Banking Co., 86 Ga. 74 (12 S. E. 265), the Supreme Court, on the testimony of the plaintiff’s counsel to the effect that he had made inquiry of the sheriff- and had been by him informed that the declaration in that case had been served on the defendant, and that he was misled by this information and consequently did not move at the first term for an order to perfect service, ruled that the trial court properly granted an order at the second term of the case, allowing until the next term thereafter to perfect service, and announced that “the granting of such a motion is largely in the discretion of the court.” The Allen case is quoted and followed in Lassiter v. Carroll, 87 Ga. 731 (13 S. E. 825). We also understand the opinion by Justice Lamar in Cox v. Strickland, 120 Ga. 104 (7-10), 113 (47 S. E. 912, 1 Ann. Cas. 870), to support the ruling here made.

In the instant case the plaintiff duly filed its petition, to which process,- regular in form, was attached, and caused -it to be delivered to the sheriff for service. The sheriff made his return, reciting actual personal service upon the defendant, and upon the fact stated in this return the plaintiff had the right to rely. Every legal presumption was in favor of the truthfulness of the statement made in the entry of the sheriff, and, until attacked as provided by law, the plaintiff had a right to rely upon the presumption that the sheriff, as he so declared, had discharged his duty. • Immediately upon the return of the verdict finding that the defendant had not been served, the plaintiff asked for the order to perfect service. This order the court properly granted, and we understand it to be the duty of the trial court to make all orders which tend to the advancement of suits commenced within its jurisdiction, to the end that justice may be attained. Process having been amended and service perfected, there was no error in overruling the demurrer to the petition.

Judgment affirmed.

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


text:
    7773.
    Central of Georgia Railway Company v. Sistrunk et al.

    Decided March 19, 1917.
    Certiorari; from Screven superior court—Judge Hardeman. July 3, 1916.

      Saffold & Jordan, for plaintiff in error.

      JE. K. Overstreet, contra.
   Luke, J.

1. The questions of law in this case were settled in Central of Georgia Ry. Co. v. Sistrunk, 16 Ga. App. 683 (85 S. E. 954), and the pleadings were amended to conform to the rulings there announced.

2. The evidence authorized the verdict,'and no error of law was commit-, ted. Judgment affirmed.

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


text:
    7785.
    Parker v. Lee.
   Luke, J.

1. The motion to dismiss the writ of error is. without merit. Acts 1911, p. 150; Park’s Code, § 6090 (a). And see Newton Bkg. Co. v. Hudgins, 14 Ga. App. 229 (80 S. E. 675).

2. Where one wrongfully takes the personal property of another and converts it into money, the latter has a right of action ex delicto for the wrong done him, but is not restricted to that form of action, and may, as a general rule, waive the tort and sue in assumpsit as for money had and received. Cragg v. Arendale, 113 Ga. 181 (38 S. E. 399) ; Southern Ry. Co. v. Born Steel Range Co., 122 Ga. 658 (50 S. E. 488).

Decided March 19, 1917.

Appeal; from Berrien superior court—Judge Thomas. July • 31, 1916.

• From the record it appears that the rule nisi on the motion for a new trial was not signed by the trial judge; and for this reason 'counsel for the defendant in error moved to dismiss the writ of error.

Ilendriclcs, Mills & Hendricks, for plaintiff in error.

W. D. Buie, contra.

3. There is no merit in any of the assignments of error.

Judgment, affirmed.

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


text:
    7805.
    ALLEN v. GERSHON & RUSKIN.
    The verdict, although not without evidence to support it, was not demanded by the evidence; and therefore the. discretion of the trial judge in granting a first new trial will not be interfered with, even if the specific -ground set out in his order was not a sufficient ground- for a new trial.
    Decided March 19, 1917.
    Action on contract; from city court of Carrollton—Judge Beall. July 20, 1916.

      Smith, Reese & Smith, for plaintiff.

      Boykin & Robinson, for defendants.
   George, J.

The order of the trial judge granting a first new trial in this case is as follows: “The within motion for new trial having been submitted to me by counsel on both sides; without argument, and after a careful consideration of the case, I ain convinced that it was error to admit the testimony of the witness W. L. Gray as follows: ‘Mr. Ruskin told me that he could not employ me, because he- had the Allen boys hired/ without stating what Allen boys, or stating whether the plaintiff was one of the Allen boys referred to or not. I am of opinion that this was mistrial [material?] error authorizing a new trial. Wherefore it is considered, ordered, and adjudged that a new trial of said 'case be and the same is hereby ordered.” The verdict obtained by the plaintiff was not demanded by the evidence, although • it is. not without evidence to support it. Even if the admission of the testimony recited in the foregoing order was not error, the discretion of the court in granting a first new trial will not be disturbed. Civil Code of 1910, § 6204; Cox v. Grady, 132 Ga. 368 (64 S. E. 262).

Judgment affirmed.

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


text:
    7807.
    Patterson v. Blease.
    Decided March 19, 1917.
    Petition for certiorari; from Eulton superior court—Judge Hill. July 21, 1916.

      Albert Kemper, for plaintiff. Philip Weltner, for defendant.
   Luke, J.

The petition for certiorari did not set out such a state of facts as demanded that it be sanctioned. Therefore the court did not err in refusing the sanction.

Judgment affirmed.

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


text:
    7831.
    Norton v. Lynah et al.

    Decided March 19, 1917.
    Action for damages; from city court of Savannah—Judge Davis Freeman. July 18, 1916.

      Oliver & Oliver, E. 8. Fuller, for plaintiff.

      Paul E. SeabrooTc, for defendants.
   Luke, J.

1. If the plaintiff’s evidence establishes the case substantially as laid, although there be conflict in the testimony of the witnesses for the plaintiff, a nonsuit is not proper. Outcault Advertising Go. v. American Furniture Go., 10 Ga. App. 211 (73 S. E. 20); Wallace v. Southern Ry. Co., 10 Ga. App. 90 (72 S. E. 606) ; Civil Code (1910), § 5942. The evidence of the plaintiff in this case was sufficient to have carried the case to the jury, and the granting of a nonsuit was error.

2. There is no merit in any of the assignments of error not covered by the foregoing ruling.

Judgment reversed.

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