text:
    8503.
    SHERROD v. SPRINGFIELD BAPTIST CHURCH.
    1. Where payment on a written evidence of debt is made to a person as agent for another, the production of the written evidence of debt raises an implication of his authority to receive, the payment as agent, but where it is not produced there is no such implication, and the burden is upon the person making the payment to establish such authority.
    2. Declarations of an alleged agent are not by themselves admissible to prove agency, but the fact of agency may be established by prooí of circumstances, apparent relations, and the conduct of the parties; and where the extraneous circumstances, independently of and without regard to the declarations of the agent himself, clearly tend to establish the fact of his agency, his declarations, though inadmissible if standing alone, may, as a part of the ,res gestse of the transaction, be considered.
    3. Where it is shown that a payment so made reaches the hands of the principal, or the hands of another who is his authorized agent to receive it, the authority of the person to whom the money was actually paid need not be shown.
    4. Under the ruling stated in the second headnoté, the admission of the receipt signed by Armstrong as agent was not erroneous. Nor do we think the court expressed any opinion as to the evidence; nor was the charge upon the subject of agency erroneous in itself, or so inadequate as to require a reversal on that ground, it not appearing that a request for more specific instructions on this issue had been. made.
    Decided November 2, 1917.
    Complaint; from Richmond superior court — Judge H. C. Hammond. January 1, 1917.
    This was an action brought by W. L. Sherrod of Enfield; North Carolina, against a church of colored people at Augusta, Georgia, known as Springfield Baptist Church, for a balance of $1500, with interest and attorney’s fees, on a note secured by a deed to real estate in the city of Augusta. The defendant pleaded payment, contending on the trial that the note, which originally was for $3,000, had been fully paid and discharged by two separate payments, — one for $1,620 at an interest.period, July 1, 1913, which included $1,500 on the principal and $120 as six months’ interest on the entire debt, and the other a payment of $1,620 which included the principal sum of $1,500 and $120 as one year’s interest. This latter payment was made shortly before the suit was filed, and was accepted by the plaintiff without prejudice to his right to sue for and recover the amount in controversy, which is a sum equal to the amount of the payment alleged to have been made by the defendant on July 1, 1913. The defendant had borrowed about $3,000 from the Irish-American Bank, of which James P. Armstrong was cashier. Armstrong notified the church committee that the bank desired its money, and that he would secure a loan of $3,000 from another party, and they could thus pay the debt to the bank. This offer was accepted, and the church officials signed up the papers, giving a note dated July 1, 1910, for $3,-000, due five years after date, and payable to the order of W. L. Sherrod, at the Irish-American Bank, Augusta, Ga. Semiannual interest notes at 4% per annum were also signed up. This transaction was consummated at the bank between the defendant and Armstrong, neither the plaintiff nor any other person representing him being present. It was provided by the terms of the note that the maker should'have the privilege of paying $1,000 on the principal at any interest paying period, provided the church corporation gave to Sherrod thirty days notice in writing of its intention so to do, interest to run only on .unpaid balance.
    When the various interest notes fell due, January 1, 1911, July 1, 1911, January 1, 1912, July 1, 1912, and January 1, 1913, they were regularly paid at the Irish-American Bank by turning the money ^ over to Armstrong, cashier. The evidence for the defendant shows that sometimes the interest notes were turned over to it when paid, and sometimes a receipt was given to it for the amount paid, and the notes delivered to it later. The evidence shows that Sherrod, the lender of the money, had a son-in-law, H. L. Salsbury, who resided in Augusta, and was the general agent of his father-in-law in making loans for him at Augusta, and in paying out the money and collecting (loans. The plaintiff himself testified that Salsbury had authority to make the collection of the debt in question. The evidence of the plaintiff shows also that he would send the interest notes to Salsbury as they were called for by him, and Salsbury testified that a week or ten days before the notes would become due he would deposit them in the Irish-American Bank in order that they might get out notices to debtors, and that the bank was to collect them and place the amount to his credit, and he would in turn mail to the plaintiff a check for the amount collected, and that this was done in the case of this. defendant. Although he afterwards sought to qualify the statement, the plaintiff himself testified as follows: “Mr. Salsbury never wrote me to send him a note until after it was due and the interest was paid.- After the interest note was due and the interest was paid, I would send him a note in settlement of the interest in that way.” The evidence shows that no one representing the defendant met the plaintiff or Salsbury, his admitted agent, until after the interest note maturing January 1, 1914, was presented, all of the transactions having been effected at the bank with Armstrong. The evidence shows that some time two or three months previous to July 1, 1913, the officials of the church asked Armstrong if it would be satisfactory to Mr. Sherrod for them to pay $1,5.00 on the note. Armstrong replied that he .supposed it would be, but he would make inquiry and.let them know. In a few days he informed them that it was satisfactory, and the payment could be made, and it is not disputed by any one that on July 2, 1913, .the church actually paid over at the Irish-American Bank to James P. Armstrong, cashier, the $1,620 and took a receipt as follows:
    “$1,620.00. “Augusta, Ga., July 2, 1913.
    “Received of Springfield Church sixteen hundred and twenty ($1,620.00) dollars, $120.00 applied on interest to date and $1,-500.00 on principal of $3,000.00.
    “W. L. Sherrod, by J. P. Armstrong.”
    The plaintiff contends that neither the Irish-American Bank nor Armstrong, its cashier, had any authority, express or implied, to receive the payment in question; that neither of them at any time held the security deed or the principal note for collection, and that neither he nor Ms agent, Salsbury, knew that the defendant had attempted to make payment at the bank or to Armstrong on the principal indebtedness until the serial interest note maturing January 1, 1914, was presented, after the bank had failed and had been placed in the hands of the State bank examiner; at which time the defendant declined to pay the note, on the ground that the principal indebtedness had been reduced by one half six months previous by the payment then made at the bank.
    The testimony further showed that Salsbury carried an account on the books of the Irish-American Bank in his own name, and that he deposited to this account the various sums of money received from Sherrod to be loaned out, and the sums paid back. The defendant introduced' in evidence this account on the books .of the bank, which showed that on July 2, 1913, the $1,620 was entered to the credit of H. L. Salsbury, which date was nearly five months previous to the bank’s failure on December 13, 1913; and the book showed other transactions by Salsbury which indicated that he had used this sum by checking on it, and that after the deposit of the payment in dispute to Salsbury’s account, an overdraft in his account at one time appeared. Salsbury testified that his pass-book, check-book, and cancelled checks were destroyed by fire,- and, although he acknowledged receipt of the $120 interest paid on July 2, 1913, and admitted that this payment appeared on his pass-book, he said that the $1,500 was not placed on his pass-book until it was presented to the receiver of the bank to be balanced, and when it was put upon his book he repudiated it and returned the book to the receiver of the bank, and declined to accept it. He testified also that his pass-book had been balanced several times between the time the payment was made on July 2, 1913, and the failure of the bank on December 13, 1913, and denied the correctness of the account which showed that he had used the $1,620 by checking on it. When the books of the bank were balanced, after the failure of the bank on December 13, 1913, there appeared to the credit of H. L. Salsbury’s account the sum of $3,076.70. Salsbury contended that this was $1,500 too much, on the ground that Armstrong had no authority to accept the money.
    The defendant, claiming that the payment of $1,620 to Armstrong was legal and binding on the plaintiff, subsequently paid up the entire balance of the debt that was due, leaving open only one question, namely,- the legality of the payment of that $1,630. On that issue the ease went to trial, and the jury found in favor of the defendant. The plaintiff filed a motion for a new trial, which was overruled, and the case is here on exception to that judgment.

      Alexander & Lee, for plaintiff. W. H. Fleming, for defendant.
   Jenkins, J.

(After stating .the foregoing facts.)

1, 3. The fact that a' person assuming to be the agent of another receives payment from the debtor on a written evidence of debt does not raise an implication of his agency, where he does not produce the written evidence of debt itself (Civil Code of 1910, § 3578); nor is such agency established by the declaration of the alleged agent (Harris Loan Co. v. Elliott & Hatch Co., 110 Ga. 302 (34 S. E. 1003); Americus Oil Co. v. Gurr, 114 Ga. 634 (40 S. E. 780); neither does such implication arise when it is shown that the alleged agent was the medium through whom the money was originally passed to the debtor, and that the instrument was taken by such person. Howard v. Rice, 54 Ga. 53. Such agency does not follow from the fact that partial payments have hitherto been made by the debtor to the person assuming to act as such agent, where on each former occasion the agent produced the evidence of indebtedness (Walton Guano Co. v. McCall, 111 Ga. 114, 36 S. E. 469); nor from its being shown that the evidence of indebtedness provides that payment shall be made at the particular bank of which the alleged agent is cashier. 7 C. J. 587, § 343. The fact, however, that from none of these things does agency follow does not prevent one who has made payment to a party assuming to be the agent of the creditor from establishing such relationship by proof, of circumstances, apparent relations, and the conduct of the parties. Cable Co. v. Walker, 137 Ga. 65 (56 S. E. 108). And thus, where the independent and extraneous fact is made to appear, that in the course of previous dealings with the debtor the alleged agent received payment of various interest notes without having possession of them, and that the payments were subsequently ratified by the creditor and the interest notes thereafter delivered, all of the facts and circumstances above enumerated can then be properly considered by the jury as- throwing some light upon the question of agency involved. Abel v. Jarratt, 100 Ga. 733 (38 S. E. 453); Ham v. Brown, 2 Ga. App. 71 (58 S. E. 316). In the case of Bank of the Univer sity v. Tuck, 96 Ga. 456 (23 S. E. 467), it was said: “It being, under the evidence disclosed by the record, a question for determination by the jury, whether or not the alleged course of dealing between the plaintiff and the original payee of the note established, an implied agency upon the part of the latter to collect the same, it was proper for the court in its charge to deal with, and instruct the jury as to the law of implied agency.” The charge of the trial court referred to in that case, and which was approved as substantially correct, was as follows: “If the agent holds himself out and acts for the principal, whether a particular, general or universal agent in his business, and this is done from time to time until third parties dealing with the agent are led to believe by the acts of the agent and of the principal, in using and receiving the benefits, or are led to deal with them by the acts of the principal toward his agent, he could hold the principal bound for the acts of the agent, without any express authority.?

The principle here applicable has been stated by the Supreme Court of the United States in Bronson’s exr. v. Chappell, 79 U. S. 681, 683 (20 L. ed. 436), as follows: “Where one without objection suffers another to do acts which proceed upon the ground of authority from him, or by his conduct adopts and sanctions such acts after they are done, he will be bound, although no previous authority exist, in all respects as if the requisite power had been given in the most formal manner. If he has justified the belief of a third party that the person assuming to 'be his agent was authorized to do what was done, it is no answer for him to say that no authority had been given, or that it did not reach so far, and that the third party had acted upon a mistaken conclusion. He is estopped to take refuge in such a defense. If a loss is to be borne, the author of the error must bear it. If business has been transacted in certain eases, it. is implied that the like business may be transacted in others. The inference to be drawn is, that everything fairly within the scope of the powers exercised in'the past may be done in the future, until notice of revocation or disclaimer is brought home to those whose interests are concerned. Under such circumstances, the presence or absence of authority in point of fact is immaterial to the rights of third persons whose interests are involved. The seeming and reality are followed by the same consequences. In either case the legal result is the same.’’ Another case in point is that of Wilcox v. Carr, 37 Fed. 130, wherein the payment to a sub-agent in Iowa (without possession of the written evidence of debt) was held good, notwithstanding the paper itself called for payment at the agent’s office in Connecticut, and the money never reached that State, but was embezzled by the sub-agent in Iowa. The court lays stress on the payment of the money due on the coupons or interest notes to the same agent and the subsequent delivery of the coupons or notes themselves, thus ratifying the payment of the money without producing the written evidence of debt. Thus, while the evidence in this case could not as a matter of law be taken as being conclusive upon this question, still, in our opinion, it was a question for the jury to determine whether the course of dealings between the defendant and the plaintiff, through the agent, established such implied agency, where it was shown that the note was negotiated by the alleged agent and made payable at the 'chartered bank of which he was cashier, and where in the course of previous dealings with the defendant' the alleged agent received payment of various interest notes without having possession of them, and that these payments were subsequently ratified by the principal and the interest notes thereafter delivered.

3. While the evidence was conflicting, we think that the jury were authorized to find that the payment in dispute actually reached the hands of Salsbury, who had the undoubted right to receive it. If this be true, then, irrespective of the question as to Armstrong’s right to collect it, this would conclude the rights of plaintiff. As was said in Bank of University v. Tuck, supra: “If the holder actually received the money collected by the payee on the note, this should be an end of the matter.”

Judgment affw-med.

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


source: Caselaw Access Project

author: Jenkins, J.

license: Public Domain

text:
    8552.
    DANIEL v. NIXON & WRIGHT.
    1. As the act of 1912 creating the city court of Millen (Ga. L. 1912, p. 245) does not provide for entering judgments of default, or limit the time allowed for the filing of pleas, and as the record in this case negatives the idea that the judge had promulgated any rule governing the time for filing pleas, the unauthorized entry of “in default,” made at the first term, would not prevent the defendant from subsequently filing a plea prior to final judgment, although the plaintiff could have taken final judgment at the first term, under the act creating the court, which permits but does not require final judgment when no defense is filed on the call of the ease at the first term.
    2. As the judgment of the court below shows on its face that the merits of the proffered plea were not considered, but that it was dismissed solely on the ground that it was not filed in time, this court will not now undertake to determine as to the merits of the plea.
    Decided November 2, 1917.
    Complaint; from city court of Millen — Judge Dekle. January 19, 1917.
    Nixon & Wright filed suit against Mrs. Estelle P. Daniel on certain promissory notes aggregating $3,129.75 principal, returnable to the April quarterly term, 1916, of "the city court of Millen, which convened April 17, 1916. No plea or answer was filed by Mrs. Daniel before or during the return term of the court, and the case was marked “in default” by the presiding judge upon the call of the docket during the absence of counsel for the plaintiffs under a leave from the court. The default entry was dated April 17, 1916. On May 12, 1916, the defendant filed an answer with the clerk of the court, without first obtaining permission' from the court to do so, and the record shows no agreement with either the plaintiffs or their counsel that the answer might be filed at that time. At the next succeeding term of the court the plaintiffs, through their counsel, submitted a motion to dismiss the answer, primarily on the ground that it was not filed in time and in accordance with the rules of practice “under the act creating said court,” and not until after final judgment could under the act have been entered up, but for the absence of plaintiffs’ attorney. The court sustained the motion to strike, holding that as no defense had been legally filed, it was not necessary to pass upon the sufficiency of the plea. The court then directed a verdict for the plaintiffs for the amount sued for, with interest and attorney’s fees, and upon this verdict the plaintiffs entered up judgment. The act of 1912 creating the city court of Millen (section 12) provides as follows: “All other causes and proceedings must be brought to the quarterly term in like manner as suits are now brought in the superior court, and the first term' of the said quarterly session shall be the appearance term; provided, that in all suits brought in said city court final judgments may be had at the first term to.which the cause is returnable, and execution issue therein, unless a plea or defense is filed under the rules governing the filing-of pleas or defenses in the superior court at the time of the calling of the appearance docket, in which event the second term shall be the trial term, except the trial may be had at the first term where the parties consent. The judge shall call the appearance docket, on the last day of each term.”

      Saffold & Jordan, for plaintiff in error.

      G. H. & R-. S. Cohen, H. J. Fullbright, contra.
   Jenkins, J.

(After stating the foregoing facts.) There is no controversy between counsel .upon the proposition that the city court of Millen was without power to enter judgments of default. This is conceded by counsel on both sides. The provisions of the Civil Code (1910), § 5656, relative to the opening of default at the trial term, on cause shown, do not have application to suits in those courts wherein judgment may be taken at the first term. Jenkins v. Whittier Mills Co., 20 Ga. App. 828 (93 S. E. 530); Thurmond v. Groves, 126 Ga. 779 (55 S. E. 915). Even in a suit where a default judgment might be legally entered, it has been held that when there was a failure to do so, it was error, on the call of. the case for trial, to strike a plea filed at a subsequent term, as being too late. Glass v. Allen, 141 Ga. 30 (80 S. E. 284); Hall v. Tiedeman, 141 Ga. 602 (80 S. E. 868). The judgment of the trial court marking, the present case “in default”' being unauthorized, it seems clear that the defendant would be entitled subsequently to file her defense, prior to judgment, unless there was some provision in the act creating the court, or, in the absence of such a provision, some rule promulgated by the court itself, limiting the time of such filing. If this were the case, and if the act or rule specified and limited the time in which the plea must be filed, effect must be given to that requirement, and a plea entered after the time so allowed would be too late. Dodson Printers’ Supply Co. v. Harris, 114 Ga. 966 (2) (41 S. E. 54); Cheatham v. Brown-Catlett Furniture Co., 118 Ga. 420 (45 S. E. 399); Pitts v. Wheeler, 6 Ga. App. 720 (65 S. E. 689); Beacham v. Kea, 118 Ga. 406 (45 S. E. 398). There is, however, in the act creating the court no limitation of the time when the answer must be filed, although the act does provide that if no defense is filed under the rules governing in the superior court, final judgment may be taken on the call of the case at the appearance term. The failure to make answer on such call is at 'the peril of defendant, and upon such failure final judgment may be entered. This does not mean, however, that it must be entered. Bass v. Doughty, 5 Ga. App. 458, 460 (63 S. E. 516). The record precludes the assumption made by the Supreme Court in the Beacham case, supra, that there must have been a rule of court so limiting the time, since in this case the motion to strike is specifically based upon the ground that the plea was not filed within the time allowed under the act creating the court. Judgment might have been taken at the first term, but, since it was not taken then, and since, as is conceded, the judgment of default then entered was unauthorized, and since there is no law or rulé limiting the time when the plea shall be filed, but merely a provision of law which renders the defendant liable to be cut off by final judgment at the first term if the plea be not then filed, we think the court in this case should have allowed the defendant to file the proffered answer, in order that its merits could be passed upon.

Judgment reversed.

Wade, G. J., and Dulce, J., concur.


author: Wade, 0. J.

text:
    8727.
    ATLANTIC COAST LINE RAILROAD COMPANY v. NELLWOOD LUMBER COMPANY.
    1. There was no error in overruling the plea to the jurisdiction or the demurrer to the plaintiff’s petition.
    2. An assignment of error upon a charge as a whole, on the ground “that the charge of the court, exhibit ‘B,’ was not applicable to the case; that the court erred in not charging the jury under the admitted facts, and that the defendant was not liable to the plaintiff,” presents nothing for the consideration of this court.
    3. In view of the sharp conflict in the evidence as to whether or not the goods in question were in the legal custody of the Barnwell Lumber Company, and in view of direct and positive testimony to the effect that the plaintiff verbally and by letter specifically notified the defendant railroad company to hold up shipment of the goods until further notice, the following excerpt from the charge of the court was not error: “If, however, after a railroad company issues a bill, of lading, they have information that the party delivering the goods to the railroad is not the true owner of the goods, and the true owner instructs the railroad not to deliver the goods to the person that brought them to the, road, and the railroad disregards the instruction of the true owner and ships the goods, the railroad acts at its peril.”

      4. All three of the 'written request to charge were not correct statements of law, and were therefore properly refused.
    5. The verdict seems to be excessive, in that it included interest, while the plaintiff’s petition does not seek to recover interest, and-the motion in arrest of judgment should have been sustained. However, the judgment is affirmed on condition that the interest be written off with- . in 10 days after the filing of the remittitur.
    6. The evidence authorized the verdict.
    Decided November 2, 1917.
    Action for damages; from city court of Bichmond county — • Judge Black. March 28, 1917.

      W. K. Miller, for plaintiff in error. Alexander & Lee, contra.
   Wade, 0. J.

The Nellwood Lumber Company brought suit against the Atlantic Coast Line Bailroad Company in the city court of Bichmond county, requiring the defendant to answer in an action for damages, for that the defendant had damaged the plaintiff in the sum of $89.30, by reason of the following facts: That during the month of December, 1914, petitioner was the owner of certain iron rails, located at Bobbins, S. 0., which it had contracted to sell to the Barnwell Lumber Company; that on December 18, 1914, B. H. Youngblood, an agent of the plaintiff, was sent to Bobbins, S. C., to measure said iron rails, and, upon the execution of said contract by the defendant, to superintend the shipment of the rails to the Barnwell Lumber Company; that, in accordance with the terms of the contract, the rails were loaded by agents of the Barnwell Lumber Company, under the superintendence of and in the presence of B. H. Youngblood, — plaintiffs agent; that, when the rails were loaded on ’the defendant company’s cars, plaintiffs agent notified defendant’s depot agent, at Bobbins, S. C., that the rails being loaded by the Barnwell Lumber Company were the property of the Nellwood Lumber Company of Augusta, Ga., and further notified defendant’s agent not to permit said car of rails to go forward until released by plaintiff, who was the owner of said rails; that on December 19, 1914, plaintiff’s agent, Youngblood, reported his action to the plaintiff company, who likewise notified defendant’s depot agent at Bobbins, S. C., that the Nellwood Lumber Company was the true owner of said rails, and instructed that the rails not be shipped, until released by them; that notwithstanding such verbal and written notice, the defendant delivered possession of said rails to the Barnwell Lumber Company; that after defendant surrendered possession o£ the rails to the Barnwell Lumber Company, contrary to the plaintiff’s instruction, the said Barnwell Lumber Company refused to deliver possession of the rails, and that in order to protect its rights the plaintiff incurred certain expenses in legal proceedings against the Barnwell Lumber Company to recover possession of the rails.

The defendant filed a plea to the jurisdiction of the city court of Bichmond county, and, subject to that plea, demurred, on the grounds that the petition did not set out a cause of action, and that the damages claimed were too remote. The plea to the jurisdiction and the demurrer were overruled, and the defendant duly filed exceptions pendente lite. The defendant answered the petition, denying the allegations therein, and pleading that the plairn tiff’s written notification was not received until after the two cars of rails had been placed in the possession of the Barnwell Lumber Company by the plaintiff’s agent; that the Barnwell Lumber Company was apparently the owner of the rails, and that the railroad company did not have sufficient authority to hold the rails after possession had been given to the Barnwell Lumber Company and a bill of lading issued to the latter company.

The case went to the jury and a verdict in favor of the plaintiff, for $101.80, was returned, and judgment was duly entered for that amount. The defendant filed a motion in arrest of judgment, upon the ground that the court was without power to render the judgment prayed for, and that .this defect was apparent in the face of the record. The defendant’s motion for a new trial was overruled, and it sued out its bill of exceptions to this court, assigning error upon various rulings of the trial court.

1. Considering first the plea to the jurisdiction, we must make reference to the act of 1881 (Acts of 1881, p. 574), which fixes the jurisdiction of the city court of Bichmond county as follows: “That a city court be and the same is hereby created' and established in the city of Augusta, with territorial jurisdiction over the whole county of Bichmond, concurrent with the jurisdiction of the superior court to try and dispose of all civil eases, of whatsoever nature, above the jurisdiction- of justices of the peace and not exceeding $5,000 in the amount involved, exclusive' of interest, except in cases of divorce, cases respecting title to land and equitj eases.” It will be observed that the jurisdiction of the city court of Eiehmond county (except as to certain eases specified) is concurrent with that of the superior court in all civil cases, of whatsoever nature, above the jurisdiction of the justices of the peace and not exceeding $5,000. Although the phrase, “ above the jurisdiction of the justices of the peace,” is not altogether free from ambiguity, it is plain to us that it was the intent of the legislature to confer jurisdiction upon the city court of Eiehmond county in all civil cases “without” the jurisdiction of the justice’s courts; or, to state it differently, the word “above” is used synonymously with the word “without.” The question is therefore whether or not the present suit is one “above,” because “without,” the jurisdiction of the justice’s courts. By paragraph 2 of section 7 of article 6 of the constitution (Civil Code, § 6524), justices of the peace are given jurisdiction in all civil actions, arising ex contractu, and in case of injuries or damages to personal property, where the principal sum does not exceed one hundred dollars. Clearly, therefore, whether or not this suit is one “above” or “without” the jurisdiction of a justice’s court depends not only upon the amount sued for, but also upon the nature of the action. As to amount, it was one properly for trial by a justice’s court, since a recovery of only $89.30 is sought, — an amount less than one hundred dollars. However, as to the nature of the case, it was above or without the jurisdiction of a justice’s court, since it sounded in tort, and the injury or damage was not to personal property. Although this proposition has, time and again, been decided by our courts of review, it may not be amiss to quote the first headnote in Dorsey v. Miller, 105 Ga. 88 (31 S. E. 736) : “A justice’s court has no jurisdiction of an action of tort unless .the alleged wrong consisted of injuring or damaging personal property belonging to the plaintiff. Such a court, therefore, can not lawfully entertain or try a suit against a defendant for fraudulently removing property subject to a lien held by the plaintiff, or for conspiring with another so to do.” See also cases cited in that decision. It is unnecessary to set out in detail the reasons why this suit is one sounding in tort, since a mere reference to the statement of facts will suffice to show that this action is ex delicto, for damages arising not from injury to personal property, but in consequence of the prior conversion of certain property belonging to the plaintiff. This ..suit being therefore an action ex delicto, and consequently above the jurisdiction of the justice of the peace, and not a case over which the superior court would have exclusive jurisdiction, the plea to the jurisdiction of the city court of Richmond county was properly overruled, notwithstanding the amount involved was less than one hundred dollars.

The court properly overruled the demurrer. We do not deem it necessary to argue the points raised thereby, since, in our opinion, the plaintiff’s petition clearly set out a cause of action arising from a conversion of the plaintiff’s property, and the damages therein alleged were not too remo'te to be the basis of the suit.

2. The ruling stated in the second headnote needs no elaboration.

3. Complaint is made that the following excerpt from the charge of the court was error: “If, however, after a railroad company issues a -bill of lading, they’have information that the party delivering the goods to the railroad is not the true owner of the goods, and the true owner instructs the railroad not to deliver the goods to the person that brought them to the road, and the r.ail-road disregards the instructions of the true owner and ships the goods, the railroad acts at its own peril.” The plaintiff in error insists that this charge was error, for the reason-that the Nellwood Lumber Company, by virtue of a contract of sale, had put the Barnwell Lumber Company in possession of the rails, and allowed the latter company to load them on the defendant’s ears; that the defendant was obliged to issue its bill of lading on demand of the Barnwell Lumber Company; that it could not prevent the shipment of the rails because the Barnwell Lumber Company failed to carry out its contract with the Nellwood Lumber Company; and that the verbal and written notification was insufficient to stop the shipment. It will be observed that the plaintiff in error takes the position that the rails had already been delivered to or were in the lawful possession of the Barnwell Lumber Company,•but reference to the brief of evidence shows that this was in dispute. It was the main contention of the railroad company, but was specifically denied by the plaintiff. The case of Georgia Railroad Co. v. Haas, 127 Ga. 187 (4) (56 S. E. 313, 119 Am. St. R. 327, 9 Ann. Cas. 677), is, in our opinion, authority for the charge here excepted to. In the fourth headnote of that case we find the following ruling: “If a person not the owner of property or entitled to its possession takes it and delivers it to a railroad for shipment, the true owner, who is no party to the contract, may, before delivery by the carrier, demand and reclaim his property; and as against an action of trover brought for that purpose against the carrier by the true owner, it furnishes no defense that the carrier refused to recognize his title or right and carried and delivered the property in accordance with the shipment.” In the present case there was evidence that the Barnwell Lumber Company was not the owner of the rails, or entitled to their possession, and therefore without authority to deliver the rails to the railroad company for shipment. There was also evidence that the true owner of the rails notified the railroad company, both through its agent and by letter, not to make the shipment, until ordered so to do by them. There was evidence that the written notice was received by the railroad company on December 20, and that the rails did not go forward until December 21. The decision in the case of Shellnut v. Central of Georgia Ry. Co., 131 Ga. 404 (62 S. E. 294, 18 L. R. A. (N. S.) 494), does not in any way militate against the decision in the Haas case, supra, or the decision in the case now under consideration. In the Shellnut case, it was held: “A common carrier is bound to receive all goods offered that he is able and accustomed to carry, and to transport and deliver such goods in pursuance of the bailment; and where he receives goods offered, the possession thereof by the person offering the same as freight being apparently rightful, though as a matter of fact it may not be actually so, the carrier will not be liable as for a conversion, in an action brought by the true owner, unless the latter intervenes before the goods are delivered and demands them or gives notice of his right to the property in question and of his intention to enforce it.” In that decision Mr. Justice Beck thus clearly distinguishes the two cases: “While [in the Haas case, supra] it was held that a carrier can not refuse to recognize the demand of the true owner of the property, made while such property is in the carrier’s possession and duly pressed, and carry it away and deliver it to a person who does not own it, or his order, merely because the carrier received it from such person as consignor, there is no intimation in that case that if the property had been carried and delivered in pursuance of the directions given by the person who, being in possession of it, offered it for carriage before demand was made by the true owner, the carrier would have been liable as for a conversion. Indeed, the argument and the reasoning in that case tend very strongly to the conclusion which we have reached in this.” Applying to the facts adduced in the instant case the two decisions above quoted from, the charge was not subject to the exception made.

4. Further complaint is made because the court refused to comply with requests to charge the jury as follows: “(1) If the Nellwood Lumber Company permitted the iron rails in question to be delivered to defendant by the Barnwell Lumber Company, as shipper, the bill of lading should have been issued to the Barnwell Lumber Company, and if it was so issued, the common carrier was’ bound to look to the Barnwell Lumber Company as owner. (2) I charge you, gentlemen of the jury, further that when the agent of the Nellwood Lumber Company left on the Saturday afternoon in question, after permitting the Barnwell Lumber Company to load the iron rails-on the defendant company’s cars, that ordinary care required that he should have demanded for the Nellwood Lumber Company a bill of lading, or receipt for these rails, if he wished the railroad company to consider the Nellwood Lumber Company the owner thereof. If plaintiff’s agent left Bobbins without having caused a bill of lading to be issued to the Nellwood Lumber Company by defendant for said iron rails, the railroad company was justified in issuing said bill of lading to the Barnwell Lumber Company. (3) Under the law, attorney’s, fees and expenses of litigation are not recoverable as damages; it is contrary to the policy of our law to permit the plaintiff to recover attorney’s fees as part of the damages claimed.” Under the rulings made in the Shellnut case, supra, and the Haas case, supra, the first request was properly denied, since it does not embody a correct statement of the law. The second request to charge was likewise not a correct statement of the law. It will be observed that the court was asked to charge that ordinary care required that the agent of the Nellwood Lumber Company should have demanded for that company a bill of lading, or receipt for the rails,1 if he desired the railroad company to consider his company the true owner thereof. It is obvious that had the judge charged as requested he would have invaded the province of the jury, since it is a well settled rule that a court is not permitted to instruct a jury what constitutes ordinary care and what constitutes negligence. The third request to charge is also not a correct statement of the law> and was properly refused by the trial court. It is true that the Civil Code, § 4392, states that “The expenses of litigation are.not generally allowed as a part of the damages; hut if the defendant has acted in bad faith, or has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.” However, this section is not applicable to this case. The attorney’s fees here asked for did not grow out of this, suit, hut were part of another legal proceeding. In the present case the plaintiff was not seeking'attorney’s fees in the pending suit, but merely praying for damages, including attorney’s fees, incurred in its litigation with the Barnwell Lumber Company, in consequence of the delivery of the goods to said Lumber Company by the railroad company without its consent or authority. In our judgment, the ease of Ocean Steamship Co. v. Williams, 69 Ga. 251, controls this question. The fourth headnote of that decision is as follows: “In an action for false imprisonment, expenses which were the immediate or necessary consequence of .the act complained of, including counsel fees and costs incurred by reason of the imprisonment, could be taken into consideration by the jury in estimating damages; nor would it be necessary in order for such elements of damages to be considered, to show bad faith, or stubborn and litigious conduct, or unnecessary trouble and expense caused by the defendant.”

5. Error is assigned upon the overruling of the motion in arrest of judgment. The plaintiff in error contends that the verdict was excessive. The verdict was for $101.80, while the suit was only for $89.30. It is apparent that the jury, acting in accordance with the charge of the court (which is not complained of), merely added two years interest to the sum sued for. However, we are constrained to hold the verdict excessive, since the plaintiff’s petition sought only a recovery of $89.30 principal, without an}'’ mention of interest, and the verdict actually returned included interest amounting to $12.46, and was to that extent in excess of the amount claimed. A new trial will be refused, however, if the defendant in error will write off $12.46 — the interest calculated by the jury — at the time of the entry of the remittitur as the judgment of the trial court; otherwise the verdict will be set aside and a new trial granted.

Judgment affirmed, on condition.

J enkins and Luke, JJ., concur.'


author: Wade, C. J.

text:
    8873.
    Morrison v. Brown.
   Wade, C. J.

1. It is insisted in the brief of counsel for the plaintiff in error that it do.es not appear in the record that notice to the opposite party of the sanction of the writ of certiorari and of the time and place of hearing was given, or that there was a written waiver of such service.

(а) While it does not affirmatively appear from the record in this court that service of the requisite notice was either had or waived in writing, the bill of exceptions contains no assignment of error (as in McConnell v. Folsom, 4 Ga. App. 535, 61 S. E. 1051) upon the refusal by the court to dismiss the certiorari because of the lack of such service or waiver; and in the absence of any attempt in the bill of exceptions to assign error for this reason, this court is without authority to determine the validity of the judgment of the lower court upon that ground, since this court (like the Supreme Court), under section 6203 of the Civil Code, can not decide any question “unless it is made by aspecial assignment of error -in the bill of exceptions,” except where a want of jurisdiction as to the subject-matter of a suit appears on the face of the record. Central of Georgia Ry. Co. v. Waxelbaum Produce Co., 18 Ga. App. 489 (2) (89 S. E. 635).

(б) While, without the statutory notice or a written waiver thereof, there would be “no proper case pending in the [superior] court” (Franke v. May, 86 Ga. 659, 662 (12 S. E. 1068); see also Toole v. Davenport, 63 Ga. 160), and "failure to give such notice renders the entire proceeding void” (McConnell v. Folsom, supra), where proper exception is taken, yet in the absence of any attack in the bill of exceptions upon the ground that there was no written notice or waiver of the notice of the sanction of the petition for certiorari and of the time and place of hearing, and in the absence of any recitals in the bill of exceptions (certified to by the judge) showing a want of such notice or waiver, it will be presumed by this court that the lower court had before it a sufficient written waiver, since it is not essential that such a written waiver should itself be attached to the certiorari proceedings; and in view of this presumption, a judgment sustaining a .certiorari can not be successfully attacked as void in the brief for the plaintiff in error alone, merely because no notice or waiver of notice appears in the record. See McAlister v. State, 77 Ga. 599, 600 (3 S. E 163), in this connection distinguishing or criticising the ruling in Glenn v. Shearer, 44 Ga. 16.

2. Objections to the certiorari bond and affidavit are likewise presented in the brief for the plaintiff in error, but, as no error is assigned thereon in the bill of exceptions, and as no judgment overruling any objections to the affidavit and bond is complained of, this court is without authority to determine the sufficiency of the affidavit and bond appearing in the record. Civil Code, § 6203, supra.

Decided November 2, 1917.

Certiorari; from Hart superior court — Judge W. L. Hodges. Arpril 24, 1917.

Adams & Johnson, for plaintiff in error. A. S. Shelton, contra.

3. The error assigned upon the ground that the judgment was contrary to the evidence, not being insisted upon in the brief of counsel for the plaintiff in error, must, under the repeated rulings of this court and of the Supreme Court, be considered as abandoned.

Judgment affirmed.

Jenkins and Luke, JJ., concur.


text:
    8887.
    Harden v. Central of Georgia Railway Company.
   Wade, C. J.

1. Whether or not declarations claimed to be a part of the res gestae are really such is ordinarily a question of law for determination by the court, and in this case the court correctly held the evidence admissible as part of the res gestae. Since the only matter which was within the province of the jury was the weight to be given the evidence, the instruction, “You are to determine whether or not it is a declaration accompanying an act, or so nearly connected therewith in time as to be free from suspicion of device or afterthought,” may possibly have been erroneous in this ease, under the ruling in Southern Railway Co. v. Brown, 126 Ga. 1, 7 (54 S. E. 911). See also Southern Railway Co. v. Williams, 19 Ga. App. 544 (6) (91 S. E. 1002). However, this instruction furnishes no sufficient ground for reversal, since the statement of the plaintiff, which was thus admitted by the court as part of the'res gestae, did not itself designate or definitely describe the particular man who shot him and “stamped on his fingers,” nor did the testimony of the plaintiff or of any witness in his behalf, at the trial, designate or describe the particular one of the three defendants (sued jointly with the railway company) as the person who inflicted this injury upon him, and it would be impossible from the res gestae statement admitted, coupled with all the other testimony, to determine whether the conductor, the flagman, or the brakeman was the person liable in damages with the railway company for such injuries.

2. Ground 2 of the amendment to the motion for a new trial complains that the court erred in refusing, after the conclusion of defendant’s testimony, to permit the plaintiff to recall the witness Keener for further examination. Denying this request, the court addressed counsel as follows: - “If your purpose is cross-examination, I -do not think he can be recalled. Of course if you want to lay grounds for impeachment, he can be. I am not going to let him go back except under those circumstances.” Counsel thereupon stated that he expected “to prove 'by this witness that he was employed by the Central of- Georgia Railway Company as ,a conductor on its Tybee division, and that, as such, he got into an altercation with a passenger on that train during the year 1911, and that he threw the passenger- down; that in doing so he injured a lady, and the lady instituted suit in this court to recover damages, and that he testified, declaring that he was not the man who had done it, and had not got into an altercation. I wish to introduce that testimony for the purpose of showing general character, together with the record in the case.” Counsel failing to declare that it was his intention to “lay grounds for impeachment” of the witness Keener, the court did not err in refusing to allow the witness to be recalled and subjected to further examination.

Decided November 2, 1917.

Action for damages; from city court of Savannah — Judge Davis Freeman. March 29, 1917. (See 18 Ga. App. 392.)

Osborne, Lawrence & Abrahams, for plaintiff.

Lawton & Cunningham, H. W. Johnson, for defendant.

3. “Grounds of error not covered by the brief or the argument of counsel for the plaintiff in error will be treated as abandoned. The general statement in the brief that grounds not referred to or argued are nevertheless not abandoned will not be sufficient to change the rule above announced. Courts of review have the right to expect assistance from counsel by citation of authority or argument, and "will be apt to accept the inference that the lack of interest by counsel is due to a conviction of the lack of merit.” Youmans v. Moore, 11 Ga. App. 66 (74 S. E. 710). See also White Sewing Machine Co. v. Sorban, 17 Ga. App. 48 (7) (86 S. E. 257); Muse v. Sail, 18 Ga. App. 690 (90 S. E. 366) ; James v. Boyett, 19 Ga. App. 157 (91 S. E. 219). In the brief, of counsel for the plaintiff -in error in this case the only reference to one of the grounds of the motion for a new trial is as follows: “The third ground of the motion, we submit, is well taken.” Such a statement does not amount to an argument in support of the ground referred to, and 'affords no assistance to the court in considering it, and the failure to say anything further in regard to that ground amounts to an abandonment thereof. Rounsaville v. Camp, 19 Ga. App. 336 (4) (91 S. E. 446).

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

Judgment affirmed.

Jenbins and Lulce, JJ., concur.


text:
    8922.
    CORLEY v. COBB COUNTY.
    Where a horse approaching a county bridge becomes frightened for some unexplained reason apart from any defect in the construction of the bridge or its abutment, and escapes from the control of its driver, and, running away rapidly and violently, is crossing the bridge, when a bystander intercepts him on the bridge, and, by an effort to stop the flight of the animal, causes it to swerve or wheel suddenly to one side, and, in consequence, horse, buggy, and driver are precipitated from the bridge to the water below, the county, is not liable, notwithstanding the bridge is unprotected by barriers, as the proximate cause of the accident is the ungovernable nature of the runaway horse and- the abortive efforts of the bystander to stop it. The court did not err in granting a nonsuit.
    Decided November 2, 1917.
    Action for damages; from Cobb superior court — Judge Searcy^ presiding. April 24, 1917.

      J. Glenn Giles, J. Z. Foster, for plaintiff.

      F. H. Olay, D. W. Blair, for defendant.
   Wade, C. J.

J. T. Corley brought suit against Cobb county, seeking damages for personal injuries to his wife, and alleged, in brief, that on May 26, 1914, while his wife was driving a horse attached to a buggy, from her home on the Powder Springs road, a public highway, to Marietta, Georgia, and while descending a long hill commonly known as “Goodman Hill,” at a point about midway thereof and about 150 yards south of the public bridge which spans the “two-mile branch,” the horse, from a cause unknown to the driver, suddenly became frightened, ran down the hill, and continued his flight on to the bridge; that when the horse had nearly reached the main span of the bridge and was upon the south.abutment thereof running at great speed and beyond the control of the plaintiff’s wife, T. W. Kóbertson, a mail-carrier, who was standing on the west end of the abutment on the south side of the bridge, vehemently and violently gesticulated at and towards the horse, whereupon it suddenly swerved to the right, causing the horse, buggy, and driver to be thrown off the abutment, a distance of nine feet, to the water below. The plaintiff alleged negligence on the part of the county in not having the bridge or abutment properly protected by guard-rails, banisters, railing, or other means of protection, and insisted that this negligence was the proximate cause of the injuries received by his wife. At the conclusion of the evidence introduced in behalf of the plaintiff, the court granted a nonsuit, and to this ruling, as well-as to several rulings of the court in rejecting certain proffered testimony, the .plaintiff excepts.

It will be observed that the plaintiff’s cause of action is grounded solely upon the proposition that the defendant was negligent in not having its bridge properly protected by guard-rails or other means of protection, and that this negligence was the direct, proximate cause of the injuries sustained by his wife. Without entering into any lengthy dissertation oh the subject of proximate cause, it is enough to say that whether the negligence of the county (if it was guilty of any negligence at all) was the proximate cause of the injuries would generally be a question for the jury; but where all the evidence in behalf of the plaintiff clearly shows that the injuries complained of were not the natural or proximate - result of the defendant’s conduct, negligence, or breach of duty, but resulted through an .independent agency or agencies, not invoked or brought into play by the defendant, no recovery would be authorized on this ground.

As we view this case, the alleged negligence on the part of the defendant in failing to properly protect the bridge with guardrails or banisters was not the proximate cause of the injuries sustained; but, to the. contrary, said injuries were the natural and proximate result of two independent causes, not in any way related to the alleged negligence of the defendant. The two causes which brought about the injuries complained of were: (1) the wild, ungovernable conduct of the horse in its mad flight down the hill; and (2) the acts of one Eobertson in trying to stop the runaway animal, which caused it to swerve or wheel sharply to one side and off the bridge; the former being, in our opinion, the primary cause, and the latter the secondary, contributing cause, . and the two causes, considered together, being the direct, proximate cause of the injuries for which damages are now sought. Without either of these causes, the catastrophe would not have occurred. Had the horse been under the control of its driver, they would have passed over the small stream in entire safety — -either by way of the ford or over the bridge. So, too, notwithstanding that the horse was running away and entirely beyond the control of its driver, they would nevertheless have passed over the bridge in safety but for the acts of Eobertson in vehemently and violently gesticulating at and towards the then wild and unmanageable animal. As to the nature and conduct of the horse (the primary cause) just prior to and at the time, of the injury, the uncontradicted evidence of the driver thereof is: “I was going down that long hill- the other side of the branch, and all of a sudden the horse became frightened at something, I don’t know what. I wasn’t noticing him particularly and did not see anything for him to get frightened at. I was just driving along singing.- When he [the horse] became frightened he began to run, and continued to run, and got faster and faster. He started pretty fast. He began to run half way up that long hill. . . If I could have controlled my horse when I got down there I had two ways of crossing the branch, — either drive through the branch below the bridge, or drive over the bridge. I could not control my horse, he was entirely beyond my control. I could not control him at all, although I did make the effort to control him and turn him. I put all my strength against him and it made no impression on him at all.” It will be observed, from the testimony of this witness, that the horse, which she was attempting to drive, “was entirely beyond her control,” and that had the animal been manageable she could at her pleasure have crossed the stream, either by driving through the branch below the bridge or over' the bridge. It is obvious, therefore, that since the horse was “entirely beyond the control” of its driver, she was prevented from exercising reasonable care or any degree of prudence wha'tever. The accidental fall of the-horse and buggy in which she was riding was -a personal misfortune, the direct consequences of which must be borne by the plaintiff. County authorities do not owe the general traveling public any duty to make their highways safe for unmanageable runaway horses. If this were not so, county authorities would be required to exercise extraordinary, rather than ordinary, care to prevent injuries on their highways or public roads. The duty of the county is to exercise ordinary care to make its public roads reasonably safe for reasonably safe road animals. In other words, the defendant’s duty was simply to provide for the usual and ordinary risks of travel. In Stamps v. Newton County, 8 Ga. App. 229 (68 S. E. 947), it is held: “It is the duty of the proper county authorities to construct and maintain bridges across streams in a workmanlike and proper manner, so that any person may use them with safety, in ordinary travel, but this duty is not one of extraordinary care and diligence, nor does its exercise extend to extraordinary occasions, beyond the ken of general experience. The law does not make the county authorities insurers of the safety of any of those who use bridges.” In 37 Cye. 292, it is said: “A lack of railing commonly gives no right of action to the owner of a horse running away or beyond the control of the driver.” In Thubron v. Dravo Contracting Co., 238 Pa. St. M3 (86 Atl. 292, 44 L. R. A. (N. S.) 699, Ann. Cas. 1914C, 252), the Pennsylvania Supreme Court said: “We have uniformly held that dangers which a runaway horse may encounter in his erratic course are not such as the municipality is bound to provide against; its duty in this respect being measured alone by reasonable regard for the safety of the ordinary traveler, himself exercising reasonable care and prudence. Whenever in any of our cases a municipality has been held liable for damages resulting through a frightened horse, it has appeared as a fact that the horse took fright at a point on the highway where it was in unsafe condition, and the disaster followed as an immediate consequence. There is a clear distinction between cases of this character and cases like the one we are now dealing with, and nowhere is this distinction more clearly recognized and explained than in Schaeffer v. Jackson Tp. [150 Pa. St. 145, 24 Atl. 629, 18 L. R. A. 100, 30 Am. St. R. 792]. Heydrick, J., delivering the opinion there says: ‘It is a general rule as well settled as anything in the law of negligence that a man is responsible for such consequences of his fault as are natural or probable, and might therefore be seen by ordinary forecast, but if his fault happens to concur with something extraordinary, and therefore not likely to be foreseen, he will not be answerable for the extraordinary result.” Again in Ehleiter v. City of Milwaukee, 121 Wis. 85 (98 N. W. 934, 66 L. R. A. 915, 105 Am. St. R. 1027, 2 Ann. Cas. 178), it was held: “The rule was clearly established in Massachusetts and Maine that such liability of municipalities is special and statutory; that only where the defect in the highway is the sole, proximate cause of the injury is such liability imposed, and that if there concurs therewith another proximate cause, for which the municipality is not responsible, there is no liabilty, and that the running away of a horse is such independent cause, unless itself produced by fault of the town. The principle is also otherwise stated that by the statute municipalities are only made liable to those using the highway in the ordinary manner for purposes of travel, and that a runaway team is not within the use.” See also, Kingsley v. Bloomingdale Tp., 109 Mich. 340 (67 N. W. 333); Glasier v. Hebron, 131 N. Y. 447 (30 N. E. 239); Waller v. Hebron, 5 App. Div. 577 (39 N. Y. Supp. 381); Lane v. Wheeler, 35 Hun (N. Y.), 606.

As to the acts of Robertson in trying to stop the runaway horse (the secondary contributing cause), the driver thereof testified: “At the time this injury occurred, had not Mr. Robertson interfered with my horse, I don’t think" my buggy would have run off of that abutment. I had a clear way over the bridge, because Mr. Robertson was over on the other side; over on the west side, and my horse was coming straight down the road. Had the horse kept straight in the track the way he was going, without swerving,, he certainly would have gone across, for the way was open across that bridge. At the time the wheel ran off, the horse seemed to me to be flying. I don’t know how far off of the abutment the wheel went. . . The horse turned to the right as he approached Mr. Robertson and as he was passing him he swerved right around that away, that was to my right. . . I was- coming towards town and the horse swerved to my right naturally because Mr. Robertson was on the-other side you see, and he-swerved around to get out of the - way. of him. . . When I saw Mr. Robertson gesticulating at my horse, I knew the horse would swerve around, and knew that the embankment was there, and that was the reason I made the effort to keep the horse from swerving around Mr. Robertson. . . I don’t think when I used my left hand to motion to Mr. Robertson, that I then let that line slack so that I would be pulling more on the right-hand line than I was on the left-hand line. I don’t know about that. I just had both of them in my hands, you know, and motioned him, and it was all done so quickly. I had no control over the horse at all; it wasn’t paying any attention to me.”

From the testimony hereinbefore set forth, it is evident that the escape of the horse from the control of the party in charge, and the efforts of Robertson to stop the flight of the horse, constituted the efficient, direct, and proximate cause of the injuries complained of, for which no responsibility rested on the defendant. Or to state it differently, the blind violence of the animal, acting without guidance or direction, became, in the course and order of incidents which,ensued, the controlling and proximate cause of the injuries inflicted ■ by the fall from the bridge. The court therefore did not err in granting a nonsuit.

None of the Georgia eases cited by able counsel for the plaintiff in error are in conflict with anything here decided, since in those cases which dealt with injuries on abutments or bridges without banisters, resulting from fright, the animal has taken fright an the bridge or abutment, or the construction of the bridge or its abutment caused the fright, and the injury followed as an immediate consequence of the fright at the place alleged to be defective.

The plaintiff in error insists, in two other exceptions, that the court erred in rejecting certain proffered testimony. In disposing of these exceptions we do not deem it necessary to do more than say that had this testimony been admitted, it would not have so materially aided the plaintiff’s case as to change our affirmance of the nonsuit; and therefore, if the refusal of the court to admit it was error at all, the error was harmless.

Judgment affvrmed.

Jenkins and Luke, JJ., concur.


author: Bloodworth, J.

text:
    8761.
    KENT v. WHEELER COUNTY.
    1. An action against a county, to recover an amount alleged to be due and “evidenced by certain warrants drawn upon the treasurer of said county for their respective amounts [not further described], which are and were legal charges against” the county; and the payment of which had been .refused by the treasurer, was not amendable by making the treasurer a party defendant, and by praying that he be required by mandamus to pay the warrants referred to.
    2. A county is not legally liable to a deposed officer for “future services.”
    3. If a county treasurer improperly refuses to pay legal .warrants drawn upon him, the remedy is by mandamus against him, and net by direct suit against the county.
    Decided November 2, 1917.
    Complaint; from Wheeler superior court — Judge Graham. March 9, 1917.

      W. B. Kent, Lee Godfrey, L. 0. Harrell, for plaintiff.

      W. 8. Mann, A. G. Saffold, for defendant.
   Bloodworth, J.

W. B. Kent brought suit against the County of Wheeler, and alleged, that from January 14, 1913, until June 5, 1916, he was the duly commissioned ordinary of that county; that during that time the county became indebted to him in the sum of $2,000; “that said indebtedness is evidenced by certain warrants drawn upon the treasurer of said county for their respective amounts, which are and were legal charges against the said County of Wheeler, and were duly and within the time required by law presented to the treasurer of said county for payment, and the said treasurer unlawfully and without legal cause refused to pay the same; . . copies of said warrants are hereto attached; that the same were presented to the treasurer for'payment and payment refused immediately after 'the same were drawn and in less than twelve months from the date the same became due; . . that [petitioner] was removed from office by an order of the judge of the superior court on the 5th day of June, .1916; and that previous to that-time, and since January 1, 1916, the said County of Wheeler became indebted to him for future services in the, sum of $1,000; an'itemized statement of the same is hereto attached, referred to, and made a part of this petition.” Plaintiff sought to amend the petition by making the county treasurer a party to the suit, and praying for the issuance of a.writ of mandamus, requiring him to pay the warrants described in the petition. The court refused to allow the amendment. The defendant filed a demurrer on grounds which in part were as follows: “1st. The facts alleged in said petition are insufficient in law to authorize the relief prayed for. 2d. The defendant is not subject to suit in the manner and form alleged and as the suit is brought. The plaintiff’s remedy, if any remedy lies for the facts alleged, is that of mandamus against the treasurer of said county to pay the warrants sued upon. 3d. The petition does not purport to set out the nature of said cause of action, but refers to a copy account alleged to be attached, and there is no intelligible copy cause of |action attached to said petition.” The demurrer was sustained and the plaintiff excepted.

The errors complained of are: First; the refusal of the judge to allow the amendment “in which it was sought to make the county treasurer a party to the cause of action and issue an order in the name of a mandamus requiring the said county treasurer to show cause why he should not be required to pay the said county orders sued upon in the said suit of the plaintiff.”. The refusal to allow the amendment was proper, because it was not germane to the original cause of action, and its effect would be to add a new and distinct party. Civil Code (1910), § 5683.. See also Hunnicutt v. Stone, 85 Ga. 435 (11 S. E. 663); Arnett v. Commissioners of Decatur County, 75 Ga. 782.

The second assignment of error is that the-petition was dismissed on demurrer: It will be noticed that the plaintiff alleges in his petition that the county' was indebted to him for “failure to pay certain warrants drawn upon the treasurer of said county/’, and “for future services in the sum of $1000; an itemized statement of the same is hereto attached.” The plaintiff neglected to attach to his petition the bill of particulars, after alleging that he had done so. The Civil Code (1910), § 384, provides: “A county is not liable to suit for any cause of action unless made so by statute.” We know of no law which would make a county liable to a deposed ordinary.for “future services/’ and when lawful warrants are drawn against the county, and the treasurer improperly refuses to pay them, the remedy is by mandamus against the treasurer, and not by direct suit against the county. See Civil Code (1910), § 3102; Neal Loan & Banking Co. v. Chastain, 121 Ga. 500 (49 S. E. 618); Pulaski County v. DeLacy, 114 Ga. 583 (40 S. E. 741).

Judgment affirmed.

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


author: Broyles, P. J.

text:
    8768.
    ROME OIL & FERTILIZER CO. v. STANSELL et al.

    1. Under previous adjudication in this State, there was no merit in the ground of alleged illegality of execution, taken by a garnishee, that the suit against the main debtor was upon an unconditional contract in writing, that neither party to it demanded a trial by jury, and that the judgment therein was void as having been entered upon a verdict, when it should have been rendered by the court without a jury.
    2. The facts of this case do not admit of the application of the general rule that a defective and incomplete return of service of a summons of garnishment is subject to traverse by the. garnishee and a jury trial of the issue thus raised where (after the rendition of judgment against the garnishee, the issuance of execution, and the filing of an affidavit of illegality) the return of service is so amended nunc pro tunc as to cure the defect.
    Decided November 2, 1917.
    Affidavit of illegality of execution; from city court of Floyd county — Judge Nunnally. March 31, 1917.

      Harris & Harris, for plaintiff in error.

      McHenry & Porter, contra.
   Broyles, P. J.

1. “A judgment against a garnishee, duly entered, is as to him- conclusive of the proposition that the plaintiff had already obtained a valid judgment against the main debtor whose effects were sought to be reached by the garnishment proceeding.” Holbrook v. Evansville & Terre Haute Ry. Co., 114 Ga. 1 (2) (39 S. E. 937). Under this ruling there was no merit in the first ground of the affidavit of illegality.

2. Ordinarily, where the return as to service of summons of garnishment is defective and incomplete, and where, after judgment has been rendered against the garnishee and an execution has been issued thereon, to which an affidavit of illegality has been filed, the return is by leave of the court amended nunc pro tunc, so as to cure the defect, the garnishee has the right to traverse the return and to have the issue passed upon by a jury, although there has been no previous traverse of the defective return. Jones v. Bibb Brick Co., 120 Ga. 321 (48 S. E. 25); Southern Express Co. v. National Bank, 4 Ga.App. 399 (4) (61 S. E. 857). However, under the particular facts of this case, the rule just stated does not apply. The ground of the affidavit of illegality (the second ground) as to the defective service was in substance as follows : that the return of service of the summons of garnishment,— to wit, “I ha/ve this day'served the Pome Oil & Fertilizer Company with summons of garnishment, by serving John Glover, treasurer and manager of said company, in person, at 1:50 p. m. September 22, 1913. J. B. Dunn, L. C.,” — was void, and therefore was no basis for a valid judgment against the garnishee. It further appears, however, from the record that on August 14, 1916, a levy was made on the property of the garnishee, and that to this levy John Glover, treasurer and manager of „ the garnishee company, as agent of the corporation, interposed the above-mentioned affidavit of illegality. In this affidavit Glover did not deny that the summons of garnishment had been served on him on September 22, 1913 (as the entry of the officer shows); nor that he was the treasurer and manager'of the garnishee; nor that he was the agent in charge of the office and business of the garnishee company; nor did he then ask that the officer be made a party to the proceedings; nor did he then traverse the return of the officer. On the contrary, he allowed the first term of the court, to which the affidavit of illegality was returnable, to pass without traversing the return; and in the second ground of the affidavit the only reason assigned why the fi. fa. was proceeding illegally was that the return of service failed to state that the summons was served upon the officer or agent in charge of the office and place of business of the garnishee company at Rome, Floyd county, Georgia.

The original return of the officer was imperfect and incomplete, but was not void. It wds amendable, even after judgment, and, when so amended, related back to the date of the original service. Park’s Ann. Code, §§ 5700, 5701; Jones v. Bibb Brick Co., and Southern Express Co. v. National Bank, supra; Seaboard Air-Line Ry. v. Davis, 13 Ga. App. 14 (78 S. E. 687). On March 12, 1917, the return was properly amended without objection. Thereupon the garnishee offered a traverse to the return as amended. This traverse was made by Glover, the same officer of the garnishee company who had been originally served. In his affidavit to the traverse, filed March 12, 1917, Glover swore that he was the manager and treasurer of the garnishee company, and that he was also the officer and*agent in charge of the office and place of business of the company in Floyd county, Georgia. It further appears, from the order of the court allowing the amendment to the return of the officer, that there was submitted to the court evidence which showed that Glover was the agent in charge of the office and place of business of the garnishee company at Rome, Floyd county, Georgia, at 1:50 p. m. on September 22, 1913. Under such circumstances the court did not err in declining to make the serving officer a party to the proceedings, or in dismissing the traverse, or in ordering that the fi. fa. proceed.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.


text:
    8842.
    Citizens National Bank of Danville, Ky., v. Fender.
   Broyles, P. J.

1. .The admission of the evidence complained of in the 1st, 2d, 3d and 4th grounds of the amendment to the motion for a new trial was not error for any reason assigned. The evidence for the defendant, together with the legal inferences and deductions arising therefrom, was sufficient to authorize a finding by the jury that Alexander and Lowe were the collecting agents of the plaintiff bank in regard to the note, and that the payments made to them in behalf of the defendant should be credited on the note. It is true that the plaintiff’s evidence plainly showed that Alexander and Lowe had no authority from it to accept any payments on the note, but this issue of fact was finally determined by the jury in favor of the defendant.

Decided November 2, 1917.

2. There is no merit in the 5th ground of the amendment to the motion for a new trial, which sets up that the verdict is contrary to law and the evidence for the reason that the jury allowed the defendant credit for the amount of $75, set out in his plea and therein alleged to have been paid by the defendant’s son, while there was no evidence in support of this alleged payment. It is true that there was no evidence that the defendant’s son made a payment of $75 on the note, but the evidence for the defendant did show that the son made a payment of $100 on the note, and this discrepancy merely as to the amount of the payment did not render the verdict contrary to law and the evidence. It is obvious from the record that this $100 payment, shown by the evidence, was the same payment referred to in the defendant’s answer, although therein alleged to have been. only $75. The record does not disclose that any objection was made to the admission of the evidence as to this $100 payment, on the ground that it was unauthorized by the pleadings.

3. There is no merit in ground 6 of the amendment to the motion for a new trial, which complains that the jury allowed a credit of $30 on the note, while the evidence shows that this $30 was paid for the use of one of the mules for which the note was given. It does not appear that the jury allowed this amount as a credit on the note.

4. The verdict for $25.50 as principal is not contrary to the pleadings and the evidence for the reason that the defendant in his answer admitted that he was liable for a balance on the note of “something like $39.20.” The admission so worded did not of itself render the verdict illegal.

5. The instructions of the court to which exceptions were taken are not, . when considered in the light of the entire charge and of the facts in the case, erroneous for any reason assigned.

6. ' The other grounds of the amendment to the motion for a new trial are without substantial merit.

7. The note sued upon was a renewal note (for the same amount as the original note), in which the title to two mules, for the purchase-price of which the original note was given, was retained. In addition, as further security, the renewal note contained a mortgage upon two other mules. The evidence for the defendant, who could not read or write, was sufficient to authorize a finding that the execution of the renewal note by the defendant (who made his mark thereto) was procured through fraud, and that certain credits made on the original note should be deducted from the amount of the principal of the renewal note. It is true that the plaintiff’s evidence showed that no fraud was practiced on the defendant, but the jury settled this question -by their verdict.

8. There was some evidence which authorized the verdict; and it having’ been approved by the trial judge, this court has.no authority to interfere.

Judgment affirmed..

Bloodworth and Harwell, JJ.¡ concur.

Complaint; from Colquitt superior court — Judge Thomas. April 6, 1917.

Hendricks, Mills-& Hendricks, for plaintiff.

Shipp & Kline, L. L. Moore, for defendant.


author: Harwell, J.

text:
    8843.
    CENTRAL OF GEORGIA RAILWAY CO. v. HILL.
    1. A special demurrer which is itself vague, uncertain, and indefinite, and does not specifically point out wherein the petition is defective, will not he considered by the court.
    2. Where the evidence authorizes a charge on the subject of contributory negligence and apportionment of damages, it is the better practice for the presiding judge to give it, even in the absence of a request.
    3. The charge of the court complained of in the second ground of the amendment to the motion for a new trial, upon the 'ground that the court did not instruct the jury that the jerk must be unusual and unnecessary, is not error, under the particular facts of this case.
    4. The instruction of the court on the measure of damages is so incomplete as not to give the jury any rule by which they can calculate the damages, and for that reason is held to be erroneous.
    5. The general grounds of the motion for a new trial are not passed upon, since the case is to be remanded for a new trial.
    Decided November 2, 1917.
    Action for damages; from city court of Carrollton — Judge Beall. April 14, 1917.
    Hill brought suit against the Central of Georgia Railway Company, claiming damages on account of personal injuries. He alleged that he went to a passenger-train of. the defendant for the purpose of assisting his mother-in-law and little grandson on the train; that he went on the train to carry their baggage, by the invitation of the conductor, and that the conductor failed to give him a reasonable time in which to get off the train. His petition as first drawn alleged that when he started to get off the train the conductor hurried him, told him he did not have time to wait, and gave him.a shove, and that he fell to the ground from the moving train and was injured. By an amendment he struck the allegation that he was shoved from the train by.the conductor, and in lieu thereof he alleged that when he started to get off one end of the car the conductor met him and told him to go to the other end and get off; that he hurried to the rear end of the coach for this purpose; that at this time the train had started off, but he was not aware of this fact; that he started to get off in the usual way, and by the time that he reached the steps the train started violently forward, and as he started to step off it threw him to the ground, injuring him as aforesaid; that he exercised due care; and that at the time of the jerk that caused him to fall the agent in charge of the train knew that he was in the act of getting off. It was alleged that at the time of the injury he was sixty-seven years of age, and there were allegations as to his life-expectancy, his earning capacity, and the extent of his injuries. The evidence offered by the plaintiff supported the allegations of his petition. He testified that the train, at the time he attempted to get off, was moving at the rate of nine or ten miles an hour. A witness for the plaintiff testified that it was moving fifteen or twenty miles an hour; witnesses for the defendant put the rate of the train at from 'eight to fifteen miles an hour. The witnesses differed as to the distance the train had run from the station at the time the plaintiff attempted to get off, one witness stating that it had run the length of the train, or 120 feet, and others placing it at 75 to 100 yards. The plaintiff, according to his own testimony, as he was passing through the rear compartment of the coach, heard some man say that the train was moving too fast for that old man to get off. Other witnesses for the defendant, who were passengers on the train at the time, stated that he was warned as he passed through the rear end of the coach that the train was moving too fast for him to get off, and offered to pull it down for him, but that he paid no attention to these warnings, and hurried on to the platform. The plaintiff testified that he was sixty-eight years of age and had been on a train only three times in thirty-five years. The jury found a verdict for the plaintiff, for $1,000. The defendant filed a motion for a new trial, which the court overruled, and it excepted.

      B. D. Jackson & Son, Cleveland & Goodrich, for plaintiff in error. J. 0. Newell, 8. Holderness, contra.
   Harwell, J.

(After stating the foregoing facts.)

1. The defendant company demurred to the amended petition, upon the ground that the petition set forth no cause of action, and upon the further grounds that the petition, as amended, “is ambiguous and duplicitous, and does not set forth the facts upon which the plaintiff relies for recovery plainly, fully, and distinctly, and does not allege said facts with sufficient clearness to put the defendant on notice of plaintiff’s contentions or what plaintiff expects to prove;” also upon the ground that the petition as amended “is vague, uncertain, and indefinite, and the allegations therein are .conflicting and contradictory, and do not set forth any' cause of action plainly, fully, and distinctly.” The court overruled the demurrer, and the defendant excepted. The petition set forth a cause of action, and the court properly overruled the first ground of the demurrer. The special grounds of the demurrer are themselves too general, vague, uncertain, and indefinite to raise any question for decision by the court. The demurrer should have specified wherein the petition was ambiguous, duplicitous, conflicting, or contradictory. Askew v. Thompson, 129 Ga. 325, 328 (58 S. E. 854), and cases cited; Martin v. Bartow Iron Works, 35 Ga. 320 (Fed. Cas. No. 9157).

2. It is insisted in ground 1 of the amendment to the motion for a new trial that the court erred in failing to give in charge to the jury the law of contributory negligence (comparative negligence) and apportionment of damages. This question was not •raised by the pleadings, nor was there any written request so to charge. Under the repeated rulings of the Supreme Court, it is not reversible error for the court to fail to- give in charge to the jury the law of contributory negligence, and apportionment' of damages, where it is not under the contentions of the parties^ directly involved in the case, and when there is no request to charge upon that subject. Savannah Electric Co. v. Crawford, 130 Ga. 424 (60 S. E. 1056). In that ease, however, Justice Lumpkin, who delivered the opinion, said: “Where the evidence authorizes a charge on that subject, it is the better practice for the presiding judge to give it.” In Central of Ga. Ry. Co. v. Madden, 135 Ga. 206 (69 S. E. 135, 31 L. R. A. (N. S.) 813, 21 Ann. Cas. 1077), it is said: “It is not good practice to omit entirely to give the jury any instruction on the subject of the measure of damages, or the diminution of damages which may result from negligence on the, part of the person injured, even in the absence of requests therefor.” It would'have been better in the instant case for the court to have charged the jury oh the subject of contributory negligence and apportionment of damages, though the failure to do so would not alone constitute reversible error.

3. In ground 2 of the amendment to the motion for a new trial the following charge of 'the court is complained of, to wit: “If he (the plaintiff) was on there at the direction and invitation of the conductor, and the conductor did not give him a reasonable time to depart from the train and-leave it, and, when he did attempt to leave, it was not running at a rate of speed that appeared to him was dangerous, if you find that he was a man of reasonable intelligence, had all his faculties, and that when he did undertake to leave the train it was apparently in safe condition at that time, and that when he went to make his step they gave- a quick jerk, and jerked him off without any fault of his, why, in that ease the plaintiff would be entitled to recover.” It is contended that the charge was error because it did not instruct the jury that the jerk must be unusual and unnecessary, in order to render defendant company liable; citing Augusta Ry. &c. Co. v. Lyle, 4 Ga. App. 113 (60 S. E. 1.075), as authority. Under the particular facts of the instant case the charge was not erroneous for the reason assigned. It is. easily differentiated from the Lyle case, supra, and similar cases, as will be seen by examination of the following citations: Suber v. Georgia &c. Railway Co., 96 Ga. 42 (23 S. E. 387); West End & Atlanta Street Ry. Co. v. Mozely, 79 Ga. 463 (4 S. E. 324); Augusta-Aiken Ry. Corp. v. Sibert, 12 Ga. App. 165, 166 (76 S. E. 1044) ; Savannah Electric Co. v. Lackens, 12 Ga. App. 769 (2) (79 S. E. 53); Turley v. Atlanta &c. Ry. Co., 127 Ga. 594 (4), 596 (56 S. E. 748, 8 L. R. A. (N. S.) 695); W. & A. R. Co. v. Roberts, 144 Ga. 250 (86 S. E. 933); 3 Thompson oh Negligence, 3032, 3522, 3592; 2 White on Personal Injuries, 722; 2 Hutchinson oh Carriers, 1111.

4. In ground 3 of the amendment to the motion for a new trial the following charge is assigned as error for various reasons therein stated: “If, under the rules I have given you in charge, you believe that the plaintiff has made a case wherein he ought to recover, then the amount that he could recover would be for whatever injury or damage the jury may think that he has received in consequence of his injury. He sets up that he has ten years yet to live, sets up that he has been able to earn $50 a month. You look to the evidence and see whether that is true. If you find.he is entitled to recover in consequence of these injuries, find out how much he wasJable to earn; find out how much his earning capacity has been diminished; look to the evidence to find that. He alleges that his earning capacity has been diminished -two thirds.” It is hardly necessary to > cite authorities to sustain the proposition that this charge is reversible error. Nowhere else in the charge does the court instruct the jury on the subject of the measure of damages for' physical injuries. The vice of the charge is its incompleteness, its failure to give the jury any rule by which they could calculate the damages. The court should have submitted to the jury the question as to whether or not, in the first place, the injuries complained of were permanent in character, and the number of years that the plaintiff might reasonably be expected to live, and the average yearly amount in which his earnings have been diminished, if diminished at all, by the injury complained of. They should have been instructed that, by multiplying his expectancy — that is, the number of years which they might determine from the evidence that he could reasonably be expected to live — by the average yearly amount in which his earnings have been diminished, they would ascertain the gross amount in 'which he has been damaged. They should further have been instructed that they should not find this gross amount, but should reduce it to its present value; that is, ascertain what sum, paid in cash, would be a just and legal cash equivalent of this gross amount. The court should have called the attention of the jury to the fact .that in the plaintiff’s declining years there might be a decrease in his capacity to labor at his calling, and his ability to earn money, and that they should take that into consideration in fixing the amount of any damages which they might find for the plaintiff. As this case is to be tried again, the attention of the court is called to paragraph 12 of the charge suggested by Judge Lumpkin in Florida Central &c. R. Co. v. Burney, 98 Ga. 10 (26 S. E. 730), as a proper instruction in this case. See Ala. Great So. R. Co. v. Brown, 138 Ga. 328, 332 (75 S. E. 330), and cases cited; W. & A. R. Co. v. Roberts, supra; Central R. Co. v. Thompson, 76 Ga. 772; W. & A. R. Co. v. Moore, 94 Ga. 458 (20 S. E. 640).

5. The able counsel for the plaintiff in error earnestly contended in their brief that the plaintiff was precluded from recovery because of the fact that the train was-moving so rapidly that the danger to him in attempting to alight therefrom was so obvious that a prudent man, unden similar circumstances, would not have done so. It is insisted that this court should determine this question in favor of the plaintiff in error as a matter of law. It is not necessary to review the authorities cited on the subject of negligence in alighting from moving trains, since the case will be tried again, and we express no opinion on the evidence, and do not pass on the general grounds of the motion for a new trial. Since, however, it is- a close case, and in view of the error of the court in the charge on the measure of damages, we hold that the court erred in overruling the motion for new trial.

Judgment reversed.

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


text:
    8940.
    Bishop v. The State.
   Broyles, P. J.

1. A single accusation or indictment may include therein, in separate counts, any number of distinct misdemeanors of the same nature. Tooke v. State, 4 Ga. App. 495 (61 S. E. 917); Butler v. State, 18 Ga. App. 201 (89 S. E. 178).

2. The offenses of carrying a concealed weapon, and of carrying a pistol at a place other than the residence or place of business of the accused, without having previously secured the necessary license, are of the same nature, and may be included, under separate counts, in one accusation or indictment. Butler v. State, supra. '

3. Upon an indictment containing more than one count, all charging misdemeanors, a general verdict of guilty is to be construed as convicting the defendant of each and every separate criminal -transaction alleged in the indictment. Driver v. State, 112 Ga. 229 (4) (37 S. E. 400) ; Todlce v. State, supra. It logically follows that the same ruling applies in principle where a general plea of guilty is entered to such an indictment.

4. Under the foregoing rulings a general plea of guilty, under an indictment containing two counts, the first charging the accused with carrying a concealed pistol, and the second with carrying, outside of his home or place of business, a pistol, without having previously secured a license from the ordinary of the county so to do, is in effect a plea of guilty to both the offenses' set forth in the indictment.

"5. If the accused carries a pistol at a place other than his residence or place of business, without having previously secured the necessary license, and the pistol on that occasion is concealed about his person, he is guilty of both offenses, and, under an indictment wherein both offenses are charged in separate counts, upon a general plea of guilty, he can be punished for both offenses. The two offenses, while of the same nature, are separate and distinct, although committed at the same time and place and with the same pistol. See Blair v. State, 81 Ga. 629 (2) (7 S. E. 855).

Decided November 2, 1917.

Indictment for carrying concealed weapon; from Whitfield superior court — Judge Tarver. April 12, 1917.

W. E. Mann, Maddox, McCamy & Shumate, for plaintiff in error. J. M. Lang, solicitor-general, contra.

6. Under the preceding rulings and the facts of this ease, it was not erroneous for the court to sentence the defendant, under the first count, to serve twelve months in the chain-gang, and, under the second count, to impose a fine of $500 and costs, or, in default of such payment, to work twelve months in the chain-gang; the sentence under the second count (the fine not being paid) to be enforced from the expiration of the term under the first count. Tooke v. State, 4 Ga. App. 504 (supra).

7. The remaining assignment of error in the bill of exceptions, not having been referred to in the brief of counsel for the plaintiff in error, is treated as abandoned.

Judgment affirmed.

Blo'odworfh and Harwell, JJ., concur.


author: Brotles, P. J.

text:
    8972.
    Smith v. The State.
    Decided November 2, 1917.
   Brotles, P. J.

1. All applications for continuances are addressed to the sound legal discretion of the trial judge (Penal Code, § 992), and his decision thereon will not be reversed unless there has been a plain, palpable, and flagrant abuse of this discretion. Curry v. State, 17 Ga. App. 377 (87 S. E. 685), and cases there cited.

2. Upon a motion for a continuance, made by the defendant, and a counter-showing thereto made by the State, the credibility of the witnesses introduced in support of the motion and upon the counter-showing respectively is to be determined by the judge, and his decision in refusing a continuance, where a counter-showing is made, will not be controlled, unless manifestly abused. This is true even where all the statutory requirements for procuring the presence of the witness who is absent have apparently been complied with. Kimberly v. State, 4 Ga. App. 852 (62 S. E. 571).

3. The trial judge did not err in overruling the motion for a continuance in the instant case. He was authorized, from the evidence submitted on the motion to continue and upon the counter-showing thereto, to find that at a previous term of court the defendant had been granted a continuance of the case on account of the absence of the same witness upon whose absence the present motion to continue was based, and that the continuance was sought for delay only.

4. The venue was sufficiently shown; there was some evidence authorizing the verdict, and it has been approved by the trial judge.

Judgment affirmed.

Bloodworth and Harwell, JJ., -concur.

Indictment for larceny; from Liberty superior court — Judge Sheppard. May 30, 1917.

S. B. Brewton, Ben A. Way, Edwin A. Cohen, for plaintiff in error. W, F. Slater, solicitor-general, contra.