text:
      9587.

    Cooley v. The State.
    Decided May 1, 1918.
    Accusation of unlawful possession and sale of liquor; from city court of Savannah—Judge Rourke. December 22, 1917.
    The instructions referred to in the decision were as follows:
    1. “The law is, that if the State has adduced evidence that a beverage having the same color and taste and odor as liquor, the burden then shifts from the State to establish, beyond a reasonable doubt that’ the defendant is guilty, and- the burden is then upon the defendant to establish to the satisfaction of the jury that the beverage in question is not liquor; and unless the defendant so satisfies the jury, the jury shall assume that it is liquor.”
   Bloodworth, J.

1. Even if the charge of the court complained of in reference to the burden of proof was erroneous, it was harmless, as there was direct and positive evidence that the “stuff” possessed and sold by the accused was rye whisky.

2. No error appears in the excerpts from the charge complained of in ground 6 of the motion for a new trial. Brooks v. State, 19 Ga. App. 46 (9).

3. The excerpt in ground 7 of the motion states a correct proposition of law. If a fuller charge on the subject was desired, a proper and timely written request therefor, as provided by the statute, should have been made.

4. The evidence authorized the verdict.

Judgment affirmed.

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

3. (Ground 6) “The credibility of a witness is a matter solely for the jury, but the jury should not disregard testimony of a witness simply /because he is a colored man; it is as possible for a person of the colored race to tell the truth as any one else, and it is not against his credibility that he is a colored man.” It was contended that this instruction was argumentative, and that it expressed or, intimated an opinion, or suggested to the jury that the State’s main witness, a colored man, was telling the truth.

3. (Ground 7) “You can look to the evidence and see if a witness has been impeached, and ascertain if there is any corroboration of his testimony. If a witness has been impeached, and there is no corroboration of his testimony, his testimony should be disregarded; but even if a witness has been impeached by the rules laid down by law, if it has been established that he is unworthy of belief by the rules laid down by law, if there is corroboration.of his testimony, it is within the province of the jury to believe him.” It was contended that this extract from the charge did not set forth the correct rule of law as to the-credit to be given to an impeached witness, and was misleading and confusing.

Shelby .Myriclc, for plaintiff in error.

Walter G. Hartridge, solicitor-general, contra.


source: Caselaw Access Project

author: •Harwell, J.

license: Public Domain

text:
    9595.
    GETER v. THE STATE.
    Failure to instruct the jury on the law as to the punishment for attempts to commit crime, and as to principals in the first and second degrees, does not require a new trial in this case.
    The verdict was authorized by the evidence.
    Decided May 1, 1918.
    Indictment for making intoxicating liquor; from Harris superior court—Judge Howard. February 1, 1918.
    The plaintiff in error was indicted for-manufacturing and making alcoholic, spirituous, malt, and intoxicating liquors, and other drinks which if drunk to excess will produce intoxication, to wit, whisky, brandy, rum, gin, wine, ale, and beer. The verdict was guilty, with a recommendation that he be punished as for a misdemeanor. The grounds of his motion for a new trial, besides the general grounds, were that the court erred in failing to charge the first paragraph of section 1066 of the Penal Code (1910), and the fifth subdivision thereof as to the punishment of attempts to commit crime, and in failing to charge the law declared in section 42 of the Penal Code, as to principals in the first and second degrees.
    From the evidence it appears that the accused was found with a negro at work at a distillery. The sheriff testified: “I found them at work at the distillery when I got there. I could not tell what they were doing when I first saw them—stood and looked at them dipping beer from a barrel and pouring it in a distillery in the kettle. I refer to Mr. Monroe Getér, the defendant on trial. Mr. Geter was toting beer from the fermenter to the distillery and filling it up. There was fire under it. When they discovered my presence the defendant ran. That was a three or four hundred gallon’capacity still. I found eightéen or twenty barrels of beer at the still, and the still outfit. That distillery was in process of manufacturing whisky. I did not find.any whisky there. . The defendant was toting slop from the fermenters, I mean by slop beer. He was toting that from the fermenters and pouring it into the distillery. I didn’t see any whisky. Beer, if drunk to excess, will produce intoxication. There was beer in the barrels, and that is what I tasted.” The defendant made the following statement at the.trial: “These men ain’t telling no story on me. They found me there. They found me right there. I was right there, but the reason I was there, I got a large family, and all girls but two. Got nine children and the old lady, and all of them are girls but two, and that is all the way I seed to make a living. The boll weevil has done mint my crop, and the dry weather hurt my crop, and that was the only way that I seed to make a living right then that I knowed of. If you all will forgive me for that, I won’t be back here no more.”

      Thomas H. Shanks, for plaintiff in error.

      0. F. McLaughlin, solicitor-general, contra.
   •Harwell, J.

(After stating the-foregoing facts.)'

1. The charge of the court fully and fairly submitted to the jury the issues in the case, and there is ho merit in the special grounds of the motion for a new trial which complain that the court erred in not giving in charge certain provisions of the code as to the punishment of attempts to commit crime, and section 42 of the Penal Code as to principals in the first and second degrees. Failure to charge as to the punishment for an attempt, 'which in this case would reduce the punishment to that of a misdemeanor, could not have harmed the accused; for the punishment actually imposed, under the recommendation of the jury, was that of a misdemeanor.

2. The verdict was authorized by the evidence, 'and the trial judge did not err in overruling the motion for a new trial. Justice v. State, 7 Ga. App. 43 (65 S. E. 1070); Strickland v. State, 9 Ga. App. 201 (70 S. E. 990); White v. State, 18 Ga. App. 214 (89 S. E. 175); Cole v. State, 21 Ga. App, 49 (93 S. E. 512); Cason v. State, 21 Ga. App. 122 (94 S. E. 268).

Judgment affirmed.

Broyles, P. J., and Bloodworlh, J., concur.


author: Bloodworth, J.

text:
    9601.
    COOK v. THE STATE.
    1. Without an appropriate and timely request in writing, it was not error requiring a new trial for the court to fail, in its- charge, to define the word “felony,” or the phrase “serious personal injury.” Piclcens v. State, 132 Ga. 46, 47 (63 S. E. 783); Jordan V. State, 16 Ga. App. 393, 400 (85 S. E. 455), and cases cited.
    2. When the evidence for the defendant demands a charge on self-defense, - and the statement of the accused is so uncertain and indefinite as to leave in doubt whether he claimed he shot in self-defense,' or that the killing was the result of accident or misfortune, he will not he heard to complain that the court gave to the jury a charge based upon his own uncertain and indefinite statement and giving-him the benefit of both theories oí defense.
    Decided May 1, 1918.
    Rehearing denied July 10, 1918.
    Conviction of manslaughter; from Jasper superior court—Judge Park. February 22, 1918.

      A. S. Thurman, A. T. Clement, for plaintiff in error.

      Boyle Campbell, solicitor-general, contra.
   Bloodworth, J.

Only the second headnote. needs elaboration. Grounds 5, 6, 7, and 8 of the motion for a new trial alleged that the trial judge erred in charging: (5) “Now the defendant in this case contends in the first place that the killing was accidental.” (6) “Now the defendant in this case contends in the first place that the killing was accidental. He contends in the second place that if the killing was not accidental, but if it was an intentional killing, that he would not be guilty of any offense whatever. That is, he contends that it was an accidental killing, and that he could-not be held responsible under the laws of the State of Georgia. And he contends in the second place, if it was not an accidental killing, but was an intentional killing, he contends, he was acting in self-defense.” ' (7) “I charge you that the defendant has the right under- the law to set up those defenses; and it is left entirely with jury as to whether or not either one of those defenses are correct under the law and the evidence in this case.” (8) “The law says that no person shall be found guilty of any crime or misdemeanor committed by accident or misfortune, and where it satisfactorily appears there was no evil design, or intention, or culpable neglect. . That is, under the laws of the State of Georgia, if one person kills another through accident or misfortune, and there was no evil design, or intention, or culpable neglect, under circumstances of that kind the killing would be attributable to accidental cause, and the person would not be guilty of any offense whatever.” These grounds are alleged to be error as being an erroneous statement of the contention of defendant, and “for the reasons that there was no evidence adduced in the trial authorizing the same, nor anything in the defendant’s statement authorizing'such charge, —and such .charge put the defendant in the attitude of contending that the killing was accidental, when in fact an accidental killing is not hinted at in the evidence nor in the defendant’s statement, and such charge was erroneous, harmful and prejudicial to the defendant, in that he was put in the attitude of asserting two inconsistent and irreconcilable defenses,—two defenses which the jijry were bound to know could not simultaneously exist in any case,—and which charge strongly tended to discredit the real defense relied upon by defendant in this case.”

The evidence for the defendant authorized a charge on self-defense, and no complaint is made as to- this branch of the charge. The evidence contained nothing that would authorize a charge on “accidental killing.” We must therefore look to the statement to see if there is anything therein that would authorize the charge on this theory, of which complaint is made. The .defendant stated that he had been rabbit hunting, and that the man who had formerly lived in the house where the shooting occurred, and where the “frolic” was in progress, asked the accused to help him catch his chickens. He further stated: '“1 went on oyer there and ■ carried the gun over there, and he was there catching his chickens,, and I set my gun over in the yard to keep from running over it. And after we got the chickens caught he put three coops in the wagon, and I said, ‘I- will help you hold them on/ and he said, ‘All right’; and I went on and didn’t come right' straight on back. I knew the party was going to be up there at that house, and when I got back over there the crowd was gathered up, and had the table and everything, and I went in there and staid in there a little while. And when I got back to the house Jesse was coming from the stove-room with this axe in his hand, and he came on across the house, and I said, ‘Jesse, I wouldn’t start any fuss, you put the axe down. Let’s have a good time’; and he stepped back and throwed his leg behind me, and throwed me over in the floor, and drawed the axe back, and Joe grabbed it, and I crawled out until-I got 'in the other door, and I jumped up and went on out the house, and directly then 7 or 8 shots took place, and the people came out of the house; looked like they were fixing to go oil, and I laid down in the cotton patch until the shooting was over, and somebody said, ‘Come on back, let’s go to frolicking.’ And when I went in the house I don’t know whether he went out of 'the door, or which way he come from. Just as I looked back he had the bottle drawed back, and I stepped behind another fellow to keep him from throwing the bottle at me, and he drawed back again, and somebody grabbed the bottle, and he made at me, and I run out on this side of that other fellow, and I had the gun in my hand, and he the bottle, sorter this way [indicating that it was drawn back] ; and I turned to go out of the door, and I never got in the big room before the gun fired. I had got even with the stove-room door, and he came from the door in the corner at me.” It will be ^een from this that the accused does not make clear his defense. The statement is hardly more a claim of self-defense than of killing by accident or misfortune. While the accused says that the deceased “came from the door in the corner at me,” and indicated that the bottle was “drawn back,” yet he does not say that he fired to prevent the deceased from striking him. He does not even say that he shot the gun, but says only that the “gun fired.” This statement left the matter uncertain, and the trial judge gave the accused the benefit of the doubt and charged on both theories,—that of accidental shooting, and that of shooting in self-defense. This was to the advantage of the defendant, and he will not' be heard to complain of a charge based on his own uncertain and indefinite statement, and which gave him the advantage of two theories of defense. If these two defenses' are, as suggested by counsel, “inconsistent and irreconcilable,” the accused alone is responsible therefor by reason of the statement made by him.

This case is clearly distinguishable from the case of Key v. State, 21 Ga. App. 300 (94 S. E. 283), cited in the brief of counsel for the plaintiff in error. In that case the court charged a theory of defense not authorized either by the evidence or the statement, and this court held that “It was harmful error for the court, in giving the defendant’s contentions to the jury, to include a contention not supported either by his statement or his evidence.” In the instant case the statement left the matter in such doubt that we think the trial judge properly gave in charge the two theories of defense.

There is evidence to support the verdict of manslaughter.

Judgment affirmed.

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


author: Harwell, J.

text:
    9605.
    PLUMER v. THE STATE.
    1. Refusal to grant a continuance was not error.
    2. A conviction of seduction was authorized by the evidence.
    Decided May 1, 1918.
    Indictment for seduction; from Payette superior court—Judge Searcy. February 16, 1918. '

      J. W. Culpepper', W. I. Heyward, for plaintiff in error.

      E. W. Owen, solicitor-general, .contra.
   Harwell, J.

Error is assigned on the overruling of the defendant’s motion to continue, based on the absence of two witnesses, who it was claimed would testify that they had had sexual intercourse with the prosecutrix prior to the time that defendant was charged with seducing her. One of these witnesses, it ■ was shown, lived in Spalding county, and another was at Camp Gordon. The defendant was indicted at the March term, 1917, and tried on the eighth day of the September term. Iiis counsel stated that at the March term he (counsel) gave the names of these witnesses to the clerk to be subpoenaed, and the clerk promised to issue the subpcenas'and give them to •the sheriff; that he relied upon what the clerk had told him, and thought the subpoenas had been issued until last week. He asked for a postponement of, the case until these witnesses could be brought. The clerk stated that he had no recollection of a request by.counsel to issue these subpoenas, -but would not say that it did not occur. The defendant stated that, relying upon his counsel, he thought these witnesses had been subpoenaed, until the last week, and that he and his attorney went to the clerk’s office and found that the subpoenas had not been issued, and then got subpoenas and gave them to the sheriff to serve. The court, in a note to this ground of the motion for a new trial,-states that “The agreement between Mr. Culpepper and his client as to subpoenaing witnesses and the delivery of a list of witnesses to the clerk as testified about occurred at the March term, 1917, of court. The motion to continue and the trial -occurred at the September term, 1917,.of court, and on the eighth day of that term. Between these two -terms of court the defendant made no effort to get these two witnesses subpoenaed.” We are not prepared to say that according to the facts appearing in the record the defendant and his- counsel used proper diligence in attempting to secure the attendance of these witnesses. 'Six months intervened without any effort being made by defendant or his counsel to find out if these witnesses had been subpoenaed. Moreover, it appears that some ten days before the trial the defendant talked to these witnesses, and it does not appear that he made any inquiry at that time to find out whether or' not they had been subpoenaed. It does not appear -how many days before the trial these subpoenas had been delivered to the sheriff. The trial was on the eighth day of the term, evidently on Monday. The statement of defendant and his counsel is that ‘'‘'they were delivered to the sheriff last week.” It does not appear that the sheriff did not do all in his power to subpoena these witnesses after these subpoenas had been delivered to him. The presumption of law is that officers do their duty) and it will be presumed in the absence of anything to the contrary that he did attempt, after these subpoenas had been placed in his hands, to serve them. Furthermore, it does not appear from the showing that the sheriff was ever informed as to the, residence of these witnesses, who lived out of the county. Compare Glover v. State, 89 Ga. 391 (15 S. E. 496); Jones v. State, 125 Ga. 307, 308 (54 S. E. 122). It further appears that on 'the trial of the ease the defendant introduced two witnesses who1 testified to alleged acts of sexual intercourse with the prosecutrix. Hence, if the testimony of these absent witnesses had been procured, it would simply-have been cumulative of that introduced by the defendant on the trial. “Where there are present at the trial other witnesses by whom the defendant can prove the; same facts as those to which an absent witness would swear, the court, in the exercise of a sound discretion, may refuse a continuance based on the ground of the absence of such witness who has not been served with a subpoena.” Jones v. State, supra. See also Salmons v. State, 118 Ga. 763 (45 S. E. 611); Taylor v. State, 135 Ga. 622 (2) (70 S. E. 237); Huffman v. State, 95 Ga. 469 (2) (20 S. E. 216). Under the facts appearing ip the record, we can not say that the trial judge abused his discretion in overruling the motion to continue.

It is insisted by the able counsel for the plaintiff in error that the evidence did not show a case of seduction,—that the testimony of the prosecutrix showed simply a meretricious transaction, amounting to fornication only; and counsel cite, in support of this contention, Disharoon v. State, 95 Ga. 353 (22 S. E. 698), and other cases in which it has been held that the evidence did not authorize a conviction of seduction. We can not agree with this contention. While certain isolated expressions in the testimony of the prosecutrix might tend to support this contention, we think, taking her evidence as a whole, that it showed both persuasion and promise of marriage, all of the elements necessary to support a conviction of seduction. Her evidence showed that the defendant was her Sunday-school teacher, had courted her for a number of years, won her love, engaged to marry her, and then wrought her ruin. She was a' girl, only seventeen years of age, when he began his attentions. It would serve no useful purpose to enter into a-full discussion of the evidence. We think it authorized the verdict, and that the trial judge did not erf in overruling the motion for new trial.

Judgment affirmed.

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


author: Broyles, P. J.

text:
    9607.
    Hearn v. The State.
    Decided May 1, 1918.
    Indictment for assault with intent to murder; from Harris superior court—Judge Howard. February 1, 1918.

      M. TJ. Mooty, for plaintiff in error.

      O. F. McLaughlin, solicitor-general, contra.
   Broyles, P. J.

1. Where, upon the trial of one charged with assault with intent to murder, the judge, just as lie was about to charge the law relating to mutual combat, was informed by counsel for the accused (who was corroborated by counsel for the State) that, before making his argument to the jury, he asked the solicitor-general, not within the hearing of the court, if he insisted that the doctrine of mutual combat' entered into the case, and the solicitor-general replied that he did not think it did, and therefore he (counsel for the accused) did not in his argument discuss that theory, and that he felt, under the circumstances, “it would be unfair to the defendant .to submit that theory to the jury,” it was not error for the. court nevertheless to instruct the jury upon the law of mutual combat, provided such an instruction was authorized by the evidence or the defendant’s statement.

2. The excerpt from the charge complained of in the 2nd ground of the amendment to the motion for a new trial was authorized by the evidence and the defendant’s statement, and, under the note of the judge qualifying his approval of this ground of the motion, and in the light of the entire charge, was not erroneous for any reason assigned.

3. In view of the clear charge of the court upon the subject of stabbing, it was not error to fail to .charge the law of voluntary manslaughter, and -in connection therewith to instruct the jury that if the assault occurred under such circumstances as would have made the offense voluntary manslaughter had death ensued, the accused would not be guilty of assault with intent to murder, but would be guilty of the offense of stabbing only'.

4. Although the judge did not read to the jury section 65 of the Penal Code (1910), his charge upon the subject of stabbing was sufficient, in the absence of a timely written request for a fuller charge upon this subject.

5. The remaining ground of the amendment to the motion for a new trial, not having been argued in the brief of counsel for the plaintiff in error, is treated as abandoned.

6. The evidence authorized the verdict, and the cokrt did not err in refusing to grant a new trial.

Judgment affirmed.

Bloodworth and Harwell, JJ., eoneur.


text:
    9614.
    Crump v. The State.
    Decided May 1, 1918.
    Accusation of possessing intoxicating liquor; from city court of Macon—Judge Guerry. February 20, 1918.

      Nottingham & Holliman, for plaintiff in error.

      Will Gunn, solicitor, contra.
   Broyles, P. J.

1. When considered in connection with the qualifying notes of the trial judge, there is no substantial merit in any of the special grounds of the motion for a new trial.

2. The verdict was authorized by the evidence.

■Judgment affirmed.

Bloodworfh and Harwell, JJ., concur.


text:
    9615.
    Simmons, alias Kennedy, v. The State.
    Decided May 1, 1918.
    Conviction of manslaughter; from Randolph superior court-judge Worrill. February 12, 1918.

      Charles W. Worrill, for plaintiff in error.

      B. T. Castellow, solicitor-general, B. B. Arnold, contra.
   Bloodworth, J.

The grounds of the motion for a new trial are the usual general grounds and amplifications of those grounds; there is some evidence to support the verdict, which is approved by the trial judge, and, under repeated rulings, this court is not authorized to interfere.

Judgment affirmed.

Broyles, P. Jand Harwell, J., concur.


text:
    9616.
    Akin v. The State.
    Decided May 1, 1918.
    Accusation of larceny; from city court of Wrightsville—Judge Blount. February 23, 1918.

      Faircloth & Claxion, for plaintiff in error.

      W. C. Brinson, solicitor, -contra.
   Harwell, J.

The defendant was convicted of simple larceny. His only complaint is that the verdict was contrary to law and the evidence. The verdict was authorized by the evidence, and was approved by the trial judge, and this court will not interfere.

Judgment affirmed.

Broyles, P. J., and Bloodworfh, J., concur.


author: Bboyles, P. J.

text:
    9617.
    Allen v. The State.
    Decided May 1, 1918.
    Accusation of misdemeanor; from city court of Wrightsville— Judge Blount. February 23, 1918.

      Fairclofh & Claxton, for plaintiff in error.

      W. C. Brinson, solicitor, contra.
   Bboyles, P. J.

In a prosecution under sections 715, 716 of the Penal Code of 1910 (known as the “labor-contract act”), the burden is upon the State to show affirmatively that the accused failed to perform the services contracted for, or failed to return the money advanced on the strength of the contract, “without good and sufficient'cause.” Jones v. State, 16 Ga. App. 216 (84 S. E. 988), and cases there cited. In the instant case this material proof was lacking, and the court erred in overruling the defendant’s motion for a new trial.

Judgment reversed.

Bloodworth and Harwell, JJ., concur.


text:
    9618.
    HAINES v. THE STATE.
    A conviction of the offense of gaming was authorized by the evidence in this case.
    Decided May 1, 1918.
    Accusation of gaming; from city court of Wrightsville—Judge Blount. February 23, 1918.

      Fairclofh & Claxton, for plaintiff in error.

      W. C. Brinson, solicitor, contra.
   Bloodworth, J.

The evidence in this case is almost exactly like that in Frost v. State, 120 Ga. 311 (47 S. E. 901), in which the Supreme Court said: “The defendant was indicted for the offense of playing and betting' at cards. The evidence disclosed that in a certain house one of the persons named in the indictment was lying on the. floor, supported on his elbows, with his head from under the bed, shuffling a deck of cards. The others were arranged around in a circle, in the center of which was thirty or forty cents in nickels. The defendant'was included among those who were in the circle, and was on his knees. This was the tableau which met the gaze of the police officer and another person who was with him, when, without warning, they entered the house. The jury .could infer from this evidence the defendant’s guilt, and their finding, approved by the trial judge, will not be disturbed.”

The instant case is stronger than that of Freeman v. State, 21 Ga. App. 494 (94 S. E. 588), cited by counsel for the plaintiff.in error. In that case Freeman was indicted for participating in this same game. In the instant case the evidence’shows: that the chief of police of the City of Wrightsville went to the home of Nath Neal, and there saw several negroes sitting in a ring around a lamp which was on the floor; that the accused was “sitting in the ring with the bunch,” and Nath Neal was shuffling cards; that he left, and returned ten or fifteen minutes later, and, with the nightwatchman and the deputy sheriff, entered the house, and tiren “the defendant Gene Haines was in-the party down on the floor around the lamp, and Nath Neal still had the cards in his hands shuffling them, and there was some money down on the floor - in the ring, and cards lyihg on the floor. Gene Haines was in the crowd around the lamp and cards.” In the Freeman case, supra, the evidence of the chief-of police was that when he was first' at the house “the ■defendant was lying down on his stomach and elbows, with his face towards or fronting the ring where they were all sitting,” and when he returned with the other officers, and went, into the room, the defendant-David Ereenian was standing up imthe floor.. Another witness for the State, who was present in the room, where the •card game was in progress, testified: “I did not see the'defendant David Freeman playing cards.” Thus is the one case differentiated from the other.. While the evidence in the present case is weak and unsatisfactory, the jury are the final arbiters of the facts; no error of law is complained of, and it can not be held that the evidence was not sufficient to authorize the jury to infer that the defendant was guilty.

J udgmeni affirmed,.

Broyles, P. J., and Harwell, Jconcur.


text:
    9622.
    Graham v. The State.
    Decided May 1, 1918.
   Broyles, P. J.

1. The instruction complained of was not erroneous for the reasons assigned.

2. There was some evidence which authorized the verdict, and, the finding of the jury having been • approved by the trial judge, this court has no authority to interfere.

Judgment affirmed.

Bloodworth and Eanoell, JJ., concur.

Accusation, of possessing intoxicating liquor; from city court of Poik county—Judge John K. Davis. February 16, 1918.

Irwin & Tison, for plaintiff in error.

J. A. Wright, solicitor, contra.


text:
    9623.
    Hightower v. The State.
    Decided May 1, 1918.
    Writ of error; from city court of Dublin.

      J. 8. Adams, for plaintiff in error. 8. P. New, solicitor, contra.
   Bloodworth, J.

1. No cause can be carried to the Supreme Court or to the Court of Appeals.upon a bill of exceptions so long as the case is pending in the court below, unless a final disposition of the cause, or a. disposition final as to some material party thereto, would have been made if the court had rendered the decision or judgment which the plaintiff in error claims should have been rendered therein. Civil Code (1910), § 6138.

2. A plea in abatement, whether traversed or untraversed, can not be sustained, without evidence to support it. Wells v. State, 118 Ga. 556 (9) (45 S. E. 443).

3. The sustaining of a demurrer to a plea in abatement and the overruling or the striking of the plea is not a final judgment in the ease, and a direct bill of exceptions assigning error thereon can not be maintained. The decision which the plaintiff in error claims should have been rendered on this question would not have been a final disposition of the case. Jackson v. State, 76 Ga. 551 (4); McElroy v. State, 123 Ga. 546 (51 S. E. 596).

4. Under the foregoing rulings and the facts of this case, the bill of exceptions was prematurely brought.

Writ of error dismissed.

Broyles, P. J., and Earwell, J., concur.


author: Jenkins, J.

text:
    7980.
    Swain, for use, etc., v. Jaudon et al.

    Decided May 14, 1918.
    Action on bond; from Effingham superior court—Judge Sheppard. October 16, 1916.
   Jenkins, J.

Under the rulings announced by the Supreme Court (147 Ga. 773, 95 S. E. 696), in response to the questions certified to it by this'court in the present case, the judgment sustaining the demurrer to the petition was in accordance with law, and must stand affirmed.

Judgment affirmed.

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

The action was against a sheriff and the sureties on his official bond. From the petition it appearéd: that in a divorce case in which alimony was allowed, the court, contemporaneously with the filing of the petition for divorce and alimony, passed an order “that the writ of ne exeat república-be and is hereby granted, and said defendant is hereby stayed from departing bqyond the jurisdictional limits of this court until it is further ordered herein;” and that “bond in the penal sum of $720 be taken from the defendant in terms of the statute.” The clerk of the court thereupon issued a writ directed to the sheriff, requiring that officer to arrest the body of the defendant and to keep him safely “until he enters into bond and security, in the said sum of $720, not to depart the State without the order of said court, and Conditioned to pay any judgment that may be found against him in favor of his wife, . . . ; in default thereof to. confine him in the common jail of said county, according to the statutes in such eases made and provided.” It was alleged that the sheriff did not require him to give the ne exeat bond, but arrested him, and, after having him in custody, permitted him to escape and remain away from the jurisdiction of the court; that the sheriff was informed of the whereabouts of the defendant and was advised to arrest him and lodge- him in jail in obedience to the writ of ne exeat, but refused to do so; and that because of these facts his wife and child were unable to force him to comply with the judgments granting alimony.

In response to certified questions of the Court of Appeals, the Supreme Court held, that, under the facts stated therein, only a bond for the appearance of the principal could have been lawfully required, and that the writ requiring the taking of a bond not only for the personal appearance of the defendant, but for the payment of the judgment for alimony, was void, and. the sheriff could avail himself of this fact as a defense to this' suit. • It was also held that this suit is not of the class of cases of which the Supreme Court is given jurisdiction by the constitution, art. 6, sec. 2, par. 5 (Park’s Code, Supp. ,1917, § 6502). See more full report in 147 Ga. 773.

D. II. Clark, for plaintiff.

Travis & Travis, Paul P. Seabrook, for defendants.


author: Wade, C. J.

text:
    9056.
    Smith v. City of Winder et al.

   Wade, C. J.

1. The charter of the City of Winder (Acts of 1893, p. 223) authorizes its mayor and council “to make, ordain and establish' from ' time to time such by-laws, ordinances, resolutions, rules and regula1' tions as shall appear to them necessary and proper for .the good govern-; ment, security, .welfare, and interest of said City of Winder and the inhabitants thereof,”'etc.

(a) An ordinance duly adopted which named a certain'bank in the' City of Winder as the city .-depository, and a further ordinance providing that the treasurer and other officials of said city should deposit funds be-, longing to the municipality in the designated city depository, to be. there kept until properly checked out by legal vouchers, and providing, that the treasurer, clerk, or other city official holding funds of said1' city who should fail or refuse to comply with this requirement should' be removed from office by the mayor and council after the fact of such, failure or refusal should have been established, was not void because ultra vires. The broad general authority conferred by' the charter sufficiently authorized the passage of an ordinance apparently designed to' safeguard-the property of the city. See, in this connection, City of Atlanta v. Holliday, 96 Ga. 546, 553 (23 S. E. 509).

2. The charter of the City of Winder (Acts of 1893, supra), provides that the mayor and council shall elect a city treasurer and other officers whose compensation shall be fixed by the mayor and council and “whose duties, shall be prescribed by ordinance,” and that they shall each- hold “his office for one year, or until his successor is elected and qualified, unless removed for causes to be judged of by the mayor and aldermen.” While the treasurer was elected for a fixed term, this term might be terminated at any time “for causes to be judged of by the mayor andv aldermen,” and the cause of removal having been so “judged of” .and appearing to be reasonable in this case, it is unnecessary to determine whether it was within the power of the mayor and council to remove such officer at their pleasure only, and without reasonable cause.

3. The petition for certiorari itself' shows1 tliat the treasurer refused to-obey the ordinance requiring him to deposit city funds in a named bank, though duly notified thereof in writing; that he was- cited and appeared before the council; that the ordinances naming a city depository, and providing a penalty of removal for refusal to obey the same, were read to him, and he was requested to answer if he had obeyed the sainé, and he replied that he had not obeyed and did not intend to-obey, because he had been advised and believed that the said ordinances were void and that he had the right to deposit the funds of the municipality where he pleased. If the ordinances were valid, the open insubordination of the treasurer and his positive and formal refusal'to comply therewith furnished abundant “cause” for the removal from office in compliance with the last of the previously adopted ordinances. See Parker v. Farlinger, 122 Ga. 315 (50 S. E. 98).

4. While it is improper and illegal for a member of a city council to vote upon a question in which he is personally interested (Civil Code, § 900)’, and a contract entered into between a municipality and a private corporation under which the latter is to perform certain work for which payment is to be made out of the city treasury “is void if at the time of its execution one of the members of the city council was also a stockholder in such private corporation” (Hardy v. Gainesville, 121 Ga. 327, 48 S. E. 921), an ordinance naming a certain bank as the city depository. and requiring the treasurer of the city to place all the municipal funds coming into his hands ’ therein is not necessarily void because the mayor of the city and one of the eouneilmen voting to' adopt the ordinance were respectively officer and director of the .bank named as depository, since it nowhere appears that any financial profit would result to said bank so named as depository, in which -the.pnayor and council owned stock, or that any contract whatever was made between the city and the private corporation in which said city officials were interested whereby any benefit direct or indirect could or would reasonably accrue to said bank,, the money to be placed therein being-on demand and subject to immediate check. The presumption is in favor of the city officials and of the ordinances. See Carter v. Griffin, 113 Ga. 633, 634 (38 S. E. 946).

Decided May 14, 1918.

Certiorari; from Barrow superior court—Judge Cobb. June 29, 1918.

Bollin II. Kimball, for plaintiff in error. G. A. Johns, contra.

5. The judge of the superior court did not err in overruling the petition for certiorari.

Judgment affirmed.

Jenlcins and Lulce, JJ., concur.


author: Wade, C. <7.

text:
    9239.
    Parsons v. Wilson.
   Wade, C. <7.

1. “Although the pleadings may not present the whole issue, yet if it be fully made by the evidence without objection, it is too late, after verdict for the' losing party, to make that the ground of a motion for a new trial.” Howard v. Barrett, 52 Ga. 15. See also Gainesville &c. R. Co. v. Galloway, 17 Ga. App. 702 (4) (87 S. E. 1093), and cases there cited.

(a) There is therefore no merit in the contention that the verdict was contrary to law because, in the absence of any pleadings to that effect, testimony was heard at the trial to sustain a claim of set-olf advanced by the defendant;'for it appears that the testimony offered for this purpose by the defendant was not only not objected to. by the plaintiff, but he likewise testified in regard thereto, denying the existence of the defendant’s demand. The issue was thus presented and passed upon.

(b) There was testimony to support the verdict.

2. The only special ground of the motion for a new trial is based upon alleged newly discovered evidence, and the court did not err in declining to consider this evidence and refusing the motion based thei-eon. The alleged newly discovered evidence was that of three persons to the effect that the plaintiff was living in the town of Chatsworth during the early part of the year 1916, in the winter, and was in business there at that time. At the trial the plaintiff himself testified that he “was in business in Chatsworth in the winter,”—the same, winter, and therefore was not boarding at the home of the defendant. It is apparent that the alleged newly discovered evidence is merely cumulative, since testimony was heard to the same general effect. Besides, one of the newly discovered witnesses made affidavit that he was in business With the plaintiff during his stay in Chatsworth; and, this fact being necessarily known to the plaintiff, it is obvious that he did not exercise ordinary diligence in failing to discover this witness at least.

Decided May 14, 1918.

Lien foreclosure; from Murray superior court—Judge Tarver. September 8, 1917.

II. II. Anderson, Maddox McOamy & Shumate, for plaintiff.

William E. Mann, for defendant.

Judgment affirmed.

Jenkins and Luke, JJ., concur.


text:
    9244.
    BRENARD MANUFACTURING COMPANY v. KINGSTON SUPPLY COMPANY.
    1. Promises mutual to the extent that each affords the sole consideration to the other will not be construed as independent, but will, in the absence of clear, indications to the contrary, be taken as dependent one upon the other; and while, ordinarily, dependent covenants are such as mutually afford to the other the whole consideration, still the-stipulations and the circumstances of the contract may be such as to render covenants mutual and dependent even though one of them affords to the other only a part of its consideration. In such a case the question as to whether covenants shall be taken as mutually dependent is to be determined by reference to the rational meaning and intent of the parties as disclosed by the entire instrument, read in the light of the surrounding circumstances and the-purposes for which the contract as a whole was made. Civil Code (1910), §§ 3720, 4223, 4303; Schmidt v. Mitchell, 117 O a. 6 (43 S. E. 371) ; 7 R. C. L. 1090.
    2. Even though an agreement may refer to certain notes as having been given “in payment,” they are not to be so taken, where, by the terms of the same instrument, one of the conditions of the contract is to the effect that the obligations made by the notes shall be promptly met.
    Decided May 14, 1918.
    Appeal; from Bartow superior court—Judge Tarver. September 8, 1917.
    The defendant entered into a contract for the purchase of a piano and certain other personal property from the plaintiff, and executed six purehase-mouey notes, for,$75 each, maturing monthly, the first of which was payable two months after date. The material portions of the contract are as follows:
    “Kingston, State of Georgia, February 3, 1915.
    “To Brenard Manufacturing Co., Iowa City, Iowa.
    “Gentlemen: On your approval of this order, deliver to me at your earliest convenience, f. o. b. factory or distributing point, the Claxton piano, watches, silverware, and advertising matter described on this and reverse side, in payment for which I. herewith hand you my six notes5 payable to your order, aggregating $450.00. If order is not approved and shipped by you, the notes are to be cancelled and returned to me.
    “My last twelve months sales were $30,000.00, and upon this figure my next twelve months sales to be $36,000.00, and that if l1/4% °f my gross sales does not amount to four hundred fifty ($450.00) dollars for the next twelve months, you will pay me the deficiency in cash, and send your bond for $450,00 to cover this agreement with me. You are to conduct all of the correspondence in securing club leaders and members and conducting the club-extension campaign.
    “To make the last above paragraph binding upon you, I agree to furnish you within ten days approximately 150 names and addresses of persons whom I believe will make good club leaders and members, with whom you are to take up correspondence immediately. I agree to take the shipments promptly, carry out the trade-extension campaign plan, promptly meet all obligations entered into under this agreement, keep the piano well displayed in my store, issue piano votes for each cent purchases, and every sixty days of this contract to report to you my gross sales, and promptly .furnish you all information you request to enable you to push the trade-extension campaign.
    “In consideration of the special methods set forth in your copyrighted-plan and the special terms and-agreements herein, this order can not be countermanded.
    “Brenard Manufacturing Company’s trade-extension campaign order consists of the following,”’ etc. ■
    Under the terms of the agreement the defendant’s notes matured some time prior to the maturity of the contract; that is to say, the agreement pertaining to the guaranteed increase of sales covered a period of one year commencing February 3, 1915, whereas the first note matured on April 3, 1915, and the last on September 3, 1915. The bond provided for by the terms of the contract was duly furnished the defendant by the plaintiff. The defendant did not pay the notes at maturity, and the plaintiff brought suit thereon as they matured; and finally, to the suit on the last note, the defendant filed a plea setting up that there had been a deficiency in the amount of the guaranteed gross sales during the period covered by the bond, and that by reason of this fact there- was due the defendant, under the terms of the bond, a small amount in excess of the sum sued for on that note. After the evidence had been submitted, the court directed a verdict for the defendant, in the sum of $1.86, as representing the difference between the amount of the note sued on and the amount claimed by the defendant under -the terms of the bond. To this the plaintiff excepts.
    It is the- contention of the plaintiff that since one of the- conditions of the written agreement was that the defendant should “promptly meet all obligations entered^into” thereunder, and since the defendant failed to pay the notes at maturity, the defendant is not entitled to the percentage on the deficiency of sales as conditionally provided for by the bond. On the other hand, it is contended by the. defendant that the provision referred to, that the defendant obligates itself to “promptly meet all obligations entered into under this agreement,” does not constitute a condition to the agreement, but that the condition to the agreement ends with the word “immediately,” which precedes this provision in the third paragraph; and that even if that paragraph is to be construed all together, so as to make the stipulation as to the prompt meeting of the defendant’s obligations a condition to the binding effect on the plaintiff of the second paragraph, still the condition was met by giving the notes, since the agreement states that the notes are given, “in payment.”

      Paul F. Alcin, for plaintiff. Finley & Henson, for defendant.
   Jenkins, J.

(After stating the foregoing facts.) Counsel for the defendant do not dispute the proposition that if, when the defendant bound itself to “promptly meet all obligations entered into under this agreement,” it thereby imposed upon itself one of several .conditions essential to the validity of the plaintiff’s bond, an actual breach of the defendant’s duty relative to the notes would void the obligation of the bond. We think it is undoubtedly true that if the quoted provision óf the contract must thus be construed as conditional at all, it necessarily follows that its breach would be sufficient to invalidate the corresponding dependent covenant, even though the stipulation quoted- affords only a part of the consideration of-the provision relating to the bond. The proposition which the defendant’s counsel ably insist upon is that the language quoted from the agreement is but an independent stipulation, and that it does not constitute a condition at all. The commencement of the third paragraph of the contract expressly states that it proposes to make binding upon the plaintiff its obligation to furnish the bond as provided for in the preceding paragraph. Then follow seriatim the obligations imposed upon the defendant, among which 'is the one quoted, and with this enumeration the paragraph ends. The entire paragraph is thus made up of a succinct statement of the defendant’s obligations, and we think it must reasonably be construed as a whole, and- that the duties thus enumerated must together constitute the conditions which the paragraph itself refers to. It was clearly within the power of the parties to. the agreement so to shape the contract that the guaranteeing bond to be given by plaintiff should be valid only upon the condition that the defendant should promptly meet its own obligation, expressed by the terms of its purchase-money notes. Construing the contract as a whole, this we think must reasonably have been the intent of the parties. The mutual benefits and burdens of the undertaking would.seem to be far more-readily met upon this assumption than to suppose that the plaintiff intended absolutely to guarantee a large increase in the defendant’s sales, without any corresponding benefit to itself. While we agree with counsel, for the defendant that the. contract could not be ¿reasonably taken to mean that Ihe plaintiff was to await the prompt payment of the notes before executing its bond, still we think that it must have been in the minds of the parties to the contract that its validity .was dependent upon the prompt fulfillment by the defendant of its own corresponding obligations. See Equitable Manufacturing Co. v. Davis, 130 Ga. 67, 70 (60 S. E. 262).

Judgment reversed.

Wade, G. J., and Dulce, J-.,-concur. ■'


author: Luke, J.

text:
    9259.
    Perdue v. Cason.
    Decided May 14, 1918.
    Complaint; from Warren superior court—Judge Walker. October 2, 1917.

      L. D. McGregor, for plaintiff. M. L. Felts, for defendant.
   Luke, J.

1. Where the relation of landlord and cropper exists, and the landlord wrongfully refuses to perform his part of the contract, the cropper has three courses of procedure open to him: (1) If the landlord’s breach consists solely of a refusal to furnish articles which may be obtained elsewhere, it is the cropper’s privilege to obtain them, complete the crop as contemplated by the contract, and hold the landlord and the landlord’s share of the crop responsible for the actual damages resulting from the breach of contract; or (2) the cropper may sue immediately for his special injuries, if any, including the value of the services rendered; or (3) lie may wait until the expiration of the harvest season and sue for the full value of his share of the crop or what his share would reasonably have been under a faithful performance of the contract by both parties. Park’s Ann. Code, §§ 3588, 3705, 3707, 4398.

2. Whatever the measure of damages may be in such a case, a- ri^ht of action arises upon the breach of the contract. Civil Code (1910), § 4397; Sutton v. Southern Railway Co., 101 Co. 776 (29 S. E. 53). Consequently any action therefor brought after the breach is not prematurely brought. If the cropper elects to sue immediately, and the term of the contract expires before the trial is had, the recovery may, under proper averments, embrace all damages down to the expiration of the term. Roberts v. Crowley, 81 Ga. 439 (3), 439 (7 S. E. 740); Roberts v. Rigden, 81 Ga. 440 (7 S. E. 742); G., F. & A. Ry. Co. v. Parsons, 12 Ga. App. 180 (2), 182 (76 S. E. 1063). If in such a case the petition contains averments on which- to base inconsistent measures of damages, the plaintiff must, at the -trial, elect 'upon which he will rely for a recovery. If the averments authorize but one measure of recovery, the plaintiff will be restricted to that measure.

3. Where, as in this case, the suit is brought before the expiration of the harvest season, and the value of the plaintiff’s share of the crop is the only measure of damages alleged, the petition, even if defective, is not subject to a general demurrer, the sustaining of which would be an adjudication of the action upon its merits. Such alleged measure of damages can, however, be appropriate only where the trial is after the expiration of the term of the alleged contract. There was no demurrer for the plaintiff’s failure to allege an immediately appropriate measure of damages. ■

4. Except as dealt with herein, the defendant’s demurrer was without substantial merit.

5. The court erred in sustaining the demurrer and dismissing the action.

Judgment reversed.

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


text:
    9261.
    Stacer, administratrix, v. Ehrlich.
    Decided May 14, 1918.
    Complaint; from city court of Swainsboro—Judge Kirkland. August 39, 1917.

      F. H. Saffold, for plaintiff in error. T. N. Brown, for defendant.
   Jenkins, J.

Where one deliberately sign's a promissory note for a stated sum, without informing himself, as to the correctness of the amount named, but relies upon the promise of the other party to the contract that it would be revised so as to correct errors, the maker will not be heard to contradict the written instrument by setting up such parol understanding in opposition thereto. The terms of the writing can not be defeated upon the ground of mistake made at the time the instrument was executed, when it thus appears that it was not even the intention of the signer that the settlement was to be accurate and final, but that under an oral agreement the terms of the instrument were to be varied and revised according to the true .state of facts that might thereafter appear. Wilson v. Bush, 22 Ga. App. 83 (95 S. E. 317); Dyar v. Walton, 79 Ga. 466 (7 S. E. 220); Brack v. Brantley Co., 134 Ga. 495 (67 S. E. 1128). Applying this rule to the allegations of the defendants’ plea in this case;j the court did not err in sustaining the demurrer thereto.

Judgment affirmed.

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


text:
    9266.
    Mayor and Aldermen of Savannah v. Monroe.
   Luke, J.

1. “When a party assumes a certain positión in.a legal proceeding, and succeeds in maintaining that position through a judgment of the court, or through the acquiescence of the opposite party to his prejudice, he will not thereafter be permitted to’assume «as to the same subject-matter and against the same adversary a contrary position.” Haber-Blum-Bloch Hat Co. v. Friesleben, 5 Ga. App. 123 (62 S. E. 712). See also Park’s Ann. Code, § 5736, and citations under catchwords, “Position” and “Admissions in judicio.”

2. The power of a municipal corporation to institute proceedings against and remove from office for misconduct any of its corporate officers, whether so declared in its charter or not, is no longer open to question in this State. Mayor &c. of Savannah v. Grayson, 104 Ga. 105 (3), 113 (30 S. E. 693). That such power, 'if exercised judicially, is generally conclusive upon the removed officer, unless the judgment is subsequently set aside, is also well settled. Queen v. Atlanta, 59 Ga. 318; Oliver v. Americus, 69 Ga. 165.

3. In this case, however, the removed officer was proceeding by certiorari . to set aside the judgment of the mayor and aldermen, which was rendered judicially. Pending the certiorari the term of office in question expired. The defendant city thereupon moved to dismiss the certiorari, on the ground, among others, that a decision thereof would “be vain and useless’/ for any purpose. To this motion the plaintiff replied that a decision of the case was necessary, in order that-his claim for salary might be subsequently adjudicated, the plaintiff seeking thereby to follow the rule stated in the preceding paragraph. The court sustained the defendant’s motion and dismissed the certiorari, but expressly provided in the judgment that it should be without prejudice to the plaintiff in this suit for his salary. That judgment has not been set aside, but yet remains of full force. See Mayor &c. of Savannah v. Monroe, ante, 190 (95 S. E. 731). Held: (a) Under the rule stated in the first paragraph above, the defendant is now estopped from invoking the rule stated in the second paragraph, not only because the defendant has previously assumed and successfully maintained a position contrary to that rule, but also because that judgment has not been set aside and is binding upon the parties. (6) Until reversed or set aside, the provision in the judgment dismissing the certiorari' that the same should be “without prejudice to the plaintiff in certiorari,” etc., is binding alike upon the parties and upon the court, in the same or any subsequent proceeding between the same parties respecting the same subject-matter. Cheney v. Selman, 71 Ga. 384 (2); Sims v. Ga. Ry. & El. Co., 123 Ga. 643 (51 S. E. 573); Matthews v. State, 125 Ga. 248 (54 S. E. 192). (c) Under the facts of this case, the judgment complained of in the petition for certiorari must stand upon the same footing as if the municipal authorities had acted ministerially and not judicially. In other words, their judgment is not now conclusive of the question in the superior court.

4. The failure of the court to hear and determine a certiorari within any given period can not operate to deprive the petitioner of any substantial right. Especially is this true where,, as in this case, it does not appear that the court’s delay is attributable to the petitioner.

5. Where a person entitled to hold an office in a municipal corporation has been wrongfully deprived thereof, and the salary of the office has been received by a person who has de facto held the office, although not entitled thereto/ the right of -action of the de jure officer to recover such salary is against the usurper, and not against the .-municipality. 1 Dillon, Mun. Corp. (5th ed.) 748, § 429; 2 McQuillin, Mun. Corp. 1125, § 518. But where, as in this case, instead of choosing a successor to the removed officer, the municipal authorities attempt to abolish the old office and then create a new office, the person chosen to fill the new office is not a de facto successor to the removed officer, even though all the duties of the vacant office are by ordinance declared to be a part of the duties of the new office.

,6. It is not within the power of a municipal' corporation to abolish an office created by or recognized in its charter. Wilson v. Dalton, 135 Ga. 240 (69 S. E. 163). The office of superintendent of the fire department of the City of Savannah is such' an office. See Acts of 1900, p. 422. Since in this respect the charter of a municipal corporation is analogous to the constitution of the State, the decision of the Supreme Court in Morris v. Glover, 121 Ga. 751 (49 S. E. 786), is also in point.

Decided May 14, 1918.

Rehearing denied July 30, 1918.

Complaint; from Chatham superior court—Judge Meldrim. September 21, 1917.

Robert J. Travis, David 8. AtMnson, for plaintiff in error.

Osborne, Lawrence & Abrahams, contra.

7. An action by a wrongfully removed officer to recover liis salary differs from an action by a wrongfully discharged servant to recover his wages, in^>at least two important particulars: (1) Payment of the salary in question to another person who performs the same duties may, in a proper case, constitute a good defense on behalf of the municipality, whereas such payment of wages is no defense on behalf of the master. (2) Earnings of the removed officer at other callings are of no concern 'in a suit against the municipality, whereas the earnings of a discharged servant always constitute a defense pro tanto in a suit against the master.

8. Grounds of demurrer not covered by the foregoing rulings are without substantial merit.

9. The petition as amended set out a cause of action, and the court did not err in overruling the demurrers.

Judgment affirmed.

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


text:
    9293.
    Southern Railway Company v. Poole.
    Decided May 14, 1918.
    Action for damages; from city court of Hall county—Judge Wheeler. ■ October 6, 1917.

      E. A. Neely, J. O. Adams, Ed. Quillian, Q. R. Faullcner, for plaintiff in error. W. A. Charters, for defendant.
   Luke, J.

1. The excerpts from the charge of the court complained of, when read, in connection with the entire charge, were not misleading or confusing to the jury.: One of the excerpts complained of is almost identical in words with the charge approved in Wrightsville & Tennille R. Co. v. Tompkins, 9 Ga. App. 154 (70 S. E. 955). See also Atkinson v. Swords, 11 Ga. App. 167 (74 S. E. 1093). In addition the court, in approving this ground of motion for a new trial, certifies that on the trial of the ease the movant urged the decision in Wrightsville & Tennile R. Co. v. Tompkins, supra, as the law controlling as to the plaintiff’s right to recover. See Wholesale Mercantile Co. v. Jackson, 2 Ga. App. 776 (59 S. E. 106); Burley v. State, 130 Ga. 343 (60 S. E. 1006).

2. The question of negligence was for determination by the jury, and there was evidence to authorize the verdict, which has the approval of the trial judge. Eor none of the reasons assigned did the court err in overruling the motion for a new trial.

Judgment affirmed.

Wade, O. J., and Jenkins, J., concur.


author: Bloodwokth, J.

text:
    8299.
    ARMSTRONG et al. v. WALTON, ordinary, for use, etc.
    “1. As a general rule, the duration of liability under corporate indemnity bonds on the part of the insurer to the insured is coextensive with that of the ‘risk’ of the insured, in the absence of specific provision limiting ,the insurer’s liability. The liability, of course, can not be made to extend to any acts prior to its 'execution, in the absence of specific covenant to that effect. The bond under consideration herein contained no specific limitations.
    “2. Where the court has passed an order authorizing its receiver to reduce the bond previously given by him to a smáller amount as of a given date, providing that the bond when so reduced shall be deposited by the receiver or his surety with, the clerk of the superior court, and ordering the receiver to pay the premium due for such new bond, and no new bond is in fact given, such- order will not, have the effect of modifying the original bond in any particular.
    “3. The fact that the receiver had in his hands, on the date provided in the order for the reduced bond to take effect, more money than the amount for whi.ch judgment is asked would not prevent a recovery by the plaintiff of the full amount of the loss under the original jiond.
    “4. ‘Where money is in the hands of a receiver for preservation to await' final disposition by order or decree, and the same is deposited in a bank selected by himself, the receiver is personally liable therefor in the event of the failure of the bank.’
    “5. Where the court orders its receiver to pay to the attorneys of record certain dividends due to creditors of an insolvent debtor, and the attorneys and the receiver agree that the receiver may mail checks directly to the clients of such attorneys, and the receiver fails to remit to a . portion of them, such agreement will not relieve the bondsman of the receiver from liability for the amounts the receiver so fails to remit, although these amounts be lost with other funds placed by the receiver in a bank of his own selection, which fails.
    “6. Where a receiver was required, by the terms of the order of appointment, to hold the funds coming into his hands as receiver subject to the order of the court, and, without any order for so doing, he deposited the funds in a bank of which he was cashier, which afterward failed, and thereby, as he averred, the funds were lost, his omission to pay out funds under an order of court declaring a dividend,, and failure on his part to make “substantial” compliance with the provisions of the Civil Code, § 2351, relative to the making of annual returns, would result 'in a forfeiture of his commissions as receiver.”
    Decided May 14, 1918.
    Action upon bond; from Richmond superior court—Judge H. 0. Hammond. August 16, 1915.

      William JET. Fleming, for plaintiffs in error.

      Callaway & Howard, contra.
   Bloodwokth, J.

Every material question raised in the motion for a new trial in this ease was certified to the Supreme Court. The headnotes above quoted are those prepared by that court in connection with their answers to the certified questions. A full report of the opinion of the Supreme Court will be found in 147 Ga. 781 (95 S. E. 714). These answers show that no error of law was committed in the trial of the case, and as there was ample evidence to support the verdict, no error was' committed in overruling the motion for a new trial.

Judgment affirmed.

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


author: Bloodwobth, J.

text:
    9001.
    Tison v. Sword.
    Decided May 14, 1918.
    Affidavit of illegality of execution; from city court of Nashville. Judge Christian. June 11, 1918.
    Hendricks, Mills & Éendricks, for plaintiff in error.

      Joseph A. Alexander, contra.
   Bloodwobth, J.

It appears from the qualifying note of the judge to hjs approval of the motion for a new trial that by agreement of counsel for both parties only one issue would be submitted to the jury, and that was, “whether the defendant A. ¡P. Tison was served with a.copy of petition and process,” and that the authority of the constable (whose return was traversed) to serve the paper was eliminated and not an issue in the case. , This note amounts to a. disapproval of grounds 3, 4, 5, 6, and 7 of the amendment to the motion.- Therefore this court will not consider them. Southern Railway Co. v. Bales, 137 Ga. 567 (73 S. E. 846); Griggs v. State, 17 Ga. App. 301 (2) (86 S. E. 726).

The 2d ground of the amendment to' the motion for a new trial is merely an amplification of the general ground that the verdict is without evidence to support it. There is some evidence to support the verdict.

Judgment affirmed.

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


text:
    9170.
    SMITH v. LEVERETT.
    1. A bill of exceptions dismissed by this court on the ground that the writ of error was premature could not operate as exceptions pendente lite, where no direction that it might so operate was given by this court.
    2. Those grounds of the motion for a new trial which relate to the admission of evidence are not in proper form for consideration.

      3. Refusal to direct a verdict 'is never reversible error. •
    4. Exceptions not argued in' the brief of counsel for the plaintiff in error ■will be treated as abandoned.
    Decided May 14, 1918.
    Complaint; from city court of Houston county—Judge Riley. July' 16, 1917. ’

      Feagin & Hancock, for plaintiff.

      Duncan & Nunn, M. Kunz, for defendant.
   Bloodworth, J.

When this case was formerly before this court (18 Ga. App. 582, 89 S. E. 1094), the following opinion was rendered: “The only error assigned in "this case being the overruling of the demurrer to the plea and answer of the defendant in the court' below, and there being no final judgment excepted to, the bill of exceptions is prematurely brought, and must b.e dismissed.” No direction was given that a copy of the bill of exceptions of file in the office of the clerk of the trial court should operate as exceptions pendente lite. In the absence of such direction the ruling was final as to the original bill of exceptions, and it can not now be considered by this court, though brought up as a part of the record.

“A ground of a motion for a hew trial should be complete in itself, or rendered so by an exhibit to the motion. Accordingly, it has been repeatedly ruled that a ground based on the admission or rejection of evidence presents nothing for adjudication, when such evidence is not set forth therein either literally or in substance, nor attached- as an exhibit to the motion.” Shaw v. Jones, 133 Ga. 446 (9), 450 (66 S. E. 240). “Hnder the rulings of this court and of the Supreme Court, this court will not search through the record to find errors, when they are not specifically pointed out in the assignments of error or in the grounds of , the motion for a new trial. The rule is- that each ground of the motion for a new trial must be complete in itself.” Odum v. Rutledge, 16 Ga. App. 350 (85 S. E. 361). “A ground of a motion for a new trial which complains of the admission of certain specified testimony upon the trial of the case must state the name of the witness whose testimony is complained of.” Peeples v. Butler, 21 Ga. App. 310 (94 5. E. 278); Hayes v. State, 18 Ga. App. 68 (88 S. E. 752). Hnder the foregoing and numerous other' decisions of this court and the Supreme Court, grounds 1, 2, .3, 4, 5, and 6 of the amendment to the motion for new trial present nothing for determination by this court.

“Under repeated rulings of the Supreme Court and of this court, the refusal of the trial judge to direct a verdict is never error.” Sheffield v. State, 18 Ga. App. 697 (90 S. E. 356).

The other grounds of the amendment to the motion for a new trial were not argued in the brief of counsel for the plaintiff in error, and will be treated as abandoned.

There was evidence to support the verdict, which is approved by the presiding judge, and this court will not interfere.

Judgment affirmed.

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


text:
    9361.
    DIXON v. PIERCE.
    Inasmuch as a mortgage in this State does not transfer title, hut gives only a lien on the property included therein, a mortgage on domestic animals does not cover the increase thereof .where there is no express mention of such increase in the instrument itself. Such increase may he sold hy the mortgagor as his own, and a purchaser from him gets a good title as against the mortgagee.
    Decided May 14, 1918.
    Cértiorari; Horn Wilkinson superior court—Judge Park. October 12, 1917.
    Dixon foreclosed a chattel mortgage given him by R. L. Stanley, and had it levied on a cow and some hogs. The property was claimed by E. W. Pierce. The'jury in the justice’s court found in favor of the claimant, and a judgment was entered finding the property not subject. The ease wás-taken to the superior court by certiorari, and the judge of that court, by an order reciting that the evidence was undisputed, rendered a final judgment, holding that a sow in controversy was subject to the mortgage execution, and that the other property in controversy was not subject, and awarding cogt of the certiorari in the superior court against the claimant. To this judgment the plaintiff in fi. fa. excepted.

      Hal B. Wimberly, for plaintiff.T. H. Hightower, contra.
   Harwell, J.

The material facts in this case are undisputed, and are substantially as follows: The sow levied on under the mortgage fi. fa. was included in the mortgage. The other animals levied on are not included in the mortgage, but are the increase of animals included in the mortgage. The debt which the mortgage was given to secure has not been paid. The claimant purchased the property after it had been levied on, and with notice of the mortgage-. The sow, being embraced in the mortgage, is subject to the levy, and the claimant has no title thereto as against the lien of the mortgage. The main question is whether or not, the lien of the mortgage covers the increase of animals included in the mortgage, the increase not being mentioned in the mortgage. The question is not without some difficulty, and there are authorities which hold that a mortgage covers the 'increase of animals mortgaged though the increase is not specifically mentioned therein. See notes in 14 L. R. A. (N. S.) 432, 122 Am. St. R. 384, 13 Ann. Cas. 97, to the case of Demers v. Graham, 36 Mont. 402 (93 Pac. 268). In that case it was held by the Montana Supreme Court that a chattel mortgage on cows, which does not transfer title, does not cover their calves in gestation when the mortgage is executed, and born prior to its foreclosure, where they are not mentioned in the instrument. We think the reasoning in that case is sound and states the correct rule, and we adopt it. The opinion in that ease, in explanation of cases laying down a different rule from that stated by the court, quotes from .a decision of the Supreme Court of California, in the ease of Shoobert v. DeMotta, 112 Cal. 215 (53 Am. St. R. 207, 44 Pac. 487), where the decisions, are examined and differentiated as follows: “It has been held in some States that the lien of a mortgage of ’domestic animals extends to the increase of the animals during the life of the mortgage, whether the terms of the mortgage include such increase or not; and, following' these decisions, such a rule .is stated in text-books upon chattel mortgages. It will be found, however, upon examination of these cases, that the decisions therein are based upon the principle of the common law, which was in force in those States, that, by the mortgage, the mortgagee is vested with the title to the mortgaged property, and becomes the owner thereof; and that in the case of domestic animals, applying another.rule of both the common and the civil law, that 'the brood belongs to the owner of the dam or mother,—partus sequitur ventrem’ (2 Bl. Com. 390),—he thereby becomes the owner of such increase, and being the owner, hisvtitle in any action at law must prevail.” In Georgia, however, a mortgage does not transfer title, but gives a lien only on the property described. In 1 Ruling Case Law, 1072, § 13, it is said: “In jurisdictions, however, where a chattel mortgage is regarded as only establishing a lien, and not transferring title, a mortgage of domestic animals does not cover the increase in gestation at the time of the execution of the mortgage, where'there is no express mention thereof in the instrument itself; but such increase born before foreclosure may be dealt with by the mortgagor in possession as his own, and disposed of as he sees fit. A fortiori, in such jurisdictions a mortgage can not be held to include increase begotten after the mortgage' was executed." In Vason v. Bell, 96 Ga. 269, it was said: “Mortgages of lands in this State are mere securities for debt; they pass no title to the mortgagee; the mortgagor holds the title until sold out and dispossessed by foreclosure; hence the rents, issues and profits are the mortgagor’s, and are not embraced or covered by the mortgage'; nor is stock or cattle or the increase thereof, or plantation tools, subsequently bought, unless expressly stipulated for in the mortgage.” The decision does not clearly indicate whether the mortgage in that case covered the cattle and hogs or the land only. . The court said: “It is also contended that the cattle and hogs, etc., are covered. We do not think so. Natural increase will not be covered by a mortgage that passes no title unless specifically named, particularly the cattle and hogs which came as increase, during twenty years.”

We have not overlooked section 3651 of the Civil Code (1910), and Johnson v. Stevens, 19 Ga. App. 192 (91 S. E. 220), relied on by. defendant in' error. That section confers no additional rights on a mortgagee. It is simply a statement of the common-' law rule that “the brood belongs to the owner of the dam or mother,—partus sequitur ventrem.” 2 Bl. Com. 390. We note also the case of Anderson v. Leverette, 116 Ga. 732 (42 S. E. 1026), where a mare in foal wa:s sold, the vendor retaining title in a conditional bill of sale duly recorded, and it was held that the purchaser of The colt did not acquire title thereto as against the vendor of the mare. In that case-the court remarked: “It has been frequently held in jurisdictions where, as at common law, the title to mortgaged property is in the mortgagee, that the increase of a female apimal which is under mortgage is covered by .the mortgage, as against innocent third parties, during the period requisite for suitable nurture of such increase by the mother.”. ,We do not think the mortgage covered the increase, and the claimant got a good title to that.

There being no question of fact which would make it necessary to send the case back for a rehearing, the judge of the superior court properly rendered a final judgment in the case. Civil Code (1910), § 5201.

Judgment affirmed.

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


text:
    9461.
    SOUTHERN RAILWAY COMPANY v. WOMACK.
    . In oases of personal torts, where the verdict returned is greatly disproportioned to the injury proved, courts have the power to grant a new trial on the ground of excessive damages. From the nature of such cases no fixed rule can be established upon this subject; but when, from the unreasonableness of the verdict, the conviction is forced upon the mind that the rule of .fair compensation has been departed from, a new trial will be granted.
    Decided May 14, 1918.
    Action for damages; from city court of Floyd county—Judge Nunnally. December 7, 1917.

      Hamilton & Hamilton, O’. I. Oarey, Maddox, McCamy & Shumate, for plaintiff in error.

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

A. P. Womack brought suit against the Southern Railway Company to recover damages for an alleged tort committed by' the conductor of a passenger-train in addressing to him certain “harsh, abrupt, irritating, and insulting language” in the presence and hearing of a large number of passengers, which the plaintiff alleged subjected him to great humiliation and mortifica-, tion. He recovered a verdict for $750; and the defendant excepted to the judgment overruling its motion for a new trial. One of the special grounds' of that motion was that the amount of the, verdict was so excessively large as to justify the conclusion that it was the result of bias and prejudice on the part of the jury.

The evidence for the defendant demanded a verdict in its favor. The evidence for the plaintiff made the following case: • On Christmas day, 1916, the plaintiff, in company with four friends, three of them being ladies) boarded a passenger-train of the defendant company at Lindale, Georgia. The defendant had all the tickets for the party, ancl was the last to enter the coach. One of the ladies and the other men in the party turned one of the seats, so that all five of them could .sit facing each other. ' The plaintiff sat down on the seat that had been turned, and was riding backwards. The train was well loaded and there were many ladies and men in the car. When the conductor came up to the party the plaintiff handed him the tickets, and while punching them the conductor said to the plaintiff, “ ‘What did you turn that seat that way for?’ in just as short a manner as he could.” The plaintiff replied: “It was turned to suit our convenience; that’s what they done it for; so we could sit here and talk.” The conductor said: “If you have any authority to turn that seat that way, show it; and if not, you get up and fix it just like the balance'of these seats.” The plaintiff replied: “I have been accustomed to riding on trains and cars all my life, and seeing seats turned this way; and you are the first to object.” The conductor replied: “It don’t make any difference what you. think about -it/ you get up from there and-turn that seat back like it was, or get off this train.” The plaintiff swore that the conductor’s tone “was harsh; there were ladies in the car, and two of the ladies were on that seat with me; everybody looked around at me; and I got up and turned the seat because I did not want to have any trouble. . . I had not done or said anything to the conductor to irritate him or cause him to talk to me that way or in that manner. . . He never opened his mouth about rules, . . never told me it was a rule of the company that the seat could not be turned back that way; just told me that I had to turn it back like it was. . . If the seat had not been turned, it could not have accommodated any more passengers. . . Five of us occupied the two seats. . . When I raised up and turned the seat back I looked around and sáw several passengers looking at me. They could hear him talking all over the car. . . I would not violate a rule if I know’d it. . . If the ladies had not been there I would not have turned the seat back. . . I turned it back and he went on. . ' . I am thirty-four.years old. . . That’s the whole transaction.” It was undisputed in the evidence that one of the rules of the defendant company required that all the seats in its passenger-ears should be turned in the same direction, so that all the passengers should have their faces towards the engine.

In our opinion this evidence does not warrant a verdict for $750' as damages. In Georgia Southern & Florida Railway Go. v. Ransom, 8 Ga. App. 277 (68 S. E. 943), a verdict for-$1,000 was held by this court to be excessive. In our judgment the verdict for $750 in the instant case is more disproportionate to the wrong suffered than was the verdict in the Ransom case. In this case, as was said by Chief Judge Hill in that case, “The amount of the verdict seems, to us to be manifestly out of all proportion to the wrong, and we are compelled to adopt the conclusion that the jury, in assessing the amount of damages‘for so trivial a tort, if a tort at all, were influenced, not by the evidence, but by some extraneous fact which aroused their partiality for the plaintiff, or prejudiced them against the defendant. . . We are aware of the many decisions of the Supreme Court that in cases of tort and personal injury, where the damages are unliquidated and the law furnishes no rule of measurement save the enlightened conscience of impartial jurors upon the evidence before them, a verdict will not be set aside and a new trial granted upon the ground of excessive damages, unless- the amount is so unreasonable and excessive -as to evince passion, prejudice, partiality, corruption, or misapprehension ; and every case must stand upon its own particular facts, there being no inflexible rule that can be laid down on the subject. And while the question of damage is peculiarly one for the jury, both in the act complained of and any circumstances of aggravation, yet where the finding is so excessive as to justify an inference of undue bias, partiality, or prejudice on the part of the jury, it is the duty of the court to interfere. This interference by the court is to be taken, not as a reflection on the jury, but only as a recognition of the well known fact that jurors in some eases (of which the present ease furnishes a type) are sometimes prone to allow their feelings to get the better of their judgment.”

• Hnder the above ruling it is unnecessary to consider the other assignments of error.

Judgment' reversed.

Bloodworth and Harwell, JJ., concur.


text:
    9555.
    Singer Sewing Machine Co. v. Dacus & Co.
    Decided May 14, 1918.
    Certiorari; from Gordon superior court—Judge Tarver. January 19, 1918.

      Harris ds Harris, for plaintiff.

      F. A. Cantrell, A. L. Henson, for defendant.
   Broyles, P. J.

1. A certiorari which h%s been dismissed can be renewed within six months from the date of dismissal, unless the dismissal was upon the ground that no notice of the sanction of the certiorari and of the time and place of hearing was given to the opposite party, or unless for some reason the original petition was itself void. Citizens Banking Co. v. Paris, 119 Ga. 517 (46 S. E. 638); Bass v. Milledgeville, 121 Ga. 151 (48 S. E. 919); Veazey v. Crawfordville, 126 Ga. 89 (54 S. E. 817).

(а) Where there has been a failure to serve the opposite party with notice , of the sanction of the certiorari and of the time and place of hearing, that which was commenced as a good suit was never completed and perfected by service, and there was no suit to renew. Toole v. Davenport, 63 Ga. 161.

(б) To render a petition for certiorari void there (must be something inherently defective, in the petition itself'—something precedent to the issuance of the writ; as where the certiorari bond, or the pauper affidavit, was defective, or where the petition itself contained no sufficient assignment of error. Bass v. Milledgeville, supra.

2. Prom the foregoing ruling it follows that where a certiorari has been dismissed solely upon the ground that material'allegations in the petition were not verified by the answer of the trial magistrate, the eer-' tiorari could be renewed within six months from the date of its dismissal.

Judgment reversed.

Bloodworth and Harwell, JJ., concur.


text:
    9559.
    Sorrells v. Fitzpatrick Company.
    Decided May 14, 1918.
    Complaint; from city court of Madison—Judge Anderson. January 28, 1918.
    The H. H. Fitzpatrick Company brought suit .against Sorrells for $198.40 principal, and $95.22 interest, alleging that the debt was evidenced by a promissory note, a copy of which was attached to the petition. The copy attached was of a note for $225 principal, besides interest, and in the same instrument was a mortgage on certain crops. The court, over the objection of the defendant, 'allowed an amendment changing the principal of the note to $725. A note described in the amendment as “the original note sued on” was attached to it, and the petition as amended showed certain credits thereon, amounting to $537.51. The amendment was demurred to on the ground that it added a new and distinct cause of action. At' the trial the original note attached to the amendment was introduced in evidence, and the secretary of the plaintiff corporation testified: “The note sued on was not given in liquidation or settlement of any account or for value received at the time it was given. Value had been in part received, inasmuch as part of the account had been made at the time the note was given. It was given to secure that and a future account still to be made. I do not know how much of the account had been made. Nothing was said'about that. It was just a mortgage note we are in the habit of taking to secure an account when We run anybody. It was not in whole for what he bought or what he was going to buy. The note don't show Avhat lie bought or what he owed us. We had to go to the account to ascertain that.” There was no further evidence. The defendant moved that a verdict be directed in his favor, “on the ground that the testimony. showed that the note Avas not given in liquidation and settlement of an account owed, nor for a present or past Araluable consideration, but in part at least for a future valuable consideration; and on the further ground that the note itself did not and could not show the indebtedness of defendant to plaintiff, but recourse to the account as stated on the books of plaintiff was necessary to ascertain the alleged indebtedness, and that therefore there could be no judgment on 'the note, said indebtedness being on account.” This motion was overruled, and a motion to dismiss the suit was also overruled, and the court directed a verdict for the plaintiff. The defendant excepted, .assigning error on each of the rulings stated.
   Broyles, P. J.

1. There was no error in overruling the demurrer to the ’ amendment to the original petition.

2. Under the evidence and the pleadings the court did not err in refusing to direct a verdict for the defendant, or in refusing to dismiss the'suit, or in directing a verdict for the plaintiff.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.

E. H. George, for plaintiff in err,or.

M. 0. Few, contra.


author: .Harwell, J.

text:
    9561.
    EASTERLING & ALEXANDER v. COLLINS.
    Copies of the 'pleadings not being set out in the petition for certiorari or in the answer of the magistrate, and these being necessary to a determination of the assignment of error ih the petition, the judge of the superior court did not err in' dismissing the certiorari.
    Decided May 14, 1918.
    Certiorari; from Tattnall superior court—Judge Sheppard. December 1, 1911.,

      Collins & Stanfield, for plaintiffs.

      S. B. McCall, for defendant.
   .Harwell, J.

The plaintiffs except to the dismissal of their petition for certiorari, and also to the refusal of the court to permit them at the hearing to. amend the petition for certiorari. The bill of exceptions recites that the July term, 1911, of Tattnall superior court was held during the first and second weeks of October, 1911, and that the hearing of the certiorari was ■ on October 10. When the certiorari came on for hearing the defendant moved to dismiss the proceedings, on the ground that the magistrate trying the case had failed to file his answer at the proper-time, in that he had failed to file it on the first Monday in July, the regular time for holding the court, but filed it on the first Monday in October; and for the further reason that the petition for certiorari did not have attached thereto copies of the petition and answer in the original case,- and that the magistrate did not attach copies of these proceedings to his answer. The plaintiffs offered to amend the petition for certiorari by attaching copies of the petition and answer. The defendant objected, and the court refused to allow the amendment. . !

The certiorari was'filed on June 11, and the answer of the magistrate was filed on October 4, 1911. There was no merit in the motion to dismiss the certiorari upon the ground that .the magistrate’s answer was not filed on the first day of the term. Sutton v. State, 120 Ga. 865 (48 S. E. 342); Harrison v. May 121 Ga. 816 (49 S. E. 728). The court did not err in refusing to permit the plaintiffs to amend the petition for certiorari at the hearing. Hackett v. Tate, 18 Ga. App. 453 (89 S. E. 535), and cases cited.

If the questions made in the petition for certiorari and verified by the answer can be determined without'the proceedings in the court below, the failure to certify and send up such proceedings will not be ground for dismissing the certiorari. Peeples v. Tygart, 6 Ga. App. 409 (2) (65 S. E. 167); Sisk v. Anderson Phosphate & Oil Co., 9 Ga. App. 483 (71 S. E. 763). The petition for certiorari shows that this was a suit on an account by a firm. The verdict and judgment were in favor of the defendant. The petition sets forth the evidence in the case, and assigns error upon the ground that the verdict is contrary to the evidence. It is insisted by counsel for the plaintiffs that the defendant, Collins, in his plea attempted to set off against the account of the firm certain items which he claimed to have against Easterling, a member of the firm; and that, as he could not in law claim such a set-off against the firm’s account, the verdict- was not authorized by the evidence in the case. We have carefully read the evidence in-the petition for certiorari, in order to determine whether the assignment of error that the verdict is contrary to the evidence can be decided without the. petition and. the defendant’s answer, and we find that the petition and the answer are necessary to determine the question. They are necessary to an intelligent understanding of the evidence. The defendant testified, as the record shows, that he had overpaid the account and. did not owe anything, and hi's testimony refers to a number of credits to which he claims that he is entitled. It is impossible to understand these claims of credits without having his answers before us. For these reasons the trial judge did not err in dismissing the certiorari.

Judgment affirmed.

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


text:
    9085.
    McKenzie, executrix, v. Smith.
    Decided May 15, 1918.
    Complaint; from city court of Atlanta—Judge E.eid. June 23, 1918. "

      King & Spalding,- for plaintiff in error.

      Brandon & Hynds, Virlyn B. Moore, contra.
   Luke, J.

Tlie former rulings of this court in this case (McKenzie v. Smith, 18 Ga. App. 626, 89 S. E. 1097), are controlling. The evidence did not change the status of the parties, and the accommodation indorser was discharged. The court erred in overruling the motion for a new trial.

Judgment reversed.

Wade, O. J., mid Jenkins, J., concur.


text:
    9127.
    Randall Brothers v. City of Atlanta.
    Decided May 15, 1918.
    Affidavit of illegality of execution; from Fulton superior court —Judge Bell. May 10, 1917.

      F. A. Quillian, for plaintiff in error.

      J. L. Mayson, S. T). Hewlett, contra.
   Jenkins, J.

1. It is within the discretion of the municipal authorities of the City of Atlanta to judge whether or not a pavement is worn out, and to provide for 'its renewal by the use of any material which it may decide upon, the only limitation upon such authority being that such discretion must not be arbitrarily or unreasonably exercised. Burckhardt v. Atlanta, 103 Ga. 302 (4) (30 S. E. 32); Regenstein v. Atlanta, 98 Ga. 167 (25 S. E. 428).

2. Where in pursuance of law assessment for such purpose has been made' and execution issued therefor, it is too late for the owner of abutting property to contest, by affidavit of illegality, such discretionary power of the municipal authorities. Draper v. Atlanta, 126 Ga. 649 (55 S. E. 929).

3. Where the owner of abutting property had sold to the city a strip pf land for the. purpose of widening the street, and by the terms of sale it was provided that the brick pavement as then laid in front of the property should be- removed by and at the cost of the city and relaid upon the new sidewalk to be established, so as to. be in as good condition as it was prior to the sale, the fact that such old material was not actually laid down upon such newly acquired sidewalk would not render nugatory a condemnation .proceeding for the purpose of providing a new and different pavement.

Judgment affirmed.

Wade, O. J., and Dulce, J., eoneur.