author: .George, J.

text:
    8199, 8200.
    MITCHELL COUNTY v. DIXON; and vice versa.

    1. “If a plaintiff shall be nonsuited, or shall discontinue or dismiss his case, and shall recommence within six months, such renewed case shall stand upon the same footing, as to limitation, with the original ease; but this privilege of dismissal and renewal shall be exercised only once under this clause.” Civil Code (1910), § 4381. This section of the code is remedial and is to be given a liberal construction. The present action is a renewal of a dismissed suit, and was filed within six months after the dismissal. The cause of action is not barred.
    2. Section 411 of the Political Code (1910) provides that “all claims against counties must be presented within twelve months after they accrue or become payable, or the same are barred; unless held by minors or other persons laboring under disabilities, who are allowed twelve months after the removal of such disability.” If under this section it is required that the claim against the county be presented in writing within the time prescribed, the bringing and service of a suit against a county within twelve months of the accrual of the right of action are sufficient presentation of a claim against the county within the meaning of the section quoted.
    3. A part of a public road which constitutes the abutment to a public bridge, and which is necessary and essential to the existence and use of the bridge, is a portion of the bridge itself; and the obligation of a county to keep the bridge in repair, and the liability resulting from the failure to discharge the duty of repairing, apply to that part to the same extent as it does to the' portion of the structure ordinarily called the bridge.
    4. A county is not liable for an injury produced by a defect in a private way or road; nor is it liable for a failure to provide a safe approach from a private way to a public highway of the county, or vice versa. A county is not liable for negligence in maintaining or permitting an unsafe approach from a private way or road to a public bridge, such approach not being essential or necessary to the existence or use of the public bridge.
    5. A petition which shows that the plaintiff knew of a defect in the bridge, or in its earthen abutment forming a part thereof, and that there was some danger in driving over it, is not subject to general demurrer, unless it appears that the danger was so obvious that no ordinarily prudent and cautious man would venture on it or over it. A traveler may know of a defect in a bridge or the abutment forming a part thereof, and that there is some degree of danger, in attempting to go on or over it, and still may recover from the county for injuries sustained in so doing, if it clearly appears that the danger was not obviously of such a character that driving over the bridge would necessarily amount to a want of ordinary and reasonable care and diligence, and if it also appears that in driving over the bridge the plaintiff in fact observed such care and diligence.
    6. The first count of the petition set forth a cause of action, and was not subject to the demurrers, general or special; the second count did not set forth a cause of action, and the court properly sustained the general demurrer to that count.
    Decided May 3, 1917.
    Action for damages; from Mitchell superior court—I. J. Hofmayer, judge pro hac vice. April 19, 1916.

      Peacock & Gardner, E. M. Davis, for Mitchell County.

      Pope & Bennet, contra.
   .George, J.

W. C. Dixon filed a suit against Mitchell County, in two counts. The first count, which the court below held good as against the county’s demurrer, alleged, in substance, that the plaintiff, on September -9, 1912, in the daytime, was driving in his buggy southward along a public road of Mitchell County, at a place where the public road crossed a stream, and where the county maintained a bridge over the stream; that the bridge was built since the year 1888, and that it consisted of a wooden structure about twenty feet long, measured along the said road, and earthen abutments for the same, extending from said wooden part northward and southward along said road; that while plaintiff was thus driving along on said abutment, the same being a part of the bridge, his buggy fell suddenly into a large hole about four feet wide, about four feet long, and three feet deep, which was about fifteen or twenty feet south of the wooden part of the bridge, and about twenty feet west of the central and most elevated part of said abutment; that by reason thereof plaintiff was thrown from his buggy and his buggy was overturned, and plaintiff was severely injured; that said defect in said abutment was known to the county commissioners and was not known to plaintiff, and that plaintiff, ■in February after said injury, orally presented his claim for his said injuries to said county commissioners in lawful meeting assembled, and said county commissioners then and there accepted such presentation of said claim and acted upon it, and promised ■ plaintiff that they would investigate said claim and advise him whether it would be paid, and that they did investigate and refused to pay it, and that, by reason of the foregoing facts, said county , commissioners waived presentation of said claim in writing and .estopped the county from setting up the defense that said claim had not been presented in writing. Plaintiff in said first count alleged.also that he had brought suit against the county within twelve months, and that service had been duly acknowledged by the county on said suit within twelve months after the injury complained of, and that said suit was pending until July 5, 1915, when the same was withdrawn by plaintiff, and that the present suit was brought in renewal thereof, and within six months after the withdrawal and after the payment of all costs. A copy of the original suit was attached to the present suit and made a part of both counts of the petition. In an amendment to the first count of the petition the plaintiff alleged, that at the time of his injury his eyesight was somewhat defective; that-it was sufficiently good to enable him to travel by buggy in perfect safety on roads and bridges which were maintained with reasonable care and diligence, and that at the time of his injury the road overseer and other agents of said county were operating a large force of convicts and mules and scrapes on said bridge and abutment, and said convicts and mules and vehicles were being driven at hard labor and in rapid motion around and about the defect in said bridge and its abutment, largely concealing said defect from plaintiff, and that the newly piled up earth and newly made holes and the colors of the same were such as to make it impossible for plaintiff, as affairs there existed, to discover said defect, and for these reasons the plaintiff did not know of said defect, and could not, by the exercise of ordinary diligence, have discovered the same in time to avoid the injury.

The second count of the petition, which was stricken by the court upon demurrer, contained substantially the same allegations of fact set out in the first count, except tfiat the hole, into which' plaintiff’s buggy suddenly fell was alleged to be outside of the abutment and in the ground a few feet west of the west side of the said abutment, but it was averred that even though said hole were outside of the abutment, the county would be liable to him for his injury, by reason of certain facts set out in that count, in substance as follows: That said bridge over which plaintiff was passing at the time he was injured consisted of a wooden structure about twenty feet long, measured along said road, and about twelve feet wide, measured across said road, and about five feet above the general level of the ground on each side of said bridge. (The stream over which said bridge extended was what is known as a South Georgia “slough,” that is, a stream carrying a large body of water at certain seasons of the year, but having for the most of its length practically no banks, but extending, on the contrary, in a broad, shallow, slowly moving sheet of water, and flowing through the low places of the very flat level country found often in the “wiregrass section” of Georgia.) There was an earthen abutment about fifteen feet wide across said road, extending from said wooden part of said bridge northward and southward along said road for a distance of seventy-five or one hundred feet from said wooden part of the bridge, said abutment being of the same height as said bridge,' where the same joins said bridge, to wit, about five feet above the general level of the ground on each side of said road, and 'the height of said abutment became gradually less as the distance from said wooden part of said bridge increased, until said abutment came to the level of the surrounding country and merged into the road; that for more than three years prior to plaintiff’s injury said county had maintained said bridge and abutment as above described, and had also maintained, at a point about ten feet south of the wooden structure of said bridge, a wood apron, or short bridge, consisting of planks laid side by side upon sills, said apron extending laterally from the top of said abutment downward and westward across a drain ditch, which ran along the western side of said abutment at that point to the beginning of a settlement road or private way, which private road branched off from said public road and its bridge at that point, which settlement road extended westward to plaintiff’s farm; that plaintiff had been using said bridge and abutment and said apron and said settlement road as a means of approaching lus farm during the said three years; that on the day when he was injured the county authorities were working the county convicts and road hands at that point, and had, unknown to plaintiff, piled up a lot of fresh earth on said abutment, so that the level thereof at the point where said “apron” extended from it into said “settlement” road was about one foot higher than it had been previously, so that there was a sharp drop-down, or decline, from the top of said abutment to said “apron,” so that a buggy turning off from said abutment at its new level, and going on to said apron, would acquire a- dangerous speed, by reason of said drop-down; that at the same time said county authorities had also dug a large hole, about four feet wide and four feet long and three feet deep, in the ground to the westward of said “apron,” said hole extending about eighteen inches into the beaten track of said “settlement” road, so that a buggy which turned off from said public road and bridge and ran down said “apron” would run into said hole; that plaintiff, driving as he had been accustomed to do, did turn his buggy froni the top of said abutment, at its said new level, on to said “apron,” and, in trying to drive along said “apron” and said. settlement road extending to the westward, plaintiff’s buggy, by reason of the sharp decline from the new level of said abutment down to said “apron,” ran rapidly down said “apron” and into said hole, whereby plaintiff was thrown out of said buggy and injured as set forth in the petition. The specific defects in said abutment, which plaintiff claims in said second count to be the cause of his injuries, were alleged to be as follows: (1) The existence of said “apron” leading from the top of said abutment down towards said settlement road (said “apron” constituting an implied invitation to travelers to descend from the top of said abutment by means of said “apron”) at a time when there was immediately to the west of said “apron,” and at its lower end, said open hole, the danger of which was partially concealed; (2) the existence of said wooden structure and abutment at so great a height, to wit, a foot or more, above the highest part of said “apron,” so that the drop-down of any team, leaving the top of said abutment and going down onto said “apron,” was such as to cause great and dangerous speed to such team in going down said apron and into said hole; (3) the existence of said wooden structure and its abutment in said condition, without any guard-rails or other means to prevent travelers from going off from said wooden structure and the top of said abutment, down upon said “apron” ■and into said hole; (4) the existence of said wooden structure and abutment in said condition, without any warning signs, or other warning, placed there to warn travelers, against using the same in said dangerous condition. The second count likewise contained an allegation to the effect that plaintiff’s eyesight was somewhat defective, that it was sufficient for him to travel in safety on roads and bridges maintained with reasonable care, and also that at the time of the injury agents of the county were operating a large force of convicts and mules and scrapes on said bridge, and abutment, around and about said defect, so that the same was largely concealed, and that it was impossible for plaintiff to discover the defect in time to avoid injury.

To this petition the county demurred, (1) because the petition set forth no cause of action; (2) because the cause of action, if any existed, is barred by the statute of limitations, the suit not being filed within two years from the date of the alleged injury to the plaintiff; (3) because there is no allegation in the petition, or in either count thereof, that the plaintiff submitted in writing to the defendant, through its proper officers, his claim or demand within twelve months of the date of the infliction of the injury to the plaintiff. There were other grounds of special demurrer, but these grounds simply enlarge in one way or another the general demurrers filed in behalf of the county.

In the main bill of exceptions Mitchell County excepts to the refusal to sustain the county’s demurrer to the first count of the plaintiff’s petition; and the cross-bill of exceptions, filed by the plaintiff, excepts to the judgment sustaining the county’s demurrer to the second count of his petition.

Mitchell County, as plaintiff in error in the main bill of exceptions, contends that the plaintiff’s cause of action was barred by the statute of limitations. From the allegations of the petition it appears that the plaintiff’s injury occurred on September 9, 1912. It further appears that a suit of this plaintiff was filed and served upon the county within one year of the date of the alleged injury, and that this suit was dismissed and withdrawn by the plaintiff on July 5, 1915. The present suit was filed within less than six months of the dismissal of the former suit. By § 4381 of the Civil Code (1910) a suit renewed stands on the same footing, as to limitation, with the original case. It is earnestly insisted by the county that the present suit is not a renewal of the original suit. The original suit, dismissed on July 5, 1915, is a part of the present petition. Substantially the same cause of action alleged in the original suit is set out in the present suit. This is all that is required. The code section allowing the renewal of a suit within six months after dismissal, and providing that the renewed suit shall stand on the same footing, as to limitation, with the original suit, has received a liberal construction. Indeed, the section is remedial, and is intended to preserve the right of a party to renew his cause' of action wherever it has been disposed of on any ground other than one affecting its merits. Atlanta, Knoxville & Northern Ry. Co. v. Wilson, 119 Ga. 781 (47 S. E. 366); Cox v. Strickland, 120 Ga. 104 (5), 109 (47 S. E. 912, 1 Ann. Cas. 870). Compare Holmes v. Huguley, 136 Ga. 758 (72 S. E. 38); Atlantic Coast Line R. Co. v. Knapp, 139 Ga. 427 (77 S. E. 568). The right of renewal is somewhat broader than the right of amendment. Every allegation made in the petition in the present action might have been added' by amendment in the original ease.

The plaintiff in error in the main bill of exceptions contends that the petition set forth no cause of action, for the reason that it failed to allege a presentation of the plaintiff’s claim to the county commissioners, in writing, within twelve months of the accrual of the claim. Since we have already held that the present suit is a renewal of a suit previously brought, and since it is distinctly averred in the petition that the original suit was both filed and served upon the county within twelve months of the accrual ef the plaintiff’s claim, this contention is answered. It was contended that there was an express waiver of the presentation in writing of plaintiff’s claim on the part of the county, and that the county was therefore.estopped to insist that the claim in writing was not duly presented to it. We do not determine this question. The Supreme Court of this State has ruled that the bringing and service of a suit against a county within twelve months of the accrual of the right of action are sufficient presentation of a claim against the county, within the meaning of § 411 of the Political Code. See Dement v. DeKalb County, 97 Ga. 733 (25 S. E. 382); Pearson v. Newton County, 119 Ga. 863 (47 S. E. 180); Elbert County v. Brown, 16 Ga. App. 834 (3), 839 (86 S. E. 651). The petition shows a compliance with this code-section, and neither count of the petition is subject to demurrer upon the ground that the alleged cause of action is barred by the statute of limitations. We therefore come to the main question in the case.

Is the county liable under the facts alleged in the first and second counts of the petition? Section 384 of the Political Code declares that a county is not liable to suit for any cause of action unless made so by statute. In the case of Hammond v. County of Richmond, 72 Ga. 188, it was ruled that “in cases where the statute provides for liability of counties, a recovery may be had against them; as when no sufficient bond is taken to keep bridges in repair.” In the case of Smith v. Wilkes and McDuffie Counties, 79 Ga. 125 (4 S. E. 20), Chief Justice Bleckley, speaking for the eourt, said: “The counties, to be liable in an action at law for damage done by those who construct or repair the public roads and bridges, would have to be subjected to such' action by statute.” The code-section to which we have referred, which appeared first in the Code of 1895, is based upon these two decisions of our Supreme Court. It is the settled law of this State that a county is not liable to suit unless there is a law which in express terms or by necessary implication gives the right to sue. Neither the negligent performance of duties which the county authorities are compelled to perform, or the negligent discharge of duties voluntarily assumed in the exercise of the discretion vested in the county authorities, except in cases provided by statute, gives a cause of action against the county. It is equally well settled in the law of this State that the county is not liable for a defect-in a public road, but it has been held that the part of a public road which constitutes the abutment to a bridge, and which is essential to the existence and use of the bridge, is a portion of the bridge itself, and the obligation to keep the same in repair, and the liability resulting from the failure to discharge the duty of repairing, applies to it to the same extent as it does to that portion of the structure ordinarily called the bridge. The term “bridge” includes all the appurtenances necessary to its proper use, and embraces its abutments and approaches. The approach to a bridge constitutes a part of it. Compare Howington v. Madison County, 126 Ga. 699 (55 S. E. 941); Morgan County v. Glass, 139 Ga. 415 (4) (77 S. E. 583), and cases there cited. These decisions of the Supreme Court foreclose the question against the county.

Considering the second count in the petition, we are very clear that it did not set forth a cause of action, and that the trial judge properly dismissed this count upon demurrer. The petition in Millwood v. DeKalb County, 106 Ga. 743 (32 S. E. 577), alleged that the county authorities had exercised the right, under the law, to work the convicts in a county chain-gang upon the public roads of the county; that a named road which crossed a private uvy- had been worked by the chain-gang in such a manner as that persons traveling the private way were liable to be injured, and that the plaintiff, in coming along the private way at night, having no knowledge of the condition in which the public road had been left at the point where the private way intersected it, fell and was injured. There were allegations that the county authorities had failed to provide railings or other safeguards to protect persons who were traveling along the private way. The petition was dismissed on demurrer, and the Supreme Court affirmed the judgment. Compare Brunson v. Caskie, 127 Ga. 501 (56 S. E. 621, 9 L. E. A. (N. S.) 1002). In Howington v. Madison County, supra, it is recognized that a county is not liable in damages for injuries caused by a defect even in a public road. Although the second count in the petition charges negligence in -several particulars, it is distinctly alleged that Dixon intentionally attempted to leave the public road ' and to pass into the private road by means of a side bridge designated in the petition as an “apron” bridge. It is therefore manifest that no defect in the bridge or its abutment forced or caused plaintiff to unintentionally drive his horse and buggy onto the apron bridge. The absence of guard-rails would have effectively kept him from entering the private road, but the legislature of this State has certainly imposed no liability upon a county for failure to prevent a traveler from leaving its public highways at any point and regardless of the degree of danger incident to such an act. The plaintiff intentionally turned his horse away from the public ■ load. The side bridge by means of which he attempted to leave the public highway did not' in any sense constitute a portion of the public highway or bridge. It was not essential or necessary to the support of the public bridge, including even its earthen abutments. It was there for the convenience of persons using the private way. So long as the traveler used the public bridge, including its abutments, or even the public road, he was'in no danger whatever on account of the conditions existing in the private way.

It is unnecessary to decide whether the plaintiff himself was the author of his own injury, in so far as the second count of the petition is concerned. Admitting that he was in no degree negligent (which we do not think is true, under the facts alleged in this -count of the petition), there is nevertheless no cause of action set out against the county, for the very simple reason that in the laws of this State there is no provision requiring or authorizing the county to maintain a private road or to provide a safe approach from its public highway to such private way. Certainly no statute, by express provision or necessary implication, gives to any person a. right of action against the county for injury sustained in traveling along a private way or in attempting to reach a private way from any public highway or bridge of the county.

Is the comity liable under the allegations of the first count of the petition? According to the allegations of fact in this count, the buggy in which plaintiff was riding fell suddenly into a large hole, about four feet wide, about four feet long, and three feet deep, which was about fifteen or twenty'feet south of the wooden part of the bridge, and about twenty feet west of the central and most elevated part of said'abutment. It is distinctly alleged that this hole was in the bridge. It is insisted" by the county that the allegation that this hole was about “fifteen or twenty feet south of the wooden part of said bridge, and about twenty feet west of the central and most elevated part of said abutment,” contradicts this allegation and shows that the hole was not in any portion of the bridge or in any part of the abutment necessary and essential to the support and use of the bridge, and which is considered to be a part of the bridge, and which the law required the county to keep in reasonable repair. It is true that a public road of the first class, under the law of this State, is required to be at least thirty feet wide, and a public road of the second class twenty feet wide, etc. From the allegation it is apparent that the earthen abutment to the bridge was about forty feet wide, since it is alleged that the hole was about twenty feet west of the central and most elevated part of said abutment. If, however, the county maintain an abutment to its bridge more than-thirty feet in width, a traveler should not be required to know at his peril the portion of the abutment and bridge which, under the law of the State, the county is required to keep in reasonable repair. If the county construct and maintain a bridge more than thirty feet wide, the county thereby impliedly invites the public to use the whole of the bridge, and is liable in an action for damage to one injured thereon by its failure to exercise ordinary care and diligence in keeping the bridge in repair. If a traveler be injured on the south side of a bridge forty feet wide, the county can not shift its responsibility by claiming that its act in maintaining the strip ten feet wide on the south side of -the bridge is ultra vires. The traveler is not required to know-where, in one bridge, however wide it may be, the county’s liability begins or ends. This count clearly charges that the county .maintained in a negligent and careless manner the abutment to the bridge described in the petition, and the acts of negligence are distinctly set forth in the petition. It appears that the county was, ar the time of the injury to plaintiff, engaged in the work of repairing the abutment to the bridge. It affirmatively appears, however, that the county was then permitting the bridge to remain open for general travel, and it must be treated as inviting the public to use this bridge at the time of the injury to the plaintiff. The county is liable for its negligent failure to keep a public bridge in reasonable repair.

. This court can not say that the abutment on which the plaintiff sustained his injury was not a part of the public bridge. This is an issue for the jury. If plaintiff’s injury was not the result of the negligence of the county in failure to keep the bridge in proper repair, then the plaintiff can not recover. If he was not in fact using that portion of the abutment which was both essential and necessary to the support and use of the bridge proper, at the time of his injury, he can not recover. This necessarily follows, since the county is liable only for its negligent failure to keep its bridge in repair. This liability does not attach to the county on account of its failure to keep its public road in repair. Nor can this court say, as a matter of law, that plaintiff’s injury was the result of his failure to exercise ordinary care. The fact that plaintiff had knowledge that the abutment to the bridge was in ill condition, that the county was then repairing it, and that his eyesight-was somewhat defective, are all matters which should go to the jury and should be weighed by the jury in determining whether or not the plaintiff was in the exercise of ordinary care and diligence for his own safety and protection at the time of his alleged injury. The mere fact that he had knowledge of the ill condition of the abutment to the bridge, and undertook to pass over it, will not, as a matter of law, bar his right to recover. The danger in attempting to pass over a public bridge may be so imminent, and the necessity for passing over it so slight, in a given case, that the court can pronounce the going over it negligence in law, barring the right of recovery for an injury sustained in attempting to pass over the bridge. Ordinarily, and as a general rule, the mere fact that one knows of a defect in a public bridge and undertakes to pass over it will not defeat his claim should he suffer injury thereby. If his act in so doing is not reasonably prudent, he can not, of course, recover. With knowledge of a defect in a public road one may continue to use it, but he is obliged to éxercise reasonable care for his own safety in so doing; and what is reasonable care must depend upon all the facts and circumstances in the case. Especially is this court unable to say, as a matter of law, that the plaintiff, under the facts alleged, failed to exercise ordinary care and diligence for his safety in attempting to pass over the public bridge and its abutment, since, under the rule of force in this State, the plaintiff may have a partial recovery in a case where his own negligence, not amounting'to want of ordinary care, may have contributed to his injury. Actual knowledge of the condition of a public bridge is not conclusive evidence of contributory negligence, so as to bar a recovery by the person injured in consequence of its being out of repair; unless its condition is such that, under like circumstances, a person of ordinary prudence would not go upon it. If the danger arising from the defect in the bridge is obviously of such character that no person, in the exercise of ordinary prudence, would attempt to pass over “it, the court may, as a matter of law, take the issue from the jury. If the use of the bridge in which the defect exists is consistent with ordinary care, the issue is for the jury; and if it should further appear that the plaintiff did in fact exercise such care, he may recover. While the defect in the abutment to the bridge alleged in the first count of this petition is one of such nature and character as to make it perceptible to any ordinarily prudent person, possessed of normal faculties, yet, under all the facts alleged, it can not be said, as a matter of law, that the plaintiff was wanting in ordinary care in venturing upon or over the abutment in which the defect existed. So long as the prudence of the plaintiff in attempting to pass over the bridge and its abutment, under all the facts and circumstances then existing, is a question about which reasonable minds might differ, then the question is one for the jury. Compare Samples v. Atlanta, 95 Ga. 110 (22 S. E. 135), and cases there cited; Harrell v. Macon, 1 Ga. App. 413 (58 S. E. 124), and cases there cited.

We therefore conclude that the general and special demurrers to the first count of the petition were properly overruled, and that the general demurrer to the second count was properly sustained.

Judgment affirmed on loth lilis of exceptions.

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


source: Caselaw Access Project

author: George, J.

license: Public Domain

text:
    8214.
    SEABOARD AIR-LINE RAILWAY v. MOORE & SON.
    The jury were authorized to find that the presumption of negligence on the part of the railroad company, which arose on proof of the killing of the plaintiffs’ mules by a train of the company, was not rebutted by the evidence introduced by the defendant.
    Decided May 3, 1917.
    Action for damages; from Wheeler superior court-—Judge Graham. June 3, 1916.'
    J. B. Geiger, for plaintiff in error.

      Pattillo & Jackson, contra.
   George, J.

The railway company was sued for the negligent killing of three mules, which were run over by a passenger-train. The negligence alleged was: (1) the failure of the engineer and emploj^ees of the defendant company to keep a proper lookout; (2) the failure to exercise ordinary care and diligence to bring the train to a stop after the mules were discovered on the track; (3) the failure to blow the whistle and ring the bell; (4) the failure to check the speed of the train; and (5) the running of the train at a high and reckless rate of speed. The undisputed evidence in the case showed that the plaintiff’s mules were killed by the running of the locomotive and cars of the defendant company. The presumption of negligence thus raised was. not so clearly rebutted as to authorize this court to say that the finding of the jury against the railroad company, upon its defense that its agents and servants had exercised all ordinary and reasonable care and diligence, was without evidence to support it. The facts and circumstances in the record, when aided by the presumption of negligence against the company, were sufficient to authorize the jury to find that the defendant was negligent in failing to keep a proper lookout, and in failing to discover the presence of the mules on its track in time to have avoided injury to them, although the evidence in behalf of the defendant showed that it exercised all reasonable care and diligence in order to avoid injury to plaintiffs’ mules after they were seen by the employees of the company. The court did not err in overruling the motion for a new trial, made upon the general grounds only. Georgia Railroad & Banking Co. v. Churchill, 113 Ga. 12 (38 S. E. 336); Southern Railway Co. v. Carter, 139 Ga. 236 (77 S. E. 21).

Judgment affirmed.

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


author: Jenkins, J.

text:
    7749.
    American Mills Co. v. Hudson & Thompson.
    Decided May 3, 1917.
    Rehearing denied June 15, 1917.
    Action on breach of contract; from city court of Atlanta—Judge Reid. June 22, 1916.

      Herbert J. Haas, for plaintiff in error.

      Smith, Hammond & Smith, John T. Hardisty, contra.
   Jenkins, J.

1. Even were this court to hold that in this case the memorandum or order of purchase for “55 coils of Keystone rope” purports to evidence a full and complete agreement, embracing every necessary stipulation of the contracting parties, yet where, in a suit of the buyer for breach of warranty, it is alleged, in one paragraph of the petition, that when such order was given, “defendant’s agent exhibited to plaintiff a sample of rope which he told plaintiff was a specimen of Keystone rope, and solicited plaintiff’s order for some of said rope, plaintiff yielded to such solicitation, and accordingly gave him the order herein-before mentioned,” and in another paragraph it is alleged that “the aforesaid shipments of Keystone rope as made by defendant did not and do not correspond in quality with the sample exhibited to petitioner by defendant’s said agent, Mr. Braswell, but the said rope is of such an inferior and defective quality that same is absolutely worthless,” and where the defendant, in its answer to the allegation first set out, “admits that its agent, Mr. Braswell, did exhibit to plaintiff a specimen of its Keystone rope,” and, in answer to the second quoted averment, “denies that its shipments of Keystone rope did not and do not correspond in quality with the sample exhibited to petitioner by defendant’s agent, Mr. Braswell, but alleges that said rope is of the exact quality as the sample shown by its agent to petitioner, and is of the same quality and texture and up to the same grade as the sample submitted by its agent, Mr. Braswell, to petitioner,” and in another paragraph of the answer “contends that the said rope as delivered was of the same quality, texture, and kind as the sample submitted by its agent, Mr. Braswell, to petitioner,” held, that in view of such solemn admission in judieio in the answer, the defendant is estopped from insisting that the writings which passed contained no reference to the obligation that the goods purchased should conform to the sample; and the plaintiff has the right to disprove by parol the assertion of the defendant that the obligation so admitted was fully met. Williams v. Walden, 124 Ga. 913 (53 S. E. 564).

2. It not being disputed by evidence that the article furnished failed to correspond with the sample submitted, the alleged error in admitting hearsay testimony to that effect will be treated as harmless.

3. There was evidence authorizing the verdict, and the other assignments of error are without merit.

Judgment affirmed.

Broyles, P. J., and Bloodworth, J., eoneur.


author: Beoyles, P. J.

text:
    7787.
    Swicord v. Crawford et al., receivers.
    Decided May 3, 1917.
    Action against stockholder; from city court of Cairo—Judge Willie. July 19, 1916.

      S. P. Cain, for plaintiff in error.

      Roscoe Luke, M. L. Ledford, Claude Christopher, contra.
   Beoyles, P. J.

1. The provisions of section 2270 of the Civil Code of 1910, in reference to the individual liability of stockholders of an incorporated bank to depositors thereof, are in derogation of the common law and must be strictly construed. This liability not arising under the common law, the statute is to be strictly construed against its imposition, unless it is clearly included by the words therein. When the section is thus construed, it is clear that the word “stockholder,” as used therein, means a stockholder who became such by subscribing to the stock of the corporation, and that it does not include a stockholder who became such by purchasing, or otherwise acquiring, stock from other stockholders. If this construction is correct, it follows that only those stockholders who acquired their stock from the bank itself are individually liable to depositors of the bank. See, as to the principle involved, Reid v. DeJarnette, 123 Ga. 787, 793 (51 S. E. 770, 3 Ann. Cas. 1117); Reid v. Jones, 127 Ga. 114, 116 (56 S. E. 128) ; Brunswick Terminal Co. v. National Bank of Baltimore, 192 U. S. 386 (24 Sup. Ct. 314, 48 L. ed. 491).

(a) Sections 2247 and 2248 of the Civil Code of 1910 have no material bearing on this question. Wheatley v. Glover, 125 Ga. 710 (54 S. E. 626) ; Brunswick Terminal Co. v. National Bank, supra.

2. This was a suit by the receivers of an insolvent bank against a stockholder on his statutory liability to depositors, and the petition, not alleging that the defendant belonged to that class of stockholders who acquired their stock from the bank itself, should have been dismissed on general demurrer. Reid v. Jones, supra.

3. The error in the judgment upon the demurrer rendered the further proceedings nugatory, and the other assignments of error will not be considered.

Judgment reversed.

Jenkins and Bloodworth, JJ., concur.


author: Bloodworth, J.

text:
    7812.
    Park, receiver, v. Cordray et al.

   Bloodworth, J.

1. The president of a bank is its chief executive officer, and, in the absence of any showing to the contrary, will be presumed to be the agent in charge of its affairs. In the absence of any evidence to the contrary it may very properly be assumed as a matter of law that it is the duty of the president of a chartered bank to take charge of and manage its business. He is in legal contemplation its alter ego. Third National Bank v. McCullough, 108 Ga. 249, 250 (33 S. E. 848).

Decided May 3, 1917.

Complaint; from city court of Blakely—Judge Sheffield. August 35, 1916.

Glessner & Collins, for plaintiff. L. M. Bambo, for defendants.

2. Where one who was sued on a note signed by him as “security” filed a plea in which he admitted a prima facie case, assumed the burden of proof, and further pleaded that he was relieved from liability on the note by reason of the fact that the time of payment was extended, for a definite and named period and for a valuable consideration paid by the maker of the note to the payee and holder thereof, and that this was done without his knowledge or consent, and supported the plea by evidence, and the plaintiff introduced no evidence, the judge did not err in directing a verdict for the defendant. Bethune v. Dozier, 10 Ga. 235; Stewart v. Parker, 55 Ga. 656, 659; Randolph v. Fleming, 59 Ga. 777 (2); Tanner v. Gude, 100 Ga. 157, 159 (27 S. E. 938); McIntyre v. Massey, 11 Ga. App. 458 (2), 461 (75 S. E. 814).

Judgment affirmed.

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


author: Bboyles, P. J.

text:
    7813.
    Park, receiver, v. Carmichael.
   Bboyles, P. J.

1. Recoupment may be pleaded in all actions ex contractu, where for any reason the plaintiff under the same contract is in good conscience liable to the defendant. Civil Code of 1910, § 4353. (a) A city court has jurisdiction to entertain a plea of recoupment and to give judgment for the excess. Norton v. Graham, 130 Ga. 391 (60 S. E. 1049).

2. Where an action is brought to enforce the payment of a debt for which collateral security has been given, it is incumbent upon the plaintiff to ■produce and restore the collateral security, or to account satisfactorily for its non-production. Turner v. Commercial Savings Bank, 17 Ga. App. 631 (87 S. E. 918).

3. In a suit brought by the receiver of a bank tlie defendant may avail himself of any defense which he might have urged had the action been brought by the bank itself. The receiver takes the assets and choses in action of the bank subject to any equitable set-off which the defendant might have urged against the corporation itself. The appointment of a receiver “does not at all affect the right.” High on Receivers (4th ed.), §§ 245, 247, 364 (a); Moise v. Chapman, 24 Ga. 249; Scott v. Armstrong, 146 U. S. 499 (13 Sup. Ct. 148, 36 L. ed. 1059). See also, to the same effect, Ray v. Dennis, 5 Ga. 357; State v. Brobston, 94 Ga. 95 (1), 97 (21 S. E. 146, 47 Am. St. R. 138). In the instant case the defendant’s debt to the bank passed to the receiver subject to any set-off that might have been pleaded by her in defense to an action brought by the bank itself.

4. The defendant’s answer shows that her claim against the bank, which she pleaded as a set-off against the claim upon which she was being sued by the receiver of the bank, arose out of an express contract with the bank and in regard to the very claim upon which she was being sued; and therefore the city court of Blakely had jurisdiction to entertain the plea and to render judgment for the defendant. Moreover, even if the plea could be construed as showing that the defendant’s counterclaim arose ex delicto, the tort could be waived and the claim set up as a defense, as upon an implied contract. Sanderlin v. Willis, 94 Ga. 171 (21 S. E. 291); McAllister v. Millhiser, 96 Ga. 474 (23 S. E. 502) ; 34 Cyc. 711. In such a case the defendant would not be pleading a cause of action arising ex delicto as a defense to an action arising ex contractu, but would be pleading a claim arising ex contractu as a defense to a claim arising in the same manner.

Decided May 3, 1917.

Complaint; from city court of Blakely—Judge Sheffield. August 1, 1916.

(Jlessner & Collins, for plaintiff. L. M. Ramio, for defendant.

5. “While a city court has no jurisdiction to grant affirmative equitable relief, it may entertain jurisdiction of an equitable plea purely defensive in its nature, which upon being sustained would result simply in a general verdict in favor of the defendant.” House v. Oliver, 123 Ga. 784 (51 S. E. 722). Under this ruling, even if the defendant’s answer in the case at bar could be construed as an equitable plea, there having been merely a general verdict in favor of the defendant, the final judgment entered up in favor of the defendant will not be reversed, although there was a prayer in the plea that the defendant be permitted to recover from the receiver the difference between the amount of the claim sued upon and that of. the counter-claim set up. This prayer, under the facts of the case, will be treated as surplusage; and although it would have been better practice to strike it, yet as the jury found only generally for the defendant, the plaintiff was not injured by the failure to strike it.

6. Under the facts as disclosed by the pleadings, the court did not err in refusing to strike either paragraph 4 of the defendant’s original answer, or the amendment to the answer, or in entering up final judgment in favor of the defendant.

7. A most painful impression has been made upon this court by the very irrelevant and intemperate criticism of the lower court contained in the brief of counsel for the plaintiff in error. In law as well as in “baseball” it may be natural for the losing side to “cuss” the “umpire.” However, any such “cussing” in the former profession must be done elsewhere than before this court. Hereafter briefs of counsel which contain irrelevant, intemperate, and illegitimate animadversion on the lower court will not be considered, but, by order of the court, will be returned to counsel, and will not again be received until the objectionable matter has been stricken.

Judgment affirmed.

Jenkins and Bloodworth, JJ., concur.


author: Broyles, P. J.

text:
    7814.
    Park, receiver, v. Jones.
    Decided May 3, 1917.
    Complaint; from city court of Blakely—Judge Sheffield. August 35, 1916.

      Glessner & Collins, for plaintiff. L. M. Bambo, for defendant.
   Broyles, P. J.

1. The court, upon motion of the plaintiff, struck that paragraph of the original answer which contained all of the defenses to the plaintiff’s action. Ten days later, and during the same term of court, the defendant offered an amendment to his answer, and the amendment was allowed over the objection of the plaintiff that there was nothing to amend by. Upon such a question the trial court has a wide discretion, which will not be controlled unless manifestly abused. Although the court struck all the defenses set forth in the answer, and although this judgment was unexcepted to, and therefore can not be reviewed by this court, nevertheless the trial court itself, during the same term of court, could have reversed itself, if it had seen proper to do so, and have vacated its judgment. And without directly reversing or vacating its judgment, when the amendment to the answer was offered, it could, for the purpose of determining whether there was enough in the answer to amend by, consider the original answer before any portion of it had been stricken. In the judgment of this court the original answer, before any part of it had been stricken, was sufficient to support the amendment offered. This ruling is not in conflict with the decisions in Smith v. First National Bank, 115 Ga. 608 (41 S. E. 983), and Moss v. Anderson, 10 Ga. App. 784 (74 S. E. 299) ; for in neither of those cases was any part of the original answer stricken, and it was held that there was nothing in the original answer to amend by. Furthermore, in both of those eases the judgment of the lower court was affirmed, and, as has been stated above, the trial judge has a broad discretion in allowing or refusing an amendment to an answer.

2. The court did not err in overruling all the grounds, except the 4th ground, of the demurrer to the amendment to the answer.

3. Under the foregoing rulings there is no merit in the exception to the final judgment.

Judgment affirmed.

Jenkins and Bloodworth, J.J., concur.


text:
    7899.
    Park, receiver, v. Chipstead.
   Bloodworth, J.

There being no evidence in this case that the defendant ever delivered to the Bank of Blakely, or to D. W. James, president of the said bank or acting therefor, any cotton “under a sale to cover the overdrafts,” and no evidence to show that “the title to the cotton had passed to-the bank,” it was error, warranting a new trial, for the court to charge the jury as follows: “If you believe that the defendant did deliver to the Bank of Blakely, or to D. W. James, president of the Bank of Blakely and acting for the bank, that cotton under a sale to cover the overdrafts, and that the bank held this cotton, and these overdrafts were made against it, and that the title to the cotton had passed into the bank, that it was the bank’s cotton at the time the overdrafts were made, or at any time prior to the time it went in the hands of the State bank examiner, and that that cotton at that time was of a sufficient value to cover, all told, the overdrafts, then you would find in favor of the defendant.”

Decided May 3, 1917.

Complaint; from city court of Blakely—Judge Sheffield. October 20, 1916.

Glessner & Collins, for plaintiff.

Pottle & Hofmayer, for defendant.

Judgment reversed.

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


text:
    7916.
    Park, receiver, v. Swann.
   Broyles, P. J.

1. Under the rulings in Park v. Carmichael, ante, 36 (92 S. E. 397), the court did not err in overruling the 5th, 6th, 7th, and 8th grounds of the demurrer to the amended answer of the defendant.

2. The admission of the documentary evidence excepted to was not error for any reason assigned.

3. Ordinarily the measure of damages where property has been converted is its market value at the time of the conversion. Waring v. Gaskill, 95 Ga. 731 (2), 732 ( 22 S. E. 659); Alexander v. Peebles, 144 Ga. 78 (86 S. E. 231) ; Preston v. Prather, 137 U. S. 604 (5) (11 Sup. Ct. 162, 34 L. ed. 788). In this ease, however, the defendant did not plead that the cotton turned over by him to the bank as collateral security for his notes was actually converted; and his evidence showed that the cotton was delivered to the bank with the agreement that it was to be sold before October 1, 1915, unless the defendant directed otherwise. It was undisputed that the cotton was shipped away by the president of the bank, before the date mentioned, and before the appointment' of the receiver, without the knowledge or consent of the defendant. It was also undisputed that the other officers and directors of the bank knew that its president was, without authority, shipping away cotton, the assets of the bank, from the warehouse-in which the defendant’s cotton, was stored. And the evidence authorized a finding that these officers and directors of the bank knew, or by ordinary diligence could have discovered, that the defendant’s cotton was in danger of being thus unlawfully disposed of; and the undisputed evidence showed that they s took no steps whatever to preserve this collateral security, so that it would be present to answer the purpose of the bailment. Under such circumstances the bank was liable to the defendant for its breach of contract in failing to preserve the cotton, as it had impliedly agreed to do; and, as between the bank and the defendant, the bank was liable for the cotton, or for its value at any time up to October 1, 1915, as the defendant might elect to sell. The defendant elected on September 20, 1915, that the bank settle with him for the cotton at its market value on that date, and at the same time so notified the receiver of the bank. The fact that the defendant did not exercise his right of election under the contract until after the appointment of a receiver for the bank is immaterial. Under these facts the charge of the court that the defendant would be entitled to the value of the cotton at the time to which the bank agreed to carry it, and, when he made demand that the cotton be sold and credited on the note, that he would be entitled to a credit of the amount which the cotton would bring, not when actually sold but when it was contracted and agreed that it should be sold, was not erroneous. Considering this charge with its context, the jury must have understood that the court meant that the defendant would be entitled to be credited with the market value of the property as of September 20, 1915.

Decided May 3, 1917.

Complaint; from city court of Blakely—Judge Sheffield. October 30, 1916.

Glessner & Collins, for plaintiff. L. M. Ramio, for defendant.

. 4. The facts which the defendant relied on to show negligence on the part of the bank and its ofiieers and directors were undisputed, and showed affirmatively that they failed to exercise any degree of care whatever •for the preservation of the property bailed. Section 3470 of the Civil Code of 1910 provides that all bailees are required to exercise care and diligence in protecting and safely keeping the thing bailed; and by section 3469 the burden of showing proper diligence is placed upon the bailee, upon proof of the loss of the property. It therefore affirmatively appears in this case that, if the evidence, for the defendant was true, the officers and directors of the bank were, as a matter of law, negligent in the premises, and the charge of the court to this effect was not erroneous. The court properly left it to the jury to determine whether the evidence relied on by the defendant to show such negligence was true. See, in this connection, Morel v. Roe, R. M. Charl. 19. The ruling in the instant case is not in conflict with those numerous decisions of the Supreme Court and of this court which hold that it is erroneous for the judge in his charge to assume or to instruct the jury that certain things, not directly made so by law, are or are not negligence.

5. The charges of the court excepted to are not erroneous for any other reason assigned.

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

Judgment affirmed.

JenJdns and Bloodmorth, JJ., concur.


text:
      7903.

    Park, receiver, v. Hall.
    Decided May 3, 1917.
    Complaint; from city court of Blakely—Judge Sheffield. October 20, 1916.

      Glessner & Collins, for plaintiff.

      L. M. Bambo, Pottle & Hofmayer, for defendant.
   Broyles, P. J.

1. Under the ruling in Park v. Carmichael, ante, 36 (92 S. E. 397), the court did not err in overruling the 5th, 6th, 7th, and 8th grounds of the demurrer- to the amended answer of the defendant.

2. Under the facts of the case and the ruling in Park v. Swann, ante, 39 (92 S. E. 398), the charge of the court, that if the jury found certain facts to exist, stating them, then the bank and its officers and directors “would be chargeable with negligence,” was not erroneous.

3. The several excerpts from the charge of the court, complained of, contain no material error, when considered with their context and the facts of the case.

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

Judgment affirmed.

Jenkins and Bloodworth, JJ., concur.


text:
    7917.
    Park, receiver, v. Swann.
    Decided May 3, 1917.
    Complaint-; from city court of Blakely—Judge Sheffield. October 20, 1916.

      Glessner & Collins, for plaintiff. L. M. Bambo, for defendant.
   Bloodworth, J.

This case is controlled by the decision in the case of Park v. Swann, ante, 39.

Judgment affirmed.

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


text:
    7917.
    Park, receiver, v. Hall.
    Decided May 3, 1917.
    Complaint; from city court of Blakely—Judge Sheffield. October 20, 1916.

      Glessner & Collins, for plaintiff.

      L. M. Bambo, Pottle & Hofmayer, for defendant.
   Bloodworth, J.

This case is controlled by the decision of this court in the ease of Park v. Hall, ante, 41 (92 S. E. 399).

Judgment affirmed.

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


text:
    7939.
    First National Bank of Blakely et al. v. Park, receiver.
    Decided May 3, 1917.
    Trover; from city court of Blakely—Judge Sheffield. October 20, 1916.

      Yeomans & Wilkinson, L. M. Rambo, for plaintiffs in error.

      Glessner & Collins, contra.
   Broyles, P. J.

This was a suit in trover, brought by the receiver of the Bank of Blakely to recover certain notes transferred by the Bank of Blakely as collateral security for its cashier’s check for $1,989, previously given to the Birmingham Fertilizer Company, which was made a eodefendant in the suit. Under the facts of the case, before the plaintiff was entitled to reeovei-, it was incumbent upon him to show, among other" things: (1) that the bank made the transfer of the notes after its insolvency, or in contemplation of such insolvency; (2) that the transfer was made with the intent to create a preference, and (3) that the Birmingham Fertilizer Company was not an innocent pui-chaser for value without notice or knowledge of the condition of the bank. Civil Code (1910), § 2360. As to these issues the evidence did not demand a finding for the plaintiff, and the court, therefore, erred in • directing a verdict in his favor.

Judgment reversed.

Jenkins and Bloodioorth, JJ., concur.


text:
    7985.
    BARFIELD MUSIC HOUSE v. HARRIS.
    1. The brief for the plaintiff in error was filed within the time limited by 'the order under which the case was heard, and failure to serve the brief as required by the rule of court is not ground for dismissal. Civil Code of 1910, § 6182; Roberts v. Roberts, 115 Ga. 259 (2), 266 (41 S. E. 616, 90 Am. St. R. 108) ; Seaboard Air-Line Ry. v. Peeples, 9 Ga. App. 477 (71 S. E. 758).
    2. The fourth ground of the motion for a new trial, wherein it is complained that the defendant was allowed to prove, over the objection of the plaintiff, that the musical instrument sued for was to be used in the operation of a dance hall in connection with a lewd house, although there was nothing in the plea and answer to authorize such testimony, will not be considered by this court, for the reason that this ground of the motion is in no wise urged in the brief of counsel for the plaintiff, and it must therefore be treated as abandoned. The mere statement in the brief that the plaintiff in error insists that a new trial should be granted for each and every one of the reasons assigned in his original and amended motion for a new trial is not sufficient to change the rule. James v. Boyett, 19 Ga. App. 157 (91 S. E. 219) ; Youmans v. Moore, 11 Ga. App. 66 (74 S. E. 710) ; Muse v. Hall, 18 Ga. App. 651 (90 S. E. 222).

      3. Under the special facts in this case, it was error, after awarding a non-suit, to permit the defendant to adduce evidence as to the value of the property sued for, and to enter judgment in the amount so found against the plaintiff and his sureties on the bail-trover bond executed by them. Under the facts and circumstances involved, the court should have restored to the defendant the possession of the property held by the plaintiff' under the bond, of which tender was made, in order that it might, as near as possible, leave the parties where it found them.
    Decided May 3, 1917.
    Trover; from city court of Yaldosta—Judge Cranford. November 10, 1916.

      James M. Johnson, for plaintiff.

      J. P. Knight, Dan B. Bruce, for defendant.
   Jenkins, J.

The rulings stated in the first and second head-notes do not require elaboration.

This is an action in bail-trover, for the recovery of an electrical musical instrument, sold by the plaintiff to the defendant under a contract in which title to the instrument was retained in the vendor until payment of the purchase price. It was shown that the plaintiff knew, at the time the instrument was sold, that it was intended to be used by thé defendant in a lewd house for the purpose of attracting men thereto; and when the case was formerly before this court (Harris v. Barfield Music House, 18 Ga. App. 444, 89 S. E. 592), it was held that as the contract was founded upon an immoral and illegal consideration, neither party could enforce it, and that the judgment obtained by the plaintiff should be set aside. It now appears that the defendant had failed to give bond and security as provided for by the Civil Code (1910), § 5151, and that the plaintiff had thereupon proceeded under § 5152, to enter into such recognizance, and had thus received back from the levying officer the property sued for. The second trial of the case resulted in a nonsuit, whereupon the defendant was allowed, over objection of the plaintiff, to adduce evidence before the jury solely for the purpose of determining the value of the property at the time the plaintiff’s bond was given; and, after a verdict finding such value to be $500, the .court entered up judgment in that amount in favor of the defendant, on the bond given by plaintiff and his sureties. The plaintiff now excepts to this procedure, and contends that since the original contract has been determined to be void and non-enforceable on the ground that the consideration of the contract was contra bonos mores, it is not possible to support the verdict rendered, which it is contended was based thereon; that the only possible direction to the case, permitted to the court below, was to dismiss whatever proceedings were pending and to leave the parties where it found them. It is further shown that at the trial the property was tendered back to the plaintiff in order that this might be done.

There is no question that, as a general proposition, the trial judge followed, in his procedure, the correct rules of law laid down by the decisions; and counsel for the defendant has given us in his brief a clear statement of these rules. In Marshall v. Livingston, 77 Ga. 21, the court said: “Where an action of trover was brought and bail process was sued out, and upon the failure of the' defendant to give the bond required, the plaintiff gave bond and security, and the property was delivered to him, if he voluntarily dismissed his action of trover, this amounted in law to a judgment of restitution, and ipso facto, upon such dismissal, entitled the defendant to a writ of restitution, or, where it was impossible to restore the subject of the action in kind, to a writ of fieri facias for the value thereof. Where the plaintiff gives bond and takes the property, this carries with it all the liabilities and remedies to which the defendant would have been subjected in case he was cast in the suit, or set up no defense or abandoned it when made.”. See also: Lauchheimer v. Jacobs, 126 Ga. 261 (5), 268 (55 S. E. 55); Smith v. Adams, 79 Ga. 802 (5 S. E. 242); Trammell v. Georgia Engineering &c. Co., 8 Ga. App. 501 (69 S. E. 921). “After a plaintiff in bail-trover is nonsuited, the defendant is entitled to judgment on the bond given by the plaintiff to acquire possession of the property under the bail process according to” sections 5151 et seq. of the Civil Code (1910). Thomas v. Price, 88 Ga. 533 (15 S. E. 11). See also Block v. Tinsley, 95 Ga. 436 (22 S. E. 672); Petty v. Piedmont Fertilizer Co., 146 Ga. 149 (90 S. E. 966). In some of the earlier cases, including Marshall v. Livingston, supra, it was suggested that the sworn value placed upon the property in the plaintiff’s affidavit appeared to afford the correct measure of damages; but in the later decisions we find that it is distinctly ruled that in such eases the defendant is not limited to the valuation so stated. In Kaufman v. Seaboard Air-Line Ry., 10 Ga. App. 248, 250 (73 S. E. 592), the court said: “In bail-trover where the defendant fails or refuses to replevy and keep the possession of the goods, the plaintiff has the option of doing so. Civil Code (1910), § 5152. However, if the plaintiff thus causes the possession of the property to be transferred from the defendant to him, he stands chargeable as for a conversion of it, unless he recovers in the suit. If the case proceeds to verdict and the defendant prevails, he is entitled to take his choice of one of three forms of verdict, namely: (1) for the specific property, or (2) for the market value of the property at the date of the conversion, with the addition of hire or interest, or (3) for the highest proved value of the property between the date of the conversion and the date of the trial, without hire or interest; and if he chooses a money verdict, he may take judgment against the plaintiff and the sureties on the replvy bond for the amount assessed by the jury in his favor. Bank of Blakely v. Cobb, 5 Ga. App. 289 [63 S. E. 24], The defendant has a similar option if the plaintiff’s action is dismissed (Marshall y.. Livingston [supra]), or if it terminates in nonsuit.. Lauchheimer v. Jacobs [supra]. The defendant in any of these events may ask for the question of value to be submitted 'to the jury for assessment; but, if he is content with the value sworn to by the plaintiff in his affidavit for bail, verdict is unnecessary, and he may, upon the sworn admission of the plaintiff as contained in this affidavit, take judgment against the plaintiff and his sureties for the sum stated in the affidavit, with interest thereon. See Block v. Tinsley [supra]; Thomas v. Price [supra]; Hays v. J or Jan, 85 Ga. 741 [11 S. E. 833, 9 L. R. A. 373]; Jaques v. Stewart, 81 Ga. 82 [6 S. E. 815].”

Thus, the only proposition of law which remains for our determination is whether or not the general rules of procedure, which were accurately applied by the trial -judge, were applicable under the peculiar circumstances of the present case. The original contract having been shown to be unenforceable by reason of its immoral consideration, can it be properly said that the bond, authorized by law and given by the plaintiff in a legal proceeding, though based on a void contract, must likewise become so tainted as to render it also invalid, simply because the plaintiff, for good reason, failed in his suit? No matter if the suit did fail, the court had jurisdiction of the case and the suit itself was a legal one; and thus, since the proceedings taken thereunder were in accordance with law, should it be said that they too must lose their validity simply because of the failure of the suit ? But, on the other hand, to express the question in another way, can the defendant, who stands in pari delicto as to the original contract, not only defeat the plaintiff’s attempt to enforce it on the ground that the law will have nothing to do with it, but actually proceed to invoke the law in her own behalf by proceeding to claim the benefit of the plaintiff’s attempt, so as to recover under the plaintiff’s bond a judgment for an amount exceeding all sums paid by her on the purchase of the article sued for ? Counsel have not furnished us with any authority bearing upon the question thus before us. We ourselves have been unable to find any direct ruling upon the proposition involved. In 6 R. C. L. 821, we find the statement of the enforceability of independent causes of action, where related to illegal contracts, to be as follows: “Even though the parties to an action have been engaged in a transaction either malum in se or prohibited by law, yet if the cause of action between them is disconnected from the illegal act and is founded upon á distinct and collateral consideration, and the plaintiff is not obliged to resort to the illegal contract or transaction in order to maintain the suit, the illegality of the former transaction will not impair or bar the right to maintain the suit. If the contract or obligation does not depend upon or require the enforcement of the unexecuted provisions of the illegal- contract, it will be carried out. Therefore, the test is, whether the contract sought to be enforced can be separated from the illegal acts or contracts relied upon as avoiding it, and whether the plaintiff requires any aid from or must in any way rely upon the illegal transaction in order to establish his case. As to the ability of the plaintiff to make out his cause of action without referring to the illegal contract, it may be stated that the plaintiff for such purpose can not refer to one portion only of the contract upon which he proposes to found his right of action, but that the whole of the contract must come in, although the portion upon which he founds his cause of action may be legal. But an illegal agreement made by a plaintiff will not defeat him unless his cause of action is founded upon, or arises out of, such agreement. His right to recover upon a ground of action that exists independently of the contract is not affected thereby.” In the case of Sewell v. Norris, 128 Ga. 824 (58 S. E. 637, 13 L. R. A. (N. S.) 1118), the late Justice Lumpkin used language somewhat similar, and quoted approvingly from Simpson v. Bloss, 7 Taunt. 246 (17 Rev. Rep. 509),’as follows: “The test whether a demand connected with an illegal transaction is capable of being enforced at law is whether the plaintiff requires any aid from the illegal transaction to establish his case.” Justice Lumpkin further cited the ease of Ingram v. Mitchell, 30 Ga. 547, in which it was said that whenever the plaintiff can make out his case without invoking the illegal contract to his aid, he is entitled to recover. See also Mechanics Realty &c. Co. v. Leva, 16 Ga. App. 7 (84 S. E. 222). In 6 R. C. L. 825, it is said: “Where the parties are in pari delicto, no affirmative relief of any kind will be given to one against the other. The only equitable remedies which they can obtain are such as are purely defensive.” See also McClintock v. Loisseau, 31 W. Va. 865 (8 S. E. 612), and note to that case in 2 L. R. A. 816, in which many eases are cited showing that where parties are in pari delicto, no affirmative relief of any kind will be given to one against the other.

But we have reached the conclusion announced in the third headnote, mainly upon the theory that the purpose of the bond given by the plaintiff was intended to protect the defendant in the event that the title to the property sued for should be adjudged to be in the latter, and that when no such adjudication is made, the remedies under the bond are not applicable. The object sought by a suit in trover is to ascertain title. The issue involved is that of title. Campbell v. Trunnell, 67 Ga. 518 (4); Berry v. Jackson, 115 Ga. 196 (41 S. E. 698, 90 Am. St. R. 102). Accordingly, the adjudication of such a suit determines that question; and thus it is that the bond prescribed by the code for the forthcoming of the property and to answer such judgment as may be rendered, including the final condemnation money, is intended to protect the party in whom title may be adjudged against the party who may then be in possession of the property. Generally, even when the judgment in such a suit is a dismissal or nonsuit, there is still in contemplation of law, a full adjudication of the title; and for that reason the plaintiff is then liable on his bond, under the form of procedure already indicated. But we do not think that in the present case there has been any adjudication whatever as to title. The court has simply refused to allow itself to become the instrument of enforcing an obligation arising out of a contract based ■upon an immoral consideration. A nonsuit was granted in this case not because the court had in any wise, even by legal consequence or implication, found contrary to the title claimed by the plaintiff, but the 'action taken means—and it has no other import —that the court simply would not allow itself to be used by the plaintiff, when in so doing its judgment would consummate a contract made in furtherance of an act forbidden by law. It is public policy that lies at the root of the rule which prohibits the enforcement of an illegal contract and leaves the parties where it finds them; and the rule adopted is intended for the benefit of the public and not litigants, with whose rights, under such a contract, the law does not concern itself. We do not think that because the court has washed its hands of a subject-matter in which both parties are at fault, the defendant should be permitted to recover against the plaintiff and his sureties on the bond given for the defendant’s protection in the event the title should be adjudicated in her favor. And while the plaintiff’s tender of the property can not be considered as being in conformity with section 4494 of the Civil Code, still we think that, in its endeavor to leave the parties where it found them, the court should have restored possession of the property to the party who had it when the suit was instituted, and should have left them thus, without attempting to administer further relief to either party. The maxim that “for every wrong there is a remedy” can, in the nature of things, have no application where courts refuse to lend themselves to the enforcement of illegal contracts; and therefore the test can not be whether exact justice would in all cases be met by the procedure herein indicated. That the court should prevent, so far as possible, injustice to parties growing out of proceedings taken within itself seems entirely reasonable; and it is upon this principle that the status obtaining before the litigation should, as near as possible, be restored. We do not think .that in so doing it would transcend the powers of a court of law; as the effect of such an order would be merely to undo that which under its own procedure had been done. In a case where the property could not be restored there are other questions which might arise; but these, under the status of the case as it exists, we do not think it necessary to raise and decide.

The judgment of the court below, entering up judgment against the principal and the surety on the bond, is reversed, on condition that the property be restored to the defendant, as tendered by the plaintiff. If this be not done within thirty days after the entry of the remittitur upon the minutes of the trial court, the judgment will stand affirmed.

Judgment reversed, on condition.

Broyles, P. J., and Blood-worth, J., concur.


text:
    7994.
    REYNOLDS v. TIFTON GUANO COMPANY et al.

    1. A writing which purports to create a mortgage lien upon property described as “seven head of mules and horses” is void as against one claiming the proceeds of a sale thereof under a subsequently acquired lien by attachment.
    2. In such a case the sufficiency of the mortgage description is not governed by the rule which would obtain between the parties to the writing, but such a degree of definiteness is required as would be sufficient to impart record notice to third parties.
    Decided May 3, 1917.
    Money rule'; from city court of Tifton—Judge Eve. November 21, 1916.

      G. W. Fulwood, James II. Price, for plaintiff. ‘

      B. D. Smith, contra.
   Jenkins, J.

On January 4, 1915, Weatherington executed a note to Eeynolds for $2,000, payable November 1 after date, and, to secure its payment, executed a mortgage on certain live stock described therein as “seven head of mules and horses.” On May 17 of the same year he executed and delivered to the Tifton Guano Company two promissory notes, one for $162.94, due September 1 after date, and one for $718.15, due October 1 after date. On November 9,1915, the Tifton Guano Company sued out an attachment against Weatherington, alleging that he was indebted to it in the sum of $836.09, and the attachment was pursued to final judgment. It was levied in part on certain live stock alleged by Eeynolds to have been included in the mortgage; and it is only about the money arising from a sale of the stock under the attachment levy that the litigation arose, upon a money rule.

On the trial the mortgage, tendered by Eeynolds, was excluded from evidence, upon the ground that its description of the live stock was too vague and uncertain to constitute a valid mortgage, although the movant offered to prove that the mules and horses described therein as “seven head of mules and horses” were the identical mules and horses sold by the sheriff under the attachment, and from the sale of which the fund then in his hands arose, and were the property of the movant at the time the mortgage was executed and at the time they were seized by the sheriff under the attachment. On motion of counsel for the Tifton Guano Company the court directed a verdict awarding the fund to that company. Error is assigned upon the exclusion of the mortgage from evidence, upon the direction of the verdict, and upopi the final judgment.

The Civil Code of 1910, § 3257, provides: “No particular form is necessary to constitute a mortgage. It must clearly indicate the creation of a lien, specify the debt to secure which it is given, and the property upon which it is to take effect.” The law, while recognizing, as between the parties, a reservation of title where a sale is made in parol (Penland v. Cathey, 110 Ga. 431, 35 S. E. 659), requires that in all cases mortgages shall be in writing. Duke v. Culpepper, 72 Ga. 842, 845; Pierce v. Parrish, 111 Ga. 725, 730 (37 S. E. 79). But in construing the provisions of section 3257, supra, our courts have often stated that the doctrine which holds that to be certain which can be made certain is applicable. In the case of Thomas Furniture Co. v. T. & C. Furniture Co., 120 Ga. 879 (48 S. E. 333), in which the decision was written by'Justice Lamar, it was said that “In providing that a mortgage . . shall specify the property on which it is to take effect, the law does not require such a description as will serve to identify the property without the aid of parol evidence.” See also: Stewart v. Jaques, 77 Ga. 365 (3 S. E. 283, 4 Am. St. R. 86); Duke v. Neisler, 134 Ga. 594 (68 S. E. 327, 137 Am. St. R. 250); Reynolds v. Jones, 7 Ga. App. 123 (66 S. E. 395); Nussbaum v. Waterman, 9 Ga. App. 56 (70 S. E. 259); First National Bank of Fitzgerald v. Spicer, 10 Ga. App. 503, 504 (73 S. E. 753); International Harvester Co. v. Davis, 13 Ga. App. 1 (78 S. E. 770); Hillis v. Comer, 14 Ga. App. 30 (79 S. E. 930); Jones & Damren Auto Co. v. Lott, 17 Ga. App. 834 (88 S. E. 719); Milner Banking Co. v. Adair & McCarty Bros., 18 Ga. App. 575 (90 S. E. 170). But in the Thomas Furniture Co. case, supra, the court goes on to say: “Of course, if the description is altogether general, and there is nothing in the. writing by which the thing mortgaged can be separated from the general mass of similar articles, the requirement'of the law is not met. To mortgage ‘one horse’ is absolutely indefinite.” See also Ferguson v. McCowan, 124 Ga. 669 (52 S. E. 886). Thus, while it is clear that where the- necessary writing indicates within itself some method by which the range of extrinsic evidence in its aid can be limited, such otherwise general description can be particularized and made certain by parol, yet' where the written description is altogether general, and there appears “no hinge or hook” to hang the aid to, the instrument can not claim the support of parol -testimony offered in its aid. In our opinion, the description before us is altogether too general to claim the aid of the extrinsic parol evidence offered in its aid. The language “seven head of mules and horses” is in fact much more general in terms than the expression “one horse,” referred to by Justice Lamar in the Thomas Furniture Co. case, supra, where he said that to allow parol evidence to show what was intended by “one horse” would be to leave the entire description a matter for extrinsic evidence. Considering the language of the writing in the present case, it is even impossible to determine therefrom how many mules and how many horses were intended to be included. It might have been that six mules and one horse were in the minds of the parties; or, just as well, we could suppose that one mule and ■ six horses were intended to be mortgaged. So far as the words of this description go, they merely purport to mortgage not exceeding six mules and not exceeding six horses.

Counsel for the plaintiff in-error, however, invoke the distinction recognized by our courts, that while the words of description in a mortgage may not be sufficiently exact to impart notice to third persons through its record, yet, as between the parties, such description may be sufficient to create a lien; or, to quote the language used by Judge Powell: “The words of description in a mortgage may be sufficient to create a lien, and yet be insufficient of themselves to impart notice of the lien which they create.” Nussbaum v. Waterman, supra. Counsel contend that the defendant in error in this case does not stand in the position of a bona fide purchaser, that it is not here shown that its interests have been in any way prejudiced by lack of notice of the existence of the mortgage, and that its only interest in, or lien upon, the property arises by reason of the levy in attachment. In reply to this contention it is argued by counsel for defendant in error that the inadequacy of description renders the mortgage altogether and absolutely void.

We do not deem it necessary, however, to .pass upon the question whether the mortgage in this ease is absolutely void, and would be so even as between the parties, although we do not intimate that such is not the ease. We take this view for the reason that in our opinion a judgment creditor or a lien-holder under attachment stands in the same position as a bona fide purchaser. In Nussbaum v. Waterman, supra, it was simply held that the claimant in that ease, who had submitted no evidence whatever of any right, title, or interest on his part in the property, was a mere interloper and could not be heard to raise the question that the description contained in the mortgage was insufficient. It was held in that case that the claimant must show some right about to be affected, before he could be heard to complain. It would seem that a right arising out of a valid lien, acquired by a judgment, or under a levy under attachment pursued to judgment, would be sufficient to give legal status to one raising such question. That a judgment lien is superior to that of an unrecorded mortgage is of course true. Barkley v. May, 3 Ga. App. 101 (59 S. E. 440); Booze v. Neal, 6 Ga. App. 279 (64 S. E. 1104). And furthermore, it is the law ’that even actual notice of an unrecorded prior mortgage at the time a judgment is rendered is immaterial as to the priority of the judgment lien. Cambridge Tile Co. v. Scaife & Sons Co., 137 Ga. 281 (73 S. E. 492). If, then, the record of the mortgage be a necessary prerequisite in order .to retain its priority over a subsequently rendered judgment, it would seem that in order for the record of a mortgage to subserve such purpose, the mortgage itself must conform to the requirements of record notice. Under this view, we have no hesitancy in saying that the description of the stock as given by the mortgage was entirely inadequate to constitute record notice as against a third party in interest.

Judgment affirmed.

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


text:
    8011.
    Rehberg, sheriff, v. Peacock.
    Decided May 3, 1917.
    Action on bond; from city court of Thomasville—Judge W. H. Hammond. September 30, 1916.

      Titus, DeTcle & Hoplcins, for plaintiff.

      O. E. Hay, for defendant.
   Bloodworth, J.

. Where a sheriff, for the use of a plaintiff in fi. fa., brought suit on a forthcoming bond, and it appeared from the petition that he levied on certain property to which a claim was filed and for which a forthcoming bond was given, and that the claim was withdrawn, $lie property advertised, and another party-filed a claim under the same levy and executed a bond for the forthcoming of the property, and that, while this second claim was still pending in the courts, suit was brought on the forthcoming bond given under the first claim and recovery had thereon for the value of the property, and the money thus raised was applied to the execution originally levied, and the property was again advertised and not produced by the second claimant, and suit was thereafter brought against the claimant and his surety on the forthcoming bond executed in the second claim, and it was not made to appear in the petition that the bond in the second case was ever accepted by the sheriff, but it did appear that the property levied on was never delivered to the claimant in the second case, and the petition was demurred to generally, and on the special ground that it showed that the plaintiff in execution had received the proceeds of the suit on the forthcoming bond given in the first claim, the court properly sustained the .demurrer and dismissed the petition.

Judgment affirmed.

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