text:
    8081.
    ATLANTA TERMINAL COMPANY v. GRESHAM & SON et al.

    Where a contract for the lease of a restaurant with table linen and other articles contains a provision requiring the return of the property at the termination of the lease, “in as good a condition as it is when received under this lease, except natural wear and tear incident to its constant use, and the replacing of all articles which may be broken or lost, or the payment therefor at the invoice value less a yearly depreciation of 5 per cent, per annum,” the contract will not be construed as requiring the lessee to replace or pay for linen completely worn out by natural wear and tear incident to its constant use in the restaurant, or linen stolen from the lessee which must have been destroyed by such wear before the termination of the lease if it had been so used.
    Decided June 7, 1917.
    Exceptions to auditor’s report; from Habersham superior court— Judge J. B. Jones. August 15, 1916.

      Dorsey, Brewster, Howell & Heyman, for plaintiff, cited:
    Webster’s Dict., Standard Dict., Century Dict., definition of “lost;” Turner v. Woodward, 123. Ga. 866; Hawkins v. Haynes, 71 Ga. 40, 43; R. & D. R. Co. v. White, 88 Ga. 811, 813; Southern Cotton Oil Co. v. L. & N. R. Co., 15 Ga. App. 754-5-6-7.

      J. J. Kimsey, Ernest J. Kimsey, Claude Bond, for defendant. •
   Broyles, P. J.

This was a suit of the Atlanta Terminal Company against C. Gresham & Son and others, based upon a contract for the lease of a restaurant and lunch rooms in the Atlanta Terminal Station. The original lessee under the contract was C. L. Smith, who subleased to Gresham & Son. The date of this contract was October 1, 1905, and the lease was surrendered October 1, 1911. A part of the property invoiced and turned over by the terminal company to the lessees at the beginning of the lease was a large quantity of linens of fine quality. Paragraph 3 of the contract was as follows: “That a reasonable fair price shall be fixed upon said property so invoiced, and said Smith shall give to said terminal company a bond equal to one and one-quarter times said value, conditioned to pay said rent and at the termination of this lease to return said property in as good a condition as it is when received under this lease, except natural wear and tear incident to its constant use, and the replacing of all articles which may be broken or lost, or the payment therefor at the invoice value less a yearly depreciation of five per cent, per annum.” When the lessees gave up the lease they returned only a small portion of the original linens which they had received, claiming that the remainder had been entirely worn out by natural wear and tear, and it is contended by the learned counsel for the plaintiff that under the above stipulation in the contract it was incumbent upon the defendants'to replace the missing linen, or to pay for it at the invoice valúe, less a yearly depreciation of five per cent. Counsel argue that even if the linen was destroyed by the natural wear and tear incident to its constant use, nevertheless it was “lost” within the meaning of the contract stipulation. While we recognize that .ordinarily, in cases of bailment, property which is destroyed by any means is “lost,” yet, under a reasonable construction of the'provision of the contract in the instant case, we do not think it means that linen which has been completely worn out by the natural wear and tear incident to its constant use in a restaurant is “lost” within tlie meaning of the clause, to wit, “and the replacing of all articles which may be broken or lost." In our judgment the word “lost,” as here used, does not include the destruction of property by natural wear and tear only. If the terminal company intended that the lessee should replace the linens which were worn out by ordinary wear and tear, so that at the expiration of the lease it would receive back the same quantity of linens, and of the same quality, as had been turned over to the lessee, and that the latter, failing to return such linens, should pay for them the invoice price, less the five per cent, yearly depreciation, such intent was not expressed in the lease contract, and can not be reasonably .inferred therefrom.

The undisputed evidence upon the trial was that most of the linen had been completely worn out by the ordinary wear and tear incident to its constant use in the restaurant. It was admitted, however, by the defendants that some of the linen had been lost or stolen before it had been worn out, and counsel for the plaintiff contend that at all events the defendants were bound to replace or to pay .for so much of the linen as was lost or stolen, and that the burden of proof was upon them to show what amount of the linens had been worn out by natural wear and tear, and what amount had been lost or stolen, and that unless they carried this burden they should be compelled to pay for the entire amount. At first blush this argument seems sound, but, while the defendants admitted upon the trial that they did not know what amount of the linens was worn out by the ordinary wear and tear, or what amount was lost or stolen, their undisputed testimony was that if none of the linen had been lost or stolen, all of it would nevertheless have been completely worn out by the wear and tear incident to its constant use long before the end of the six-years lease. The fact that the lessees, at the expiration of the lease, did return to the lessor some of the original linens, which were not worn out, is not in conflict with this evidence, for the uncontradicted evidence further showed that these particular linens which were returned were packed away.hy the lessees, and had not been used constantly, if. . at all. The uncontroverted testimony was that the ordinary life of linen in a restaurant is from three to six months only. And the lease in question continued for six years. Under the terms of the lease contract the defendants were privileged to use constantly all the linen; and, under the undisputed testimony, if they had done so, all of it (including the linen returned, stolen, and lost) would have been worn out by the natural 'wear and tear incident thereto long before the six years had expired. In view of this testimony we do not see how, in common fairness and justice, the defendants should be compelled to pay for that portion of the linen which was lost or stolen.

In our opinion, under a reasonable construction of the lease contract, it was not the intent of the parties thereto that any of the original linen should be accounted for, provided that the lease continued beyond the period of time when such linen must necessarily have been completely worn out and destroyed by the natural wear and tear incident to its constant use.

What we have held above is controlling in the case, and it would be profitless to discuss in detail the various assignments of error. In our judgment substantial justice has been administered, and no error appears which necessitates a reversal of the judgment below.

Judgment affirmed.

Jenkins and Bloodworth, JJ., concur.


source: Caselaw Access Project

author: Jenkins, J.

license: Public Domain

text:
    8111.
    ACREE v. BANDY, administrator.
    No estoppel to recover compensation for services or for articles furnished resulted from a judgment rendered in a former suit of the same plaintiff, brought for the purpose of obtaining an injunction against interference with land conveyed to the plaintiff in consideration of the same services and articles, where the defense to the suit was an answer and cross-petition attacking the deed as void and praying that it be set aside, on the ground that the grantor was mentally incompetent to make it, and where the judgment set aside the' deed on that ground; no question as to the plaintiff’s ■ right to compensation for the services or for the articles mentioned being adjudicated or being within the scope of the pleadings in that suit.
    Decided June 7, 1917.
    Complaint; from Gordon superior court—Judge Eite. August 30, 1916. '

      J. G. B. Erwin Jr., Neel & Neel, for plaintiff.

      Maddox, McOamy & Shumate, for defendant.
   Jenkins, J.

This case comes to this court on an assignment of error to a judgment sustaining certain grounds of demurrer and dismissing the plaintiff’s petition. The suit is an action against an administrator on an account for alleged services rendered and articles of necessity furnished by the plaintiff to the defendant’s intestate, Eeuben Elrod. The petition alleges, that the plaintiff rendered such services and furnished such articles to the said Elrod upon his promise to deed to her certain land, and that in accordance with such agreement the deed was actually executed; that some time after the making of the deed he sought to repudiate it and sold the timber thereon to a sawmill man; that the plaintiff thereupon filed her suit for injunction against Elrod and the purchaser of the timber, to prevent them from interfering with the land, and that Elrod filed an answer in that proceeding in the nature of a cross-bill against the plaintiff, alleging that the deed made by him to her was void, because “he was mentally incompetent to make said deed.” The petition in the present suit further shows, that before the trial of the former case the said Elrod died, and Bandy, the present defendant, was appointed administrator of his estate, and, as such, was made a party in the former proceeding, and that the former suit “resulted in a verdict and judgment in favor of the said administrator and the setting aside of petitioner’s deed, on the ground of mental incapacity of the said Eeuben Elrod to make the same.” The petitioner now alleges that by reason of her loss of the title to the land, she has been deprived of compensation for the services rendered and the articles furnished by her to the said Elrod, and brings this suit to recover compensation therefor.

The defendant demurred to the petition, insisting: (1) that the account now sued upon was adjudicated in the former suit; and “the deed which plaintiff sought to have declared to be legal has been adjudicated and adjudged to have been fraudulently procured, and to have been void because of the want of consideration;” and (3) that the plaintiff could have set up, by proper amendment to the former suit, the account now sued upon, and could have prayed, if the deed was set aside for any cause, that she have judgment against Bandy, the administrator of Elrod, for the services rendered and the supplies furnished. The demurrer was sustained, with special reference to the ground last set forth.

1. If the petition in this ease can be taken to show that in the former suit between the same parties it was adjudicated, or under the scope of the pleadings might have been adjudicated, that the defendant’s intestate had not incurred the indebtedness now alleged, or that such liability had been settled, advantage could properly be taken of such former adjudication, by means of demurrer. Such method of raising this defense, however, must be strictly based upon the facts appearing from the petition. Reid v. Caldwell, 120 Ga. 718 (48 S. E. 191). It will be noted that the petition in the present case does not allege that any issue was made in the former case as to the consideration of the deed, but, on the contrary, states that the defendant’s intestate contested its validity upon the ground that the maker was mentally incompetent to execute it; and the petition avers that for this reason it was set aside and declared void. It follows, therefore, that the first portion of the demurrer, so far as it may undertake to make recitals not shown in the petition, is without merit and could not properly have been considered-by the court. It can not be said that in the former case it was necessary to determine that the plaintiff had no valid claim for services, in order to arrive at the judgment then rendered, declaring the deed void because of Elrod’s mental incapacity to make it. In order that the former judgment may be pleaded in estoppel to this suit, the issue now raised must be one which must of necessity have been determined by the former adjudication, or which might have been there determined, as being within the scope of the pleadings. Halliday v. Bank of Stewart County, 128 Ga. 639, 648, 649 (68 S. E. 169); Callaway v. Irvin, 123 Ga. 344, 351 (51 S. E. 477); Worth v. Carmichael, 114 Ga. 699 (40 S. E. 797); Bradley v. Briggs, 55 Ga. 355; Hunter v. Davis, 19 Ga. 413.

Section 4335 of the Civil Code of 1910 is as follows: “An adjudication of the same subject-matter in issue in a former suit between the same parties, by a court of competent jurisdiction, should be an end of litigation.” Section 4336, which appears to be a codification from a headnote in the case of Watkins v. Lawton, 69 Ga. 671, is as follows: “A judgment of a court of competent jurisdiction is conclusive between the same parties and their privies as to all matters put in issue, or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered.” It is on this latter provision of the code that the defendant bases his main contention, and in his demurrer asserts that when in the former suit Elrod filed the cross-bill attacking the deed, the plaintiff, by proper amendment, could have prayed for an alternative money judgment for the services rendered and-supplies furnished, to be awarded her in the event that the deed should be set aside; and he contends that because this issue might have been thus made, but was not raised, the former judgment must be conclusive upon the plaintiff in her present suit. Numerous occasions are cited by counsel as supporting the contention that the issue now involved could have been raised by amendment to the former suit; all of these decisions holding in effect, since “equity seeks always to do complete justice,” that whenever it has the parties rightfully “before the court, it will proceed to give full relief to all parties in reference to the subject-matter of the suit, provided the court has jurisdiction for that purpose.” Civil Code (1910), § 4533. See especially, along this line: Latimer v. IrishAmerican Bank, 119 Ga. 887 (47 S. E. 322); Sanford v. Tanner, 114 Ga. 1005, 1013 (41 S. E. 668); Ray v. Home Investment Co., 106 Ga. 493 (32 S. E. 603).

It may well be that upon the filing by Elrod of his cross-bill for cancellation of the deed, the plaintiff could have abandoned her claim of title thereunder, and have sought by amendment to recover compensation for the services and articles now contended for. Sanford v. Tanner, supra. But even if it were possible to hold that the plaintiff in that suit could have sought to maintain the joint and inconsistent claims now indicated by the defendant, malting proof as to each in that proceeding, still we do not think that even then the provisions of section 4336, supra, could be held to require such a procedure. It is our opinion that the provisions of this section, making a former'judgment conclusive upon the plaintiff as to all matters put in issue, “or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered,” relate to matters which were within the scope and intention of the plaintiff’s pleadings in the former suit. Halliday v. Bank of Stewart County, supra. In the case just cited, as well as in the case of Draper v. Medlock, 133 Ga. 334, 339 (50 S. E. 113, 69 S. E. 483, 3 Ann Cas. 650), the rule announced in Hunter v. Davis, supra, and Bradley v. Briggs, supra, to the effect that “a judgment is not a technical estoppel as to any matter, if the matter is not such that it had, of necessity, to be determined by the court or jury, before the court could give judgment,” is quoted approvingly. But in the Halliclay case it is further recognized that if the subject-matter might have been passed upon in the former litigation, under the pleadings shown by the record therein, the doctrine of estoppel by judgment should apply. In the case of McCall v. Fry, 120 Ga. 661 (48 S. E. 200), cited by the defendant, it was held that “When a plaintiff sues a defendant in the superior court, the policy of the law, as indicated by the acts of 1884 and 1887 and kindred legislation, requires the controversy growing out of the cause of action alleged by the plaintiff to be settled in that suit, and that the plaintiff shall not be harassed by other suits groAving out of the same controversy, although they are based upon independent claims, legal or equitable, Avhich the defendant might have against the plaintiff in reference to the cause of the controversy. A defendant in a suit in the superior court is bound to set up all defenses that he has to the suit, either legal or equitable, and to pray for all the relief needed in aid thereof, ordinary or extraordinary, and he can not at will decline to litigate as a defendant over these matters and bring an indepéndent suit against his adversary, avIio has already brought him into court.” See Civil Code of 1910, § 5410. But while it is thus certainly true that a defendant is bound, on pain of future estoppel, to set up as a matter of defense every right held by him in reference to the cause of controversy which would operate to defeat the suit as laid, this rule appears to us to be far different from the proposition insisted on in this case. Here, since the gist of the former suit lay in the assertion of title to land under a deed from the defendant,- and the defense pleaded was lack of title in the plaintiff because of lack of mental capacity by the maker of the deed, it would not seem that the plaintiff shoiild, on pain of future estoppel, have been required to render her assertion of title equivocal, by being forced to assert an entirely different and totally inconsistent claim. She was entitled to have the issue of title fairly and squarely determined. Had the consideration of the deed been attacked, and had the deed been declared void on that ground, then, of course, the judgment would have been a bar to a proceeding of the present sort. The provisions of our law making a former judgment final, and conclusive upon all matters which might have been put in issue in the cause wherein judgment was rendered can only have proper application to those matters belonging to that cause and relating to the subject of the controversy and within the scope of the issues then made as shown by the pleadings; and this interpretation is not in conflict with the doctrine which holds that, where the court has proper jurisdiction, the defendant must set up any sort of defense relating to the controversy had hy him which would defeat the claim made by the suit.

In our opinion it was error to dismiss the petition on the demurrer.

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


text:
    8116.
    Mullins v. Dowling.
    Decided June 7, 1917.
    Foreclosure of lien; from Catoosa superior court—Judge Fite. August- 8, 1916.

      M. L. Harris, for plaintiff in efror.
   Jenkins, J.

1. Upon the foreclosure of a landlord’s special lien for supplies, although, the affidavit made to secure the issuance of the execution therein may be made by the agent of the landlord (Civil Code (1910), §§ 3348, 3366 (3) ), yet when it appears that such affidavit is made by such an agent, the execution thereunder should issue in favor of the principal. Where such an execution issued in favor of “Dowling, agent for McClain,” it was in favor of Dowling individually, and the words “agent for McClain” were merely descriptio persoiise. The motion of the defendant to dismiss the proceeding against him on this ground should have been granted. Maxwell v. Collier, 115 Ga. 304. (41 S. E. 620).

2. The special lien given to landlords upon the crops of their tenants for money and articles furnished to make the crops embrace only the crops of the year in which such advances are made for such purpose; and where the exhibit attached to the affidavit of foreclosure and the evidence submitted for the plaintiff showed that all the advances upon which the proceeding was based were made not later than the year 1914, and that the lien claimed was upon the crops of the year 1915, the proceeding was not maintainable.

Judgment reversed.

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


author: Bloodworth, J.

text:
    8118.
    FARRAR LUMBER CO. v. CITY OF DALTON.
    1. Grounds of a motion for a new trial which complain of the refusal of the court to allow a witness to answer a certain question must of themselves disclose the expected answer, and that the judge was informed ' of it.

      2. The court did not err in directing a verdict in favor of the defendant, as the evidence, with all reasonable inferences and deductions therefrom, demanded such a finding.
    Decided June 7, 1917.
    Rehearing denied June 27, 1917.
    Complaint; from Whitfield superior court—Judge Fite. April 8, 1916.
    Farrar Lumber Company, a partnership, brought suit agáinst the City of Dalton, alleging: that “defendant is a municipal corporation situated in Whitfield county, Georgia; . . that defendant negotiated and purchased from the plaintiffs various and sundry building material, the various items of which are set out by a bill of particulars hereto attached, to the value of $151.57, balance due, . . . that said material was purchased by the City of Dalton for the purpose of, and was actually used in, the construction of a house on real estate belonging to said city in North Dalton, for the purpose of housing the equipment of the fire department of the city, and particularly the North Dalton Eeel Company, said build•ing being known as the North Dalton Eeel Company Hall; . . . that said City of Dalton, the said defendant, accepted said material used in said building, and have since enjoyed the benefit and use of same, and have refused petitioner’s demand for payment.” Defendant filed a plea denying the indebtedness, and further pleaded as follows: “Answering further, this defendant says: that on
    February 27th, 1912, the board of education of the City of Dalton granted to the North Dalton Fire Company, a volunteer fireman’s association, the privilege of erecting a building by private subscription upon some real estate in North Dalton in charge of said board of education and being used for school purposes. Floyd F. Farrar, a member of the partnership plaintiff, was a member of the board of education and secretary thereof, and was present at the meeting when this was done. The North Dalton Fire Company then proceeded, under said permission, to purchase the material needed for the building which it proposed to erect, from the Farrar Lumber Company. The City of Dalton had nothing to do with the purchase, and no bill was ever presented to it until after said plaintiffs failed to get their money from the fire company, to whom they originally charged the account. . . The effort to get this money from the City of Dalton was an effort to get the mayor and council thereof to misappropriate the people’s money, the said plaintiffs well knowing, and having been advised by counsel, that they had no cause of action against the city.” The court directed a verdict for the defendant, and the plaintiff, excepts.

      C. D. & F. K. McCutchen, for plaintiff.

      M. C. Tarver, G. G. Glenn, J. J. Copeland, for defendant.
   Bloodworth, J.

(After stating the foregoing facts.) The fourth ground of the motion for a.new trial is as follows: “Because the court erred in making the following ruling upon testimony: 'Mr. Farrar, just go ahead and tell what occurred at the time you appeared there before the council?’ 'I appeared before the council—a committee was appointed—rather before the chairman of the fire department committee, to have our bill audited.’ Mr. Tarver: ' The action of the council is shown by the minutes, and we object.’ Mr. McCutchen: 'We want him to tell what the various members said at the meeting.’ Court: ' Suppose they had a discussion and finally acted, wouldn’t the minutes control? I will rule that out. You are bound by the action of the corporation as shown by-the minutes, as I understand it.’” This ground is incomplete. Grounds of a motion for new trial which complain of the refusal of the court to allow a witness to answer a certain question must be complete, and must of themselves disclose the expected answer, and that the judge was informed of it. Western & Atlantic R. Co. v. Waldrip, 18 Ga. App. 264 (3) (89 S. E. 346). There is nothing in this ground to indicate what the witness would have sworn as to what the various members of the city council said at the meeting. Even if it had been specifically stated what the witness would have sworn, the separate statements of the individuals composing the council would not legally have bound the city. It is only when the minds of a sufficient number of the council unite upon a proposition, and this is voted upon and receives the number of votes required by the charter, that it becomes the action of the city council and hinds the city. Until the contrary appears, the action of a city council is supposed to be in writing; and its book of minutes, properly proved as such, or an exemplification of the record, certified by the clerk or keeper of such records, under seal, is the proper mode of placing the evidence before the court. Civil Code, § 5803; Metropolitan Street R. Co. v. Johnson, 90 Ga. 500 (3) (16 S. E. 49); Western & Atlantia R. Co. v. Hicks, 104 Ga. 12 (30 S. E. 424) ; Town of Jackson v. Ellis, 116 Ga. 719 (43 S. E. 53); In re Lester, 77 Ga. 143.

Did the court err in directing a verdict?

(a) There is absolutely no evidence to show that the city council itself, through a committee, or by an authorized agent, or in any other way, ever ordered the material sued for in this case. Therefore the plaintiff could not recover on the idea that the defendant purchased the goods.

(Z>) Plaintiff in error insists that the city council expressly ratified the purchase by a resolution passed on May 5, 1913, authorizing the clerk to draw' a voucher for the bill, and that the voucher was actually issued, and therefore the city should pay the bill. The signature of the mayor was necessary to make good the voucher, and he refused to sign it. Then, on June 16, the former action of the city council was rescinded by a resolution, as follows: “On motion of Alderman Hamilton, that the city council rescind the action of the city council on May 5, in regard to paying the 'Farrar Lumber Company account against the North Dalton Fire Department.” Therefore, as far as these resolutions are concerned, the matter stands as though it had never been acted upon by the city council.

(c) Finally, plaintiff in error contends that the city, by its acts, and especially by the use of the building, ratified by implication the purchase, and is bound for the bill. Counsel for plaintiff in error insist that the case of City of Conyers v. Kirk, 78 Ga. 480 (3 S. E. 442), covers the present case “all fours,” and is con-, trolling. That ease is easily distinguishable from this case. There, as shown by the original record, H. Y. McCord, a member of the council and chairman of the street committee, swore: “I saw every member of the council before I made the purchase, and they told me to go ahead. They were to be paid for cash, but Mr. Jones, the treasurer, was out of town. I and Mr. Knight, as the street committee, made the trade. It was as fair a trade as was ever made, and it [ought] to be paid.” The purchase of the lamps and oil by the City of Conyers, for which suit was brought, was not only a cash transaction made through an appropriate committee, but the lamps were used for a month, and the gasoline consumed in lighting the streets of the city. The city authorities themselves accepted the articles purchased, and used them, and the Supreme Court held that the city impliedly ratified the purchase by “taking the fruits of the contract and enjoying them for a considerable time without notice of objection.” Mr. McCord, the chairman of the committee, making the purchase of the lamps and oil, was so indignant at the action of the city council in refusing to pay for the articles purchased that he resigned as a member of the city council. In the instant case the material for which suit was brought was not purchased by the city council, nor by .any committee or authorized agent thereof, but by a representative of a volunteer fire company. It was not a cash sale, and no notice was given to the city council, for a number of months after the transaction, that they were expected to pay the bill. In the decision in the case of City of Conyers v. Kirk, supra, it was said: “It was contemplated that payment should be made as soon as-the articles were delivered; and the reason indicated in the record why payment was not then in fact made was the accidental absence of the city treasurer from his office. So that this debt (and it is a debt now) became such, not by virtue of making the contract, but by virtue of breaking the contract; and surely there never can be and never will be any law against paying a debt which arises from default in making a cash payment at the time the debtor ought to have made it, the cash sufficient for the purpose being then in the debtor’s treasury.”

There is no sufficient evidence to show that the City of Dalton ever in any way directly used the house erected out of the material for which suit was brought. The material was purchased and used by a volunteer fire company to which the city made certain contributions, but this would not bind it for the bill, nor would the city be bound simply because it may have indirectly received benefits from the building. In addition to the above, the following contract was in evidence, and to its terms and parties attention is specially directed: “It being the desire of North Dalton citizens to erect by private subscription a fire hall on the southwest corner of the North Dalton school lot, permission is hereby given the North Dalton Fire Company to put up a fire hall on site to be pointed out by the board of education, it being distinctly understood and agreed that the said fire company is to acquire no title, rights or equities to said premises, and is to remove any building that may be erected on said lot at any time when instructed to do so by the board of education. The North Dalton Fire Company agrees to keep the premises neat, clean, and in good order, and not to in any way interfere with the school playgrounds, trees, or walls, and to allow no loitering or drinking about the fire hall. [Signed] Dalton Board of Education, Frank Manly, Chairman, North Dalton Fire Company, S. A. Finley, Captain.”

After carefully considering all the evidence in the ease, we conclude that the court did not err in directing a verdict in favor of the defendant, as the evidence,-with all reasonable inferences and deductions therefrom, demanded such a finding.

Judgment affirmed.

Broyles, P. J., and Jenlcins, /., concur.


author: Broyles, P. J.

text:
    8142.
    Bigham v. Napier.
    Decided June 7, 1917.
    Trover; from Monroe superior court—Judge Searcy. February 8,. 1916.

      Willingham & Willingham, for plaintiff.

      Robert L. Berner, Persons & Persons, for defendant.
   Broyles, P. J.

This was a suit in trover for the recovery of certain bales of cotton and $39 in money, or its value. Under the facts of the ease, and the rulings in McEllumnon v. Farmers Alliance Co., 95 Ga. 670 (22 S. E. 686), McLennan v. Livingston, 108 Ca. 342 (33 S. E. 974), Brooke v. Lowe, 122 Ca. 358 (50 S. E. 146), Collins v. West, 5 Ga. App. 429 (63 S. E. 540), and Peeples v. Felton, 14 Ga. App. 5 (80 S. E.21), the court did not err in awarding a nonsuit.

Judgment affirmed.

Jenkins and Bloodworth, JJ., concur.


text:
    8167.
    PITTS & SON COMPANY v. BANK OF SHILOH.
    1. The general rule that a plaintiff can not recover an amount larger than he is suing for, as shown by his pleadings, is applicable in trover proceedings.
    2. In a trover suit, where there is no specific “ad damnum clause in the' conclusion of the declaration,” and the prayer is that process issue, requiring the defendant “to be and appear at the next term of said court to answer this complaint,” the amount of damages asked for will be construed to be the alleged value of the property sued for.
    Decided June 7, 1917.
    Trover; from Harris superior court—Judge Munro. December 18, 1916.

      A. L. Hardy, for plaintiff in error.

      B. B. Trammell, H. C. Cameron, contra.
   Bloodworth, J.

The Bank of Shiloh brought suit against I. H. Pitts & Son Company, alleging that said firm was in possession of three bales of cotton, good' middling, weighing in the aggregate 1,625 pounds, which belonged to the'plaintiff and was worth $195; ■ that demand had been made on the defendant for the possession of .the said property, and that the plaintiff had tendered to the defendant all warehouse charges and insurance due for the storage and insurance of the said cotton, and that the defendant refused to deliver the property. The prayer of the petition was that “process may issue, requiring the said I. H. Pitts & Son Co. to be and appear at the next term of said court to answer this complaint.” The defendant in its plea admitted that demand had been made as alleged, and that it refused to deliver, the property to the plaintiff; and denied that title to the property was in the plaintiff; denied that it was in possession of said property, and denied that the cotton was worth $195. The evidence showed that G. M. Allen had delivered to I. H. Pitts & Son Company, warehousemen, three bales of'cotton, for which ho received “tickets,” one for a bale weighing 550 pounds, and one for a bale weighing 525 pounds, each dated October 15, 1914, and the third ticket, dated 19/21/14 (evidently intended for 10/21/14), for a bale weighing 550 pounds, and that these tickets were deposited as collateral with the Bank of Shiloh. One of the witnesses swore: “Two of the cotton samples Mr. Allen brought to the Bank of Shiloh, the receipt for which being dated 10/15/1914, were good middling 4’s, the other bale was a 5.” The only evidence as to the value of the cotton was that of a witness who swore that “good middling cotton, or 4’s, is worth to day 17 3/8, and 5’s is 1/4 less,—17 1/8.” There was no amendment to the petition. The trial resulted in a verdict for $280.97. Defendant moved for a new trial.

It is contended that the verdict is contrary to law, because the only allegation in the petition in reference to value was that the property was worth $195, and the plaintiff elected to take a money verdict, and recovered $280.97. In actions for the recovery of property unlawfully detained the rule is: “When the plaintiff is content to recover the value of the property sued for at the time of the conversion thereof, and proves its value at that time only, he will be entitled to recover a verdict for its proven value at the time of the conversion, and interest thereon from that time up to the time of trial. But if the plaintiff is not content to recover the value of the property sued- for at the time of the conversion thereof by the defendant, and introduces evidence to prove the highest value of the property sued for between the time of the conversion and the time of trial, as he may do, then the measure of damages will be such proven value of the property sued for, without interest thereon.” Tuller v. Carter, 59 Ga. 397; Holmes v. Langston, 110 Ga. 867 (36 S. E. 251); Mashburn v. Dannenberg Co., 117 Ga. 568 (15) (44 S. E. 97); O’Neill Mfg. Co. v. Woodley, 118 Ga. 116 (44 S. E. 980); Kaufman v. Seaboard Air-Line Ry., 10 Ga. App. 250 (73 S. E. 592). In the present case the highest proved value of the property between the date of the conversion and the date of the trial is far in excess of the value alleged in the petition. In Terrell v. McKinny, 26 Ga. 450, Judge McDonald said: “The verdict of the jury is for a sum larger than the aggregate of the specific values of the negroes, as alleged in the declaration; but the damages found are not so large as are alleged in the ad damnum clause in the conclusion of the declaration. The jury can not find exceeding that amount, but they may find a sum equal to or less than that sum.” In the present case, as there is no specific “ad damnum clause in the conclusion of the declaration,” and the prayer is that the. defendant “be and appear at the .next term of said court to answer this complaint,” the amount of damages asked for will be construed to be the alleged value of the property, $195; and thus construing the petition, the recovery could not lawfully exceed this amount, as the only proof was as to the highest proved value, and to this no interest could be added. > Gatlin v. Matthews, 16 Ga. App. 645 (2) (85 S. E. 953); Tuller v. Carter, supra.

■ In this ruling there is no conflict with those decisions which hold generally that a recovery can be .had for the highest proved value between the date of the conversion and the date of the trial. As an abstract principle this is true, but it must be applied within the limitations of the pleadings. “A plaintiff can not recover an amount larger than is claimed in his declaration, although the evidence shows that a larger amount is due.” Hunnicutt v. Perot, 100 Ga. 312 (27 S. E. 787); S. A. L. Ry. v. Christian, 115 Ga. 742-3 (42 S. E. 66). As illustrative of the above principle see Bank of Blakely v. Cobb, 5 Ga. App. 289 (63 S. E. 24); Bradley v. Burkett, 82 Ga. 255 (11 S. E. 492); Georgia Railroad &c. Co. v. Crawley, 87 Ga. 191-3 (13 S. E. 508); Thomason v. Moore, 139 Ga. 341-3 (77 S. E. 155).

As "the other grounds of the amended motion refer to conduct of the jurors, it is not necessary to consider them, owing to the direction given the case.

If within thirty days following the date of the filing of the remittitur in'the trial court the plaintiff will write off the excess of the judgment above $195 principal, the judgment is affirmed; otherwise a new trial is ordered.

Judgment affirmed with direction.

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


author: Bloodwokih, J.

text:
    8171.
    Henley v. Toole.
    Decided June 7, 1917.
    Complaint; from Miller superior court—Judge Worrill. June 17, 1916.
    W. I. Geer, for plaintiff in error. N. L. Stapleton, contra.
   Bloodwokih, J.

1. This was a suit on an open account. The demurrer alleging that certain portions of the bill of particulars were “indefinite and uncertain” was met by the amendment attaching to the petition itemized statements of the portions of the account to which objections were made, thus curing the defect complained of.

2. The defendant’s objection that the plaintiff’s weights and measures had not been tested was met by a prompt segregation, on the part of the plaintiff, of such items of the account as were sold by weight and measure; and the verdict rendered discloses that the jury deducted 25% from the total value of the items of account so segregated. The correctness of the amount of this segregation was not questioned upon the trial, and therefore can not be considered by this court. .

3. In the absence of any plea to authorize it, or of a timely written request therefor, the court did not err in omitting to charge upon the theory of defense set out in the second ground of the amendment to the motion for a new trial.

4. Under the facts of the case the excerpts from the charge of the court, complained of in the amendment to the motion for a new trial, could not have been harmful to the defendant.

5. No reversible error appears; the evidence authorized the verdict, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

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


text:
    8239.
    LANKFORD v. PETERSON, executrix.
    Where a rule nisi on a petition to foreclose a mortgage on realty in the superior court directed that the money due on the mortgage be paid into court on or before the first day of the term next immediately succeeding the term at which it was granted, and the rule was served on the defendant at least three months before the term designated for the payment, the issue made by a defense filed at that term was triable at that term.
    Decided June 7, 1917.
    Foreclosure of mortgage; from Coffee superior court—Judge Summerall. February 18, 1916.

      Lankford & Moore, Little, Powell, Smith & Goldstein, for plaintiff in error. Dickerson, Kelley <& Roberts, F. W. Dart, contra.
   Bloodworth, J.

On September 16, 1915, during the September term of the court, a rule nisi to foreclose a mortgage on realty Was issued and duly served upon the mortgagor. At the February term, 1916, a plea was filed. Subsequently during the same term the case was called for trial, and the defendant objected to the case being tried at that term, and urged that it be continued, on the grounds, that the February term, 1916, was the appearance term of the case, and it could not be tried at that term, a plea having, been filed in the case; and that no proper verdict could be rendered at that term and the case should not be tried before a subsequent term. The court overruled the objection and ordered that the trial proceed; and this ruling is assigned as error.

The court properly ruled the case to trial. Section 3276 of the Civil Code of 1910 provides that mortgages on real estate may be foreclosed as follows: “Any person applying and'entitled to foreclose such mortgage shall, by himself or his attorney, petition to the superior court of-the county wherein the mortgaged property may be, which petition shall contain a’statement of the case, the amount of the petitioner’s demand, and a description of the property mortgaged; whereupon the court shall grant a rule directing the principal, interest, and costs to be paid into court on or before the first day of the next term immediately succeeding the one at which such rule is granted; which rule shall be published once a month for four months, or served on the mortgagor, or his special agent or attorney, at least three months previous to the time at which the money is directed to be paid into court, as aforesaid.” The rule nisi served upon the mortgagor in this case followed’ the provisions of this section and was served as therein provided. It will be noticed that this section requires that the principal, interest, and costs shall be paid into court “on or before the first day of the next term immediately succeeding the one at which such rule is granted.” Section 3279 of the code provides that when the mortgagor has been served as above required, he “may appear at the term of the court at which the money is directed to be paid and file his objection to the foreclosure of such mortgage.” Section 3282 says: “When procéedings to foreclose a mortgage are instituted, and a defense is set up thereto, as hereinbefore provided, the issue shall be submitted to and tried by a special jury.” When shall this issue be tried? At the first term after the mortgagor has been served three months. Vaughn v. Farmers & Merchants Bank, 145 Ga. 338 (89 S. E. 195); Southern States Phosphate &c. Co. v. Clark, 19 Ga. App. 376 (91 S. E. 573). As related to the foreclosure of mortgages on realty, the term at which the rule nisi is granted is the first term, and when there are but two terms of the court a year and service is promptly perfected, as in the instant case, the next term is the trial term. The case of Michelson v. Cunningham, 96 Ga. 601 (24 S. E. 144), was one in which the rule nisi to foreclose a mortgage on realty was issued at the December term, 1913, and a rule absolute entered at the May term, 1914. The May term is referred to in both the second headnote and the body of the decision as “the trial term.”

It will thus be seen that where a mortgage on realty is foreclosed, the defendant has three months’ notice of the plaintiff’s demand, and should ordinarily be ready for trial on the call of the case after such notice. If the plaintiff is ready, there is no need for further delay. Of course, on a proper showing made, by either party, for a continuance, it should be granted; but the defendant has not, as a matter of law, the right to another term.

Judgment affirmed.

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


text:
    8254.
    FERRIS, trustee, v. COLLIER ESTATE.
    On the trial of an action to recover money deposited by a lessee with a lessor in lieu of a bond for the faithful' performance of the lessee’s obligation to pay rent monthly in advance during the term of the contract, a nonsuit was properly awarded, where the evidence failed to sustain the allegation of the plaintiff’s petition as to compliance with this part of the contract.
    Decided June 7, 1917.
    Action for money had and received; from Fulton superior court —Judge Ellis. March 15, 1916.

      Moore & Pomeroy, W. D. Pilis Jr., for plaintiff.

      G. T. & L. G. Hopkins, for defendant.
   Broyles, P. J.

This was a suit by a trustee in bankruptcy against the Collier Estate (a corporation), to recover money which his bankrupt had deposited with the defendant in' lieu of a bond for the faithful performance of a contract for a five-year lease of the Aragon Hotel of Atlanta, Georgia, beginning September 1, 1910, in which it was provided, among other things, that, in addition to the cash deposit, the rent was to be paid in advance, in monthly installments, on the first day of each month during the term-of the contract, and that the lease should be ipso facto terminated if proceedings in bankruptcy were instituted against the lessees. The undisputed evidence showed that such proceedings were instituted against the lessees on May 27, 1914, by outside parties. The petition alleged that the lessees, in addition to the sum deposited in lieu of a bond, had paid “all of the rentals for said premises until and including the month of May, 1914.” There was no oral testimony, and the documentary evidence introduced b.y the plaintiff failed to sustain the above material allegation in his petition, which was denied in the answer. Accordingly the ease was not proved as. laid, and the court did not err in awarding a nonsuit, on motion of the defendant.

Judgment affirmed.

Jenkins and Bloodivorth, JJ., concur.


text:
    8261.
    MORROW TRANSFER & STORAGE CO. v. WHITSON.
    A warehouseman’s lien for storage charges on property deposited with him is not superior to the exemption rights established by setting it apart as homestead property under the provisions of the Civil Code (1910), § 3416 et seq., although it be set apart after the accrual of the storage charges. In such a case the warehouseman has only a lien, and not such a property right as will defeat the exemption.
    Decided June 7, 1917.

      Trover; from Fulton superior court—Judge Ellis. May 8, 1916.

      King & Spalding, for plaintiff in error.

      James & Bedgood, contra.
   Broyles, P. J.

This case was submitted to the court without the intervention of a jury, upon the following agreed statement of facts: “That the Morrow Transfer & Storage Company is a corporation operating -a storage warehouse; that as such warehouseman it received the property described in the petition, for storage at an agreed rate; that the property remained in storage a long time; that $60 storage charges accrued, which was unpaid at the time of suit; that plaintiff had the goods set apart to her as a homestead under the ‘short’ or ‘pony’ homestead, as provided in sections 3416 et seq. of the Code of .Georgia of 1910, after the storage charges had accrued; that plaintiff then tendered the exemplification (which is attached to the petition) to the defendant and demanded the goods from the defendant; that plaintiff did not pay or offer to pay the accrued storage charges; that the defendant refused to deliver the goods to the plaintiff, solely upon the ground that its storage charges for preserving and storing property had not been paid. Thereupon the plaintiff instituted its action in trover. The property was delivered to the sheriff, and, upon the bond being given by the plaintiff, was turned over to her by the sheriff. The defendant contends that its property right as a warehouseman and bailee, in the property bailed, was exempt from the homestead of the plaintiff; that the defendant was a bona fide purchaser for value, to the extent of its storage charges, and that its claim for storage charges was superior to the plaintiff’s claim for homestead.” The court rendered judgment for the plaintiff, holding that she was entitled to the property involved, free from the claim of the defendant for storage charges, and that the homestead exemption was superior to the claim of the defendant for its charges for storing the property.

In our judgment the decision of the lower court was correct. Section 3416 of the Civil Code of 1910 provides that property set apart under that section, commonly known as the “short” or “pony” homestead, “shall be exempt from levy and sale by virtue of any process whatever, under the laws of this State, nor shall any valid lien be created thereon, except in the manner hereinafter pointed out, but it shall remain for the use and benefit of the family of the debtor.” The exceptions are embraced in code-section 3423, and are “for the purchase-money, or State and county or municipal taxes.” The statute thus explicitly names the only two liens to which the short homestead is subject, to wit, taxes and the purchase-money. It is true that in several cases (Davis v. Meyers, 41 Ga. 95; Taliaferro v. Pry, 41 Ga. 622; Harrell v. Fagan, 43 Ga. 339; Shirling v. Kennon, 119 Ga. 501, 46 S. E. 630) the Supreme Court held that the landlord’s special lien for rent upon the crops raised upon the rented premises was a debt so in the nature of the purchase-money that it would be superior to an exemption set apart in such crop, under the provisions of the constitution of 1868. The same court, however, in Watson v. Williams, 110 Ga. 321 (35 S. E. 344), held that this ruling would not be extended. In Clark v. Dobbins, 52 Ga. 656, it was said, in the headnote, that a warehouseman and factor who, without notice of any lien, makes advances on cotton which was produced on rented land, and stored with him by the tenant, has such a qualified property in, and lien on, the cotton, as to entitle him to reimbursement for such advances and pay for proper charges, before the landlord can enforce his claim for rent against the cotton. And although in that case it was held that the warehouseman and factors were entitled not only to the advances which they had made on the property but also to their storage charges, yet the decision is based mainly, if not entirely, on the fact that the warehousemen, as factors, had advanced money to the tenant on the property stored with them, and for that reason it was held that they had such a property right in the cotton as would prevail over the landlord’s special lien for rent. This is shown by the fact that nowhere in the opinion of the court, written by Trippe, J., are the storage charges mentioned, but the ruling that the warehousemen had a special property in the thing stored was based solely on the ground that as factors they had advanced money on the property. In the instant case, if the warehouseman had made any advances on the property stored, that decision might be applicable. In that case, however, no homestead was involved, and the issue was between three different creditors, as to whose lien was superior, while in the instant ease the issue was directly between the warehouseman and the homesteader as to whether the homestead was good against the warehouseman’s lien for storage charges merely.

It is provided by section 3362 of the Civil Code of 1910 that liens of pawnees, factors, bailees, and acceptors “shall be inferior to liens for taxes, liens of which such persons had actual notice before becoming creditors, special liens- for rent, liens of laborers, liens or mortgages duly recorded, judgment liens, and other general liens reduced to execution and levied.”

In our opinion the trial court correctly held that the homestead exemption was superior to the claim of the warehouseman for storage charges, and that the plaintiff in trover was entitled to the property.

Judgment affirmed.

Jenkins and Bloodworth, JJ., concur.


text:
    8266.
    Bald Mountain Portland Cement Company v. McGuirk.
    Decided June 7, 1917.
    Complaint; from Fulton superior court—Judge Ellis. June 28, 1916.

      Jones & Shanklin, Walter McBlreath, for plaintiff.

      O. J. Lester, O. T. Lester, for defendant.
   Broyles, P. J.

It not appearing that the court abused its discretion in the first grant of a new trial, and that the law and the facts required the verdict directed, the judgment granting the motion for a new trial

must be

Affirmed.

Jenkins and Bloodworth, JJ., concur.


text:
    8286.
    Atlanta Trust Company, receiver, v. Willingham.
    Decided June 7, 1917.
    Complaint; from DeNalb superior Court—Judge Smith. May 29, 1916.

      Bvins & Moore, for plaintiff.

      Bryan, Jordan & Middlebrooks, for defendant.
   Broyles, P. J.

Under the facts of this case, a verified plea of no partnership having been duly filed, it was incumbent upon the plaintiff to prove the existence of the partnership. This it failed to do, the evidence as a whole clearly demanding a finding that the plea of no partnership had been sustained. The court, therefore, did not err in directing a verdict for the defendant.

Judgment affirmed.

Jenkins and Bloodworth, JJ., concur.


text:
    8291.
    Citizens and Southern Bank v. Blount et al.

    Decided June 7, 1917.
    Complaint; from Toombs superior court—Judge Hardeman. April 10, 1916.

      M. B. Calhoun, for plaintiff.

      E. J. Giles, Lankford & Rogers, for defendant.
   Broyles, P. J.

1. A promissory note payable to ' a named person is negotiable only by the indorsement of that person. Civil Code (1910), § 4273.

2. The payee of. a promissory note may plead and prove, in defense to a suit by a bona fide holder of the note for value, who received it before maturity and without notice of any defect or defense, that he did not indorse or authorize the indorsement of his name on the back of the instrument. Civil Code (1910), § 4286.

3. Upon the filing of a plea of non est factum as to the indorsement of a note, the burden is upon the plaintiff to establish, by a preponderance of the evidence, the.fact of the indorsement. Thompson v. Kelsey, 8 Ga. App. 23 (4) (68 S. E. 518); Haley v. Vandiver, 8 Ga. App. 78 (68 S. E. 651); Bank of Norwood v. Chapman, 19 Ga. App. 709 (92 S. E. 225).

4. The verification of a plea of non est factum can be made at the trial term when the plea, without such verification, was filed at the appearance term and no motion was made at that term to strike it on this ground. Norton v. Scruggs, 108 Ga. 802 (2) (34 S. E. 166) ; Ward v. Frick Co., 95 Ga. 804 (22 S. E. 899) ; Neal v. Davis Foundry Ac. Works, 131 Ga. 701 (63 S. E. 221). Such verification can be allowed by the court without any formal order or amendment.

5. The testimony, the admission of which was excepted to, was possibly admissible for the purpose of impeaching one of the plaintiff’s witnesses, the cashier of the Uvalda Bank. However, even if it were irrelevant and inadmissible, under the facts of the ease its admission was not harmful, as it did not affect the controlling question in the case, to wit, had the payee indorsed the note or authorized any one else to do so for him?

6. That ground of the motion for a new trial which is based upon alleged newly discovered evidence, not having been referred to in the brief of counsel for the plaintiff in error, is treated as abandoned.

7. The jury determined in favor of the defendant the issue of fact as to the indorsement of the note sued upon, and, there being evidence to support this finding, the judgment overruling the motion for a new trial will not be disturbed.

Judgment affirmed.

Jenkins and Bloodworth, JJ., concur.


text:
    8295.
    Bland v. Swainsboro Fertilizer Company.
    Decided June 7, 1917.
    Complaint; from Candler superior court—B. T. Rawlings, judge pro hac vice. February 7, 1916.

      Hines & Jordan, Lanier, Deal & Renfroe, for plaintiff in error.

      Williams & Bradley, contra.
   Broyles, P. J.

1. This was a suit on a verified open account, and a plea . was timely filed which in substance was nothing more than a plea of the general issue, but no demurrer to the plea was filed at .the appearance term, nor was any motion to strike the plea made at that term, nor was the case marked “in default” on the docket. Under such circumstances it was erroneous for the court at the trial term to disallow a proffered amendment to the answer, solely on the ground that . there was nothing in the original answer to amend by. Simmons Furniture &c. Co. v. Reynolds, 135 Ga. 595 (69 S. E. 913).

2. No question as to the sufficiency of the amendment offered was raised in the court below, and therefore that question is not passed upon.

3. The error in the judgment upon the proffered amendment rendered the further proceedings nugatory.

Judgment reversed.

Jenhins and Bloodworth, JJ., concur.


text:
    8304.
    SOMERS & COMPANY v. CRANSTON COMPANY.
    The action being for the price of whisky labels and whisky cartons, which the plaintiff, a company of another State, engaged in the business of selling whisky, sold to the defendants, its agents located in this State, and it appearing, from uncontradicted evidence, that the contract for the purchase o.f these articles was made in this State, and that their price was a part of the consideration for the sale of whisky therein, and that they were to be used for the single purpose of promoting the sale of whisky therein, in violation of the law of the State, the plaintiff was not entitled to recover.
    Decided June 7, 1917.
    Complaint; from Richmond superior court—Judge Hammond. March 4, 1916.

      I. 8. Peebles Jr., for plaintiffs in error.

      8. H. Myers, C. H. & R. 8. Cohen, contra.
   Broyles, P. J.

1. Under repeated rulings of this court, an assignment of error based upon a refusal to grant a nonsuit will not ordinarily be considered, when thereafter the case proceeds to verdict and judgment, and a motion for a new trial is made which contains the ground that the verdict is contrary to law and the evidence.

2. “A court of justice will not lend its aid to the enforcement of any contract the making of which is prohibited, nor to the enforcement of anything necessary to complete the accomplishment of an unlawful purpose. ‘If the contract is executed it will be left to stand; if it be executory neither party can enforce it.’ ” McAndrew v. Taylor, 15 Ga. App. 555 (83 S. E. 967), and cases there cited; Beard v. White, 120 Ga. 1018 (3, 4) (48 S. E. 400).

3. This was a suit by a wholesale whisky company of Baltimore, Maryland, to recover from its agents at Augusta, Georgia, the price of certain whisky labels and whisky cartons. The evidence showed that the contract for the purchase price of these articles was made in Augusta, Georgia, and that their price was a part of the consideration for the sale of whisky in that city, and that both parties to the contract so understood it. The fact that in order to carry out this contract the plaintiff company, having no label plant of its own, had the labels made by another concern, and paid it for them, is immaterial, as is also the further fact that these labels, or some of them, were first shipped by order of the defendants to a third party in Jacksonville, Florida, and afterwards reshipped from that place to the defendants at Augusta, Georgia, as the evidence clearly and indisputably showed that these articles and the cartons were sold for the single purpose of promoting and encouraging the sale of whisky in this State. Moreover, outside of the direct evidence to this effect, this fact is conclusively established by the very nature of the articles sold (the words “Call for Old Eube Whisky” were printed, with the picture of E. A. (Eube) Somers, on the labels, samples of which were in evidence and attached as exhibits to the brief of evidence sent up with the record), coupled with the undisputed fact that they were sold by a foreign whisky house to its own agents in Augusta, Georgia, who were there selling whisky furnished by it. Under such' circumstances the sale of these articles was directly connected with the palpable endeavor on the part of both the plaintiff and the defendants to violate the prohibition laws of this State, and the plaintiff was not entitled to recover. Grusin v. Old Springs Distilling Co., 143 Ga. 25 (84 S. E. 57) ; Small Small Distilling Company v. Davis, 11 Ga. App. 114 (74 S. E. 897).

4. The verdict for the plaintiff was contrary to law and the evidence, and the court erred in overruling the motion for a new' trial.

Judgment reversed.

Jenkins and Bloodworth, JJ„ concur.


author: Wade, C. J.

text:
      7707.

    Barlow v. Mayor and City Council of Americus.
    Decided June 7, 1917.
    Petition for certiorari; from Sumter superior-court—-Judge Lit-' tlejohn. June 81,1916.

      G. B. Winchester, for plaintiff in error. B. A. Nisbet, contra.
   Wade, C. J.

In response to a question certified to that court in this case, the Supreme Court held: “A municipal ordinance which penalized ‘keeping for.sale intoxicating liquors within the limits of the City of Americus’ was rendered void by the provisions of the general law approved November 17, 1915 (Georgia Laws, 1915, Extraordinary Session, p. 77), entitled, ‘An act to make clearer and more certain the laws of Georgia heretofore enacted for prohibiting the manufacture of alcoholic, spirituous, vinous, and intoxicating liquors and beverages, traffic therein, and the keeping on hand thereof in public places or for illegal sale,’ etc. The municipal ordinance referred to was superseded by the provisions of section 2 of the act of the General Assembly above referred to. ‘The jurisdiction of a municipality of this State to punish for the offense of keeping for sale under the municipal ordinance referred to was extinguished by the act of the legislature designated above.’” Barlow v. Americus, 146 Ga. 805 (92 S. E. 643). Consequently the judge of the superior court erred in refusing to sanction the certiorari, by which it was sought to bring into question the validity of the ordinance prohibiting the keeping for sale of intoxicating liquors within the corporate limits of the city of Americus, for the reason that the act penalized by the ordinance is now punishable under a general law of this State.

Judgment reversed.

George and Luke, JJ., concur.


author: Luke, J.

text:
    7822.
    Gallagher v. The State.
   Luke, J.

1. On the trial of one charged with selling intoxicating liquor and with having in his possession spirituous liquors in receptacles holding less than a quart, it was not error for the court to instruct the jury as follows: “I further charge you that if you find, from the evi-

dence, that the defendant had whisky in bottles or receptacles less than , a quart, then that is a violation of the law, and that raises the presumption that the defendant had the liquor for the purpose of illegal sale.” See answer of the Supreme Court (146 Ga. 807) to certified questions in the instant case. See also Bowen v. State, 19 Ga. App. 778 (92 S. E. 299).

Decided June 13, 1917.

Accusation of sale of liquor, etc.; from- city court of Richmond county—Judge Black. September 2, 1916.

D. G. Fogarty, for plaintiff in error.

W. Inman Curry, solicitor, contra.

2. The evidence authorized the conviction of the accused, and the - court did not err in overruling the motion for a new trial.

Judgment affirmed.

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


text:
    8353.
    HARRISON v. THE STATE.
    1. Disqualification to render judgment on a motion for a new trial in a criminal case does not result from the judge’s use of language condemnatory of the accused, when imposing sentence.
    2. The objection that, the instruction to the jury, that they “must be satisfied of the guilt of the defendants beyond a reasonable doubt,” excluded from consideration the question whether one of the defendants might be guilty and the other innocent, is without merit, in view of other instructions given.
    3. It was not reversible error to use the word “absolutely,” in the instruction that “where a witness has been successfully impeached—where his unworthiness of credit has been absolutely established,” the jury should disregard his entire testimony unless corroborated.
    4. A new trial is required because of an intimation of the judge’s opinion as to the facts, in his instruction to the jury that “if the instrument used in the manner in which it was used on this occasion was a weapon likely to produce death, then the law, from the use of such a weapon in such manner, would imply malice.”
    5. The instructions of the court on the subject of conspiracy are not subject to the exceptions t'aken.
    6. Prejudicial remarks of the court in the presence and hearing of the jury are not ground for a new trial, unless a motion to declare a mistrial on that ground has been made and refused.
    7. The charge of the court was subject to the objection that, after stating the defendant’s contentions and instructing the jury that he insisted that the cutting and shooting were justifiable, the judge erred in failing to charge that if the jury found that the cutting and shooting were in self-defense and justifiable, they would be authorized to acquit the defendant.
    Decided June 13, 1917.

      Indictment for assault with intent to murder; from Decatur superior court—Judge Cox. December 30, 1916.

      M. E. O’Neal, W. V. Custer, for plaintiff in error.

      R. C. Bell, solicitor-general, F. A. Hooper, contra.
   Wade, C. J.

The trial judge was not disqualified from passing upon the motion for a new trial because when imposing sentence he had used language strongly indicating his belief in the guilt of the defendant. Any rational disinterested person compelled to give attention to the testimony adduced at a criminal trial, by reason of the fact that the proper conduct thereof rested upon him as the presiding judge, must necessarily form some opinion as to the guilt or innocence of the accused. To hold that an expression from the trial judge of his opinion that the accused is guilty, after the jury has returned a verdict so finding, would effectually disqualify such a judge from passing upon a motion for a new trial, and would negative the possibility of his fairly exercising the discretionary power vested in him by law as to the grant of a new trial on a review of the evidence, or would either invite or insure rulings on questions of law raised in such a motion adverse to the defendant, would bring into question the impartiality of every trial judge'who uttered a word of condemnation of the crime or of the convicted criminal when imposing sentence, and throw an unmerited cloud of suspicion upon his purpose to execute the law in accordance with his official oath where anything more was then said than was necessary to simply indicate the punishment fixed by the judgment of the court. A rational, intelligent presiding judge, acquainted with the law of evidence, necessarily reaches some opinion during the progress of the trial as to the guilt of the accused, but this opinion, whether or not expressed at the time sentence is imposed, is presumably not fixed and irrevocable, but subject to change upon a review of the record when the motion for a new trial is finally presented for determination.

Two defendants were on trial, and the court instructed the jury that they “must be satisfied of the guilt of the defendants beyond a reasonable doubt.” The objection, raised in the 4th ground of the amendment to the motion for a new trial, that this instruction excluded from the jury the question whether one defendant might be guilty and the other innocent, and presupposed that both were either guilty or innocent, is without merit, when tbe excerpt complained of is considered in connection with the entire charge and the following part of the charge: “It is your right to find one of them guilty, and the. other not guilty, if you find after such consideration of the case that one has been proven guilty and you have not been satisfied or convinced of the guilt of the other.”

When taken with its context, there was no reversible error in the use of the qualifying word “absolutely,” in the instruction that “where a witness has been successfully impeached— where his unworthiness of credit has been absolutely established, it becomes the duty of the jury to discard or disregard the testimony of that witness in its entirety, unless it be corroborated by other material evidence in the case which you do believe, or unless corroborated by the proven circumstances of the case.” “Absolutely,” as used in this connection, may be properly understood to mean “completely” (Standard Dictionary), or fully, thoroughly, entirely, or beyond a reasonable doubt; and unless a jury be satisfied that a witness is completely or absolutely unworthy of belief, his testimony should, not be discarded or disregarded in its entirety, though not corroborated. See, in this connection, Elliot v. State, 138 Ga. 23, 24 (2) (74 S. E. 691).

The defendant was tried for the offense of assault with intent to murder. While the use of a weapon likely to produce death raises a presumption of malice, where there are no circumstances of mitigation or exculpation (Flannigan v. State, 135 Ga. 221 (4), 69 S. E. 171), and malice may be implied from the bloodthirsty or brutal use of a deadly weapon (Ray v. State, 15 Ga. 223; Hawkins v. State, 25 Ga. 211, 71 Am. D. 166), the instruction complained of in the 6th ground of the motion for a new trial, that “if the instrument used in the manner in which it was used on this occasion was a weapon likely to produce death, then the law, from the use of such a weapon in such manner, would imply malice” (italics ours), under the particular facts and in view of the defense interposed, was error, as it amounted to an intimation of opinion on the part of the trial judge- that the weapon used had not been used under circumstances of mitigation or exculpation, notwithstanding the further instruction that the law “would not imply the intent to kill,” but that such intent was a question to be determined by the jury, from all the facts and circumstances developed in the trial, and that the "intent to kill is a necessary ingredient of the offense oí assault and intent to murder.” This error was harmful to the accused, and, under the mandatory provisions of section 1058 of the Penal Code,, requires the grant of a new trial.

There is no merit in the 7th ground of the amendment to the motion for a new trial, for the charge of the court on the subject of conspiracy does not appear to have been harmful to the accused, nor did it reasonably tend to confuse the jury as insisted by the plaintiff in error.

The 8th ground of the motion for a new trial is wholly without merit. Without determining whether the remarks addressed to counsel for the accused by the court “tended to impress the jury with the idea that counsel for the defendant was persona non grata to the judge,” and therefore tended to minimize the influence of counsel with the jury to the harm of the defendant, it suffices to say that no motion was then and there made to have a mistrial declared; and, “counsel having failed to make such motion and having proceeded without objection with the trial, can not, after conviction, raise the question as to the prejudicial nature of the remarks complained of, in a motion for a new trial.” Perdue v. State, 135 Ga. 277 (69 S. E. 184); Rogers v. State, 18 Ga. App. 333 (89 S. E. 460). What is here said applies equally well to grounds 9, 10, 18, and 19, all of which complain of alleged improper remarks made by the court in the presence of the jury, in the form of queries addressed to witnesses while on the stand, and colloquies thus arising. Prejudicial remarks made by the court in the presence and hearing of the jury furnish no good ground for a new trial, unless a motion to declare a mistrial is made and refused. See Stapleton v. State, 19 Ga. App. 36 (15) (90 S. E. 1039); Wilcox v. State, 19 Ga. App. 83 (4) (90 S. E. 1032).

The 11th ground of the motion for a new trial complains that the court, after summing up the contentions of this defendant and instructing the jury that he insisted that the cutting and shooting were justifiable, failed to instruct them, in this connection or elsewhere, that if they found that the shooting was in fact in self-defense and justifiable, they would be authorized to acquit the defendant. It is “erroneous to sum up the contentions of the accused, the same, if true, making a clear case of justifiable homicide, without distinctly informing the jury that if the accused were justifiable in his act, he should be acquitted.” Waller v. State, 102 Ga. 684 (28 S. E. 284).

The remaining special grounds of the motion relate to matters which could not recur on another trial, and they need not be considered. Because of error in the instructions complained of in the 6th and 11th grounds of the motion for a new trial, and dealt with above in the 4th and 7th paragraphs, the trial judge erred in overruling the motion for a new trial.

Judgment reversed.

George and Luke, JJ., concur.


author: Wade, C. J..

text:
    8352.
    Byrd v. The State.
   Wade, C. J..

This case is controlled by the decision in the case of Harrison v. State, ante, 157 (92 S. E. 970), involving the same transaction

Judgment reversed.

George and Luke, JJ., concur.


text:
    8355.
    Tanner v. The State.
    Decided June 13, 1917.
    Conviction of manslaughter; from Barrow superior court— Judge Brand. November 15, 1916.

      Lewis O. Bussell,-P. Oooley, for plaintiff in error.

      W. O. Dean, solicitor-general, O. A. Nix, John B. Gamble, contra.
   Luke, J.

1. Where a motion for a new trial is filed in term time and a rule nisi is issued thereon and the motion set for hearing on a certain day in vacation, the case must be heard on that day, and the hearing can not be orally postponed to a later day. If the case be not heard in vacation at the time fixed by proper order, the motion goes to the next regular term of the court, unless it be disposed of pursuant to the Civil Code (1910), §§ 4852, 4853, 6090. Atlanta, Knoxville & Northern Ry. Co. v. Strickland, 114 Ga. 998 (41 S. E. 501) ; Lott v. Wood, 135 Ga. 821 (70 S. E. 661) ; Perry v. State, 12 Ga. App. 573 (77 S. E. 879).

2. The motion for a new trial in this case having been set for hearing in vacation on October 14, 1916, and no formal written order having been passed continuing the motion to another day in vacation, it was error to dismiss the motion at a later day in vacation on the ground that no brief of evidence had been filed and served on the opposite party on October 14, 1916.

Judgment reversed.

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


text:
    8359.
    Fordham v. City of Dublin.
    Decided June 13, 1917.
    Petition, for certiorari; from Laurens superior court—Judge Kent. December 27, 1916.

      W. A. Dampler, for plaintiif in error.
   Wade, C. J.

This case is controlled by the decision of the Supreme Court in the case of Barlow v. Americus, 146 Ga. 805 (92 S. E. 643). The municipal ordinance which prohibited any person from having in his possession within the corporate limits of the city of Dublin' alcoholic, malt, spirituous, or intoxicating liquors or other drinks which if drunk to excess will produce intoxication, for the purpose of sale or of illegally disposing of said liquors or other drinks, was superseded by the provisions of section 2 of the act of 1915 (Georgia Laws, 1915, Extraordinary Session, p. 77), and the jurisdiction of the municipality to punish for the offense of keeping intoxicating liquors for sale under the ordinance above referred to was extinguished by the 'said act of the legislature. The judge of the superior court therefore erred in refusing to sanction the certiorari, by which it was sought to bring into question the validity of the ordinance penalizing the storing of intoxicating liquors for the purpose of sale within the corporate limits of a municipality of this State.

Judgment reversed.

George and Lulce, concur.


text:
    8411.
    GOLDBERG v. THE STATE.
    1. The verdict finding the accused guilty of simple larceny was authorized by the evidence.
    2. Testimony as to offenses or acts other than the particular larceny charged in the accusation was admissible as tending to connect the accused with the larceny charged, or to show his course of conduct, oi motive, intent, or bad faith, or a common scheme or plan of related offenses.
    3. The admission of testimony as to the statement made by a person near the place where the alleged larceny was committed, and before it was committed, that he did not know what the defendant was then doing near that place, does not require a new trial. The State’s testimony showed a pending conspiracy between that person and the accused; and the statement could not have harmed the accused.

      4. If the remark of the prosecuting attorney to which the defendant objected was prejudicial, its harmful effect was sufficiently removed by the comment of the judge and the express withdrawal of the language objected to.
    5. When the instructions complained of are,considered in connection with the remainder of the charge of the court, the exceptions to them are without substantial merit.
    Decided June 13, 1917.

      Accusation of larceny; from city court of Savannah—Judge Rourke-. January 9, 1917.

      Shelby My rich, Bouhan & Herzog, for plaintiff in error.

      Walter 0. Hartridge, solicitor-general, contra.
   Wade, C. J.

There was sufficient evidence to warrant the inference that the crime of simple larceny was committed by the defendant. A witness for the State testified that he saw two persons put several sacks of cement on a wagon, whereupon he approached and ascertained that one of these persons was a negro unknown to him and the other was the defendant. There is nothing to suggest that the defendant did not participate in the asportation of the stolen goods except his statement to the jury.

There is no merit in the 2d, 3d, 4th, 6th, 7th, 8th, and 9th grounds of the amendment to the motion for a new trial, complaining of the admission of testimony relating to crimes other than the one charged in the accusation. The testimony objected to either tended to connect the accused with the specific crime charged, or else to indicate his general practice or course of conduct, or motive, intent, or bad faith, or to establish a common scheme or plan of related offenses. Watts v. State, 8 Ga. App. 694 (70 S. E. 46); Lee v. State, 8 Ga. App. 413 (69 S. E. 312); McDuffie v. State, 17 Ga. App. 342 (5) (86 S. E. 821); Bates v. State, 18 Ga. App. 718; Frank v. State, 141 Ga. 243 (80 S. E. 1016). “As a general rule, in the prosecution of a particular crime, evidence tending to show that the defendant has committed other offenses is not admissible; but where the testimony offered has a distinct relevancy to the case on trial, it is not inadmissible merely because it also tends to show the defendant’s connection with some other criminal transaction.”. Ray v. State, 4 Ga. App. 67 (3) (60 S. E. 816).

There is no merit in the 5th ground of the amendment to the motion for a new trial. The testimony for the State tended to show a pending conspiracy between the accused and one McConnell, at the time the statement was made by McConnell to the witness for the State, which is objected to as hearsay. Furthermore the statement was made by McConnell before the larceny was committed or attempted, and was only an assertion that McConnell did not know what the defendant was then doing at or near the place where the alleged crime was afterwards committed, and hence it is not made reasonably manifest that the admission of this testimony could have been harmful to the accused, since this statement was entirely consistent with his innocence, and did not of itself even suggest guilty knowledge on the part of McConnell of the purpose for which the defendant was present. . .'

The court did not err in declining to grant a mistrial upon motion of counsel for the defendant because the solicitor-general in his argument to the jury made the following remark: “I don’t doubt that it was Goldberg’s liquor that made McConnell drunk day before yesterday. I said that I had no doubt that it was Goldberg’s liquor that got him drunk. I mean the defendant, Joseph Goldberg.” It appears that the court cautioned the jury to disregard the statement of counsel as to any conclusion not warranted by .the evidence, and that thereupon the solicitor-general expressly withdrew the statement, with the comment that it merely embodied his own conclusion. If the remark of counsel was prejudicial to the accused, the injury was sufficiently removed by the comment of the court and the express withdrawal of the language objected to.

The 11th, 12th, and 13th grounds of the amendment'to the motion for a new trial, complaining of excerpts from the charge of the court, when considered in connection with the entire charge, which was fair and impartial, are without any substantial merit.

Judgment affirmed.

George and Luhe, JJ., concur.


author: I/dke, J.

text:
    8421.
    Watkins v. City of Atlanta.
    Decided June 13, 1917..
    Rehearing denied August 2, 1917.
   I/dke, J.

1. A municipal ordinance which penalized the keeping on hand for sale of intoxicating liquors within the city limits was superseded by the provisions of section 2 of the general law approved November 17, 1915 (Georgia Laws, 1915, Extraordinary Session, p. 77), entitled, “An act to make clearer and more certain the laws of Georgia heretofore enacted for prohibiting the manufacture of alcoholic, spirituous, vinous, and intoxicating liquors and. beverages, traffic therein, and the keeping on hand thereof in public places or for illegal sale,” etc.

2. The conviction of the accused under the municipal ordinance was not authorized, and the superior court erred in not sustaining the certiorari.

Judgment reversed.

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

Certiorari; from Fulton superior court—Judge Pendleton. December 6, 1916.

Gober & Jackson, for plaintiff in error.

J. L. Mayson, 8. D. Hewlett, contra.


text:
    8463.
    TURNER v. THE STATE.
    1. In giving to the jury, in substance, the provisions of the Penal Code as to the right of the accused to make a statement to them, not under oath, and as to the weight and credit they could attach to it, the court did not err in saying: “he incurs no penalty should he not speak the truth.”
    2-3. No intimation of opinion as to guilt was made in the instructions complained of.
    4. The alleged newly discovered evidence did not require a new trial. It was impeaching and not such evidence as probably would produce a different verdict.
    5. A new trial is not required by affidavits of jurors that they would not have agreed to the verdict of guilty of assault with intent to murder if they had not thought that the recommendation to mercy, which was. a part of the verdict, would reduce the punishment to that of a misdemeanor.
    Decided June 13, 1917.
    Indictment for assault with intent to murder; from Pike superior court—Judge Searcy. January 13, 1917.

      E. F. Dupree, H. A. Rider, Henry 0. Fan', for plaintiff in’error.

      E. M. Owen, solicitor-general, contra.
   Wade, C. J.

There was no error in adding to the, instruction, “This statement is not made under oath,” the words, “and he incurs no penalty should he not speak the truth,” in reference to the statement of the defendant to the jury, not made under oath, when they are taken in connection with the full and fair instruction given-to the jury as to the weight and credit they might attach to such statement, including the specific instruction that the jury might believe this statement in preference to the sworn testimony in the case, and might “believe it all, or none of it, . . believe a part and disbelieve a part of it,” “and should give it such weight and credit as [they] think it is entitled to.” Penal Code (1910), § 1036. See Webb v. State, 8 Ga. App. 430 (5) (69 S. E. 601).

The following excerpt from the charge of the court is. objected to: “If you do not, or have a reasonable doubt of it, you can not convict the defendant of the offense of assault with intent to murder, and it would be your duty to acquit him of that charge.” The defendant was charged with the offense of assault with intent to murder, and was found guilty of that' particular crime. The exception taken is that the use of the words, “of that charge,” amounted to “an express intimation on the part of the court that, while it would be the duty of the jury to acquit him of that charge [if not convinced of his guilt beyond a reasonable doubt], he was of a necessity guilty of some charge;” and also that.the use of the expression “‘of that charge’ placed entirely too much emphasis on the fact of the charge of assault with intent to murder,” and thus conveyed an intimation that in the opinion of the court the defendant was guilty “of that charge.” This ground of the motion is argued in the brief of counsel, and therefore is specifically passed upon. It is sufficient to say that in the opinion of this court the exception is wholly without merit.

The plaintiff in error excepts to the following excerpt from the charge of the court: “The defendant is charged with the offense of assault with intent to murder, if you find him guilty of this charge the form of your verdict will be, ‘We, the jury, find the defendant guilty;’” the exception urged being that the attention of the jury waR thereby directed to the fact “that in the opinion of the court, that ‘of this charge’ he is guilty, whereas, in the remainder of .his instructions he merely directs their attention to the form of verdict to be written by them in the event evidence authorizes such verdict.” This excerpt is further excepted to as amounting to a direction by the court to the jury that first and foremost they must direct their attention to this offense, and “thus it does not leave the jury free to act as both the judges of the law and the facts, but directs them to search diligently with reference to ‘this charge,’” and “is both opinionative and suggestive.” The language complained of was properly used in instructing the jury as to the form of their verdict in the event they believed the defendant to be guilty of the offense of assault with intent to murder, as distinguished from the form of verdict to be returned in case the jury should determine that he was not guilty of this offense, but guilty of the lesser offense of stabbing, or of assault and battery.

Applications for new trial on the ground of newly discovered evidence are not favored by the courts. Burge v. State, 133 Ga. 431 (2) (66 S. E. 243). The alleged newly discovered evidence is to the effect that the prosecutor, who testified to the assault for which the accused was convicted, stated to the witness in a conversation, shortly after the occurrence, that he “did not blame Arthur Turner [the defendant] for cutting him, that he was almost against the buggy, that Turner asked him who he was, but he did not speak, that he ought to have spoken, but that he did not, and for that reason he didn’t blame Turner for what he did.” This evidence is clearly impeaching in its nature, as it contradicts the testimony delivered by the witness at the trial, and it is not of such importance as to create a probability that it would produce a different result on a second trial. See Ware v. State, 18 Ga. App. 107 (5) (89 S. E. 155), and cases there cited.

There is no merit in the 5th ground of the amendment to the motion for a new trial, insisting that a new trial should be granted because, according to affidavits furnished by them, ten of the twelve jurors who agreed to the verdict of guilty, with recommendation to the mercy of the court, did so because they understood that the effect of the verdict would be to impose upon the defendant a misdemeanor punishment only, and otherwise they would not have assented thereto. “An affidavit given by a juror after the verdict was rendered, to the effect that he did not voluntarily assent to the verdict, can not be received. A juror will not be heard to impeach the verdict after its record.” Bedfearn v. Thompson, 10 Ga. App. 550 (5) (73 S. E. 949). In Bishop v. State, 9 Ga. 121, 125, it was held that the affidavit of a juror not denying the guilt of the accused, but stating that the juror was induced to agree to the verdict by the persuasion of his fellow jurors, and even by their misrepresentations “as to the effect of the verdict,” could not be received to impeach the verdict returned. This rule has been uniformly adhered to (Scott v. State, 138 Ga. 29 (2), 74 S. E. 687); and this ground of the motion for a new trial is without merit. Any different rule would effectually impair the value of jury trials, make all verdicts uncertain and subject to change, and render the impartial enforcement of the penal laws often difficult and sometimes impossible.

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

Judgment affirmed.

George and Lulce, JJ., concur.


text:
    8507.
    Womble v. City of Colquitt.
    Decided June 13, 1917.
    Certiorari; from Miller superior court—Judge Worrill. January 22, 1917.

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

1. A municipal ordinance of the City of Colquitt which penalized keeping on hand for sale intoxicating liquors within the city limits was superseded by the provisions of section 2 of the general law approved November 17, 1915 (Georgia Laws, 1915, Extraordinary Session, p. 77), entitled, “An act to make clearer and more certain the laws of Georgia heretofore enacted for prohibiting the manufacture of alcoholic, spirituous, vinous, and intoxicating liquors and beverages. . traffic therein, and the keeping on hand thereof in public places or for illegal sale,” etc.

2. The conviction of the accused under the municipal ordinance was not authorized, and the superior court erred in failing to sustain the certiorari.

Judgment reversed.

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


author: Wade, 0. J.

text:
    8538.
    August v. The State.
   Wade, 0. J.

1. According to the testimony for the State, touching statements made by the defendant immediately after the tragedy, he discovered his wife and her paramour engaged in the act of adultery, and immediately slew them both with an axe, without engaging in any parley or altercation, but acting inferably under the influence of irresistible passion, and without any admixture of deliberation or revenge. • The statement of the accused to the jury was not in conflict with the evidence for the State. There was therefore ample testimony to authorize the verdict of voluntary manslaughter.

2. The venue was sufficiently shown. The evidence of one witness for the State was that “this [referring to the homicide for which the accused was on trial] was in Eloyd county, Georgia, where the killing occurred; ” and there is nothing in the record to even suggest that the killing occurred elsewhere than in the county where the trial was had.

3. There is no merit in those grounds of the motion for a new trial which relate to the refusal of the court to submit to the jury the theory that if they should find that the killing of the wife of the deceased by the defendant, when he intended or was endeavoring to kill her paramour, was an accident, they should acquit him. There is nothing in the record to suggest that the killing of the wife was accidental.

4. There is no merit in those grounds of the motion for a new trial, which relate to the refusal to give certain instructions as to mental incapacity to commit crime; for no plea of insanity was interposed by the defendant, who was convicted of voluntary manslaughter, and the court sufficiently instructed the jury as to the equivalent circumstances which might justify the excitement of passion and exclude all idea of deliberation or malice. The law applicable to the facts was substantially given in the charge as a whole, and there was no error in declining to give to the jury the requested instructions, by which it was sought to magnify the suggestion of the defendant’s mental incapacity to commit the crime, because his reason may have been temporarily dethroned when he discovered his wife in the act of adultery.

5. The court did not err in charging the jury as follows: “As I have stated to you, the defendant could not be acquitted on account of his wife having adultery with another man, but would be guilty either of murder or voluntary manslaughter, under the rules of law given you in charge. This would be true whether the defendant killed his wife and the man at separate blows, or at one blow, with reckless disregard as to whether the blow killed the one intended or the one not intended.” There was nothing in the record to require a charge to the jury on involuntary manslaughter in the commission of a lawful act without due caution or circumspection, or to suggest that the defendant slew his wife’s paramour to prevent the continuation of the act of adultery then in progress, or that he struck at the paramour of the wife and killed him, under the circumstances, and that his wife was accidentally slain by the same blow, without any intention on his part to kill ter. See Washington v. State, 137 Ga. 218 (2) (73 S. E. 512).

6. The 14th ground of the motion for a new trial is expressly abandoned in the supplemental brief of counsel for the plaintiff in error, upon the authority of Register v. State, 10 Ga. App. 623 (74 S. E. 429) ; Register v. State, 12 Ga. App. 1 (76 S. E. 649). It is well settled that where it is uncertain what the jury intended to find by their verdict, the judge may send them back for further consideration of the case, or for the purpose of putting the verdict in proper form to express their actual intention. See Mangham v. State, 87 Ga. 549, 552 (13 S. E. 558); Cook v. State, 26 Ga. 593.

.7. There is no merit in the ground which complains of the refusal of the court to permit the defendant to go back on the stand and make an additional statement to the jury, when his counsel stated to the court that the defendant desired to tell the jury that'he had no intention to kill his wife and did not know that he had killed her, it appearing further that this additional statement had been suggested to the defendant by his counsel, and not to counsel by the defendant. Th-> matter was within the discretion of the trial judge, and it does not appear, under the circumstances, that this discretion was abused.

Decided June 13, 1917.

Indictment for murder-—conviction of manslaughter; from Floyd superior court—Judge Wright. February 17, 1917.

Huíanles & Mebane, for plaintiff in error.

Claude H. Porter, solicitor-general, contra.

8. The trial judge did not err in overruling the motion for a new trial.

Judgment affirmed.

George and Luhe, JJ., concur.


text:
    8542.
    Bennett v. The State.
    Decided June 13, 1917.
    Indictment for misdemeanor; from city court of Valdosta— Judge Cranford. February 9, 1917.
    The indictment charged the accused with maintaining and keeping a lewd house, in that he put a nained woman into the house under an executory contract of sale, with the intention on his part that she should maintain and keep it as a lewd house, and that she did maintain and keep it as a lewd house. From the' evidence at the trial it appeared that the defendant made an executory contract for the sale of the house to the woman named, giving her a bond for title to the property, under which she went into possession of the house; that she was a lewd woman, and lived in this house with other lewd women and maintained it as a lewd house; that it was in what was known as "the restricted district” of the city of Valdosta, and that “there are nothing but negro houses and lewd houses in that section of the city;” that at the time the contract was made the woman was living across the street from this house and conducting a lewd house; that the defendant resided and was engaged in business in another part of the city and spent most of his time on a farm near the city, and was once seen at this house during its construction; that the house, in the opinion of witnesses, did not cost more than $4,000; and the price named in the contract of sale to the worn an was $10,000, payable in monthly installments of $100 each.
   Luke, J.

1. A person making a bona fide sale of real estate does not thereafter have such right of control or possession, or occupy such accessorial relationship to the purchaser, as to make him guilty of aiding and assisting the purchaser in maintaining a lewd house, if the property be put to such, use. Aliter where a person knowingly allows a house or portion of a house in his possession, or over which he has control, to be used as a lewd house. So much of the decision in Kinard v. State, 10 Ga. App. 133 (72 S. E. 715), as is in conflict with this ruling will not be followed, and is overruled.

2. The evidence did not authorize the conviction of the accused, and the court erred in overruling the motion for a new trial.

Judgment reversed.

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

E. E. Wilcox, for plaintiff in error.

James M. JoJmson, solicitor, J. B. Copeland, contra.