text:
    8324.
    DIXON v. MAYOR AND ALDERMEN OF SAVANNAH.
    1. Where an. execution is levied upon property in the City of Savannah for its proportionate part of the cost of the paving of a street upon which it abuts, and the owner of the property interposes an affidavit of illegality which recites merely “that the execution [describing it] is illegal, and that the whole of the amount of $93.93 stated in the execution is not due, and the deponent denies that any part of it is due; wherefore deponent makes this affidavit, that the same shall be returned to the superior court of Chatham county and there tried and the issue determined as in case of illegality,” the affidavit, when returned to the superior court, is not subject to a general demurrer or an oral motion to dismiss, but is not good as against a timely special demurrer which . sets forth that the affidavit “does not allege any facts to show why the said execution is illegal, nór why the amount of the same is not due, either in whole or in part.”
    2. The court did not err in sustaining the special demurrer interposed to the affidavit of illegality as amended, and in dismissing- the affidavit.
    Decided August 2, 1917.

      .Affidavit of illegality; from Chatham superior court—Judge Kent presiding. December 16, 1916.

      Osborne,, Lawrence & Abrahams, for plaintiff in error.

      B. J. Travis, D. S. Atkinson, contra.
   Broyles, P. J.

.The Mayor and Aldermen of the City of Savannah levied an execution upon the property of Mrs. Dixon for her proportionate part of the cost of . the pavement of a certain street in the city upon which the property abutted. To this execution and levy the defendant interposed the following affidavit of illegality: “Personally appeared before me Mrs. Jessie Dixon, who upon oath says that the execution levied by the Mayor and Aldermen of the City of Savannah, through George D. Semken, Esq., the city marshal, upon the triangular lot at the intersection of West Boundary, Gwinnett and Eoberts streets, is illegal, and that the whole of the amount of $93.93 stated in said execution is not due, and deponent denies that any part of said amount is due.

“Eor further cause of illegality deponent says that the paving assessed against said property was done without cost to the city, the cobblestones with which it-was paved having been taken from Wheaton street, where they were condemned by the city, and the labor of laying the pavement having been performed by regular hands regularly in the employ of the Mayor and Aldermen of the City of Savannah.

“Deponent further says that, the amount assessed against said property for said paving is altogether out of proportion to the benefits of the property and amounts to practical confiscation. The city has assessed the value of said lot of land at $200, or nearly one half the value of the property. If West Boundary street and Eoberts street be paved at the same cost per front foot, the city will take more from deponent than the value of the property, without consequential improvement proportionate to the cost.

“For further cause of illegality deponent says that the assessment is wholly unequal as between different lot-owners; that de•ponent’s property is a triangle having-a base of 56.48 feet on Gwinnett street and an altitude of 56.68 feet on West Boundary, and a hypothenuse of 80.24 feet on Eoberts street, so that at the apex of the angle between Eoberts street and Gwinnett street deponent is required to pay a full frontage without any depth of property to be benefited, and the lot is so small and has such little depth, for the greatest part of the way that the cost of paving is altogether ont of proportion to the values of the property and is entirely unequal in the distribution between deponent and other property owners.

“For further cause of illegality deponent says that the mayor and aldermen have charged and settled with other property holders, to wit, E. W. Bell, for fifty per cent, of the assessment made, so that if deponent be required to pay said tax execution- the burden will be placed unequally upon her.

“Wherefore, deponent makes this affidavit that the same shall be'returned to the superior court of Chatham county and there tried and the issue determined ás in case of illegality.”

The city filed a demurrer on the following grounds:

“1st. Because the said affidavit of illegality is not sufficient in law.

“2d. Because the affidavit of illegality states the following conclusion: ‘The whole amount of $93.93 stated in said execution is not due, and denies that any part of said amount is due.’ No facts are stated in the affidavit of illegality upon which to base this conclusion, which, in view of the facts alleged, is vague, .uncertain, and ambiguous, and plaintiff moves to strike the same.

“3d. Plaintiff demurs to the 2d paragraph of the affidavit of illegality, which states the following: ‘For further cause of illegality deponent says that the paving assessed against said property was done without cost to the city, the cobblestones with which it was paved having been taken from Wheaton street, where they were condemned by the city, and the labor of laying the pavement having been performed by regular hands regularly in the employ of the Mayor and Aldermen of the City of Savannah.’ Plaintiff says that the said paragraph does not allege affirmatively that the cobblestones were of no value, that it does not show that the city was not put to an expense in removing the cobblestones from Wheaton street to the point where it was laid opposite defendant’s property, and that the labor used in laying the pavement was not paid for by the city, and of cost to the city. Plaintiff shows, from the facts alleged in the illegality, it will follow, by necessary implication, that the pavement was laid at cost to the city.

“4th. Plaintiff demurs to the 3d paragraph of the affidavit of illegality wherein it is alleged that the city has assessed the value of. said lot of land at $200.00. Plaintiff says that neither said paragraph nor said illegality alleges the real value of said lot of land.

“5th. Plaintiff demurs to that portion of said 3d paragraph wherein it is alleged that, 'if West Boundary and Roberts street be paved at the same cost per front foot, the city will take more from deponent than the value of the property, without consequential improvement proportionate to the cost.’ Said illegality does not show: (a) that the city contemplates improving West Boundary or Roberts street; or (5) that the city will ever improve West Boundary or Roberts street. Further demurring to said portion of said illegality plaintiff says the improvement of West Boundary or Roberts street would not affect this execution, and the allegation is immaterial and irrelevant. Plaintiff says that the excerpt here quoted should be stricken.

“6th. Plaintiff demurs to the 4th paragraph of the affidavit of illegality, wherein it is alleged, 'that the assessment is wholly unequal as between different lot-owners; that deponent’s property is a triangle having a base of 56.48 feet on Gwinnett street and an altitude of 56.68 feet on West Boundary, and a hypothenuse of, 80.24 feet on Roberts street, so’ that at the apex of the angle between Roberts street and Gwinnett street deponent is required to pay a full frontage without any depth of property to be benefited, and the lot is so small and has such little depth for the greatest part of the way that the cost of paving is altogether out of proportion to the values of the property and is entirely unequal in the distribution between deponent and other property owners.’ Plaintiff says that the statement of facts alleged in said paragraph furnishes no ground of illegality sufficient in law to sustain his ease, and moves that the same be stricken.

“7th. Plaintiff demurs to the 5th paragraph of said petition, wherein it is alleged as follows: 'For further cause of illegality deponent says that the mayor and aldermen have charged and settled with other property holders, to wit, E. W. Bell, for fifty per cent, of the assessment made, so that if deponent is required to pay said tax execution the burden will be placed unequally upon her.’ Plaintiff says that said paragraph is immaterial, irrelevant, and furnishes no ground of illegality, and prays that the same be stricken.”

On the hearing of the ease before the superior court the defendant in fi. fa. filed the following amendment: “And now comes the defendant and amends her affidavit of illegality, by striking therefrom everything except the first paragraph and the prayer, the part hereby stricken being designated in the demurrer of defendant as paragraphs 2, 3, 4, and 5. Defendant prays that this amendment be allowed and ordered filed as a part of the record in this case.” This amendment was allowed by the court; whereupon the city filed an additional demurrer, as follows: “Now comes the Mayor and Aldermen of the City of Savannah in the above-named case, and demurs to the affidavit of illegality as amended, for the following reasons, to wit: 1st. Because the affidavit of illegality does not allege any facts to show why the said execution is illegal, nor why the amount of the same is not due either in whole or in part. For said reason the said Mayor and Aldermen of the City of Savannah moves to strike said affidavit of illegality.” The court sustained the demurrer and dismissed the affidavit of illegality.

The main question to be determined in this case is whether it was incumbent upon the plaintiff in error to set out in her affidavit of illegality the facts upon which she based her claim that the execution was proceeding illegally, and that its amount, either in whole or in part, was not due, or whether her bald statement therein that the execution “is illegal, and that the whole of the amount of $93.93 stated in said execution is not due, and deponent denies that any part of said amount is due,” is sufficient as against a timely special demurrer calling upon her to state the grounds of her defense to the execution. The method for contesting such executions issued and levied by the City of Savannah is prescribed by the act of 1885 (Georgia Laws, 1884-5, p. 362, § 5), as follows:, “The defendant shall have the right to file an affidavit denying that the whole or any part of the amount for which the execution issued is due, and stating what amount he admits to be due, which amount so admitted to be due shall be paid or collected before the affidavit is received, and the affidavit received for the balance; and all such affidavits so received shall be returned to the superior court of Chatham county, and there tried, and the issue determined as in ease of illegality, subject to all the pains and penalties provided for in cases of illegality for delay.” It is earnestly contended by the able counsel for plaintiff in error that the affidavit as amended was not subject to the special demurrer; that it was the intent of the legislature, when the act in question was passed, to prescribe the form of the affidavit which would make an issue between the parties, and that an affidavit in such form is all the pleading necessary for the defendant in execution to make-. To sustain this contention Speer v. Athens, 85 Ga. 49 (11 S. E. 802, 9 L. R. A. 402), and Bacon v. Savannah, 86 Ga. 301 (12 S. E. 580), are cited. In each of these eases an act similar to the one now under consideration was involved. In the Bacon ease the Supreme Court held that the lower court erred in dismissing an affidavit of illegality which contained substantially the same language as the affidavit in the instant case, but in that case there was no ■special demurrer, and the affidavit was dismissed on an oral motion which declared merely that “it contained nothing constituting any defense to proceeding with the execution.” This motion was of the nature of a general demurrer, and the ruling of the Supreme Court was merely that an affidavit couched in the language of the statute was good as against it. The court in that case did not hold that the affidavit would have been good as against a timely special demurrer; and such a holding would have been obiter.

In, Speer v. Athens, supra, the third headnote is as follows: “Nor is the owner of such real estate thereby deprived of his property without due. process of law, the act providing that when execution is issued for the amount of the assessment, he may file an affidavit denying the whole or any part thereof, which affidavit is made returnable to the superior court, the issue thereon to be tried and determined as in eases of illegality. At such hearing he may show fraud or mistake, error or excess in the amount of the execution, want of statutory authority to support the assessment, or failure to comply with the provisions of the statute and the ordinances in pursuance thereof.” In that ease, however,' as will be seen from the other headnotes and the opinion, the constitutionality of the act had been questioned, and the sole question before the Supreme Court was whether the act was constitutional. No question of pleading was passed upon. The statute was attacked upon the ground that it failed to afford due process of law, and the' court held.that this was not a good ground, inasmuch as the act provided "for the filing of an affidavit of illegality denying the whole of the amount of the execution, of any part thereof, and provided further that such an affidavit should be returned to the superior court, where the issue thereon - should be tried and determined- as in cases of illegality. The-court further said (p. 67): “Finally, the act itself makes full provision for a hearing to the lot-owner as to every matter upon which he is entitled to be'heard, by providing that if, upon his failure to pay, execution be issued against him, he may file an affidavit denying the whole or any part of the amount ■ for which the execution issued, which affidavit is made returnable to the superior court to be tried and the issue determined as -in cases of illegality. The property owner is thus informed of the amount of the assessment, and a time, place, and tribunal are provided, at and before which a hearing may be had, before his property can be taken and sold. If the sidewalk is not made in conformity with the requirements of the ordinance; if he is charged ■ an amount in excess of the proportion for which he is assessable, ■ he may be heard in reference thereto. cHe may show fraud, mistake, want of authority to support the assessment, or- a failure to • comply with the provisions of the statute. His constitutional rights are therefore fully protected. Whether the plan and system of local improvements as authorized and administered are the wisest, is a question to be addressed to the legislature. 37 Minn. 345, supra. In the Minnesota case quoted from, the court was. not passing upon a question of pleading, ■ but Upon the constitutional question of whether the statute involved afforded due proc- - ess of law, and the court held that it did, since it provided that the defenses of fraud, mistake, etc., might be set up by the defendant in fi. fa. Neither in that case nor in the Speer case does the decision deal -with any question of pleading, but both decisions are solely as to the constitutionality of the statute involved. In our opinion it is clear that neither of these decisions held, or intended to hold, that the defendant in fi. fa. could set up his defense without the usual and proper pleadings. To hold otherwise would he repugnant to all the rules and niceties of pleading.

The plaintiff in fi. fa., where it makes use of its right to demur specially, has the further right to require the defendant in fi. fa. to amend his affidavit of illegality, where it is not therein stated why the' execution is proceeding illegally. As was said in the de- ' cisión-of the Supreme Court in Riley v. Wrightsville & Tennille R. Co., 133 Ga. 413 (65 S. E. 890, 24 L. R. A. (N. S.) 379, 18-Ann. Cas. 208) : “Great liberality is allowed in pleading and amendments, and different aspects of a case can be presented in different counts. Useless detail and elaboration are not required. But there is no reason to permit vital facts in a case to be pleaded in vague, uncertain, or ambiguous terms, which may have the effect of not putting the adverse side on notice as to how to prepare the defense, or to allow the pleader to fail to refuse to amend as to such matters when called on to do so by appropriate demurrer.” Moreover, the statute in the instant case expressly provides that the affidavit of illegality “shall be returned to the superior court of Chatham county, and there tried, and the issue determined as in case of illegality” (italics ours). How are cases of illegality tried and determined ? In Sharp v. Kennedy, 50 Ga. 208, the second headnote is as follows: “An affidavit of illegality to an execution, setting up facts as a reason why the execution is proceeding illegally, must distinctly present the matter relied upon, so that, if not denied, the court may pass judgment intelligently, or if denied, that the jury may have distinctly before it the matter in issue.” In Green v. Rogers, 62 Ga. 166 (2), the court said: “In an affidavit of illegality, the effect of which is to suspend the proc-' ess of the court, the grounds should be set out in such manner as tó show clearly that the execution is proceeding illegally by the conduct of the plaintiff or of the officers of the law; therefore, an allegation that the mortgage was altered, without stating who altered it, or that it was done without the consent of the mortgagor, was properly held insufficient.” In Baker v. Akerman, 77 Ga. 89, which was a case where the lower court had sustained a demurrer to an affidavit of illegality interposed to an execution, the Supreme Court (on page 90) said: “There is no fact set out in this affidavit upon which issue can be taken, or on which perjury could be assigned, in the event it should turn out to be false. The statements are only conclusions, which it would be the province of the court, and not of the affiant, to draw from facts properly stated.

. . Such general averments amount to nothing. They are mere brutum fulmen and can not be passed upon by the court.” In Terry v. Bank of Americas, 77 Ga. 528 (3 S. E. 154), the second headnote is as follows: “An affidavit of illegality which states in general terms that the note, ‘the cause of action,’ was paid off in full, without stating to whom the payment was made or whether made before or after judgment, was so uncertain and elusive as to be demurrable.” In Thompson v. Fain, 139 Ga. 310 (77 S. E. 166), the Supreme Court held as follows: “The ground of illegality which set up that some part of the costs was not properly taxed against the affiant was so vague and indefinite as to show no reason why such taxation was illegal, and was properly stricken.”

It is contended, however, by counsel for the plaintiff in error that the rule of pleading in the instant case is not the same as in cases of executions issued upon a common-law judgment, because the statute (Civil Code,'§ 5305) under which such executions are issued provides that when “such execution shall be levied on property, such person may make oath in writing, and shall state the cause of such illegality” (italics ours); and in the statute involved in the instant case- there is no such requirement. While, however, the code section just referred to requires that the affidavit shall state “the cause” of such illegality, it does not require that “the cause” shall be stated in detail, or that the specific facts upon which the cause may be based shall be given. It might be argued with some reason that the general form prescribed in the “paving” statute now under consideration gives the “cause” for the alleged illegality when it further states that neither the total amount named in the execution, nor any part thereof, is due. In our judgment, therefore, the same rule of pleading that applies to affidavits of illegality interposed to executions issued upon common-law judgments is applicable to the affidavit filed in this case.

It is earnestly and strongly contended by counsel for the plaintiff in error that as the affidavit here in question used the exact language contained in the statute, this “statutory pleading” is all that was necessary; and that it is not unusual for a statute to prescribe a form for defenses, and that whenever this is done, a compliance with the statute is all that is required. Counsel cites, in support of this contention, sections 4730, 5387, and 5539 of the Civil Code of 1910. In our opinion, rulings based upon these sections, which relate to cases so different in subject-matter from that of the case at bar, are not controlling here. However, in none of the decisions construing them that are cited by counsel for the plaintiff in error is it held that a plea in the form given by the statute is not subject to a timely special demurrer. Section 4730 refers to a counter-affidavit in a suit upon an open account in ' a justice’s court, and provides merely that where the account has been proved by the affidavit of the plaintiff, and the defendant files his affidavit denying the justice and fairness of the whole or any part of the account, “the court-shall not give judgment in favor-of the plaintiff for that part of the account so denied, or controverted, unless supported by other proof.” It is obvious that this códe-séction has no material bearing upon the question of pleading in the instant case. Section 5387 prescribes the form of a' counter-affidavit of a tenant holding over, and it-was held in Moody v. Ronaldson, 38 Ga. 652, that such an affidavit in the language of' the statute was sufficient. But in that case there was no special demurrer, and the affidavit was dismissed on an oral motion which was of the nature of a general demurrer! In Mitchell v. Masury, 132 Ga. 360 (6), 364 (64 S. E. 275), it was held merely that “under the statutory affidavit the' tenant can raise the issue that no oath was administered to or taken by the person subscribing the alleged dispossessory affidavit. Even if this issue could also be raised by special plea, the striking thereof by the court will not require a new trial, where the defendant is allowed to make the issue under his counter-affidavit, and the jury are instructed by the court as to the appropriate law.” In neither of these cases is it held that the affidavit involved is not-subject to a timely special demurrer. Section 5539 requires that all petitions shall set forth-the cause of action-in orderly distinct paragraphs, numbered consecutively, and that the defendant’s answer shall deny any averment which is distinctly and plainly made in the petition, unless he shall state in his answer that he can neither admit nor deny such averment,’ because of the want of sufficient information. In Ocean Steamship Co. v. Anderson, 112 Ga. 835 (38 S. E. 102), which was an action of trover, the defendant filed the following plea: “And now comes the defendant by its attorneys at law, Lawton & Cunningham, and, answering-the petition in the above-stated ease, denies all the allegations of each paragraph of both counts of the petition.” There was no special demurrer to this plea, but it was stricken on an oral motion 'on the 'ground that it was in effect nothing more than a plea of the general issue. The Supreme Court held that the trial judge erred in- striking the'plea arid in'-disallowing a proffered amendment to' the same; as there was enough in the original plea by which to amend.

That the affidavit in the instant ease uses the exact language contained in the statute does not necessarily render it sufficiently full to withstand a timely special demurrer. In criminal cases, for instance, the code declares that an indictment shall be deemed sufficiently technical and correct “which states the offense in the terms and- language of this code, or so plainly that the nature of the offense charged may be easily understood by the jury.” Penal Code, § 954. That section then prescribes the form for an accusation or indictment. Yet in Johnson v. State, 90 Ga. 441 (16 S. E. 92), it was held that although the indictment in that case followed the statute, and was good in substance, and sufficiently full to withstand a general demurrer or to support a conviction as against a motion in arrest of judgment, it was wanting in that degree of de- ■ tail and definiteness which the accused had a right to demand, and that the special demurrer thereto should have been sustained. Thát decision was followed in Langston v. State, 109 Ga. 153 (35 S. E. 166, 779), where the court held that the special demurrer to the indictment should have been sustained although the indict-' ment was in the form prescribed by the■ statute, and the Supreme Court there said: “While . . the Penal Code provides that ‘ every indictment or accusation of the grand jury shall be deemed sufficiently'technical and correct which states the offense in the terms and language of this code, or so plainly that the nature of-the offense charged may be easily understood by the jury,’ yet, as has been held by this court, the purpose of this section was not to dispense with good pleading or to deny to one accused of an offense which may be committed in more than one way a statement of the facts relied on to establish his guilt sufficiently full and complete-to put him upon reasonable notice of what he is called upon to meet.” And this court, in Burkes v. State, 7 Ga. App. 39 (65 S. E. 1091), held that “An indictment for a violation of the act of 1905, in being intoxicated on a public street or highway, which fails to specify the public highway except by the general terms of the statute (italics ours), is too vague and indefinite to enable the accused to prepare his defense. The particular public highway upon which the accused appeared in a condition of intoxication should be designated or described.” In that case the indictment followed the language of the statute. We are not unmindful of the fact that indictments in criminal cases are especially subject to strict construction, and that these cases are not altogether on the same footing with civil cases, but in our judgment the rulings just cited have some bearing upon the question of pleading now being discussed.

In our judgment the plaintiff in fi. fa. in the instant case was entitled to know what facts it would have to rebut .by proof upon the trial of the illegality. It should not be required to guess at these facts; which it must of necessity do where the affidavit of illegality contains no facts, but merely the assertion or conclusion of the pleader that the execution is proceeding ‘illegally and that the amount stated therein is not due, either in whole or in part. This is especially true in a case like this one, where a municipal corporation is endeavoring to collect what it claims is due it upon an execution for street paving which was levied in the exercise of one of its governmental functions. In such a case the trial court should determine all questions possible that are raised by the affidavit of illegality; and how can it do so where the affidavit contains only the statements that the execution is proceeding illegally and that the amount named therein is not due, without giving any reason for such conclusion? The trial judge, and not the,defendant in fi. fa., is the proper person to draw conclusions from the facts stated in the affidavit of illegality, and, where a timely special demurrer has been allowed, it is the right of the court, as well as the right of the plaintiff in fi. fa., to have the affidavit amended and. the facts given. As was said by the Supreme Court in Speer v. Athens, supra: “It is not left to juries, whenever a property-owner resists an assessment as unreasonable and unnecessary, to say that the sovereign taxing power has abused its discretion. The constitutional guaranty of due process of law has been sometimes supposed to entitle every person to have any demand made upon him submitted to the determination of a jury. But, says Judge Cooley, ‘Such a construction applied in tax cases would work a thorough and radical change in the principles on which taxation is now supposed to rest. It would cripple the legislative power and subject the action of the department whose function it is to make laws on its own views of the questions of public interest and public policy which the laws involve, to a review and possible reversal at the hands of a jury. . . To make the juries the assessors of the claims of the State upon individuals could only introduce anarchy; one jury reaching one conclusion regarding the public needs, and another another/ etc. Cooley, Taxation, p. 47. It is only in those extraordinary cases where the assessment ‘so far transcends the limits of equality and reason that its execution would cease to be a common burden and become extortion and confiscation ’ that the courts can be called on to interfere.”

In our judgment the correct, and the only reasonable, construction of the statute involved in this case is to hold that it means that when an affidavit of illegality couched in the general language prescribed in the statute is filed, the affidavit is sufficient to carry the case to the superior court and to withstand a general demurrer, or an oral motion to dismiss; but that it does not mean that such an affidavit is not subject to a timely special demurrer which calls for the particular facts upon which the general averments in the affidavit are based. There was no. contention that the special demurrer in this case was not sufficient in form, or should have been more specific than it was. See, in this connection, the opinion of Justice Lamar, in Kemp v. Central of Georgia Ry. Co., 122 Ga. 561 (50 S. E. 465); also Wrightsville & Tennille R. Co. v. Vaughan, 9 Ga. App. 371 (2), 375-7 (71 S. E. 691).

It is contended in the brief of counsel for the plaintiff in error that the court erred in sustaining the special demurrer because it was filed after the first term, although the affidavit had not been materially amended. It appears, however, that this special demurrer was substantially identical with the first ground of the original demurrer to the affidavit, which was filed at the first term; and counsel for the plaintiff in error, in the oral argument, expressly abandoned this contention.

Another contention of counsel is that, even if the affidavit was subject to the special demurrer, the'court erred in. dismissing the affidavit without allowing the defendant time to amend it. Under the facts of the ease we see no merit in this contention. The defendant in fi. fa. had voluntarily, by amendment, stricken all the particular facts and details from her affidavit, and stood upon what was left, and made no offer to further amend." Under such circumstances the trial judge was not bound to provide, in his order sustaining the demurrer, that the defendant should have an opportunity .to amend so as to meet the demurrer. Ripley v. Eady, 106 Ga. 422 (2) (32 S. E. 343) ; Lamar, Taylor & Riley Drug Co. v. First National Bank, 127 Ga. 448 (4) (56 S. E. 486).

In our judgment the court did not err in sustaining the special demurrer and in dismissing the affidavit of illegality.

However, since, under section 6288 of the Civil Code, no second affidavit of illegality can be received for causes which existed and were known, or in the exercise of reasonable diligence might have been known, at the time of the filing of the first, and since the contention of the plaintiff in error that her affidavit, being in the very language prescribed by the statute, was sufficient to withstand a timely special demurrer, had never been precisely passed on by either the Supreme Court or this court, and it appears that her contention was made in good faith, we consider it only fair to allow her an opportunity to amend her affidavit of illegality, and, if she can do so, to set up a substantive defense. Accordingly the judgment is affirmed, with direction that the defendant be allowed twenty days, from the time when the remittitur is entered upon the minutes of the lower court, within which to amend her affidavit.

Judgment affirmed, with direction.

Jenkins and Bloodworth, JJ., concur.


source: Caselaw Access Project

author: Bloodwoeth, J.

license: Public Domain

text:
    8422.
    LONGALIFE PAINT COMPANY v. WILLIAMS.
    The ease being, in default and being so marked on the docket, the court erred in allowing the defendant to file an answer at a term after the trial term.
    Decided July 19, 1917.
    Complaint; from Whitfield superior court—Judge Tarver. January 2, 1917.
    The suit was filed on the 14th and served on the 15th of December, 1915, and was made returnable to the January term of the superior court, 1916, which began on January 3. On April 5, 1916, tlje defendant filed a plea, in which he denied the material allegations of the petition. The case was called by Judge Tarver at the January term, 1917. At that time, opposite the entry of the case on the issue docket, was the word “Default,” with a line drawn through it by a pen, followed by the words, “Answer Jan’y 3rd, 1916.” The plaintiff’s counsel called the attention of the court to the fact that the defendant’s plea was marked filed on April 5, 1916, and the judge made a docket entry as to the case, as follows: “Default, Jan. term, 1916. Entry made nunc pro tunc, Jan. 2, 1917.” Afterwards, on the day on which this entry was made, the defendant made a motion as follows: “Defendant shows to the court that suit was brought to the January term, 1916, of Whitfield superior court, but . . that the case was returnable to the April term, 1916, . .; that he filed his plea and that the word ‘Default’ [was] at the same time marked on the docket by his honor A. W. Eite, judge of said court, but same was stricken by said Judge A. W. Fite, and the word ‘Answered’ placed there on said docket in the handwriting of said Judge A. W. Fite; that this .date-the words ‘Default nunc pro tunc’ [were] entered on the docket by his honor M. 0. Tarver, judge of said court. Defendant moves the court to set aside any default, if any; that he has a good defense; that in fact there is no default, nor has there ever been any default in said case.” An attorney who represented the plaintiff in bringing the suit testified, that he was present at the January term, 1916, when Judge Fite called the appearance docket, and it was his recollection that this case was called at the time and marked in default; that he inspected the issue docket of the court at the April term, 1916, in regard to this case, and at that time the word “Default” was not stricken, and the entry “Answer January 3rd, 1916,” was not on the docket; that this entry was in the handwriting of Judge Fite; that it was made and the entry of “Default” stricken at or since the April term, 1916. Another attorney of the plaintiff testified to the same effect as to these entries, that he found no motion to open the default, and that the clerk informed him that none had been made. There was no further evidence as to this matter. The plaintiff objected to the opening of the default, and moved to dismiss the defendant’s motion, “1st. Because the defendant, in his motion, did not offer to pay the accrued cost in the ease. 2d. Because the defendant sets forth in his motion no legal cause or excuse why he did not file his plea in said case within the time provided by law, and does not set forth facts making a proper case for opening said default. 3d. Because said motion came too late, the trial term having passed and no motion having been made to open said default, said motion being for the first time made at the third term of said court after said case was regularly marked in default.” The court overruled these objections and passed an order that “upon payment of the cost in the case and announcing ready for trial, the defendant be permitted to refile the plea which was heretofore filed in the case.” The defendant paid the accrued costs, refiled his plea, and announced ready for trial, and the court, after hearing the evidence for the plaintiff, granted the defendant’s motion for a nonsuit. The plaintiff excepted, assigning error on the judgment of nonsuit, and on the order allowing the defendant to refile his plea.

      Dean & Dean, L. H. Covington, for plaintiff, cited:

      Albany Pine Products Co. v. Hercules Mfg. Co., 123 Ga. 270; Bowman v. Winn, 16 Ga. App. 546; Deering Harvester Co. v. Thompson, 116 Ga. 418; Cauley v. Wadley Lumber Co., 119 Ga. 648; Brawner v. Maddox, 1 Ga. App. 332, 336.

      W. K. Mann, W. C. Martin, for defendant, cited:

      Albany Pine Products Co. v. Hercules Mfg. Co., supra; American Central Ins. Co. v. Albright, 145 Ga. 515; McKenzie v. Consolidated Lumber Co., 142 Ga. 375; Price v. Hamilton, 146 Ga. 705; Thurmond v. Groves, 126 Ga. 779.
   Bloodwoeth, J.

“A defendant has the right, at any time within thirty days after a case has been marked ‘in default,’ to open the default and file his defense, provided he also within the thirty days pays all the accrued costs. Civil Code (1910), § 5654.” Coker v. Lipscomb, 17 Ga. App. 506 (87 S. E. 704). “While, under the Civil Code, § 5072, a trial judge is vested with a wide discretion as to opening a judgment of default, on motion made at the trial term of a case, there is no provision of law authorizing him to entertain and grant a motion to open a default presented at any subsequent term at which the case is called for trial.” Cauley v. Wadley Lumber Co., 119 Ga. 648 (46 S. E. 852); Thornton v. Coleman, 104 Ga. 625, 627 (30 S. E. 782). “There was, for some time after the passage of the act of 1895, doubt as to whether there were any terms upon which a default could be opened after the trial term. We think it is now well settled that a default can not be opened after the trial term has passed.” Brawner v. Maddox, 1 Ga. App. 336 (58 S. E. 278).’ The evidence showing that this ease was in default, and had been so marked on the docket, the court erred in allowing the defendant to file an answer at a term after the trial term of this case; and this error rendered all subsequent proceedings nugatory; since the plaintiff was thereby deprived of a substantial right. Cauley v. Wadley Lumber Co., supra.

Judgment reversed.

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


author: .Broyles, P. J.

text:
    8432.
    Chamblee v. Farmers and Merchants Bank.
   .Broyles, P. J.

1. Under the ruling of this court in Sloan v. Farmers & Merchants Bank, ante, 123 (92 S. E. 893), the court did not err in striking, on oral motion at the trial term, the original answer and plea of the defendant, or in disallowing all of the proffered amendments except the amendment which set up the defense of non est factum as to the indorsement of the note sued upon. The latter plea was properly-allowed.

2. The charge of the court as to the respective weight to be given to the evidence of witnesses who testify positively to a fact and to the evidence of other witnesses who testify negatively to the same fact, was erroneous, in that the judge failed to state, in connection therewith, that the jury, in weighing the testimony of such witnesses, should consider the question of their credibility. Wright v. Western & Atlantic R. Co., 139 Ga. 343 (6). Under the facts of the case, however, this error was harmless and does not require a new trial. The only issue before the jury was whether the defendant had indorsed the note sued upon. One unimpeached witness for the plaintiff testified positively that he saw the defendant sign his name on the back of the note. The only evidence for the defendant on this question was the testimony of the defendant himself, and his testimony was, in substance, that he did not remember signing the note on the back, and did not think he had, . but that his name on the back looked like his signature, and “I won’t swear I didn’t put it there.” This evidence demanded a finding against the plea of non est factum; and, accordingly, the error in this portion of the charge was harmless.

3. The other instructions complained of are not erroneous, when taken in connection with the entire charge and the facts of the case.

4. The 6th ground of the amendment to the motion for a new trial complains of the refusal of the court to rule out “all the evidence of James. Merritt, S. C. Dunlap Jr., and R. W. Smith, same set out and shown under their respective names in brief of evidence herein approved and filed on the ground then and there stated that all of the evidence of each of said witnesses was merely opinion evidence in comparison of signatures where one was admitted to be genuine and the jury could judge and compare in such cases for themselves as well as those witnesses, and that their opinion was not admissible in such cases.” This

Decided July 19, 1917.

Rehearing denied August 2, 1917.

Complaint; from Hall superior court—Judge J. B. Jones. August 12, 1916.

■J. 0. Collins, for plaintiff in error. W. A. Charters, contra.

. ground is not complete in itself, and raises no question for decision by this court. The evidence itself should have been set forth in the ground. Smiley v. Smiley, 144 Ga. 546 (2); Tolbert v. State, 16 Ga. App. 311 (1) ; Roddenberry Hardware Co. v. Merritt, 17 Ga. App. 425 (1).

-5. The court did not err in refusing to comply with the various requests to charge, as set forth in the special grounds of the motion for a new trial. These requests were sufficiently covered by the general- charge, in so far as they were pertinent and legal.

6. The. evidence not only authorized, but demanded the verdict.

Judgment affirmed.

Jenhins and Bloodworth, JJ., concur.


author: Bloodworth, J.

text:
    8443.
    Haley v. Block.
    Decided July 19, 1917.
    Complaint; from city court of Macon—Judge Guerry. January 3, 1917..

      W. D. McNeil, for plaintiff in error. R. W. Barnes, contra.
   Bloodworth, J.

1. The motion to dismiss the bill of exceptions is denied.

' 2. On the 10th day of November, 1916, and during the September term of the-city court of Macon, “an order was passed by the court sustaining the demurrer to the answer and to the answer as amended, and striking both the answer and the answer as amended,” and no exceptions pendente lite were filed. The case was tried on January 3, 1917,'which was during the December, 1916, term of the court. A bill of exceptions was presented and signed on the 19th day of January, 1917. Such bill of exceptions does not bring in review the ruling on the demurrer. Cutts v. Scandrett, 108 Ga. 620 (34 S. E. 186) ; Kelly v. Malone, 5 Ga. App. 618 (63 S. E. 639) ; Norman v. Great Western Tailoring Co., 121 Ga. 813 (49 S. E. 782).

3. When the pleas of the defendant had been stricken, and “after the note and deed declared upon had been introduced in evidence, and plaintiff had proved the service of notice for attorney’s fees,” the court properly directed a verdict, for the plaintiff.

Judgment affirmed.

Broyles, P. J., and Jenhins, J., concur.


author: Broyles, P. J.

text:
    8454.
    HARDY v. TRUITT et al.

    1. A judgment by the Court of Appeals, awarding damages for carrying up a case for the purpose of delay only, is given not only as a penalty upon the plaintiff in error, but also as compensation for the delay, cost, and vexation occasioned thereby to the defendant in error.
    2. Where the plaintiff obtains a verdict and judgment on a suit upon a promissory note secured by a deed to land, and a judgment overruling a motion for a new trial of the case is affirmed by this court, with damages for delay, the damages become a part of the debt sued for; the other parts being the principal, the interest, the costs, and (in a proper ease therefor) attorney’s fees. In such a case the judgment for damages is a special judgment, and is a superior lien to a general judgment obtained prior thereto but after .the execution of the deed.
    3. The judgment in favor of the transferee of the bond to-reconvey the land, although obtained subsequently to a general judgment against the transferer of the bond, rendered after the transfer, was superior to the older judgment and had a superior claim to the fund derived from the sale of the land covered by the bond. It had, however, an inferior claim to the fund derived from the sale of the land of the transferer not covered by the bond.
    Decided July 19, 1917.
    Money rule; from city court of LaG-range—Judge Harwell. December 23, 1916.
    This was a rule to distribute money in the hands of the sheriff of Troup county, arising from a sale of real estate. The bill of exceptions sets out the following facts: It appeared, from the evidence, that on April 12, 1905, W. F. Hogg executed a promissory note for $3,880.87 and interest, payable to J. G. Truitt, and a deed to 536 acres of land as security for its payment. Certain credits were made on the note, and all the land except the 416% acres involved in this controversy was released. After the execution of the above-mentioned deed, Hogg executed, as additional security for the debt, a deed to Truitt, dated February 13, 1912, to 50 acres of land, known as the Carlisle place. "These deeds, to wit, the one describing the 416% acres,, and the one describing the 50 acres (the Carlisle place), were both foreclosed for the principal, interest, and costs, then amounting to the sum of $4,144.79.” Upon the rendition of the judgment Hogg sued hut a writ of error, and on October 4, 1916, the judgment .of the trial court was affirmed by this court, and damages for bringing up the case for delay were awarded to the plaintiff (18 Ga. App. 649). On the return of the remittitur the judgment of the Court of Appeals was made the judgment of the trial court, and judgment was entered for the sum awarded as damages,—$419.62. For the purpose of levy, Truitt had conveyed to Hógg, as required by law, the lands to which he held title from Hogg. On December 9, 1915, the execution in favor of Truitt was levied on the lands conveyed. On October 26, 1916, the execution for $419.62 (damages) was also levied. on the lands, and the plaintiff therein claimed from the sheriff who held this execution satisfaction in full from the proceeds of the sale under the first levy. It appeared also that in 1914 Hogg executed a promissory note to the C. Y. Truitt Company for $2,786 and interest,' secured' by a deed to 100 acres of land, not including any of the land described in the deeds to J. G. Truitt. The C. Y. Truitt Company obtained judgment on this note for $3,426.56. This land was levied on and was sold for $1,000, which amount, after certain deductions hereinafter stated, was credited on the C. Y. Truitt Company fi. fa., leaving a balance due thereon of $2,596.69. The C. Y. Truitt Company, as additional security for its debt, held the bond to reconvey executed by J. G. Truitt to Hogg, which was transferred by Hogg to the C. Y. ■ Truitt Company on February 27, 1915, and recorded the same day in the office of the clerk of the superior court of Troup county. This bond to reeonvey described only.the 416% acres of land, and did not include the Carlisle place of 50 acres. It appeared' also that W. L. Hardy obtained a judgment against Hogg on September 16, 1915, for $916.63, and on the same day the judgment and the execution were duly entered of record.
    Under the execution of J. G. Truitt the 466% acres of land were sold, the 416%-aere tract bringing $5,380, and the 50-acre Carlisle place $485. Under the execution of C. V. Truitt Company the 100-acre tract was sold, and brought $1,000. Before the-sales of these lands the execution of W. L. Hardy was placed in the hands of the sheriff, "W. B. Shirey, and he claimed the right to be paid the full amount of his execution, from the sales under the J. G. Truitt execution. There was also placed in the hands of the sheriff, an execution for State and county taxes for the year 1915, amounting to $564.99, which had been transferred to J. E. Dunson Brothers Company. After the sales of the property J. G. Truitt filed a petition against the sheriff for a rule to distribute the money derived from the sales, except from the sale under the C. V. Truitt Company’s judgment. W. L. Hardy and the C. Y. Truitt Company each intervened and were made parties to the suit, each claiming priority out of the said funds. W. L. Hardy asserted that after payment of the principal, interest, and costs, amounting to $4,144.79, due to J. G. Truitt, he, Hardy, should he paid the balance arising from the sale under the J. G. Truitt execution. Hardy contended that he was entitled to the proceeds of the 50 acres (the Carlisle place), since the remainder of the money was sufficient to pay the claim of- J. G. Truitt, except the judgment against Hogg for damages for delay. .
    The judgment of the trial court (omitting immaterial parts) was as follows: “J. G. Truitt v. W. B. Shirey, - sheriff, et al. Money rule, city court of LaGrange, December term, 1916. In the money rule above stated, upon consideration thereof, T rule as follows: First, costs. . . Second, taxes. . . Third, out of the J. G. Truitt fund of $5,865 I allow to he paid the amount of his judgments, principal and interest, including his smaller judgment of $419.62, with interest. I hold that this judgment has a superior lien on this fund. I consider that when this debt was created and-the lands conveyed to him to secure-, it, it was in-contemplation of the parties that the deed given him by Hogg .would secure whatever judgment he might obtain in enforcing the collection of his debt. Fourth: After the payment of the above amounts, I hold that C. V. Truitt Company has the next lien on the fund arising from the sale of all of the J. G. Truitt lands, except 50 acres, known as the Carlisle place, by reason of the transfer of the bond for titles given by J. G. Truitt .to W. F. Hogg,anterior to any judgments against W. F. Hogg (8 Ga. App. 802).. This bond for titles did not include the Carlisle place of 50 acres, which sold for $485. On this part of the fund, $485, after the payment of costs, taxes, and the J. G. Truitt claim, as above stated, W. L. Hardy has the next lien, by reason of his judgment obtained September 9, 1915. The question is, how shall this surplus be prorated between C. V. Truitt Company and W. L. Hardy? The costs, taxes, and the J. G. Truitt claim to he paid out of this fund of $5,865, amounts to $5,174.23. The remainder of this fund I prorate equitably, according to the size of the two funds, on which they have superior liens. This gives C. Y. Truitt Company $633.65, and W, L, Hardy $57.12, Fifth; In reference to the fund of $1,000, arising from the C. Y. Truitt Company lands, I order these funds distributed as follows: Costs, $57.71; taxes, $170.13 to J. E. Dunson & Brothers Company; C. Y. Truitt Company, $772.16; a total of $1,000. Sixth: The fund arising from the J. G. Truitt lands, according to the ruling above stated, shall be distributed as follows: Costs and attorney’s fees, $214.96; taxes to J. E. Dunson & Brothers Company, $394.86; J. G. Truitt, $4,-564.41; C. Y. Truitt Company, $633.65; W. L. Hardy, $57.12. I order the sheriff to pay the above out of the funds to the parties as above stated. This 23d day of December, 1916. Frank Harwell, J. C. C. LaGrange.” To this ruling Hardy excepted.

      A. II. Thompson, for plaintiff in error.

      T. T. Moon> M. TJ. Mooty, contra.
   Broyles, P. J.

(After stating the foregoing facts.) As authority for the ruling in the first headnote we cite Garrison v. Wilcoxson, 11 Ga. 154. In that case the court, in speaking of the statute providing for damages for frivolous appeals to the superior court (Civil Code of 1910, § 5018), said: “The object of this act is to prevent groundless appeals, by inflicting a punishment, in the shape of damages, and to compensate the respondent for delay, cost and vexation occasioned by such appeal” (italics ours). Although in that case the appeal was to the superior court, the principle involved applies also to cases carried to this court. It is true that the code-section just mentioned requires that damages shall be assessed, but only after it shall appear to the jury, or (in appeals from a justice’s court) to the judge of the superior court, that the appeal was frivolous and intended for delay only. Section 6213 of the Civil Code (1910) is as follows: “Ten per cent, damages may be awarded by the Supreme Court upon any judgment for a sum certain, which has been carried to the said court, and there affirmed: Provided, in their opinion, the case was taken up for delay only, and it shall be so entered in the remittitur.” It will be seen from the language just quoted (which applies also to this court) that in the cases to which it applies the awarding of damages is discretionary with the court, even after it appears that the case was carried up for delay only. In our judgment, however, this distinction between the two acts is not material as to the question now under consideration. There is no certainty under either statute that damages will be assessed against the party carrying np the ease if he fails in his case. In the trial court, before such damages shall be given, it must be shown, not only that the appeal is frivolous, but that it was made for delay only. Thus it is clearly seen that while the assessment of damages in the trial court is mandatory, it is so only in two contingencies, which are very uncertain and which no one can count upon. In the Court of Appeals the uncertainty of damages being assessed is still greater, but this is a difference in degree only and not a substantive, vital • distinction, for in neither court is there any certainty that damages will be awarded, even where a frivolous appeal appears.

In our opinion the deed given by Hogg to.secure his note to Truitt secured the principal, the interest, the costs, and the judgment for damages, such judgment being incident to the foreclosure and collection of the debt. In Donovan v. Hogan, 8 Ga. App. 754 (70 S. E. 153), this court held that the costs in a case were a part of the debt, and in the opinion we find this language: “This liability of .being subjected to the payment of costs is one to which the defendant exposes himself by not paying the debt when it is due; and when once the suit is filed and the costs accrue, they become as much a part of the debt as the principal and interest.” We agree, however, with counsel for the plaintiff in error that damages for delay are not entirely on the same footing with the costs of a ease, and we would hesitate to decide this ease on that theory, but in Phillips v. Behn, 19 Ga. 298, we find a decision that, in our judgment, is . controlling upon the question now under consideration. In that case the 6th headnote is as follows: “Property alienated pending an' appeal is as much bound for the payment of damages for a frivolous appeal as it is for the payment of the rest of'the amount of'the appeal judgment.” It is true that the appeal in that case, as pointed out by counsel for the plaintiff in error, was to the superior court, but, .as we have already tried to show, the principle is substantially the same whether the appeal be to the superior court or to this court. The defendant in error, J. G. Truitt, had a special judgment against Hogg, secured by a deed to land, and was delayed in securing his money, by an appeal for delay only, until the debt had been increased by additional interest, costs, and the damages for delay. The original contract between Hogg and Truitt, secured by a deed to land, carried with it security for the entire debt, and, as it turned out, that debt consisted of the principal, the interest, the costs of the case, attor- ' ney’s fees, and the damages for delay. In this ease Hardy was not an innocent purchaser, for he knew, or should have known, that under the law damages for delay could and might be assessed against Hogg. We think, therefore, that the court was correct in holding that the judgment for damages was a special lien upon the land and was superior to Hardy’s general judgment.

As authority for the ruling in the third headnote we cite McIntire v. Garmany, 8 Ga. App. 803 (70 S. E. 198). See also, in this connection, Hubert v. Merchants Bank, 137 Ga. 70 (73 S. E. 505). The judgment of G. Y. Truitt' Company, its debt having been secured by the transferred bond for titles, was superior to Hardy’s general judgment, as to the proceeds derived from the sale of land covered by. the bond for titles, but, as to the fund derived from the sale of the land not so covered, was inferior to Hardy’s judgment.

It is insisted by counsel for.the plaintiff in error that the court erred in not compelling J. G. Truitt to elect to satisfy his entire debt out of the fund derived from the sale of the 416% acres of land, the fund being sufficient for that purpose. Section 3330 of the Civil Code (1910) provides that “A creditor having a lien on two funds of the debtor, equally accessible to him, will be compelled to pursue the one on which other creditors have no lien.” We would agree with this contention if there had been no lien except J. G. Truitt’s.on the 416%-acre tract of land. It appears, however, from the bill of exceptions and the record, that there were other liens on this identical property. In our opinion, therefore, the court did-not err in not confining J. G. Truitt’s claim to the fund arising from the sale of the 416% acres of land.

The court correctly held also that C. V. Truitt Company’s claim was superior to Hardy’s claim, as to the proceeds derived from the .sale of-the 416% acres of land. In our judgment, however, the .court erred in awarding,any part of the sum of $485, the proceeds of the sale of the 50 acres of land known as the Carlisle place, - to C. Y. Truitt Company, as that company’s transferred bond for titles did not cover that property, and Hardy’s claim to this fund was superior, to that of the Truitt Company, and, as against that company, he was entitled to all of it.

There was in this ease no exception to the judgment directing that the tax execution should be paid next after the costs. See, however, in this connection, the opinion this day rendered in Truitt Company v. Dunson & Brothers Co., post, 535 (a companion case to the instant one), where it was held, the question being there properly raised, that such judgment was erroneous.

The judgment being in part reversed, it is directed that all the costs of the writ of error be taxed against the defendant in error.

Judgment affirmed in part, and reversed in part,

JenMns and Bloodworth, JJ., concur.


text:
    8455.
    Truitt Company v. Dunson & Brothers Company.
   Broyles, P. J.

1. “A levying officer ruled for money, and who is manifestly a mere stakeholder with no interest in the result of the case, is • not a necessary party to a bill of exceptions sued out by one of the contestants for the fund.” DeVaughn v. Byrom, 110 Ga. 904 (36 S. E. 267).

(o) This is true although the levying officer was a necessary party in the proceedings in the lower court. Quitman Oil Co. v. Peacock, 14 Ga. App. 550 (81 S. E. 908).

(6) Under the above ruling the motion to dismiss the writ of error is denied.

2. Whenever an execution for State, county, or municipal taxes is paid by a person other than the defendant, the officer whose duty it is to enforce it shall on request transfer it to the person paying it; and the transferee shall have the' same rights as to enforcement and priority of payment as might have been exercised or claimed before the transfer, “provided said transferee shall have said execution entered on the general execution docket of the superior court of the county, in which the same was issued, . . within thirty days from said, transfer. And in default thereof such execution shall lose its lien upon any property which has been transferred bona fide and for a valuable consideration . before the record and notice of the existence of such execution.” .Civil Code (1910), § 1145.

(a) The provisions of this act must be strictly complied with; and, to make the transfer of such an execution available against third persons, the transfer must not only have been made by the proper person, but must also have been recorded within the specified time.;-'- National Bank of Athens v. Danforth, 80 Ga. 55 (4) (7 S. E. 546) Clarke v. Douglass, 86 Ga. 125 (12 S. E. 209), and cases therein cited.

3. A tax-collector has no authority to transfer an execution issued for State and county taxes, except in counties having a population of 75,- . 000 or more. Hill v. Georgia State Building & Loan Association, 120 Ga. 472 (47 S. E. 897); County of Laurens v. Citizens Bank of Valdosta, 9 Ga. App. 662 (72 S. E. 67).

Decided July 19, 1917.

Money rule; from city court of LaGrange—Judge Harwell. December 13, 1916.

E. T. Moon, for plaintiff in error. M. Ü. Mooty, contra.

4. This was a money rule against the sheriff of Troup county, and the controlling 1 question is: Which was the superior lien on the fund in his hands,—the execution of the plaintiff in error, for the purchase money of the land from whose sale the fund was derived, or the execution for State and county taxes, which had been transferred to the defendant in error, for value received, on February 2, 1916, by the tax-collector of the county, and which on the same day was entered upon the general execution docket? The.tax-collector of Troup county had no authority to transfer the execution. The fact that the sheriff of the county (who did have such authority) subsequently, ■ on December 13, 1916, transferred the execution to the defendant in error, and that it was on the following day entered on the general execution docket, under the facts of the case, did not render the execution available against the plaintiff in error. When the defendant in error bought the tax execution on February 2, 1916, the State and county no longer had any interest therein. It is the spirit and intent of the statute that the transfer shall be made at the time the tax fi. fa. is purchased, and that it shall be recorded within thirty days from that time. In this case the first transfer by the tax-collector and the recording of the same were invalid, and the defendant in error, to preserve his priority of lien, should have had a legal transfer made and properly recorded within thirty days from the time he bought the execution. But he waited ten months after he had purchased the execution, and until the fund in the sheriff’s hands was before the court for distribution, and it was then too late to have a lawful transfer made and recorded. The execution in the meantime had lost its lien as against all innocent third persons.

6. The court erred in holding that the transferred fi. fa. for taxes for the year 1915 was a superior lien to the execution of the plaintiff in error.

6. The preceding rulings being controlling in the case, it is unnecessary to pass upon the other questions raised. •

Judgment reversed.

Jenkins and Bloodworth, JJ., concur.


text:
    8566.
    Atlanta Banking and Savings Co. v. Moore.
   Bloodworth, J.

The Atlanta Banking & Savings Company filed a petition for a rule against the sheriff of Fulton county. A demurrer was filed and the following order passed thereon: “This demurrer coming on to be heard in due course, after argument it is considered and or- , dered that the demurrer to the rule brought against the sheriff and the -amendment thereto be sustained and the rule discharged. There may be some equitable rights in the fund in behalf of movants, but, as matter of law, the movant is, in the opinion of the court, not entitled to a rule absolute against the sheriff, requiring him to pay over all the fund, and the petition is too indefinite to authorize any division of it under the rule. This Jany. 31st, 1917. W. D. Ellis, Judge S. C. A. C.” Under the pleadings the court properly sustained the demurrer. It is deemed proper, however, to remand the case with' direction that if, within thirty days from the filing of the remittitur in this case in Fulton superior court, the plaintiff will so amend his pleadings that the fund in the hands of the sheriff can be properly distributed under the • petition, the judge shall allow said amendment and distribute the fund. If such amendment be not so filed, then the judgment of the court below will stand affirmed.

Decided July 19, 1917.

Money rule; from Fulton superior court—Judge Ellis. July 31, 1917.

The original petition alleges: Three mortgages on described land in Fulton county, Georgia, made by W. R. Moore to the petitioner, were foreclosed in the superior court of that county, fi. fa. issued under the foreclosure was levied on the land, and the land was sold by C. W. Mangum, sheriff of the county, on the first Tuesday in June, 1915, for $2,000 to the petitioner. At the date of the sale there was due on the fi. fa. $1,727.14, and after payment of the fi. fa. there remains in the hands of the sheriff, as the proceeds of the sale, $262.86. Two fi. fas. in favor of Marie R. Thomas against W. R. Moore, on each of which there is due $80, have been placed in the hands of the sheriff' for the purpose of .claiming enough .of the said fund to satisfy them. Each of the said three mortgages of Moore to the petitioner contains a clause ■ as follows: “It is expressly agreed that said party of the first part will pay all taxes and assessments of every kind on said property within sixty days after the same become due and payable, . . and if said party of the first part fails to pay said taxes or assessments as aforesaid, . . said party of the second part is authorized to pay said taxes [and] assessments, . . and this mortgage is given also to secure said sum or sums so paid, and interest thereon at 8% as part of said loan.” W. R. Moore, after •the date of the said mortgages, made a bond for title to Rarantha & Turner, agreeing to convey described land, which included ,the property in the said mortgages and also certain property on which the saidfi. fas. of Marie R. Thomas against W. R. Moore were-a special lien; to all of which liens the said bond for title was subject. Parantha & Turner returned the property to the City of Atlanta for city taxes for 1914, and failed to pay the taxes, and afterwards surrendered to W. E. Moore all interest held by them under the bond for title. The taxes were not returned or paid by W. E. Moore or any one else, but fi. fas. therefor were, issued ' against Parantha & Turner, and were levied on all of the said property as the property of Parantha & Turner, and sold thereunder on March 2, 1915, and purchased by the City of Atlanta at the sale. Petitioner did not know of the nonpayment of the taxes by Parantha & Turner and W. E. Moore to the City of Atlanta for 1914 until the said sheriff’s sale, under which petitioner acquired title to a part of the said property, and for this reason did not exercise its' right to .pay the said taxes and include the amount so expended in the'foreclosure of the said mortgages, which right it then had and' now has under the terms of the mortgages. The loan deeds given by W. E. Moore to Marie E. Thomas, on which the fi. fas. above stated are based, are younger in date and record than the petitioner’s said mortgages, and are upon parts of the property included in the said tax sale, but not part of the property bought 'by petitioner at the sheriff’s sale. Petitioner, in order to protect its title acquired at the said sheriff’s sale, has been compelled to pay the amount necessary to redeem the property sold under the said tax sale to the City of Atlanta. Marie E. Thomas owns part of the property sold under the said tax sale, and W. E. Moore and the petitioner own the rest of the property sold under the tax sale, and Marie E. Thomas and W. E. Moore and their said properties, in equity- and good conscience, are liable to the petitioner for their proportionate part of the said taxes, and should not be allowed to take any part of the fund now in the hands of the sheriff until the petitioner has been reimbursed for the amounts paid by. it to redeem the land from the said tax sale. Pemand has been made upon C. W. Mangum, sheriff, that $190.60 be paid- to petitioner out of the said fund, to reimburse it for the said taxes as expended, and the demand has been refused. It is prayed that a rule nisi be issued against the said Mangum, sheriff, requesting him to show cause why he has not paid over to petitioner so much of the said fund in his hands as shall be sufficient to reimburse petitioner for the amount paid by it to redeem the land from the tax sale, and that Marie E. Thomas and W. E. Moore be made parties to the rule and be bound by any decision thereon. By amendment it is alleged, that at the time the petitioner paid the money and redeemed the property from the tax sale, petitioner received a deed duly executed by the City of Atlanta, conveying to petitioner the property sold at the said tax sale, which was duly filed for record June 30, 1915, and recorded July 3, 1915,.in Deed Book 430, page 379, of the Fulton county records, in the office of the derk of the superior court of Fulton county, Georgia, in compliance with sections Í169 and 1170 of the Code of Georgia for 1895, and petitioner relies upon the said statutes in its claim that the amount that it paid out to redeem the said property from the tax sale be paid to it with interest thereon out of the said fund in the hands of the sheriff.

Judgment affirmed, with direction.

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

W. E. Moore demurred to the petition, on the grounds: (1) No ’cause of action is set forth. (2) The facts as alleged do not entitle the plaintiff to the relief sought. (3) It appears from the petition that at the time of the alleged foreclosure and sale the title to the property had’ passed from the petitioner to the City of Atlanta, and the said proceedings in their entirety are null and void.

J. A. & J. M. Noyes, for plaintiff, cited:

Gross v. Taylor, 81 Ga. 86; National Bank v. Danforth, 80 Ga. 55; Sheibley v. Rome, 107 Ga. 384; Bank of the University v. Athens Savings Bank, 107 Ga. 246; Brooks v. Matledge, 100 Ga. 367; Askew v. Scottish American Mortgage Co., 114 Ga. 302; Merchants National Bank v. McWilliams, 107 Ga. 532; Civil Code (1910), § 1167, 1170, 1172; Fulcher v. Felker, 28 Ga. 252; Civil Code (1910), § 1141; Patton v. Camp, 130 Ga. 936, 940; Ferris v. Van Ingen, 110 Ga. 102 (8).

Green, Tilson & McKinney, B. J. Ward, Moore & Pomeroy, for defendants:

Park’s Code, §§ 880, 1169, 1170, 1018; Blalock v. Buchanan, 114 Ga. 564; Jinks v. American Mortgage Co., 102 Ga. 694; Richards v. Edwardy, 138 Ga. 690.


author: Wade, C. J.

text:
    7809.
    PEACOCK et al. v. ANDERSON.
    1. The general demurrer bringing into question the jurisdiction of the court over the defendant Peacock, and the various special demurrers to the petition, were properly overruled.
    2. The evidence .did not demand the conclusion that the stock purchased by the plaintiff was wholly without value at the time the purchase was induced by the alleged misleading and untruthful representations as to the financial condition of the corporation, made by the defendant Peacock, on account of which the plaintiff sued; and therefore the following charge to the jury was error: “If you believe he is entitled to recover, gentlemen, the measure of damages would be the amount he paid for the stock—that is, whatever money he -lost.” The amount the plaintiff lost would not be identical with that expended by him for the stock, unless such stock was absolutely worthless at the time of the purchase. This instruction likewise amounted to an expression of opinion by the court upon a contested point in the ease: whether the loss sustained by the plaintiff was equal to or less than the full amount paid by him for the stock. For the same reasons, the court erred in charging the jury as follows: “If you should allow the plaintiff to recover, you may increase the amount he paid for his stock by a sum equivalent to interest, as stated to you,” as this instruction likewise gave as the measure of damages the amount paid by the plaintiff for the stock.
    3. There is no substantial merit, under.the facts of this case, in the three remaining special grounds of the motion for a new trial.
    4. There was some evidence to support all the material allegations' in the petition, except that the stock alleged to have been sold to the plaintiff by a conspiracy between the two defendants, and through certain false representations as to its value and as to the solvency of the corporation, was entirely worthless when purchased; and the judgment is reversed solely on account of the error in the charge of the court, referred to in the 2d headnote.
    Decided July 23, 1917.
    Action for deceit; from city court of Atlanta—Judge Beid. March 11, 1915.

      Little, Powell, Smith & Goldstein, W. M. Clements, for plaintiffs in error. Charles H. Grifm, Walter S. Dillon, contra.
   Wade, C. J.

Anderson sued Pollock and Peacock jointly in an action for fraud and deceit, alleging, that the former was a resident of Fulton county, Georgia, and the latter of Dodge county; that on February 3, 1914, and at various times thereafter named in the petition, Pollock was the president and Peacock a vice-president and director of the Union Trust Company, a corporation of Fulton county, Georgia; that Pollock and Peacock entered into a ' conspiracy to sell or cause to be sold to the plaintiff certain shares of the capital stock of that company, and, in pursuance of the conspiracy, prepared a false statement pretending to show the financial condition of the corporation, which statement it was agreed between them should be used in effecting the sale of its capital stock to him; that this statement was signed by Peacock, a man in whom he had confidence, and was by the consent and agreement of Pollock and Peacock thereafter exhibited to the plaintiff by a duly authorized agent of the company, who, by means of the false representations therein, effected a sale to him of certain shares of stock belonging individually to the said agent, for $1,320 cash; that the stock was worthless at the time it was purchased by the plaintiff, and both Pollock and Peacock had knowledge of this fact. The plaintiff made various other allegations as to the precise misreprer sentations contained in the statement signed by Peacock and given circulation by Pollock, which partly induced him to expend the $1,320, but it is unnecessary for the purposes of this decision to recite them.

The receiver testified as to various discrepancies between the statement of assets and liabilities given currency by the defendants, which was signed by the defendant Peacock, but all his testimony had reference to the financial condition of the corporation at the time he was appointed receiver, April 29, 1914; whereas the statement made by Peacock, which, the plaintiff alleged, induced ■ him to purchase stock in the corporation, was dated- December 31, 1913, and was agreed to and signed on February 3, 1914, and the purchase of stock was actually made by the plaintiff on February 13, 1914. The receiver testified as to numerous items and various apparent discrepancies in the statement referred to, which itself bore express reference to the condition of the corporation “at the close of business December 31, 1913;” and it seems probable that at the time his testimony was delivered, in March, 1915, stock in the corporation was utterly worthless. However, his testimony does not compel the conclusion that on December 31, 1913, or February 3, 1914, or February 13, 1914, the corporation was so utterly insolvent that the stock therein purchased by the plaintiff was then absolutely worthless. The receiver .said: “I have studied the history of the company with regard to the' assets, as to tracing the assets that might belong to the company. So far as I know, the corporation and assets on December 31st and until my appointment [on April 29, 1914] were the same when 1 was appointed, and that is true also of February [1914], so far as I Tcnow” [italics ours]. Likewise, on cross-examination: “I say so far as I know there was no change, I merely mean I don’t know about it. The stock and bonds, instead of being $49,500 as carried by them in December, were, when I took charge, $87,000. The item of bills receivable, $216,318.38 (as carried in December), was an entirely different figure when I took charge of the concern. I know there existed a panic in business generally between December and when I took charge.” Again, in response to the following question: “You are not willing to state that this statement attached to the petition (the statement of December 31st) does not correctly or did not correctly represent the assets and liabilities carried on the books of the company at that time?” he answered: “I do not know. I was not interested in this statement of December 31st. I am not able to state that there was any error in that statement.” He further- said: “As to this financial statement of December 31st, 1913, I don’t know a thing about that statement. None of .these assets that are .mentioned in this .statement of December 31st have been concealed, so far as I know’ or have been able to learn. The books don’t show any transaction where the assets have decreased or been depleted in any way;, and .1 have not heard of any transaction where the assets would be exhausted. There were no losses that would use up the assets during the time, so far as I know.” This testimony did not amount to positive testimony that the stock at the time it was purchased by Anderson was wholly worthless, nor does it appear -elsewhere in the record that either the plaintiff himself or any other witness definitely and positively testifiéd to this effect. While it might be fairly assumed from the testimony of the receiver that in all probability the stock of the Union Trust Company was altogether worthless when it was sold by the agent, Orr, to the plaintiff, Anderson, that conclusion is not demanded by the testimony; for, notwithstanding the short time which elapsed between December 31, 1913, and April 29, 1914, or the still shorter time between February 13, 1914 (when the plaintiff purchased the stock), and April 29, 1914, it can not be said that even in that brief period the items set forth in the statement of assets and liabilities, upon which the letter of Peacock (which induced the plaintiff to purchase) was predicated, had not very materially changed. In fact, the receiver himself stated that a period of great financial depression had ensued between December, 1913, and April 39, 1914, and there was other testimony to tl.e same effect, as well as some testimony showing a shrinkage in' the value of some of the items included in the statement of assets, on account of the bankruptcy of certain other corporations with which the'Union Trust Company had business connections.

It is urged by able counsel for the defendant in error that no issue as to the worthlessness of the stock at the time of the pur- ' chase by the plaintiff was raised in any manner by the pleadings or during the trial. It is enough to say, in answer to this contention, that the allegation in the petition that the stock was worthless was denied explicitly in the answers of the defendants; and furthermore the evidence as a whole disclosed that there was an attempt on the part of the defendants to show that the property listed in the statement referred to in the letter of the defendant Peacock was in fact worth as much-as there shown, or approximately as much. Certainly the value of the stock at the time of its purchase by the plaintiff was thus put in issue, and it was not conceded in the pleadings or otherwise that the stock was worthless when sold to the plaintiff. This being true, it follows that serious injury may have been done the defendants by the charge instructing the jury that the measure of damages, in the event they should find that the plaintiff was entitled to recover, would be the amount he had expended for the stock; as this in effect was equivalent to an instruction that the stock was utterly worthless when purchased, and very strongly intimated, if it did not in fact say, that in the opinion of the court this was in fact true; though, as suggested above, the worthlessness of the stock was denied by the defendants in their pleas and was disputed by some evidence offered in their behalf. It is also true that, considering certain testimony for the plaintiff and discrediting some evidence for the defendants, it is easily demonstrable that (as urged by counsel for the defendant in error) the testimony as a whole might sustain (under one theory) a finding for even a greater amount than $1,330, as the actual damages suffered by the plaintiff, and therefore that the erroneous instruction as to the measure of damages might not have been harmful to the defendants-and would not require a reversal. But, on the other hand, this interpretation of the evidence is not the only interpretation, nor is it demanded; and since an acceptance by the jury of some of the other testimony in the ease would have necessitated a different conclusion and might have led them to believe that the stock had some value from December 31, 1913, up to and including February 13, 1914, the instruction was in fact harmful, for it submitted to the jury as a settled issue one of the vital contentions in the case.

As the case must go back for a new trial, we do not think it proper to comment at length on the evidence, or to refer specifically to any moré of it than is necessary to make clear the reason for the ruling reversing the judgment of the lower court.

Judgment reversed.

George and Luke, JJ., concur.


text:
    7888.
    SAVANNAH AND NORTHWESTERN RAILWAY v. McCOY.
    1. The former ruling of this court in this ease, to the eifeet that the petition as amended set forth a cause of action, is controlling as to the petition as since amended.
    2. As to tlie burden of proof in a ease governed by the Federal employer’s liability act, no further instructions to the jury than those given were necessary.
    3. The evidence for the plaintiff, although weak and unsatisfactory, was sufficient to authorize the verdict.
    Decided July 23, 1917.
    Action for damages; from city court of Savannah—Judge Davis Freeman. August 16, 1916.

      Hitch & Denmark, John G. Kennedy, for plaintiff in error.

      Oliver & Oliver, contra.
   Wade, C. J.

When this case was formerly before this court on exception to the overruling of the general demurrer to the plaintiff’s petition (Savannah & Northwestern Railway v. McCoy, 17 Ga. App. 82, 86 S. E. 282), it was held: Conceding that the plaintiff had knowledge of the partial obstruction existing on or near the track, it appears, from the allegations in the petition, that the injury would not have resulted but for the intervening negligence of his coemployee, and it can not be judicially determined on the facts as alleged that the failure on the part of the plaintiff to anticipate and guard against that negligence would amount to such a want of ordinary care on his part as to preclude-the possibility of recovery, but the question was properly one for a jury.”

By amendment of the amended petition considered in the former review the allegations of negligence on the part of the plaintiff’s coemployee were amplified by assigning reasons for his knowledge as to the defects in the track of the railroad company, which caused him to be thrown against the plaintiff and produced the injuries sued for. The previous ruling, therefore, to the effect that the petition set forth a cause of action, is controlling, notwithstanding the additional amendments.

There is no merit in the following, ground of the motion for a new trial: The court erred in omitting to charge the jury that "the burden of proof was on the plaintiff, before he could establish liability for injuries alleged to have been suffered by him while employed by the defendant, to show by evidence that the ah leged injuries resulted in whole or in part from the negligence of the defendant carrier, its agents or employees; the case being determinable by the provisions of the Federal employer’s liability act rather than by the State law, and this point being insisted upon by defendant’s counsel in argument, and oral request being made by defendant’s counsel in his argument that this principle be given in charge to the jury.” This ground of the motion was not unreservedly approved by the court, but the court made the following certificate in connection with it: “As to this ground, the.court recalls no oral request to charge. The evidence having developed that the case was controlled by the Federal law, counsel for defendant started to cite authority to the effect that the presumption obtaining in a ease under the State law did not apply. The court thereupon announced to counsel that the authority need not be read; that the court agreed that the presumption law did not-apply, . and that it would not be charged. This was in the hearing of the jury.” The court instructed the jury as follows: “All material allegations which are denied, or which the defendant says it can neither admit nor deny, for lack of sufficient information, must be established by proof. You will determine who should prevail, and your decision will be controlled by the preponderance of the evidence.” This instruction, in connection with the fact that no reference was made to the existence of any presumption against the defendant, amounted to an instruction to the jury that the burden of proof rested upon the plaintiff to establish the essential allegations in his petition by a preponderance of evidence before a recovery would be authorized.

All the remaining grounds of the motion for a new trial amount merely to specific objections to the sufficiency of the proof on one point or another, and are therefore without merit, since there was some testimony to support the verdict. The evidence for the plaintiff is somewhat weak and unsatisfactory, but the jury accepted it as the truth of the case, and the learned trial judge, who heard the testimony delivered from the stand, has approved the verdict. It is unnecessary to say that this court has no inherent authority to set aside a verdict based upon evidence which, if credited by the jury, is sufficient to establish the necessary averments upon which it rests, but, in view of the narrow line upon which this case proceeded, and the somewhat unsatisfactory character of the evidence in behalf of the plaintiff (as it appears to us from an inspection of the record), we think it proper to call attention again to the restricted power of the reviewing court under such circumstances.

Judgment affirmed.

George and Lulce, JJ., concur.


author: Luke, J.

text:
    7967.
    CENTRAL OF GEORGIA RAILWAY COMPANY v. STEPHENS.
    The alleged aet of the railway company’s employee on its switch-engine, in striking and knocking from the engine to the track his subordinate, who was run over by the engine and killed, did not, under the allegations of the petition, give a cause of action against the company. To render the employer liable in such a ease, it must clearly appear not only that the aet was done in the prosecution of the employer’s business, but also that it was within the scope of the doer’s employment and was not prompted solely or primarily by malice.
    Decided July 23, 1917.
    Action for damages; from city court of Macon—Judge Guerry. November 16, 1916.

      Jordan & Lane, for plaintiff in error. B. L. Berner, contra.
   Luke, J.

The petition alleged, in substance, that the plaintiff’s husband and J. F. Lavender were members of a switching crew in the yards of the Central of Georgia Kailway Company, working on a switch-engine, and were engaged in the same work; that the plaintiff’s husband was subordinate in authority to Lavender; that the said Lavender was of a cruel and mean nature and often used violence in urging his subordinates, which fact was not known to the plaintiff’s husband, but was either known to the railway company or in the exercise of ordinary care in the employment of competent servants could have been known; that at night on January 28, 1916, while the plaintiff’s husband and.Lavender were upon the footboard of the tender of the switch-engine on which they worked, and while the'engine was backing in the yard, engaged in making up trains, Lavender, without any fault upon the part of the plaintiff’s husband, began to curse him for cutting cars at too great a rate of speed, and finally struck him with a lantern, knocking him from the footboard of the engine, down upon the track and between the rails, and he was run over by the engine and killed; that the railway company was negligent, and such negligence caused the death of petitioner’s husband, for the value of whose life suit is brought; that the railway company was negligent (a) in employing an incompetent, unsafe, and violent tempered man and placing him over the deceased, with full knowledge of his violent characteristics; (b) in not warning the deceased of the violent character and highly ungovernable temper of the said Lavender; (c) in ordering the deceased to work in conjunction with and under Lavender; (J) “that it was the duty of the defendant company to furnish the deceased with a safe place wherein to work and perform the duties assigned to him, and that in ordering him to work under the authority of the said Lavender and subject to his orders was to place him in an unsafe and dangerous place, the dangers of which the deceased was not aware of; and in so doing the defendant was guilty of negligence, which contributed to the injury and death of the deceased.”

The petition was subject to the general demurrer, for the reason that no cause of action is set out. In such a case it must clearly appear not only that the homicide was committed in the prosecution of the business of the railroad company, but also that it was within the scope of the servant’s employment and was not prompted solely or primarily by malice. Savannah Electric Co. v. Hodges, 6 Ga. App. 470 (65 S. E. 322); L. & N. Railroad Co. v. Hudson, 10 Ga. App. 169 (73 S. E. 30); Jones v. St. L., N. & P. Co., 43 Mo. App. 398; 2 Labatt’s Master and Servant, § 537; Smith v. Seaboard Air-Line Ry., 18 Ga. App. 399 (89 S. E. 490). The court erred in overruling the general demurrer.

Judgment reversed.

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


text:
    7969.
    Pike Brothers Lumber Company v. Jackson.
    Decided July 23, 1917.
    Action for damages; from city court of LaGrange—Judge Harwell. October 25, 1916.

      A. H. Thompson, E. T. Moon, for plaintiff in error.

      Hill & Wright-, Hatton Lovejoy, contra.
   Wade, C. J.

1. The evidence sufficiently supports the verdict.

2. Under the particular facts of this case, there is no such substantial merit in any of the assignments of error in the bill of exceptions or in the motion for a new trial as would require the grant of a new trial.

Judgment affirmed.

George and Lulce, JJ., concur.


text:
    8051.
    Central of Georgia Ry. Co. v. Macon Ry. & Light Co.
   Wade, C. J.

1. “The first grant of a new trial will not be disturbed by the Supreme Court, unless the plaintiff in error shows that the judge abused his discretion in granting it, and that the law and facts require the verdict notwithstanding the judgment of the presiding judge.” Civil ' Code, § 6204.

2. “The rule that the first grant of a new trial will not be disturbed except where the verdict is demanded by the evidence is applicable to a case where two successive verdicts have been rendered, one for the plaintiff and the other for the defendant, and where in each instance a new trial was granted.” Jordan v. Dooly, 129 Ga. 392 (58 S. E. 879).

3. “Where the verdict was not demanded by the law and evidence, the Supreme Court will not disturb the first grant of a new trial, though it was upon a single ground, nor will it determine whether the trial court was right in granting the motion on a special ground. This is a rule without an exception.” Smith v. Maddox-Rucker Banking Co., 135 Ga. 151 (68 S. E. 1031). See also Smith v. Maddox-Rucker Banking Co., 8 Ga. App. 290 (68 S. E. 1092).

4. The burden was upon the plaintiff to show “that the proximate cause of the injury to the plaintiff’s employee, for which it has already been mulcted in damages, was the result of positive wrongful acts and negligence upon tli§ part of the defendant in the instant ease, and that the plaintiff had not participated in these wrongful acts and was not a mere joint tort-feasor in the sense that' it had been guilty with the defendant of the same or like negligence which resulted in causing the fatal injuries.” Central of Georgia Ry. Co. v. Macon Ry. &c. Co., 140 Ga. 309, 318 (78 S. E. 931).

Decided July 23, 1917.

Action for damages; from Bibb superior court—Judge Mathews. August 38, 1916.

Jordan & Lane, for plaintiff.

Hatcher & Smith, John R. L. Smith, O. 0. Harris, for defendant.

(a) Negligence being for determination by the jury, except where specifically defined and so classified by law, and the determination as to what was the proximate cause of the injury, out of which this suit originated, being a question of fact dependent upon the construction or interpretation of some of the evidence, it is impossible for this court to say as a matter of law, and without usurping the functions of the jury, that but one verdict could have been returned, and that this verdict was the one set aside by the grant of the motion for a new trial upon the application of the defendant.

Judgment affirmed.

George and Luke, JJ., concur.


author: Wade, O. J.

text:
    8058.
    Southern Cotton Oil Company v. Shields.
   Wade, O. J.

1. There was no error in overruling the general and special demurrers to the plaintiff’s petition.

2. Though the plaintiff’s petition predicated the right of the servant to ' recover upon certain alleged defects in machinery, and upon the alleged failure of the master to furnish a safe place to work, not only did the defendant’s plea interpose as a distinct and complete defense the contention that the injury occurred solely through the negligence of a fellow servant, but there was some evidence adduced which must reasonably be interpreted as tending to support such an inference. The court therefore erred in failing to submit the “fellow-servant doctrine” to the jury for their consideration, in a clear and definite instruction, notwithstanding there was no timely written request for any charge on this subject. Winn v. Fulton Bag & Cotton Mills, 15 Ga. App. 33 (82 S. E. 586); Dwan v. Great Eastern Lumber Co., 15 Ga. App. 108 (82 S. E. 666) ; Studevant v. Blue Springs Lumber Co., 16 Ga. App. 668 (3) (85 S. E. 977), and cases there cited; Kilgo v. Rome Soil Pipe Mfg. Co., 16 Ga. App. 737 (5) (86 S. E. 82).

3. Other grounds of the motion for a new trial are not passed upon, as they are either without substantial merit or relate to matters which may not recur on another trial, when the evidence adduced, and consequently the charge of the court, may be materially different.

Decided July 23, 1917.

Action for damages; from Warren superior court—Judge Walker. August 1, 1916.

M. L. Felts, for plaintiff in error. L. D. McGregor, contra.

Judgment reversed.

George and Luhe, JJ., concur.