author: Harwell, J.

text:
    9471.
    JONES v. ASA G. CANDLER INC.
    Under the undisputed evidence in this ease the plaintiff entered the office building to see a tenant on business of her own, and was therefore a licensee only, and was not there by the invitation, express or implied, of the owner of the building.. The trial judge did not err in granting a nonsuit.
    Decided October 16, 1918.
    Action for damages; from Fulton superior court—Judge Ellis. December 5, 1917.
    Westmoreland, 'Anderson & Smith, for plaintiff. ■
    Candler, Thomson & Ilirsch, for defendant.
   Harwell, J.

Mrs. Sallie H.. Jones brought suit against Asa G. Candler Inc., for damages for personal injuriés alleged to have been sustained when she was visiting what is known as the Candler, building for the purpose of transacting certain business with a tenant of said building. The petition alleges, that the Candler Building has offices that are rented to various persons for business purposes, open to patrons of the persons renting offices therein and those who call to see them on business; that' as she was proceeding along the hallway on the sixth floor of the building, in prosecution of her business, and in front of Dr. Hansell Crenshaw’s office, the' hall at this point being somewhat dark and not well lighted, the plaintiff stumbled and fell over some scantlings or pieces of timber negligently allowed to be on the floor in the path of persons passing along the hall; that these pieces of timber .were left in the hall by employees of the defendant, engaged in' repairing Dr. Crenshaw’s office, and that the defendant was negligent in leaving said pieces of timber in the hall in a place where persons using the hall could stumble over them. The petition further sets out the extent of the injuries. Upon the conclusion of plaintiff’s 'testimony the trial judge granted a nonsuit, and to this judgment the plaintiff excepted. >

It is undisputed that the plaintiff went to Dr. Crenshaw’s office, not as a patient of his, but on business of her own. She went for the purpose of securing from him a contribution for a phonograph she was buying for the students of' Oglethorpe University. She went to his office to ask him to contribute to that fund. It is insisted by the defendant that the plaintiff was not in the building by the invitation of the owner of the building, either expressed or implied, but as a licensee only, and for that reason the owner of the building owed her no duty except such as is -due to a licensee;, in other words, that the owner of the building is not liable-to her for negligence, and for that reason, under the facts of the instant case, there can be no recovery in her behalf. “Where the owner .or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries occasioned by his failure to exercise ordinary care in keeping the premises and approaches safe.” Civil Code, § 4420. This duty to exercise ordinary care in keeping the premises, as stated in the section just quoted, is owing by the owner of land to those who come upon his premises by express or implied invitation. No such duty arises to trespassers or licensees who' may come upon the premises.

The rule is thus stated in 1 Thompson on Negligence, § 946: “As a general rule, the owner of private grounds is under no obligation to keep them in a safe condition for the benefit of trespassers, intruders, idlers, bare licensees, or others who come upon them, not by any invitation, express or implied, but for their own purposes, their pleasure, or to gratify' their curiosity, however innocent or laudable their purpose may be.” This writer further says (§ 9'87) : “But he [the owner] is under no such obligation towards those who elect to come upon his business premises, not for the purpose of doing such business with him as he invites the public to do, but for other purposes of their own. Such persons stand On 'the footing of trespassers or bare licensees, and, on a principle already considered, they take the premises as they find them; and if they are hurt in consequence of any defect in them, they cannot recover damages. Suppose, for example, that an accident due to a negligent defect in business premises, had happened to a book canvasser, or a life-insurance' agent, or a lightning-rod man,—clearly the conclusion of the law would be otherwise, on the ground that no implied invitation had been given to such a person to come upon the premises. Accordingly it has been held that one who for her own convenience'goes into a building containing offices, to obtain information, from an occupant in regard to a matter wholly disconnected with his business, or with the business of any occupant, or with the business;for which the building was used, or designed, is a mere licensee, and cannot recover from the owner of the building for personal injuries sustained by reason of its defective condition.” In Plummer v. Dill, 156 Mass. 426 (31 N. E. 128, 32 Am. St. E. 463), one of the leading'cases on this question, it is said: “If we assume that it was the duty of the defendant to keep the entrance, stairway and halls, of his building reasonably safe for persons using them on an invitation express or implied, and if we further assume that he negligently permitted'them to be unsafe, and that his negligence caused the injury to the plaintiff, and that she was in the exercise of due care, some of which propositions are at least questionable, 'we come to the inquiry whether the plaintiff was a mere licensee in the building, or was there by the defendant’s implied invitation. She did not go there to transact with any occupant of the building any kind of business in which he was engaged, or in the transaction of which the -building was used or designed to be used. She was in search of a servant, and,' for her own convenience, she went there to inquire about a matter which concerned herself alone. It has often been held that the' owner of land or a building, who has it in charge, is bound to be careful and diligent in keeping it safe for those who come there by his invitation, express or implied,' but that he owes no such duty to those who come there for their own convenience, or as mere' licensees. . . The mere fact that premises are fitted conveniently for use by the owner or his tenants, and by those who come to transact such business as is carried on there, does not -constitute an implied invitation to strangers to come and use the place for purposes of their own. To such persons it gives no more than an implied license to come for any proper purpose. . . It is well settled that to come under an implied invitation, as distinguished from a mere license, the visitor must' come for a purpose connected with the business in which the. occupant is engaged,' or which he permits to be carried on there. There must at least be some mutuality of interest in the subject to which the visitor’s business relates,’although the particular thing which is the object of the visit may not be for the benefit of the occupant.” The ease of Plummer v. Dill has been cited with approval by the Supreme Court of this State in King v. Central of Ga. Ry. Co., 107 Ga. 754 (33 S. E. 839), and Central of Ga. Ry. Co. v. Hunter, 128 Ga. 600 (58 S. E. 154). In Stanwood v. Clancey, 106 Me. 72 (75 Atl. 293, 26 L. R. A. (N. S.) 1213), it is said: “When the owner of a building fits it up for business uses, he impliedly invites • all persons to come- there whose coming is naturally incident to the business carried on there by himself or by his tenants. If the building is open, and there is nothing to indicate that strangers are not wanted, he impliedly permits and licenses persons to come there for their own convenience, or to gratify their curiosity. To thosé invited he owes,the duty of exercising care in the management of the premises, so that they may not be injured; but to those merely licensed he owes no such duty. To a mere licensee he owes no duty except that he will not wantonly injure him. When'a licensee goes into a building, he enters at his own risk, and must take the building as he finds it.” In Alessi v. Fitzgerald, 217 Mass. 576 (105 N. E. 437, L. R. A. 1916F, 1135), it is said: “One injured while visiting a tenant to obtain work for a third person, her stepdaughter, though the tenant did not conduct an employment office and was not engaged in assisting those out of work in obtaining it, was not impliedly invited to enter on the premises, but went there, for her own personal advantage and the benefi( of the third person, and the landlord, remaining in possession of a part of the premises which he must maintain in a reasonably safe condition, was not liable for injuries caused by defects therein.” See also Austin v. Baker, 112 Me. 267 (91 Atl. 1005). In Seward v. Draper, 112 Ga. 673 (37 S. E. 978), i( was held: “One who entered a building undergoing alterations, and who sustained personal injuries because of an attempt to make his exit therefrom through a window the framing of which was insecurely. fastened, could not, though his entry was lawful and though he honestly believed that in the existing condition of the premises it was safe and proper to use the window' as a means of exit, hold the owners of the building liable for those injuries, when his presence therein was not by their invitation, either express or implied, and they in no way induced him to put the window in question to such a use.” See also Kohn v. Lovett, 44 Ga. 251; Chattanooga So. Ry. Co. v. Wheeler, 123 Ga. 41 (50 S. E. 987); Rome Furnace Co. v. Patterson, 120 Ga. 521 (48 S. E. 166). “A licensee is a.person who is neither a passenger, servant, nor1 trespasser and not standing in any contractural relation with the owner of the premises, and is permitted to come upon the.premises for his own interest, convenience or gratification.” 29 Cyc. 451 (b). “The rule is well settled that an owner of premises owes-to the licensee no duty as to the condition of such premises, unless imposed by statute, save that he should not knowingly let him run upon a hidl den peril, or wantonly or wilfully'cause him harm. The licensee enters upon the premises at his own risk and enjoys the license subject to concomitant perils.” 29 Cyc. 449 (3); 2 Jaggard on Torts, 890. To come under an implied invitation as distinguished from a mere license the visitor must come for a purpose connected with, the business in which the occupant is engaged, or which he permits to be carried on there.” 29 Cyc. 455; 2 Jaggard on Torts, 896; See note to Gordon v. Cummings, 9 L. R. A. 640; Indian Refining Co. v. Mobley, 24 L. R. A. (N. S.) 497; O’Brien v. Union Freight R. R. Co., 36 L. R. A. (N. S.), 492.

Under the undisputed facts of this case we think that the plaintiff when she entered this building was, a licensee only, and the defendant owed her no duty except not to injure her wantonly and wilfully after her presence became known. Possibly the owner must ‘also protect a licensee from such hidden perils' as pitfalls, mantraps, and the like, negligence in this respect being considered as equivalent to wantohness and wilfullness. See Rollestone v. Cassirer, 3 Ga. App. 161 (59 S. E. 442). That, however, does nOt enter into the instant case, as it is not predicated upon wantonness and wilfullness. The plaintiff clearly, therefore, was not entitled to recover, and the court did not err in granting a nonsuit. We have not 'Overlooked the cases cited by counsel for the plaintiff, all of which can be distinguished from the instant case. In the case of Atlanta Cotton-Seed Oil Mills v. Coffey, 80 Ga. 145 (4 S. E. 759, 12 Am. St. R. 244), the plaintiff went upon the premises of the oil-mills for the purpose of hauling away cottonseed hulls, and was there by the invitation, express or implied, of the defendant, and therefore was not a licensee. In the case of Archer v. Blalock, 97 Ga. 719 (25 S. E. 391), .the plaintiff, according to the allegations of the petition, entered the store for the purpose of trading, and of course was there on the implied invitation of the tenant and on business with the tenant and in which the tenant was interested, and therefore was not a licensee. In Rollestone v. Cassirer, supra,.it was held'that a drunk man entering a saloon was a licensee only. The suit was dismissed on general demurrer, and the judgment dismissing the petition was reversed upon the ground that, although the deceased was a licensee only, nevertheless the allegations of the petition made out a case of wanton and wilful injury, that is negligence in maintaining a hidden peril or pitfall on the premises. The other cases cited by plaintiff in error, viz., Mandeville Mills v. Dale, 2 Ga. App. 607 (58 S. E. 1060), Central R. v. Robertson, 95 Ga. 430 (22 S. E. 551), and Etheredge v. Central Ry. Co., 122 Ga. 853 (50 S. E. 1003), are easily distinguished in like manner from the instant case. Furthermore, if any negligence was shown, which is questionablé, on the part .of the defendant in piling the lumber in the hall, and, as the evidence indicated, against the wall, it would seem that the plaintiff could, by the exercise of ordinary care, have avoided the consequences of such negligence. In fact the stumbling over the small pile of lumber against the wall seems to have been due to her own' carelessness in hurriedly and without looking coming out of the door of Dr. Crenshaw’s office. The lumber was evidently there when she went into the office, and no reason appears why she should not have seen it and ■ avoided it in coming'out. '

We can not agree with the contention of the plaintiff that the nonsuit was improper because she proved her case as laid, under the principle stated in Kelly v. Strouse, 116 Ga. 872 (4-d), 883 (43 S. E. 280). From/the allegations of the petition, we think that the plaintiff puts her case upon the ground that she entered this building for the purpose of transacting business with a tenant of said building and as a patron of said tenant. She alleges that the building has offices that are rented to variohs persons for business purposes, and are open to patrons of the persons renting offices therein, and that she went into the building for the purpose of transacting certain business with a -tenant of the building. We think a fair construction of the petition is that she was there, not as a trespasser or licensee, but on business with the tenant in which the tenant was interested; that is, upon the invitation expressed or implied of the owner of the building. Furthermore, as above stated, the facts show that she could by the use of ordinary care have avoided the consequences of defendant’s negligence,-if indeed any negligence is shown on the part of defendant or his employees. That being true, she has failed to sustain the allegations of her -petition, and under the undisputed evidence the court did not err in granting a nonsuit. The judgment is .therefore

Affirmed.

Broyles, P. 3\, and Bloodmorth, 3., concur.


source: Caselaw Access Project

author: Broyles, P. J.

license: Public Domain

text:
    9631.
    Hammontree v. Hampton.
    Decided October 16, 1918.
    Complaint; from Murray superior court—Judge Tarver. March 9, 1918. '

      Maddox, McCamy & Shumate, for plaintiff in error.

      Thomas A. Brown, G. N. King, contra.
   Broyles, P. J.

No substantial merit appears in any of the special grounds of the motion for a new trial; the verdict directed for the plaintiff was demanded by the evidence; and the court- did not err in overruling the motion for a new, trial. '

Judgment affirmed,

Bloodworth and Harwell, JJ., concur.


text:
    9661.
    Taylor v. Wilkins.
    Decided October 16, 1918.
    Certiorari; from Ifultou-superior court—Judge Bell. March 29, 1918.

      Hughes Roberts, for plaintiff. 'Arminius Wright, for defendant. ■
   Broyles, P. J.

1. Where A lent certain finger-rings to B, and B, unknown to A, gave them to 0 as a present, the fact that 0 retained continuous open possession of them (claiming them as her property), in this State, for more than four years, does not' give her a good title by prescription, where it appears that B had never, to the knowledge of A, claimed title to the property nor refused to return the rings to A, and where it further appears that A had no knowledge that they were in the possession of C. Under such’ circumstances 0 did not have adverse possession of the property, within the meaning of section 4172 of the Civil Code of 1910, which provides that adverse possession of personal property within this. State, for four years, shall give good title by. prescription.

2. The court erred in overruling the certiorari.

Judgment reversed.

Bloodworth and Harwell, JJ., concur.


text:
    9456.
    BURGAMY v. HOLTON.
    1. The demurrer setting up the statute of frauds was properly overruled. If the alleged agreement of the defendant, to pay to the plaintiff the rent of certain land of the. defendant for the year 1916 in consideration of services to be rendered by the plaintiff, was one required by the statute of frauds to be in writing, it was taken out of the statute by ■performance on the part of the plaintiff. Nor was the petition subject to demurrer on the ground that the alleged agreement was. without consideration, or on the ground that the petition failed to put the defendant on notice as to what farm was referred to in the agreement.
    2. The course of dealing between the parties in preceding years, as to payment of rent, was admissible as tending to illustrate what the contract was for the year in question.
    3. Testimony of the plaintiif that his wife told him that the defendant’s wife said to her that the defendant was mad, and “not'to mention” the rent in question, was admissible in explanation of the plaintiff’s reason for not asking the defendant for the rent, in a settlement between them.
    4/The verdict was supported by- evidence.
    Decided October 22, 1918.
    Complaint; from city court ;of Sandersville—Judge • Jordan. December 1, 1917,

      M. L. Gross, Evans & Evans, for plaintiff in error.

      T. J. Smith; Rawlings & Wood, contra.
   Harwell, J.

Holton brought suit against Burgamy, claiming that the defendant employed him to superintend a certain farm, known as the “Home place,” for the year 1916, and, in consideration of the services to be rendered by him, agreed to pay him the rents of 124 acres of land'known as the “Dixon place.” The petition alleged compliance by the plaintiff with his part of the contract, and failure and refusal of the defendant to pay him the rents as agreed. The petition further- alleged the value of these rents to be $360 for. the year 1916. The defendant demurred to the petition, and also answered, denying that «he ever agreed to pay the plaintiff the rent of the- Dixon place for services rendered. The answer further alleged that the free use of the Dixon place for the years 1913 and 1914 and the payment of a certain amount of money at the end of the year 1915 were purely gratuitous on the part of'the defendant, and were in consideration of the interest which the - defendant had in the' plaintiff’s wife, whopi he had reared. The jury found for the plaintiff the amount of rent which the defendant admitted in his answer he had received for the year 1916 for the Dixon place. The defendant made a motion for new trial, which the court overruled, and he excepted.

The defendant’s demurrer to the petition was on the grounds that the alleged contract was a contract of rental which extended for more than one year, and under the statute of frauds must be in writing; that the contract was- nudum pactum and unilateral, and not binding on him; -that the money sought to be recovéred was in the nature of a gift or gratuity; and that the. petition failed to put him on notice as to what farm the plaintiff was to manage, or where the farm was situated, etc. While the petition does not clearly indicate the time when the alleged contract was made, it is inferable, from the facts alleged, that it was at the beginning ' of the year 1916. If, however, it was made for a longer time than one year, it was taken out of the statute of frauds, under the allegations of the petition, by a full performance of the contract on the part of the plaintiff; and there is therefore no merit in the ground of the demurrer setting up the statute of frauds. Civil Code (1910), § 3223 (2). There is no merit in the other grounds, and the court did not err in overruling the demurrer.

It is complained that the court erred in admitting the testimony of Holton that Burgamy paid him the rent of the Dixon place for the year 1915, after deducting the cost of the repairs. The court did not err in admitting this testimony, under the facts of the instant case. The course of dealings between the parties in previous years was admissible as illustrating what the contract was for the year 1916.

It is complained that the court erred in admitting hearsay and immaterial testimony of Holton as follows: “Because my wife told me Mr. Burgamy’s wife told her he was mad and not to mention that rent.” “When, in a legal investigation, information, conversations, letters and replies, and similar evidence are facts to explain conduct and ascertain motives, they are admitted in evidence, not as hearsay, but as original evidence.” Civil Code, § 5763. It appears from the brief of evidence that Holton and Burgamy had a settlement in'the fall of 1915 for some work which Holton had done for Burgamy, and this testimony of Holton’s was in explanation of his reason for not asking Burgamy for the rent of the Dixon place in that settlement; and we think it was clearly" admissible for that purpose.

The pressure of the ease was on the contract between the parties,—that is, as to whether Holton was to receive the rent of the Dixon place for the year 1916, as a consideration for his superintendence of the home place of Burgamy during that year. The parties were in sharp conflict on this question, but the jury "found the issue in favor of the plaintiff. There was some evidence to sustain this finding, it was approved by the trial judge, and this court will not interfere.

Judgment affirmed.

Broyles, P. J„ and Bloodwortl', J.t concur.


text:
    9460.
    CONTINENTAL AID ASSOCIATION v. HAND.
    1. Assignments of error on a judgment overruling a certiorari can not add other grounds of certiorari to those of the petition for certiorari.
    2. Whether there was such bad faith as would authorize the recovery of attorney’s fees on account of refusal to pay the amount claimed under the contract of insurance sued on, as provided, for in the Civil Code (1910), § 2549, was, under the facts of this case, a question for the jury. .That' they awarded such fees without also awarding damages of twenty-five per cent., or less, as provided for in that section of the code, is no ground for setting aside their finding as to the attorney’s fees.
    3. The evidence was sufficient to support the verdict.
    Decided October 22, 1918.
    Certiorari; from Floyd superior court—Judge Wright. October 18, 1917.

      J. L. Wallace, for plaintiff in error. L. H. Covington, contra.
   Harwell, J.

Charlie Hand brought suit in a justice’s court against the Continental Aid Association upon a contract of insurr anee for accident benefits. A verdict was rendered in favor of the plaintiff, for $35 principal, $2.50 interest, $10 attorney’s fees, and costs of suit. The insurance company sued out a writ of certiorari, and the judge of the superior court overruled the certiorari. The bill of exceptions assigns error on the judgment overruling the certiorari, upon seven grounds, some of which are 'materially different from the assignments of error in the petition for certiorari. In determining whether the judge erred in his judgment overruling the certiorari this court can only consider the assignments of error made in the petition for certiorari. “The plaintiff in error cannot by bill of exceptions raise points which were not made in . . the certiorari.” Perry v. Brunswick & Western Ry. Co. 119 Ca. 819 (47 S. E. 172); Duren v. Thomasville, 125 Ga. 1 (3) (53 S. E. 814); Bryant v. Ridgeway, 126 Ga. 733 (55 S. E. 932); Fine v. Southern Express Co., 10 Ga. App. 161, 165 (73 S. E. 35). The assignments in the petition for certiorari were: (1) That the court erred in overruling the demurrer filed by the defendant. (2) That the court erred in denying ffhe motion to strike the amendment to plaintiff’s petition. (3) That the verdict and judgment are contrary to law. (4) That the verdict and judgment are contrary to the evidence.and against the principles of justice and equity. (5.) That the verdict and judgment are excessive and contrary to the evidence, and that a recovery could only be for the sum of $12.50 on the same. (6) That the plaintiff could not recover attorney’s fees, for the plaintiff failed to show bad faith on the part of the petitioner.

The first two .assignments were not argued in the brief of counsel for the plaintiff in error, and therefore will be treated as abandoned. The third assignment—that the verdict'is contrary to law —is not a specific assignment of error and cannot be considered. Callaway v. Atlanta, 6 Ga. App. 354 (64 S. E. 1105). The fifth assignment—that the verdict is excessive," etc.—amounts to no more than an amplification of ¡the general ground that the verdict is contrary to "the evidence, as it does not point out wherein or for what reason the verdict is excessive. “Assignments of error must be specific, whether contained in a bill of exceptions or in a petition for certiorari.” Callaway v. Atlanta, supra, and cases cited. This leaves for consideration the general ground that the verdict is contrary .to the evidence, and the further ground that the plaintiff could not recover attorney’s fees. As to the first (without entering into a discussion of the evidence), while.there was a conflict in the testimony, the jury trying the case found in favor of-the plaintiff, and we think there was evidence sufficient to sustain the verdict.

As to the recovery of attorney’s fees: It appears from the record that the plaintiff had brought a suit against this company for accident benefits on this same policy, growing out of the same injury, and had obtained a verdict and judgmént, which the insurance company sought to review by certiorari, and by writ of.error then pending in the Court of Appeals. That case was finally decided against the insurance company (19 Ga. App. 658, 91 S. E. 1056). Attorney’s fees may be recovered against an'insurance company, under the provisions of the Civil Code (1910), § 2549, provided it be made to appear to the jury trying the. case that the company’s refusal to pay the loss on a policy was in bad faith. Whether the. réfusal to pay in the instant case was in bad, faith was a question' for the jury, and we think the evidence was sufficient to authorize their finding, awarding to the plaintiff $15 as attorney’s fees. That the jury did not also award the 25 per cent, damages allowed by’ this section would not prevent the recovery of attorney’s .fees. There is nothing in section 2549, supra, or in the ease of Empire Life Ins. Co. v. Allen, 141 Ga. 413 (4), 418 (81 S. E. 120), cited by plaintiff in error, that prevents the recovery of one without the* other. The evidence authorized the verdict, and the judge of the superior court did not err in overruling the certiorari.

Judgment affirmed.

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


author: Bloodworth, J.

text:
    9466.
    Barbee v. Cable Piano Company.
    Decided October 22, 1918.
    Trover; from city court of Savannah—Judge Freeman. December 6,1917.
    1. On November 21, 1916, the Cable Piano Company brought trover against Mrs. Nellie Barbee for a piano. . On the trial the plaintiff introduced in evidence two papers dated August 30, 1913, signed by C. W. Barbee, each of which was an agreement'to purchase ’from the Cable Piano Company the piano in question and to pay the purchase-price ($350) partly in cash,-partly “in trade” (another piano), and the remainder in monthly installments; the title to the property to remain in the vendor until full payment of the purchase-money. In one of these papers it was stated that the Cable Piano Company agreed to sell the piano to Mrs. Nellie Bar-bee, that she had made the stipulated cash payment, and had paid in trade a certain piano valued at $25; that she agreed to keep the piano at her residence and not to remove it without written consent of the piano company, and that in the event of failure to make the agreed payments, the piano company should, at its option, have the right to retake the piano, rescind the contract, and retain as liquidated damages the payments made by Mrs. Barbee. From the evidence at the trial it appeared that the piano was in the possession of the defendant, that no purchase-money had been paid other‘than the payments made-at the time of the purchase, as. recited in the papers introduced in evidence, and that she refused to allow the plaintiff to take possession of the piano on demand. At .the conclusion of the plaintiff’s evidence the defendant moved that a nonsuit be granted, on the grounds, that the papers introduced in evidence showed that there was no agreement to sell the piano to C. W. Barbee, that the agreement , was to sell to Mrs. Barbee, who diet not sign, that it did not bind her, and that the two papers, taken together, did not operate to retain title in the plaintiff, so as to entitle the plaintiff'to recover the property from the defendant. It was contended that the agreement was unilateral and lacking in mutuality. The court refused to grant a nonsuit.
   Bloodworth, J.

The court did not err in any of the rulings of which complaint' is, made, and properly directed a verdict for the plaintiff.

Judgment affirmed.

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

2. In the defendant’s answer to the plaintiff’s petition she set up that in May, 1914, the plaintiff filed a suit against her and C. W. Barbee for the purchase-price of the piano in' question, that the suit Was' dismissed as to her, on general demurrer, and that by that suit the plaintiff elected to recognize the .title to the' piano to be in her, and therefore the plaintiff could, not recover in this action. The record of the former suit was offered in evidence by the defendant, in support of this plea, and was excluded by the court, on objection by the plaintiff, on the ground that it was irrelevant and that the former suit did not constitute such ■ an election. From the record it appeared that as to C. W. Barbee the former suit was dismissed for want.of prosecution.1

3. The defendant’s answer denies that she is in possession of the piano as an individual, and sets up that it was in the possession of her husband, C. "W. Barbee, at the time of .his death on September 9, 1915, that there has been no administration on his estate, and that he has left as his heirs the defendant and named children, and that .the defendant has refused to deliver the property to the plaintiff for the reason that the plaintiff has no right to it, and because the defendant has no right to surrender property belonging to the estate of C. W. Barbee. On the trial she offered evidence'to show the facts alleged in this plea, and to show that the demand on her for the return of the property was made after the death of C. W. Barbee. The court refused to admit such evidence, counsel for the plaintiff objecting to it, on the ground that it was irrelevant and constituted no defense, since the plaintiff would' have the right to recover the property from whomsoever might be found in possession of it. .

4. An amendment to the defendant’s answer was'tendered, in which it was alleged that the plaintiff’s agent had tried to induce her to buy a piano and she refused to do so, and that in her absence and without her knowledge or consent he persuaded her husband to sign the contracts for the purchase of the piano in question and to' give to the plaintiff a piano that she owned; that she immediately notified the plaintiff to return her piano and to take the other piano, and the plaintiff refused to do so; and that the plaintiff was not entitled to recover tlie piano sued for, until the return of her piano or its value. The court, on objection, held that these allegations constituted no defense, and refused to allow the amendment.

5. There being no further evidence, the court directed a verdict in- favor of "the plaintiff for the property in question. To this and to the rulings stated above the defendant excepted.

'Anderson, Cann, Gann & Walsh, for plaintiff in error, cited:

As to the contract: Murrow v. Southern Express Co., 101 Ga. 810. Election by former suit: Rowe v. Weichselbaum Co., 3 Ga. App. 504; Kennedy v. Manry, 6 Ga. App. 816; Bacon v. Moody, 117 Ga. 207. As to the defense stated in paragraph 3 above: Gouldsmith v. Coleman, 57 Ga. 425, Tift v. Collier, 78 Ga. 194, 196; Demmons v. Booker, 128 Ga. 83; Hill v. Moffett, 3 Ga. App. 89, Johns v. Johns, 23 Ga. 31; Dudley v. Isler, 21 Ga. App. 615 (3). As to the amendment: Hays v. Jordan, 85 Ga. 741, 742; Scott v. Glover, 7 Ga. App. 182, 183.

Osborne, Lawrence & ■Abrahams, contra, cited:

Wilmerding v. Rhodes-Haverty Furniture Co., 122 Ga. 312; Jordan v. Jenkins, 17 Ga. App. 58; Coley v. Dortch, 139 Ga. 239; Bowen v. Frick, 75 Ga. 786 (2); Malsby Machinery Co. v. Parker, 138 Ga. 768; Jones v. Snider, 99 Ga. 276; Cooper v. Smithy 125 Ga. 167; Mitchell v. Castlen, 5 Ga. App. 134-5; Winkles v. Simpson Grocery Co., 138 Ga. 487; Elder v. Woodruff Hardware Co., 9 Ga. App. 484; Thornton v. Otto Gas Engine Co., 7 Ga. App. 587; Young v. Durham, 15 Ga. App. 679 (5a). Rowe v. Weichselbaum Co., Kennedy v. Manry, and Bacon v. Moody, supra, distinguished.


text:
    9475.
    PARKER, administrator, v. WILLIAMS.
    X. The grounds upon which it was contended the plaintiff’s petition should be dismissed (that lie had brought and' dismissed two suits upon the cause of action sued on in this case, and that the date of filing of the petition had been altered) are not supported by the record.
    . 2. On the trial of an aetioii against an administrator, on an account against the decedent, testimony that just before the decedent’s death he told his son tliat ho owed the plaintiff four or five hundred dollars was not inadmissible in behalf of the plaintiff, on the grounds that it was hearsay and that it was uncertain as to the amount, due...
    3. Even if the statements of account. admitted in evidence, over the objection that there was no proof of their correctness, were not admissible for the purpose of showing that a statement, of the account sued on had been rendered to the decedent through his son, the. admission of this evidence was not such harmful error as would require the grant of a new trial.
    4. Testimony as to the market price of guano in the year in which the guano in the account sued on was delivered to the decedent was admissible in behalf of the plaintiff, under the allegations of the petition.
    5. There was no error in admitting in evidence the plaintiff’s letter to the decedent, over the objection that it could not bind the decedent or his administrator.
    6. Where an averment plainly and distinctly made in a •plaintiff’s petition is not denied or referred to in the answer, the averment must be taken, as prima facie true.
    Decided October 22, 1918.
    Complaint; from Talbot superior court—Judge Howard. December 1, 1917.

      A. P. Persons', J,. J. Bull & Son, for plaintiff in error.

      John A. Smith, contra.
   Harwell, J.

Williams sued the administrator of J. T. Parker’s estate, alleging, in paragraph 4 of the petition, that Parker at the time of his death was indebted to the plaintiff in the sum of $520.11 principal, upon an open account (attached to the petition), for fertilizers which it stated were furnished to make crops on the plantation of J. T. Parker for the year 1911. The defendant answered, admitting the 2d, 3d, and 5th paragraphs of the petition (as to the appointment of the administrator and as to refusal to pay), and denying the 4th paragraph, but making no reference to the -6th paragraph, in which it is alleged that “said account is due and unpaid.” The defendant moved to dismiss the petition, upon certain grounds, which the court overruled, and exceptions pendente lite were filed. The jury trying the case found for the plaintiff, and defendant filed a motion for new trial, which the court overruled, and the movant excepted.

The bill of exceptions refers to “certain motions and objections, which said motions and objections were overruled,” and states that “the defendant filed his exceptions pendente lite, which were certified by the. judge as correct, allowed, and made a part of the record;” but it does not appear from the bill of exceptions what these “certain motions and objections” were. Taking it for granted, however, that they were the’motions to dismiss the petition, upon the ground that the .plaintiff had already brought and dismissed two suits upon the same cause of action, and also upon the ground that the date of the filing of the petition had been altered from September 30th to September 39th, there was no merit in the motions; for the facts as stated in the exceptions pendente lite and 'as certified by the trial judge do not support the contention of the plaintiff in error.

The testimony of J. C. Parker as to an admission of the decedent, to wit: “Before my father’s (J. T. Parker’s) death he told me that he owed plaintiff four or five hundred dollars,” to which the defendant objected on the ground that it was “hearsay, and vague and uncertain as to the amount owed by J. T. Parker,” was- properly admitted.

We cannot say that the statements of account referred to in the second special ground of the motion for a new trial (which were admitted in evidence over the objection that there was no evidence of their correctness), were not admissible for the purpose of showing that a statement of the account had been rendered to the decedent through his son. If there was any error in admitting these statements, it was not such harmful error as would require the grant of a new trial.

Under the allegations of the petition there was no error in admitting the testimony offered by the plaintiff, showing the price of guano in 1911, the year in which the guano in the account sued on was delivered by the plaintiff to the decedent.

There was no error in admitting in evidence the letter from the plaintiff to the decedent, over the objection that “it can not bind J. T. Parker or his administrator.” This letter came from, the possession of the decedent, through his son.

The last- three grounds of the motion for a new trial are merely amplifications of the general grounds. The verdict was for $530.11. It is insisted by the plaintiff in error that there is no evidence to sustain the verdict for this amount. There was testimony, offered by the plaintiff, to show that the guano in the account sued on was delivered to the decedent in the year 1911, and that the account was correct in that respect; that this total amount was purchased by the decedent, who bought' this guano for his tenants. There was testimony showing the market value of the guano .in 1911. If there was no .express contract of purchase, the decedent, if the guano was delivered to him and he used it, would be impliedly liable for its value. As to the account being unpaid, the evidence of the plaintiff’showed that J. T.. Parker died in the early part of 1912, and just before he died (according to one witness, two or three days before his death) he said that he owed the plaintiff four or five hundred dollars, and that he would have to raise some money to pay the plaintiff. If, however, this was not sufficient to establish non-payment of the account by the decedent, the petition, in the 6th paragraph, alleged that “said account is now due and unpaid.” The answer specifically admits or denies the other paragraphs of the petition, but does not mention the 6th paragraph. The 4th and last paragraph of .the answer simply says that “the estate of J. T. Parker is not indebted to the plaintiff in the sum therein alleged.” This by itself sets up no defense. Hicks v. Hamilton, 3 Ga. App. 112, 116 (59 S. E. 331), and cases cited. “Under the pleading act of 1893, a mere plea of ‘not indebted/ it -being simply a plea of the general issue, does not in law amount to a denial of averments distinctly and plainly made in the plaintiff’s petition, and all such averments not otherwise denied are to be taken as prima facie- true.” Smith v. Holbrook, 99 Ga. 256 (2). There being.no denial of the paragraph alleging that the account is due and unpaid, this allegation of the petition will be taken as prima facie true. Civil Code (1910), § 5539; Hudson v. Hudson, 119 Ga. 637 (46 S. E. 874); Brown v. Tomberlin, 137 Ga. 596 (b) (73 S. E. 947); Abbeville Trading Co. v. Butler, 3 Ga. App. 138 (2), 142 (59 S. E. 450); Jester v. Bainbridge State Bank, 4 Ga. App. 469 (5), 475 (61 S. E. 926).

We think, therefore, that the verdict was authorized by the evidence; and, the verdict being approved by the trial judge, this court will not interfere.

Judgment affirmed.

Broyles, P. J., and Bloódworfh, J., concur.


author: Blood worth,. J.

text:
    9480.
    SHEPPARD v. DAVIS.
    Property of a married woman can'not be set apart under the Civil Code, § '3416 et seq’., as exempt from levy and sale, on a schedule made.and filed by her in which she is described as “the head of a family” consisting of herself and her husband and minor children. Where husband and wife are living-together, the law recognizes the husband as the head of the family. Property of a husband can not be set apart on a schedule made and filed by the wife, where it does not appear that he refused to make and file a schedule.
    The schedule filed by the plaintiff and recorded by the ordinary, on which she based her claim to the mule which she sought to recover in trover, was void; and as the only other evidence as to her ownership of the mule was her husband’s testimony that he used some of her money in paying for it, and that they owned it together, the court erred in directing a verdict for the plaintiff'.
    Decided October 22, 1918.
    Trover; from city court of Springfield—Judge Shearouse. September 6, 1917.

      B. W. Sheppard, C: -T. Guyton, for plaintiff in error.
   Blood worth,. J.

1. This was an action of trover by Mrs. Davis' to recover property which she attempted- to show had been set apart as a “pony homestead” to her, her husband, and minor children. The schedule of property claimed to be exempt from levy and sale, niade out and sworn to by her, filed with the'ordinary, and by him admitted'to record,- begins thus: “The following is the schedule of property of Mrs. Susan F, Davis, a citizen of 'said county, who is the head of a family, consisting of herself, husband Eobert C. Davis, and seven minor children,” naming them. Dnder the rulings in Crowley v. Freeman, 9 Ga. App. 1 (70 S. E. 349), and cases there cited, if the property had in fact been legally set apart as a homestead, Mrs. Davis could- probably have maintained this action, though brought in her own name; but her case must fall, as she bases her right to recover on the alleged homestead. ' This is true whether the schedule be considered as an attempt to set apart property of the husband, or property of the wife. If the former, it is void because .“It is essential to the validity of a schedule filed by the wife for the purpose of having the property of the husband set apart as exempt, under the provisions of section 2866 et sequitúr of the Civil Code [of 1895, C. C. 1910, § 3416], that it shall affirmatively appear in the schedule that the husband refused to file the same; and if this fact does not so appear, the schedule, though recorded, is void, and may be collaterally attacked in any court of competent jurisdiction in which the creditors of the husband are seeking to subject the property embraced in the schedule to the payment of his debts. Mutual Benefit Association v. Tanner, 96 Ga. 338 [23 S. E. 403]; Davis v. Lumpkin, 106 Ga. 582 [32 S. E. 626]; Marcrum v. Washington, 109 Ga. 296 [34 S. E. 585].” Hirsch v. Stinson, 112 Ga. 348 (37 S. E. 365). If the latter, it is void because “The statutory homestead, or exemption, provided for in sections 2866 et seq. of the Civil Code [of 1895, C. C. 1910, § 3416] can not be taken in property which does not belong to the head of a family. A wife, living with her husband and children, is not the head of a family, and hence she is not entitled, under the provisions of these sections of the Code, to have property the title to which is in herself exempted from levy and sale, for the benefit of herself and her minor children.” Bennett v. Trust Co., 106 Ga. 578 (2), 581 (32 S. E. 625). In the opinion in the case just cited, Mr. Justice Eish said: “In the present case, a wife, living with her husband, attempted to take ‘the pony homestead5 in property which belonged to herself, ‘for the benefit of herself and family, consisting of her husband and seven minor children.5 A married woman living with her husband -is not the head of a family. Where a husband and wife are living together, the law recognizes the husband as the head of the family. Neal v. Sawyer, 62 Ga. 352. The homéstead set up by the plaintiffs in this case is, therefore, a mere nullity."

Applying either of the rules laid down above, we must hold that the alleged homestead, a copy of which was introduced in evidence’ in the instant case, is void. As the only other evidence of ownership of the mule by the plaintiff was that of her husband, who swore, “I used some of her money in paying for that mule, we own it together,55 there was no evidence authorizing a verdict for the plaintiff, and the court erred in .directing such a verdict.

2. In view of the foregoing ruling, it is unnecessary to discuss the remaining grounds of the motion for a new trial.

Judgment reversed.

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


text:
    9556.
    Baldwin State Bank v. National Bank of Athens.
    Decided October 22, 1918.
   Bloodworth, J.

Applying to the facts on the last trial of this case the rulings of the Supreme Court when the case was before that tribunal (144 Ga. 181), the trial judge did not err in directing a verdict for the plaintiff.

Judgment affirmed.

Broyles, P. J., and Harwell, J., conour.

Complaint; from Banks superior court—Judge Cobb. February 2, 1918.

J. J, & Sam Kimzey, for plaintiff in error.

W. M. Smith, T. S. Mell, contra.


text:
    9630.
    ANDERSON et al. v. BANK OF CHATSWORTH.
    Under the Civil Code (1910), § 6288, a second affidavit of illegality is not maintainable if based on “causes which existed and were known, or in the exercise of reasonable diligence might have been known at the time of filing the first.” The court, therefore, did not err in directing a verdict against the affidavit of illegality in this ease.
    Decided October 22, 1918.
    Affidavit of illegality; from Murray superior court—Judge Tarver. February 12, 1918.
    if. if. Anderson, for plaintiffs in error. J. Roy-McGinty, contra.
   Bloodworth, J.

The Bank of Chatsworth sued D. D. Anderson and H. H. Anderson. HI H. Anderson for himself and for D. D. Anderson acknowledged service on the petition. Judgment was obtained against both defendants, and execution was issued, and tó a levy'of this execution on certain land an affidavit of illegality by H. H. Anderson was interposed “for himself and as attorney in fact for D. D. Anderson,” as follows: “1. That .the said’Bank of Chatsworth holds deed to said property levied upon, for security of said debt. 2. That before the making of said levy-the plaintiff in execution did not make and have recorded in the clerk’s office a deed reconvening, said property to the defendants, as required by the statute.” Upon the trial of the issue thus raised the jury returned a verdict sustaining the affidavit of illegality. Thé execution was again levied, and a second affidavit of illegality filed, alleging that the'execution issued and was proceeding illegally because “the said D. D. Anderson has never had his day in court, was never served vVith any process, or other notice of the pendency of the suit whereon said execution is based, nor did he waive service, nor did he appear and defend said suit; that the acknowledgment of service as appears on said suit was not authorized by him, the said D. D. Anderson.” The affidavit was by “H. H. Anderson, as attorney in fact for D. D. Anderson.” Upon the trial of the second affidavit of illegality H. H. Anderson testified as follows:, “that the acknowledgment of service which' appears upon the original petition 'was made by him at the instance of'the attorney for the Bank of Chatsworth; that D. D. Anderson resided in the State of Tennessee, and had for twenty years; that said acknowledgment of service was made just about the last day for'service for the'next term of court; that he was not authorized to acknowledge service.” The first affidavit of illegality was then offered in evidence. The record then shows that the following occurred': “At this point the court inquired of counsel for affiant in illegality, why the grounds of illegality could not have been incorporated in the first affidavit? Counsel stated that as the judgment was 'void for lack of service, the same could be attacked at any time. Whereupon the court directed the following verdict: 'We, the jury, find1 against the illegality.-’ ” It is not disputed that, íl. H. Anderson, who acknowledged service on the Original petition, ivas the same Anderson that filed both affidavits of illegality. When W filed the first-affidavit he could not have1 been ignorant of the'cause upon which the second was based. The Civil Code (1910), § 6288, provides as follows: “No second affidavit of'illegality 'shall be received by any sheriff or other- officer, for causes which existed and were known, or in the exercise of reasonable diligence might have been known at the time of filing the first.” See Cone Export &c. Co. v. McCalla, 113 Ga. 17 (38 S. E. 336); Hunter v. Davidson, 59 Ga. 260; Hambrick v. Crawford, 55 Ga. 335. The court properly directed a verdict for the plaintiff.

Judgment affirmed.

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


author: Bloodworth,. J.

text:
    9636.
    Port Wentworth Lumber Company v. McLean.
    Decided October 22, 1918.
    ■ Complaint; from city court of Savannah—Judge Freeman. March 4, 1918. . ' .
   Bloodworth,. J.

The demurrer to the petition was properly overruled. “The defense of statute of frauds can be raised by demurrer to the petition only when the facts alleged in the. petition affirmatively show that the contract is oral and that there has not been suchiperformanee as to raise an exception.” . Marks v. Talmadge, 8 Ga. App. 557 (69 S. E. 1131); Kinney v. Kinney, 20 Ga. App. 816 (93 S. E. 496).

Judgment affirmed.

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

The petition alleges that the Port Wentworth Lumber Company is indebted to the plaintiff in the sum of $125' on an account, a copy of which is attached to. the petition. The account consists of two items, dated November 28, 1916, as follows: “2 timber cars complete, $100; 125 feet of steel loading chain, $25.” The demurrer was on the following grounds: “ (1) The petition sets forth no cause of action and is insufficient in law. (2) The petition fails to show when, where, or through whom the alleged account was contracted on the part of the defendant. (3) The petition fails to show the terms or conditions of the alleged contract of sale, and fails to show when the alleged indebtedness was to be paid. (4) The petition fails to show whether the alleged sale was made orally or in writing.” (5) The petition shows no writing signed by or in behalf of the defendant, and, being an account for the sale of goods and merchandise to the amount of more than $50, the sale is unenforceable under 'the statute of frauds, there being no allegation that the defendant accepted and actually received the goods or a part thereof,'or gave something to bind the bargain or in part payment.

Hitch & Denmark, for plaintiff in error.

Seabroolc & Kennedy, contra.


text:
    9639.
    Dubberly, administrator, v. Varnedoe et al.

   Bloodworth, J.

1. On appeal this ease was properly disposed of in the superior court by the verdict. “An appeal is a de novo investigation, and should not be dismissed because of the absence of either party to the cause. The action may be dismissed for such absence and failure to prosecute the case on the part of the plaintiff, but the appeal can not be dismissed for that reason.” Rousch v. Green, 2 Ga. App. 112 (58 S. E. 313); Singer Mfg. Co. v. Walker, 77 Ga. 649.

2. The court did not err in holding that the burden was on the administrator to show that his returns were correct. In his answer he admitted that he had made no return prior to the one made after he was cited for a settlement. “The failure of an executor or guardian to make returns is an omission of duty, and therefore a breach of trust, and throws on him the burden of proving to the satisfaction of the court and jury that he has discharged the duty of his trust with fidelity.” Wellborn v. Rogers, 24 Ga. 558 (7). King v. Newton, 48 Ga. 150; Dowling v. Feeley, 72 Ga. 558 (3, 3a).

3, The return attached to the answer of the administrator was never approved by the ordinary. Indeed the ordinary found against the return, except as to two items admitted by the petitioners to be correct. The answer contained an admission that the administrator had received in cash $525. The court did not err in directing a verdict for this amount, less $28, the amount of the items admitted to be correct. But there was no admission by'the administrator and no evidence to show when , the $525 was received by him. It was therefore error for the court to direct the jury to find interest from March 10, 1906. It is ordered, that if, within thirty days from the filing of the remittitur in this case in the office of the clerk of the superior court, the petitioners will write off from the verdict the amount of the interest prior to May 7, 1915, the date of the administrator’s return, the judgment of the superior court stand affirmed; otherwise a new trial is ordered.

Decided October 22, 1918.

Appeal; from Liberty superior court—Judge Sheppard. February 19, 1918.

A petition to the'ordinary, to require Davis Dubberly, as administrator of the estate of Mrs. Sarah J. Yarnedoe, to make a settlement with the heirs at law, was filed by the heirs in March, 1915. In his answer, made at the May term, the administrator admitted that he had not made returns as required by law, and he attached to the answer what was designated as “annual return of Davis Dubberly, administrator of estate of Mrs. Sarah J. Yarn'edoe.” This return shows that the administrator received $525 from the sale of land, and contains an itemized statement of “cash paid out,” but none of the items are dated, and no vouchers accompany them. The petitioners -filed objections to all of these items except two, amounting to $28. The ordinary “rendered his judgment thereunder .finding in favor of the objections and against said inventory made by said administrator.” The administrator appealed to the superior court. The judge of the superior court ruled that “the burden was upon the administrator to show that his return was true and correct,” the administrator refused to offer testimony in support of his return, and the judge directed a verdict for the amount that the administrator in his return admitted'he had received from the sale of land, less the two items conceded to be correct, and for interest from March 10,- 1906.' The administrator excepted to the rulings stated.

J. B. Thomas, for plaintiff in error. W. B. Stubbs, contra.

Judgment affirmed on condition.

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


author: Broyees, P. J.

text:
    9644.
    Farmers Warehouse Company v. Butts.
    Decided October 22, 1918.
    - Trover; from Baldwin superior court—Judge Park. February 12, 1918.

      D. 8. Sanford, E. R. IHnes, for' plaintiff.

      Allen & Pottle,. for defendant.
   Broyees, P. J.

1. A formal power of attorney is subject to a strict construction. General terms in it are restricted to consistency with the controlling purpose, and will not extend the authority so as to add new and distinct powers different from the special powers expressly delegated. White v. Young, 122 Ga. 830 (51 S. E. 28).

(a) General words in a power of attorney must be construed with reference to the specified objects to be accomplished, and limited t® the recitals made in regard thereto. Born v. Simmons, 111 Ga. 869 (36 S. E. 956), and cases there cited.

2. A power of attorney to execute “a mortgage and a lien” on crops Js no authority for the execution of a bill of sale conveying the title to the property for the purpose of securing a debt. This is true although the power of attorney may contain the general expression, “to do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises.” White v. Young, supra.

3. The hill of sale offered in evidence was. properly excluded on the ground that the power of attorney relied on as authorizing it’did not authorize its execution.

4. The bill of sale having been properly excluded from the evidence, the direction of a verdict for the defendant was not error.

Judgment affirmed.

Bloodworth and Harwell, J.J., concur.


text:
    9645.
    LANE v. JOHNSON.
    Where on the levy of an execution an affidavit of illegality is made and the levying officer takes only a forthcoming bond, a summary judgment can not, as in eases of replevy bonds, be entered against the surety on the trial of the issue raised by the affidavit of illegality.
    Decided October 22, 1918.
    Affidavit of illegality; from Jenkins superior court—Judge Henry C. Hammond. March 12', 1918,

      William Woodrum, for plaintiff in error.

      Thomas L. Hill, contra. .
   Bloodworth, J.

Ah execution in favor of K. B. Johnson against Barney Kelsey and B.'Z. Lane-Jr. -fras levied on certain real estate as the property of Lane/”who thereupon filed an affidavit of illegality, in which he alleged that the execution was proceeding against him illegally for the following reasons: “Because J. N. Cole, a constable of said county levied an execution in favor of K. B. Johnson against Barney Kelsey on certain property as. the property of Barney Kelsey and took from said Barney Kelsey a bond for the forthcoming of-said property- at the time and place of sale with affiant as security. Said cause was appealed to the superior court of said county and defendant did not appear, and K.' B. Johnson took a verdict for $35 principal and $9.50 interest to judgment, and on said verdict entered a judgment against Barney H. Kelsey, .principal, and affiant as security on said bond. Because plaintiff had no legal right to enter a judgment against affiant on a forthcoming bond, but on the contrary must sue on said bond, show that the property has been legally advertised, and that there has been a breach of the bond by a failure to produce the same. Because defendant has never had his day in court, was neyer served with any process or. other notice of the pendency of a suit on said bond on which said- execution is based, nor did he waive service, nor did he authorize any one else to do so for him, nor did he appear and defend or answer said suit. Because the record shows that the bond given by this affiant was a forthcoming bond, and that judgment was taken against affiant without suit, as is done in cases of replevy bonds.” A motion to dismiss the affidavit of illegality was sustained, and exceptions were taken.

Section 6040 of the Civil Code (1910) is as follows: “When an execution shall he levied on personal property, and an illegality filed thereto as provided by this Code, and the party filing such .illegality desires to take or keep possession of such property, he shall deliver to the sheriff, or other levying officer, a bond payable to the levying officér, with good security, in a sum equal to double the value of the property so levied upon, to be judged of by the levying officer, conditioned for the delivery of the property levied upon at the time and place of sale, in the event that such illegality shall be dismissed by the court or withdrawn, which bond shall be recoverable in any court having cognizance thereof.” It will thus be seen that when an affidavit of illegality is filed, no bond is required, unless the defendant wishes to take or keep possession of the property. Herring v. Saulsbury, 52 Ga. 396; Tarver v. Tarver, 53 Ga. 43; Crayton v. Fox, 100 Ga. 781 (28 S. E. 510). Where a bond is given for the forthcoming of personalty, there is no breach of the bond until there is a failure to comply with its tqrms and to deliver the property at the time and place of sale. It will thus be seen that the -provisions of the law in reference to recovering judgments on forthcoming bonds are entirely different from cases of appeals • and counter-affidavits to distress warrants where the bonds are given for the “eventual condemnation money,” and which cases counsel for defendant in error seeks to analogize to the present case. “If upon the levy of a distress warrant one becomes a surety upon a replevy bond given by the defendant, in the trial of an issue joined on the affidavit to obtain such warrant a judgment may be entered up against the surety without notice to him; but where the levying officer, instead of taking a replevy bond in terms of the statute, conditioned for the payment of the eventual'condemnation-money, takes a forthcoming bond, a summary judgment can not, as in cases of replevy bonds, be entered up against the surety. If in such a case a judgment is entered in a summary way against the surety as if upon a replevy bond, he may, upon the levy of the execution against him, by affidavit of illegality, make the question that he had not signed such a replevy bond and that for this reason the judgment against him was unauthorized.” Philman v. Marshall, 103 Ga. 82 (29 S. E. 598). “Neither in attachment nor in distress for rent can judgment, on mere motion, or on the trial of the main case, be rendered in favor of the plaintiff against the sureties upon a bond conditioned alone for the forthcoming of the property levied upon. In either proceeding the replevy bond prescribed by statute is for the payment of the recovery, not for the- production of the property. Code, §§ 3319, 4083” (Civil Code of 1910, §§ 5113, 5391). Clary v. Haines, 61 Ga. 520 (1). McCulloch v. Good, 63 Ga. 519 (1), 520, 521.

As the affidavit of illegality in the instant case alleges that the bond given was a forthcoming bond, and that there was no suit thereon, but that judgment was taken “as is done in cases of replevy bonds,” and that the defendant has not had his day in court, the trial court erred in dismissing the affidavit of illegality. ■

Judgment reversed.

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


text:
    9648.
    Kimball Company v. Rogers.
    Decided October 22, 1918.
    Distraint; from city court of Statesboro—Judge Proctor. February 28, 1918.

      F. B. Hunter, J. J. E. Anderson, for plaintiff in error.

      Fred T. Lanier, contra.
   Broyles, P. J.

1. A landlord may distrain for rent as soon as it is due, or before it is due if the tenant is seeking to remove his goods from the premises. Civil Code (1910), § 3700. Under this code section and the facts of the instant ease, the verdict was not contrary to law be- . cause it included some rent not due until after the issuance of the distress warrant.

2. Three times has the plaintiff in the lower court obtained 'a verdict in his favor, and twice has this court granted the defendant a new trial. 17 Ga. App. 562 (87 S. E. 848); 20 Ga. App. 350 (93 S. E. 32). The defects in the plaintiff’s case, pointed out in those decisions, were remedied upon the trial now under review. No reversible error appears to have been committed on the last trial, and the verdict was supported by the evidence and was approved by the trial judge.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.


text:
    9711.
    Harwell v. Childs.
    Decided October 22, 1918.
    Complaint; 'from .New’ton superior court—Judge Smith. March 21, Í918.

      Rogers & Knox, for plaintiff in error.
   Broyles, P. J.

In this case, as stated in the brief of counsel, for the plaintiff in error, “no disputed questions of law are involved.” The verdict was authorized by the evidence, and has been approved by the trial judge.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.


text:
    9750.
    Carson v. The State.
   Broyles, P. J.

1. Under the Penal Code, every indictment of the grand jury is to be deemed sufficiently technical and correct which states the offense in the terms and language of the code, or so plainly that the nature of the offense charged may be easily understood by the jury, and that the accused may be apprised with reasonable certainty of the nature of the offense charged. Park’s Ann. Penal Code, § 954, and authorities there cited under the heading “Test of sufficiency,” on page 530. The court did not err in overruling the demurrer to the indictment.

Decided October 22, 1918.

Indictment for robbery; from Fulton superior court—-Judge Hill. April 8, 1918.

The indictment charged G. C. Carson and others with “the offense of robbery, for that said accused,” in the county named and on a given date, “with force and arms, did wrongfully, fraudulently,' and. violently, by force and' intimidation, take from -the person of A. H. Boykin, without his consent and with intent 'to steal the samé,” $1,260 in money, of the value of.$1,260, “the property of Martel Manufacturing Company,, a corporation, contrary to the laws of said State,” etc. The demurrer was on the grounds, that no crime is charged; that the indictment fails to charge that the money was taken without the consent of the alleged owner; and that it fails to show that Boykin was an agent or representative of the alleged owner and was in possession of the money lawfully and with the consent of the owner.

2. The excerpt from the charge, excepted to, is not erroneous for any reason assigned.

3. The failure of the court to charge on the subject of impeachment of witnesses was not error, there being no timely written request for such a charge.

4. It was not error for the court to fail to charge on the contentions of the defendant as specified and set forth in the special ground of the motion for a new trial complaining of such failure.

5. The admission of testimony as complained of in the 4th special ground of the motion for a new trial was not erroneous for any reason assigned, and a portion of it was clearly admissible.

6. The admission of testimony as complained of in the 9th special ground of the' motion for a new trial, if error, was not so prejudicial as. to require a new trial of the case.

7. A ground of a motion for a new trial which complains of the exclusion of oral testimony must show that a pertinent question loas asked and 'that the answer was ruled out. Griffin v. Henderson, 117 Ga. 382 (43 S. E. 712). Under this ruling' the 14th special ground of the motion for a new trial is .fatally defective, and can not be considered.

.8. The 5th, 6th, 7th, 8th, 10th, 11th, 12th, 13th, 15th, and 16th special grounds of the motion' for a new trial complain of the admission of certain testimony; but in some of them it is not shown that the testimony was objected to by counsel for the defendant, and in none of them is it shown what objections were made to the trial court at the time the evidence was offered or admitted.' These grounds, therefore, under repeated rulings of the Supreme Court and of this court, can not be considered.

9. The alleged newly discovered evidence' was cumulative and impeaching in its character, and, moreover, the necessary supporting affidavits as to the good character, associates, etc., of some of the newly discovered witnesses, were lacking. It does not appear that the judge abused his broad discretion in overruling the ground of the motion for a new trial based upon such alleged newly discovered evidence.

10. The conviction of the defendant was authorized by the evidence, and has been approved by the trial court. ,

Judgment affirmed.

Bloodworth and Harwell, JJ., eoneur.

Paragraph 7 of the decision relates to the following ground:' “Because the court erred, as movant contends,'in refusing defendant’s attorneys the right to ask witness for the State, Lillian Mc-Gaughey, concerning specific cases in which the witness had engaged or been connected with as a violator of the law. Movant contends that he had a right to bring out the-various crimes in which the witness- had been engaged, in order for the jury to know the character of the witness and the character of the source of evidence^ and that the refusal to allow him to'do so was prejudicial and hurtful to him.” . ■ .

J. Mallory Hunt, Thomas B. Scott, Reagan & Reagan, for-plaintiff in error.

J ohn A. Boykin, B. A. Stephens, contra.


text:
    9771.
    Garr v. The State.
    Decided October 22, 1918.
    Indictment for larceny of an automobile; from Fulton superior court—Judge HilL April 27, 1918.

      James & Bedgood, for plaintiff in error.

      John A. Boykin, solicitor-general, B. A. Stephens, contra.
   Broyles, P. J.

No special ground of the motion for a new trial shows reversible error, nor are any of the grounds of such a character as to require elaboration. The conviction of the accused was amply authorized by the evidence; and the court did-not err in refusing to grant a new trial..

Judgment. affirmed.

Bloodioorth and Harwell, JJ., concur.


text:
    9816.
    Tillman v. Barnard.
   Broyles, P. J.

1. Under the facts disclosed by the record the court did not err in overruling the motion to dismiss the ease on the ground that it had been prematurely brought.

Decided October 22, 1918.

Eviction; from Tattnall superior court—Judge Sheppard. May 22, 1918.

H. C. Beasley, James K. Mines, for plaintiff in error.

Collins, <& Stanfield, H. E. Elders, contra.

2. In the' light of the facts of the case no material error appears in any of the excerpts from the charge of the court excepted to.

3. The verdict, finding for the plaintiff the-premises in dispute, and $120 for rent for the year 1916, was authorized by the evidence.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.


text:
    10101.
    Avery v. The State.
    Decided October 22, 1918.
    Motion for discharge of prisoner; from city court of Oglethorpe —Judge Greer. July 25, 1918.
    The facts in the agreed statement were as follows:
    “ (1) There were pending three cases in city court of Oglethorpe against movant, and the same against five brothers, which last had not been arrested. Movant was convicted before Hon. Z. A. Little-john, presiding, and a jury, and defendant was sentenced for twelve months on the chain-gang, and after serving five months could be relieved upon the payment of a fine of' $200. A motion for new trial was-made and is now pending. (2) The movant importuned the solicitor, through counsel and friends, and conferences were had which ultimated in a promise from' the solicitor to recommend the disposition which is herein recited; which proposal was stated in open court by the solicitor. (3) All of the said defendants and three others came into court, and, after full, open, public recommendation of solicitor Jule Felton, said six defendants entered a plea of guilty in one case each, and fines were imposed; in one case each the costs were paid, aggregating $950 from said six named and three other, defendants, including costs and fines. A plea of guilty was entered by all six of said defendants, including movant, and a straight cháin-gang sentence was imposed upon each and all in another case, for keeping prohibited quantities of whisky. The court stated that he was willing to adopt the recommendations of the solicitor, and, while he had no authority to suspend sentence, the defendant was making the proposition, and if said defendant ever appeared in the State of Georgia. after the first day of the following May, following the sentence, the sheriff would take charge of him and put him on the chain-gang to execute said sentence. This course was adopted as to all of the defendants. (4) Movant maintained his family at the same residence, in a mile and a half of Montezuma, Macon county, and State of Georgia; and, over objection of the solicitor and in the teeth of his agreement as to leaving the State, said movant came to his house at will, at least once a week, from the day of the imposition of the sentence complained of. The solicitor notified movant’s counsel of many complaints as to the breach of his agreement and continuance of infractions of the prohibition law. (5) Movant is held in confinement under the sentence hereto attached and marked Exhibit ‘A/ and is now in the chain-gang. The sentence was at once placed upon the minutes of the court. After the payment of the fines and costs as. above stated, the defendants were permitted to leave the court unattended and unguarded. ' There has never been any service of said sentence attached by movant except since June 19, 1918, when he was arrested by the sheriff at Macon, Georgia, and placed in charge of the warden of the chain-gang. (6) On June 19, 1918, movant brought against D. M. Hicks, shériff, and J. T. O’Shields, chain-gang warden, a writ of habeas corpus, before the judge of the superior court, raising the question of the validity and legality of the detention of movant in the chain-gang, of Macon county. All the facts set out herein were substantially proven in evidence upon the trial of said habeas corpus. The judge decided-the case against movant—that the detention was legal— and remanded movant to the custody of said chain-gang warden. Movant presented a bill of exceptions whigh has not yet been heard or disposed of.” “Exhibit A. The State vs. Quill Avery. No. 1421. Accusation for keeping more than 2 quarts of whisky on hand. In city court ¡of Oglethorpe. Plea of guilty. April term, 1917. Whereupon it is ordered, considered, and adjudged by the court that the defendant, Quill Avery, be confined to labor in the chain-gang on the public works for and during the term of twelve months. Judgment signed this 19th day of April, '1917. R. L. Greer, J. C. C. O.’ ”
   Broyles, P. J.

1. A judge in this State has no authority to suspend the execution of a sentence imposed by him in a criminal case, except as an incident to a. review of the judgment. Neal v. State, 104 Ga. 509 (30 S. E. 858, 42 L. R. A. 190, 69 Am. St. R. 175); O’Dwyer v. Kelly, 133 Ga. 824 (67 S. E. 106); Daniel v. Persons, 137 Ga. 826 (74 S. E. 260); Short v. Dowling, 138 Ga. 834 (76 S. E. 359); Hancock v. Rogers, 140 Ga. 688 (79 S. E. 558); Cook v. Jenkins, 146 Ga. 704 (92 S. E. 212); Norman v. Rehberg, 12 Ga. App. 698 ( 78 S. E. 256).

2. It is clear, from the agreed statement of facts set out in the bill of exceptions, that the sentence imposed was a straight chain-gang sentence, and that its execution was suspended, and that the defendant was not placed on probation; consequently the provisions of the probation act of 1913 (Ga. Laws, 1913, p. 112) have no application to this case.

3. The judge having no authority to suspend the sentence imposed upon the defendant, and the defendant having subsequently been arrested and put in the chain-gang to serve out the sentence, the judge did not err in refusing the defendant’s motion “to cancel and enter satisfied the judgment and sentence.” See authorities cited above. This is true although the sentence imposed was twelve months in the chain-gang, and the subsequent arrest of the defendant was after the expiration of twelve months from the date of the sentence. Neal v. State, Norman v. Rehberg, Daniel v. Persons, supra.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.

H. B. Moss, Jere M. Moore, for plaintiff in error.

Jule Felton, solicitor, contra.


author: Harwell, J..

text:
    9535.
    CHAMBERS v. THE STATE.
    1. The court did not err in overruling the demurrer to the indictment.
    2. The special grounds of the motion for new trial from the 1st to the 5th, inclusive, not being complete within themselves, and it being necessary to refer to other portions of the record in order to understand the assignments of error, they cannot be considered by this court.
    3. There is no merit in the ground that the colloquy which took place between. the court- and counsel for the defendant disparaged certain evidence offered by the defendant.

      4. Counsel for the defendant made a motion for a mistrial, because of the ' inquiry by the court, of counsel for the State, as to the introduction of a certain paper. Under the facts as stated in the 7th special ground of the motion for a new trial, the court did not err in overruling the motion for a mistrial.
    5. The 8th special ground is based upon the refusal of the court to permit the' defendant to make another statement after the State had offered certain testimony in rebuttal. No abuse of discretion by the court appears from the facts as stated in the -record. Jones v. State, 12 Ga. App. 133 (2), 135 (76 S. E. 1070).
    6. When considered with the entire charge of the court and the facts of the case the excerpt complained of is not error for any reason assigned.

      7. There was some evidence to authorize the verdict, and, the trial judge having approved it, this court will not interfere.
    Decided October 8, 1918.
    Rehearing denied November 12, 1918.
    Indictment for forgery, etc.; from Haralson superior court— Judge Bartlett. December 18, 1917.

      Lloyd Thomas, M. J. Head, G. B. Hutchens, for plaintiff in error.

      J. B. Hutcheson, solicitor-general, contra.
   Harwell, J..

Chambers and another were indicted for the offense of forging an order for money, a copy of which is set out .in the indictment, and is as follows: “ Georgia, Haralson County. To the Treasurer of said county': Pay to W. H. Garner $20.00 for services rendered as bailiff at the-January term of Háralson Superior Court for 10 days. This 6th day'of February, 1914.' B. H. Parker, Sheriff.” The indictment, in the second' count, charged the defendants with uttering, and publishing as' true the alleged order, with intent to defraud the County of Haralson’' and the county treasurer of said county, knowing the order to be'forged. Chambers was put on trial, and demurred to the indictment generally, and also upon certain- special grounds complaining of lack of certainty. The demurrer was overruled and exceptions pendente lite were filed. The trial judge certifies that , the attention of the court was called to the demurrer after, formal arraignment and after the jurors were put on the defendant, -ánd after onq jiiror had disqualified on voir dire ■ arid a second juror ha'd qualified. Chambers was found guilty of uttering and publishing as true the alleged forged order, knowing it to be forged. He made a motion for a new trial, which was overruled, and he excepted.

Grounds 7.and 8 of the demurrer are as follows: “7. Said indictment should be quashed because the scrip or warrant described therein was not a legal charge, on any fund in the hands of the treasurer of Haralson County, because B. H. Parker as sheriff, had no authority of law to draw a scrip, warrant or order. 8. Said indictment does not allege that B. H.' Parker as sheriff was an officer authorized by law, and whose duty it was to draw said warrant.” It was insisted that the sheriff had no authority to issue the order on the county -treasurer for paying bailiffs, and that the order had no “legal efficacy,” and therefore cannot form the basis, of a charge of forgery. Counsel for plaintiff in error cited on this point Brazil v. State, 117 Ga. 32 (43 S. E. 460), and other authorities. It is said that “forgery may' be committed of any writing which if genuine would operate as the foundation of another man’s liability or the evidence of his right. It is sufficient if the instrument forged, supposing it to be genuine, might have been prejudicial.” 19 Cyc. 1380. If the writing purports to have “legal efficacy” it may be the subject of forgery. In other words it is held that where the paper under' consideration purports to have “legal efficacy,” it does not come within the operation of the rule “that the forgery of an instrument which if genuine would be void, is not a crime.” “Such has been the test applied by this court in a number .of eases wherein the question arose whether or not a particular writing was properly to be regarded the subject-matter of an instrument for forgery.” Brazil v. State, supra. See also Underhill on Criminal Evidence (2d ed.), 721-2, § 430. “As a general rule any writing in such form as to be the means of defrauding another may be the subject of forgery. . . The writing need not be such as if genuine would be legally valid. If it is calculated to deceive and intended to be used'for a fraudulent purpose, this is enough. . „ . Orders, as for instance 'orders for money or goods, may be the subject of forgery. And it is not necessary that there should be an acceptance of the order to constitute the crime. . . It has been held that the forgery of an order in the' name of a person who, by reason of .legal disability, would not have been liable on such order had it in fact been genuine, is punishable.” 13 Am. & Eng. Enc. Law (2d ed.), 1093-6. “The intent of the accused to defraud is the essence of the crime and must be proved beyond a reasonable doubt. And if it is shown, evidence that the party whose name was forged had no legal capacity to sign is irrelevant.” Underhill, Cr. Ev. (2d ed.) 722, § 422, and eases cited under fpotnotes 22 and 23; Hughes’ Criminal Law, 250, §§ 916, 919. “Since men are not legally presumed to know facts, a false instrument good on' its face may work a fraud though extrinsic facts show it to be invalid even if it were genuine; therefore there may be forgery of such an invalid instrument. That the person whose name is forged had no legal capacity to make the instrument is not a defense.” 2 Bishop’s New Crim. Law, 310, § 541, and People v. Krummer, 4 Parker’s Cr. R. 217, cited in footnote. “It is not essential that the person in whose name the instrument purports to be made have the legal capacity to make it.” 12 R. C. L. 151, § 14. “Instruments which are not nudum .pactum, but merely void on the ground that they are against public policy or ultra vires, are the subject of forgery. . . The more liberal doctrine and the doctrine which in the interest of good government should be sustained is declared in People v. Krummer, 4 Parker’s Cr. R. 219, where the court says: fWe are never called upon to determine whether in legal construction the false instrument or writing is an instrument of a particular name or character. It is a matter of perfect indifference whether it possesses or not the legal requisites of a bill of exchange, or an order for the payment of money, or the delivery of property. The question is whether upon its'face it wilt have the effect to defraud those who may act upon it as genuine, or the p'erson in whose name it is forged. It is not essential that the person in whose name it purports to be made should have the legal capacity to make it, nor that the person to whom it is directed should be bound to act upon it, if genuine, or have a remedy over.’ People v. Munroe, 100 Cal. 664, 667 (35 Pac. 326, 24 L. R. A. 33, 38 Am. St. R. 323). “It is not essential to the- crime of forgery that the person in whose name the instrument purports to be made shall'have legal capacity to make it. It is sufficient if it is made with intent to defraud, and on its face would be likely to defraud.” State v. Eades, 68 Mo. 150 (30 Am. R. 780). “He who signs the name of a person who has or had no legal capacity to make the instrument is guilty of forgery.” Brewer v. State, 32 Tex. Crim. 74 (22 S. W. 41, 40 Am. St. R. 760). In Georgia'the rule has been broadly stated that “Any writing in such form as to be the means of defrauding another may be the subject of forgery.” Berrisford v. State, 66 Ga. 55 (1); Mitchell v. State, 56 Ga. 171; Travis v. State, 83 Ga. 372 (9 S. E. 1063); Billups v. State, 88 Ga. 27 (13 S. E. 830); Shope v. State, 106 Ga. 226 (22 S. E. 140). Section 231 (7) of the Penal Code makes'it unlawful to forge an “order for money,” and section 245 makes it unlawful to forge “any other writing not herein provided for.”

Tested by the rule stated above, that if the writing is the evidence of a man’s right, or by the broad rule stated in.the Berrisford case, supra, that if the writing is in such form as to be the means of defrauding another, it may be the subject of .forgery, we think the writing in the instant case may be the subject of forgery. The order is the evidence of the bailiffs right of compensation from the county for services rendered as bailiff. If accepted by the treasurer as evidence of services rendered as bailiff, and paid, either the county or the treasurer is. defrauded, if it is a forgery. It-is true that, so far as we can find, there seems to be no statutory authority, for a sheriff to issue a certificate to a court .bailiff such as is issued by the clerk bf jurors. Penal Code, § 836. There is no provision of law, so far as we can find, authorizing the sheriff to draw an order on the county treasurer to pay bailiffs. The law, however, recognizes the authority of -the sheriff to appoint court bailiffs (Civil Code, § 6310), and provides for the fixing of their compensation (Penal Code, § 876), in the same manner as the pay ,of jurors. It is certainly’ contemplated that they shall be paid out of the county treasury. The paying of court bailiffs is in .other words a legal charge against the county. The sheriff whose duty it is to appoint them is the officer who would know that they had rendered the service.. Whether, therefore, it is such an order .as is specially provided for 'by statute or not, if it is one which is’ recognized by the county treasurer and' paid -as being a proper charge against .the county, we see.no reason why it is not such'an order for money as to be the basis of a criminal prosecution' for forgery under subsection 7 of § 23T of the Penal Code.' It is not contended that it stands upon the sanie basis as a warrant or order issued by the county commissioners after auditing an account against the county, such as to place it under subsection 5 of § 231, but it is an order for money, recognized by the county treasurer as b.eing a valid and legal charge against the County. It is not every claim against the county which must go to the county commissioners and be audited before' the treasurer has authority to pay the •claim. See Clark v. Eve, 134 Ga. 788 (6), 790 (68 S. E. 598), and cases cited. In .the instant case it seems that it is the custom in the County of Haralson for the sheriff to issue these orders for the pay of the court bailiffs, and that he has a stub-book provided for that purpose, presumably furnished by the county, and the county recognizes these orders as valid and pays them without any question.

. Wé think, therefore, that the court did not err in overruling the general demurrers. The indictment was open to the attack of the special demurrer, for lack of certainty. It appears, however, from the order of the 'judge overruling the demurrer, and also in the certificate of the judge approving the exceptions pendente lite to the order overruling the demurrer, that, while the demurrer was filed before arraignment, not until after, arraignment, and after one juror had disqualified on voire dire and" one had qualified and had been put on the defendant, was the demurrer brought to, the court’s attention and insisted on by the defendant’s counsel. The insistence on the special demurrer came too- late, and the court did not err in'overruling the demurrer. Penal Code, § 975; Isaacs v. State, 7 Ga. App. 799 (68 S. E. 338); Gilmore v. State, 118 Ga. 299 (45 S. E. 226), and case cited.

The headnotes dealing with other questions need no elaboration. •

Judgment affirmed.

Bro-yles, P. J., and Bloodworfh, J., concur.

ON MOTION ROB REHEARING.

We have examined the record' and the cases cited by counsel for the plaintiff in error in the motion,for a rehearing. We must accept as true the orders of the court on the demurrer and in the certification of the exceptions pendente lite. By the failure of counsel to call the court’s attention to the' special demprrer until after assaignment and after' pleading to the merits and until the jurors were being examined on their voir' dire, the defendant must be held to have waived his right to insist on the special demurrer. Compare Waller v. State, 2 Ga. App. 636 (58 S. E. 1106); Harris v. State, 11 Ga. App. 137 (74 S. E. 895); Bryans v. State, 34 Ga. 323; Hudson v. State, 117 Ga. 704 (45 S. E. 66); Americus Grocery Co. v. Brackett, 119 Ga. 489 (7) (46 S. E. 657).

The motion for a rehearing is denied.