author: Per Curiam. Luke, J.,

text:
    10823.
    KNIGHT v. FORBES.
    Decided July 15, 1920.
    Action for money had and received; from city court of Valdosta— Judge Cranford. July 9, 1919.

      Franklin & Langdale, for plaintiff in error.

      E. K. Wilcox, contra.
   Per Curiam.

The proof in this case failing to sustain the allegations of the petition, the court erred in overruling the motion for a new trial.

Judgment reversed.

Broyles, C. J., and Bloodworth, J., concur. Luke, J., dissents.

Luke, J.,

dissenting. 1. This is the second appearance of this case in this court, and its nature is fully set forth in connection with the decision in 19 Ga. App. 320, where it was construed to be an action for money had and received. The 'averment that the plaintiff delivered to the defendant the sum of money sued for was established only by proof that, in lieu of the cash, the defendant 'accepted a due-bill which the plaintiff procured a third person to make, which the defendant promptly transferred for value, and which the maker satisfied prior to the origin of the plaintiff’s alleged action; the plaintiff’s loss and the defendant’s gain at the time the suit was commenced being the exact sum sued for. The jury having found for the plaintiff, the defendant now complains, first, that, because the thing received by him from the plaintiff was a due-bill and not money, the action for money had and received does not lie, notwithstanding the due-bill was itself past recovery; and, secondly, that, even if such 'an action would lie in such a case, the variance between the allegations and the proof was fatal.

(а) An action in assumpsit for money had and received does lie, where it appears that the defendant has 'actually received and has in his hands either money or something which the parties have regarded and treated as money, if it further appears that such money, or its equivalent, belongs to the plaintiff and that it is the defendant’s duty immediately to pay it over. Lary v. Hart, 12 Ga. 422; Barlow v. Stalworth, 27 Ga. 517; 2 R. C. L. 782, § 36.

(б) The variance between the allegations 'and the proof, though marked, is not fatal. Park’s Ann. Code, § 5573. Had tbe defendant raised tbe question during tbe trial, by objection to tbe evidence or by motion for a nonsuit, or otherwise, thereby giving the plaintiff an opportunity to cure the defect by amendment before verdict, it would come with greater force. Park’s Ann. Code, § 5960.

2. The fact that the payment was made to the defendant as the soliciting agent of a named insurance company and in payment of the first premium on a policy of insurance which the plaintiff had applied for through him, and that he (the defendant) was not acting .in his individual capacity, constitutes no defense, it further appearing that the defendant retained the money, applied it to his individual uses, never remitted it to the company, and did not within a reasonable time cause the policy applied for to be issued or delivered. Alexander v. Coyne, 143 Ga. 696 (85 S. E. 831, L. R. A. 1916D, 1039).

3. The charges complained of were in accord with the foregoing rulings and with the decision of this court upon the former review of this case. As to the essentials of the action not specifically dealt with above, the evidence, in my opinion, abundantly authorized the verdict. I do not agree that the court erred in denying the defendant’s motion for a new trial.


source: Caselaw Access Project

license: Public Domain

text:
    11212.
    Glanton v. The State.
    Decided July 15, 1920.
    Indictment for murder — conviction for manslaughter; from Carroll superior court — Judge Terrell. November 25, 1919.
    The only exceptions relied on in the brief of counsel for the plaintiff in error relate to the failure to give to the jury certain instructions 'as to threats of the person killed. It is alleged that the court erred in not charging (without request) : “You -may consider any uncommunicated threats made by the deceased against the defendant, if i't is shown that any was made, for the purpose of showing who began the affray, and for the purpose of corroborating evidence of communicated threats, if any be shown, and to show the attitude of the deceased.” It is alleged that the court erred in refusing written requests to charge as follows: (1) “In determining whether the deceased, at the time of the killing, manifestly intended or endeavored, by violence or surprise, to commit a felony upon the person of the accused, you may take into consideration any uncommunicated threats made by the deceased against the accused, if 'any such threats have been shown.” (2) “The court charges you that whether the accused, at the time of the killing, acted under the fears of a reasonable man that a felony was about to be committed upon his person by the deceased, and that it was necessary for him to kill the deceased to prevent it, is a question to be determined by the jury; and in determining this question you m!ay take into consideration any threats that the deceased may have made against the life of the accused, if such threats had been communicated to the accused prior to the killing, and provided further that you should find that any such threats had been proven. And in determining this question you may further take into consideration the character of the deceased for violence, provided such character has been proven, and provided further that such character upon the part of the deceased was known to the accused prior to the killing.”
   Per Curiam.

1. The charge of the court was full and fair, the evidence authorized the verdict, and for no reason assigned was it error to overrule the motion for a new trial.

Judgment affirmed.

Broyles, C. J., and Bloodworth, J., concur.

Luke, J.,

dissenting. I do not agree as to the correctness of the charge of the court. Upon the question of uncommunicated threats, I think the court, without request so to do, should have charged the jury that they could consider uncommunicated threats, for the purpose of showing who began the affray, and for the purpose of corroborating evidence of communicated threats. See Warrick v. State, 125 Ga. 133 (3) (53 S. E. 1027), and cit.; Helms v. State, 136 Ga. 799 (72 S. E. 246).

The instructions given as to threats (in addition to the language of section 65 of the ’Penal Code as to provocation by threats) were as follows: “Now, you will observe that while I charged you, upon the law of voluntary manslaughter, that the law declared that provocation, with emphasis upon the word ‘provocation/, by words, threats, menaces, or contemptuous gestures, shall in no case be sufficient to free the person killing from the guilt and crime of murder — while that is true, if the killing was provoked only by threats, or words, or menaces, or contemptuous gestures — if the killing that is unlawful is provoked only by one of those things enumerated, the law says that is murder. However, gentlemen, do not get that confused with the law of justifiable homicide; for, while words, threats, menaces, or contemptuous gestures are not sufficient provocation to justify- a killing, or to reduce it from murder to manslaughter, yet the jury may consider threats, if the evidence shows any words, or menaces, or contemptuous gestures, if the evidence shows any, in passing upon the question as to whether or not the defendant acted under the fears of a reasonable man that his life was in danger, or' that a felony was about to be committed on him, and if he did act under such fears, in good faith, and not in a spirit of revenge, words, threats, menaces, or contemptuous gestures may justify the killing; and in passing upon the question of whether or not the defendant acted under the fears of a reasonable man— whether he acted in good faith, or in a spirit of revenge — whether he acted under the fears of a reasonable man that his life was in danger, or that a felony was about to be committed, the jury may consider threats, if the evidence shows any, may consider evidence of the character of the deceased, if the evidence shows it, for violence or turbulence, in passing upon the question of whether or not the accused acted in good faith and under the fears of a reasonable man that his life was in danger, or that a felony was about to be committed upon him; and if he did, the defendant would be guilty of no offense, and should be acquitted.”

Emmett Smith, Smith & Smith, for plaintiff in error.

C. E. Roop, solicitor-general, contra.


author: Luke, J.

text:
    11296.
    Belcher v. The State.
   Luke, J.

1. Under the prohibition law (Ga. L. Ex. Sess. 1917, p. 18) declaring it a felony to “ distill, manufacture, or make any liquors or beverages, any part of which is alcoholic,” the act of making an intoxicating beer, through the fermentation of syrup, corn-meal, and water mixed for that purpose, is of itself an offense as complete and distinct as the further act of distilling from such beer a quantity of alcohol, whisky, or rum. Williams v. State, 24 Ga. App. 53 (2) (99 S. E. 711).

(a) The failure of the evidence in this case to show the distillation of any quantity of whisky does not, therefore, leave the conviction of the accused without any evidence to show that he was guilty of making such beer, and the indictment is broad in its terms to include all possible violations of the above-named statute.

Decided July 15, 1920.

Indictment for manufacture of liquor; from Jasper superior court — Judge Park. January 6, 1920.

1. The indictment charged. William Belcher with “the offense of a felony, for” he “did unlawfully distill, manufacture and make spirituous liquors, malted-liquors, mixed liquors and beverages, a part of which is alcoholic.” The judge charged the jury: “If you believe that there was evidence that there was an apparatus for the manufacture of liquor prohibited by law, and . . a barrel of beer which fermented and was alcoholic and would produce intoxication was found at the place, 'and if you further find that the defendant was connected with the manufacture of liquor if any liquors were manufactured, you would be authorized to convict the defendant.” In the motion for a new trial it is alleged that this part of the charge was erroneous, because: (a) it was not authorized by the evidence; (6) it was error to instruct the jury that they would be authorized to convict if the defendant was “connected with the manufacture of liquor;” for he may have been connected with the manufacture as an accessory, and such connection would not have made him guilty of the offense of manufacturing liquor; (c) it failed to state the nature and kind of connection that he must have with the manufacture, in order to authorize a conviction of the offense charged in the indictment.

From the evidence it appears that persons searching for a still saw the defendant carrying wood to a still in a gully in a pine thicket, near a branch, about a quarter or half mile from his house, and saw him throw the wood down at the still; that he then looked up, and, seeing that he was observed, ran off; that they found an old gasoline tank with water in it, heated up, with a wood fire at the side of the tank; and found a barrel and a doubling keg, a worm and connecting pipes, and a trough in which there was water. The witnesses saw another man there. One of the witnesses testified: “In that keg there was something they call beer or slops, and about six barrels of beer away from; that; it had not begun to run then. I don’t know whether the contents of the barrel had ever been distilled one time or not; it was in a state of fermentation, and I don’t know the practice of stilling well enough to know. It had a sour smell,— syrup, shorts, and meal mixed up. . . We did not find any whisky there at all. It had just started up, about ready to boil. . . Smoke was in the gully; . . the fire seemed to have been burning 15 or 20 minutes; they seemed to be about to make a run. ” Another witness testified: “We found a whole lot of beer and stuff in barrels, about seven or eight barrels of beer — fourteen barrels in all. I think seven were full. In these barrels was a mash made of water and wheat bran and shorts and syrup. . . We did not find any whisky there.” These two witnesses were the only ones who testified as to what was found at the still.

(6) In so far as the court’s instructions to the jury differ from the foregoing rulings, the excerpt complained of was more favorable to the accused than he had any right to demand. Therefore it cannot be cause for a new trial.

2. Those grounds of the motion for a new trial which complain of the court’s instructions to the jury on the defense of alibi are, on their facts, controlled by the decisions of this court in Bass v. State, 1 Ga. App. 729 (4) (57 S. E. 1054), and of the Supreme Court in Shaw v. State, 102 Ga. 660 (3) (29 S. E. 477).

3. The evidence authorized the verdict, and no error of law appears.

Judgment affirmed.

Broyles, C. J., and Bloodworth, J., concur.

2. As to alibi the charge of the court was as follows: “The defendant in this cáse also sets up what he calls a plea of alibi. And in this connection I read you section 1018 [Penal Code] : ‘ Alibi, as a defense, involves the impossibility of the prisoner’s presence at the scene of the offense at the time of its commission; and tire range of evidence, in respect to time and place, must be such as reasonably to exclude the possibility of presence.’ I charge you that when the defendant sets up a plea of alibi the burden of proof is upon the defendant to establish to the satisfaction of the jury the truthfulness of such a plea. And if the range of the evidence in this case upon the plea of alibi is sufficient to reasonably exclude the defendant’s presence at the time and place of the commission of the offense, if any has been committed, the plea of alibi would be good. ” In several grounds of the motion for a new trial the instructions as to alibi were complained of as being incomplete, and it was contended that the court erred in not charging that the testimony introduced by the defendant as to alibi should be considered along with the other evidence in the ease, and if, after having considered all the evidence in the case, the jury were not morally and reasonably .satisfied of the defendant’s guilt, he would be entitled to an acquittal; and that if the jury had a reasonable doubt as to whether the defendant had in fact established an alibi, he should be given the benefit of the doubt and should be acquitted.

Greene F. Johnson, for plaintiff in error,

cited: 53 Ga. 387; 133 Ga. 337, 340; 17 Ga. App. 131, 311; 34 Ga. App. 53 (3), 339; 14 Ga. App. 443.

Doyle Campbell, solicitor-general, contra,

cited: 1 Ga. App. 728, 729 (4); 102 Ga. 660 (3).


text:
    11333.
    ANSLEY v. WESTBROOK & McDONALD.
    Decided July 15, 1920.
    Complaint; from city court of Americus — Judge Harper. January 17, 1930.

      Hixon & Pace, for plaintiff in error,
    cited: 139 Ga. 387; Id. 394; 88 Ga. 337; 81 Ga. 704; 71 Ga. 608; 46 Ga. 380; 114 Ga. 308, 331; 139 Ga. 479; 13 Ga. App. 360.

      Shipp & Sheppard, contra,
    cited: 139 Ga. 479; 139 Ga. 383.
   Per Curiam.

The petition in this case, in which it was sought to recover a commission for procuring a purchaser of the defendant’s -real estate, set out a cause of action, and it was not error to overrule the general demurrer.

Judgment affirmed.

Broyles, C. J., and Bloodworth, J., concur. Luke, J., dissents.

Luke, J.,

dissenting. Westbrook & McDonald, real-estate brokers, sued Ansley for commissions on a written contract whereby he placed with them as sole agents for a term of fifteen days, from April 16, 1918, the date of the contract, a city lot for sale for $7,000, on a commission basis of 5% to them. The' petition alleged: that on April 39, 1918, pláintiffs procured a customer who, upon their agreeing to pay him $50 out of their commissions, thus making the price $6,950, contracted to take the place; that they secured a check from their customer for $500 to be paid to Ansley for the purchase of said property, and secured a written contract signed by H. B. Seal, the purchaser, and that they offered Ansley the $500 and asked him to sign the contract approving the sale, and he refused either to sign the contract or pay them their commission. This contract (attached as an exhibit to the petition) was dated April 39, 1918, and was signed by Seal, and, after reciting that Ansley had received of the buyer $500 as part pnrchase-money on the city lot, set out that said property was sold, “ subject to approval of vendor and titles being good or made good within a reasonable time, for the sum of $6,950, to be paid cash upon completion and investigation and approval of title. ” Under the signature of the purchaser was written, “I hereby approve of the above-mentioned sale on the terms and conditions named, and agree to pay Westbrook & McDonald, on the date the formal transfer is made, a commission of $300.00.” Below this was left a line for the seller’s signature, which was never signed by the seller.

The petition was demurred to generally and specially, and, after amendments had been allowed, all demurrers were overruled. The first amendment was in substance that after the purchaser offered to buy for $6,950, the plaintiffs went to the defendant on April 30, 1918, and acquainted him with the fact that the $50 necessary to make the consideration $7,000 (as per contract) wordd be paid by the petitioners; that the said Ansley agreed to the same, but asked for a few days delay, in order that he might obtain another house for himself to move to, and that the terms of sale were all satisfactory and not objected to at that time by Ansley, and that the petitioners were advised that he would comply and only wanted a few days to obtain another house. The other amendment was, in effect, that Ansley requested time to look for a house, as set out in the previous amendment, and that the purchaser secured by the petitioners remained ready, willing, able, and anxious to buy and taire the property as set out, and that Ansley waited until May 3, 1918, when he finally refused to sell the property or pay commissions. The plaintiffs alleged that it rvas a universal custom, and that the petitioners and Ansley contracted with a view to the custom,' that upon the sale of real estate, when the parties have agreed on the purchase-price, a small amount is paid down on a contract signed by the seller and purchaser, and the purchaser is then allowed time to employ an attorney and haAre.the title to the property investigated, and, after the title is approved, the trade is consummated by payment of the remainder of the purchase-money and execution of deeds to the property.

The original petition was subject to general demurrer. Amendments were offered and allowed, and demurrer was renewed to the petition as amended. The cause of action as amended rested on the proposition that the brokers had induced their customer to agree to purchase the property in question upon certain terms and conditions, and that their principal, after having agreed to these terms and conditions, refused either to sell or to pay the commission. No part of the original petition having been stricken, it is . necessary to examine the entire petition as, amended. It is alleged that the brokers asked Ansley to sign the contract approving the sale. It is then alleged that he refused to sign the contract. The first amendment, evidently referring to the contract proffered 'Ansley to sign, alleged that Ansley “agreed to same, but asked for a few days’ delay to obtain another house to move to.” It further states that “the terms of sale were all satisfactory and not objected to at that time by Ansley;” and that “petitioners were advised that he would comply, and only wanted a few days to obtain another house.” The otlier amendment merely alleged, that “ after Ansley requested time to look for another house, the purchaser remained ready, willing, able, and anxious to buy and take the property,” and that after waiting until May 3, 1918, Ansley refused either to sell or to pay commissions. A specific written contract supersedes a custom as to all matters provided for in the contract. Therefore the alleged custom pleaded could not change the contract sued on; and to have recovered on the contract as originally set out, the brokers would have had to produce a customer ready, able, and willing to buy, and who 'actually offered to buy for cash, within fifteen days from the date of the contract,, the described premises. Emery v. Atlanta Real Estate Exchange, 88 Ga. 321 (2) (14 S. E. 556).

Construing the pleadings against the pleader, I think that at most Ansley only agreed to make an agreement, and that a final and binding agreement was never entered into between him and the vendee. “The purchaser produced by the broker and the principal of the latter must come to a final, binding agreement on the terms of the transaction. The making of a mere preliminary or tentative agreement, which is not binding on the parties and which is not carried into effect, does not give the broker a right to commission.” Payne v. Ponder, 139 Ga. 287 (77 S. E. 35). I think it was error to overrule the general demurrer to the petition.


author: Bloodworth, J.

text:
    11342.
    CARHART v. MACKLE et al.

    Decided July 15, 1920.
    1. Counsel for the plaintiff in error having specifically abandoned in their brief the second count of the petition, no question relating to that count will be considered by this court.
    2. “Exceptions pendente lite, though duly approved and ordered filed as a part of the record, upon which no error was originally assigned in the main bill of exceptions, and upon which counsel made no assignment before the argument of the case, will not be considered by this court. ”

    Action for damages; from city court of Atlanta'—'Judge Reid. January 10, 1920.

      Moore & Pomeroy, Coles & Savage, for plaintiff.

      Norman I. Miller, for defendants.
   Bloodworth, J.

The bill of exceptions, which was certified by the presiding judge on the 16th day of February, 1920, in so far as it relates to the first count of the petition (the only count relied on in the brief of counsel for the plaintiff in error), is as follows: “Be it remembered that on the 20th day of October, 1917, at the regular September 1917 term of the City Court of Atlanta, before Honorable H. M. Reid, judge thereof, there came on to be heard the case of R. A. Carhart v. F. E. Mackle and Sheridan McAuley, such hearing being had on general demurrers filed by the defendants therein to count one of plaintiff’s petition in such cause, and also on general and special demurrers to count two of such petition. And thereupon the court entered orders sustaining the general demurrers to count one upon the ground that said count set forth no cause of action against said defendants; and the said court also sustained in the same orders one of the special demurrers to count two of plaintiff’s petition, but did not pass upon the general demurrers to count two of said petition. To each and all of which rulings of said court the plaintiff in error excepted, now excepts, and assigns the same as errors. Plaintiff in error thereupon, and within the time required by law, filed his bill of exceptions and carried this case to the Court of Appeals of Georgia, and upon motion of the defendants in error the Court.of Appeals dismissed said, bill of exceptions upon the ground that the same was taken to the said Court of Appeals prematurely, inasmuch as the case had not been finally determined in the lower court, and that the case was still pending in said lower court, but ordered that such bill of exceptions operate as exceptions pendente lite, as shown by the remitter in said case.” 22 Ga. App. 520 (96 S. E. 591). It will be seen from the foregoing that the plaintiff in error excepted only to the rulings on the demurrers, and did not specifically assign error on the exceptions pendente lite. In Sumner v. Sumner, 121 Ga. 1 (1) (48 S. E. 727), the Supreme Court held that “In order for exceptions pendente lite to be passed upon by the Supreme Court, error must be distinctly assigned thereon either in the bill of exceptions or at the hearing of the case in that court. ” A case which presents a question quite similar to the one at bar is that; of Jones v. Ragan, 136 Ga. 653 (71 S. E. 1098). In that ease the Supreme Court held: “Exceptions pendente lite, though duly allowed and ordered filed as a part of the record, upon which no error was originally assigned in the main bill of exceptions, and upon which counsel made no assignment before the argument of the case, will not be considered by this court. ” In support of this holding the cases of Shaw v. Jones Newton Co., 133 Ga. 446 (66 S. E. 240), and citations, and Runnals v. Aycock, 78 Ga. 553 (3 S. E. 657), were cited. This ruling is controlling in the present case. See also Stover v. Adams, 114 Ga. 171 (1), 172 (39 S. E. 864); Nicholls v. Popwell, 80 Ga. 605 (9) (6 S. E. 21).

Writ of error dismissed.

Broyles, C. J., and Luke, J., concur.


author: Broyles, C. J.

text:
    11505.
    Taylor v. The State.
   Broyles, C. J.

1. “ The offense charged in the Renal Code, § 110, is complete if it be shown that the accused fraudulently decoyed or enticed away a child under the age of eighteeen years, against the will of both his parents and without the consent of either of such parents, even though it be not shown that the accused either forcibly or maliciously did lead, take, or carry away the child in question. It is sufficient, to authorize conviction of this offense, if it be shown that the child in question was decoyed or enticed away from parental control without the consent of the parent.” Arrington v. State, 3 Ga. App. 30 (2) (59 S. E. 207). If there be any conflict between this ruling and the decision in Hendon v. State, 10 Ga. App. 78 (72 S. E. 522), the older adjudication must be followed.

Decided July 15, 1920.

Indictment for kidnapping; from Gordon superior court — Judge Tarver. April 17, 1920.

F. A. Cantrell, M. B. Eubanks, for plaintiff in error.

J. M. Lang, solicitor-general, contra.

2. The evidence, together with the legal inferences and deductions arising therefrom, authorized the jury to find that the defendant and another person conspired together to fraudulently decoy or entice away a girl under the age of eighteen years from her parents without their consent, in violation of section 110 of the Penal Code (1910), and that subsequently this conspiracy was actually carried out. Under the well-settled rule that where two or more persons enter into a conspiracy to do an unlawful thing, the act of any one of the conspirators, in furthering the conspiracy, is the act of all of the conspirators, the defendant’s conviction in this case was authorized.

4. None of the special grounds of the motion for a new trial, when considered in the light of the facts of the case, shows cause .for a reversal of the judgment below.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    11512.
    HILLYER v. MAGRUDER.
    Decided July 15, 1920.
    1. It was not error to allow the amendment, substituting for the landlord, as plaintiff, his tenant, suing for his use, for damages on account of destruction of crops on the rented land.
    2. The demurrer to the suit was properly overruled.
    3. Testimony as to the tenant’s indebtedness to the landlord for rent and supplies was admissible.
    4. The question as to the jurisdiction of the justice’s court over the subject-matter of the suit could not properly be raised by petition for certiorari.
    Certiorari; from Eloyd superior court—"Judge Wright. February 9, 1920.
    Junius F. Hillyer’s goats went on S. F. Magruder’s land and destroyed parts of the crops of cotton and corn grown on it by Magruder’s tenant, Henry Kirk; and Magruder sued Hillyer in a justice’s court on account of the destruction of the cotton and the corn. The court, over objection, allowed Magruder to amend his suit “by adding the name of Henry Kirk suing for the use of S. F. Magruder. ” A trial of the case resulted in a verdict against the defendant for $45; he sued out certiorari, the certiorari was overruled,, and he excepted. The order overruling the certiorari was as follows: “ Plaintiff in certiorari having admitted that the amount of Magruder’s lien as. landlord for rent and supplies exceeded the value of the entire crop of the tenant, Kirk, the certiorari is overruled. ”
    The suit is described in the summons as “ a claim for damages, . . a copy of which is hereto attached;” and the copy referred to is in the form of an account, dated July 23, 1918, with undated items specifying the number,of pounds and the prices of cotton and corn “destroyed by flock of goats owned by said Iiillyer,” aggregating in amount $81.89, besides interest. The defendant demurred and moved to dismiss the suit, on the grounds: that nO cause of action is shown; that the facts are not plainly, fully, and distinctly alleged; that it is not 'alleged when and where the property was destroyed; that no facts showing that the defendant is responsible for the acts of the goats are alleged; that it is not alleged that the defendant was negligent; that it is not alleged where the property was located when destroyed,-—-that is, whether it was in the field or gathered; that “sufficient facts are not alleged for the defendant to determine whether said action is one ex contractu or ex delicto;” and that “this court has no jurisdiction of this proceeding.” The petition for certiorari assigns error on the overruling of the demurrer.
    The objection to the amendment of the suit, by adding the name of Kirk as “ suing for the use of ” Magruder, was upon the grounds, that it added a new and distinct party plaintiff, that if the title to the property was in Magruder when the suit was brought; Kirk could not be added as a party suing for Magruder’s use, and that if the title was in Kirk the suit should have been brought in his name originally and it was not permissible to add his name as suing for the use of Magruder. Error is assigned on the allowance of the amendment.
    From the evidence it appeared that Kirk was Magruder’s tenant for the year 1917, and raised in that year the crops of cotton and corn destroyed by the defendant’s goats; that the crops were destroyed in December, 1917, and in' January, 1918; that Magruder furnished supplies to Kirk, and Kirk was to pay to him a third of the corn and a fourth of the cotton raised on the land, and that Kirk owed him for supplies and the rent of the land. Magruder testified that he had not had 'a settlement with Kirk; that Kirk owed him for the year something over $200; and that he (Magruder) had control over the land and had a landlord’s lien for rent. Testimony as to Kirk’s indebtedness to Magruder was objected to as irrelevant, and it is alleged that the court erred in admitting it.
    The petition for certiorari alleges that the verdict was erroneous, because it was contrary to the evidence, unsupported by evidence, and contrary to law; because the title and right of possession of the property in question was in Kirk, and not in Magruder; becáuse there was no evidence that the defendant was negligent; because the defendant was not bound under all conditions for the acts of the goats running at large, and there was no evidence tending to show that he was responsible on the occasions referred to by the witnesses; and because the evidence showed that “said justice court had no jurisdiction of said cause of action, the evidence showing that the subject-matter of the suit was real estate and not personal property. ”

      Willingham & Covington, Junius F. Hillyer, for plaintiff in error,
    cited: 20 Kan. 90; 116 Ga. 374; 122 Ga. 80; 78 Ga. 776 (distinguished); Civil Code (1910), § 5517; 98 Ga. 626; 148 Ga. 201.

      Denny & Wright, contra,
    cited: 78 Ga. 776; 137 Ga. 573 (2); 143 Ga. 110 (2a); Civil Code (1910), §§ 5664, 5667, 4727; 67 Ga. 487; 2 Ga. App. 159 (3), 161; 3 Ga. App. 160 (3); 122 Ga. 175; 117 Ga. 178 (2).
   Luke, J.

This case arises by reason of exceptions to the overruling of a petition for certiorari. One of the controlling questions raised in the petition for jcertorari is whether the suit could be amended by substituting the name of the tenant of the plaintiff as plaintiff suing for the use of the landlord. It was proper to allow the amendment.. See Holcombe v. Richmond & Danville R. Co. 78 Ga. 776 (3 S. E. 755); L. & N. R. Co. v. Morse, 143 Ga. 110 (84 S. E. 428), and cit.

The trial court did not err in. overruling the demurrer to the petition, or in rilling upon the admissibility of evidence.

The question raised as to the jurisdiction of the court over the subject-matter of this suit can not properly be raised by petition for certiorari. See Sawyer v. Blakely, 2 Ga. App. 159 (58 S. E. 399), and cit.

Under the particular facts of the case it was not error to overrule the petition for certiorari.

Judgment affirmed.

Broyles, C. J., and Bloodworth, J., concur.


text:
    11516.
    George B. Curd Company v. Meigs Lumber & Manufacturing Co.
    Decided July 15, 1920.
    Action on contract; from city court of Thomasville—-Judge W. H. Hammond. April 2, 1920.

      F. A. Hooper & Son, J. H. Merrill, for plaintiff.

      Titus & Dekle, for defendant.
   Broyles, C. J.

1. In a suit for the breach of a contract, where the only damages sued for were special damages which were not recoverable, and the petition contained no prayer for nominal damages and no allegation of general damages, the case falls within the general rule that where only special and punitive damages are sued for, a Judgment sustaining a demurrer to tlie petition will not be reversed because the plaintiff would have been entitled to recover nominal damages if the allegations of the petition as to damages had been sufficient to cover the same. Hadden v. Southern Messenger Service, 135 Ga. 372 (3), 374 (69 S. E. 480) ; Twin City Lumber Co. v. Daniels, 22 Ga. App. 578 (4).

2. Under tlie facts of .the ease as disclosed by the record, the court did not err in dismissing the petition as amended, on the demurrer interposed, or thereafter in refusing to reopen the case for the purpose of allowing another amendment to the petition to be filed.

Judgment affirmed.

Bloodworth, J., concurs. Luke, J., disqualified.


author: Bloodworth, J. Luke, J.,

text:
    11533.
    BENNETT v. THE STATE.
    Decided March 10, 1920.
    A conviction of trespass was authorized by the evidence.' Luke^ J., dissents.
    Indictment for misdemeanor; from city court of Alma — Judge L. D. Luke. March 10, 1920.
    The indictment charged that T. H. Bennett unlawfully cut and felled timber on uninclosed lands of Joseph Johnson. On the trial the State introduced in evidence a deed from the American Tie and Timber Company, dated December 10, 1917, by -which the land described in the indictment was conveyed to Joseph Johnson; and Johnson testified, that on or about December 20, 1917, after he had purchased the land, some twenty pieces of timber were cut from it by the defendant, and that he did not sell or give it to the defendant, and the defendant had no right to cut it. lie further testified: “I saw his hands in the woods cutting timber, and I showed them my lines before they cut my timber. . . I did not see this timber cut. . . When I asked the defendant about this timber being cut he told me he had a lease from the American Tie and Timber Company, and that he had paid their agent, J. H. Harvey, for the same, and for me to call on J. H. Harvey to pay for this timber, and Harvey would -pay for the same. I called on J. H. Harvey and he did not pay me for the timber, and I did not ask the defendant to pay for the same after that time. ” The defendant in his statement at the trial said: “During the fall of 1917 I was in the cross-tie business, and I had a lease from Amer-can Tie and Timber Company, through their agent, J. H. H'arvey, and, while cutting timber near the line and next to the lands of Joe Johnson, some of my hands got across the line and cut a few pieces of timber belonging to Joe Johnson. Mr. Johnson advised me that this timber had been cut by my hands. I told him that I had bought this timber from John Harvey as agent for the American Tie and Timber Company, and for him to see John Harvey. This is a malicious prosecution. Joe Johnson appeared before the grand jury several times before he was able to indict me, and he never asked me for pay for this timber, and he threatened to kill my hands if they hauled timber through his lane while working for me.” Johnson, in rebuttal, testified: ■ “I have heard what the defendant stated, and deny truthfulness of the same; it is not a malicious prosecution, and I did not threaten to kill Bennett’s hands. ”

      I. J. Bussell, for plaintiff in error.
   Bloodworth, J.

“ In this case the motion for a new trial contained only the usual general grounds. There was some slight evidence authorizing the verdict; and the verdict having been approved by the trial judge, under the repeated and uniform rulings of this court and of the Supreme Court a reviewing court is powerless to interfere. When the verdict is apparently decidedly against the weight of the evidence, the trial judge has a wide discretion as to granting or refusing a new trial; but whenever there is any evidence, however slight, to support a verdict which has been approved by the trial judge, this court is absolutely without authority to control the judgment of the trial court.” Bradham v. State, 21 Ga. App. 510 (94 S. E. 618), and cit.

Judgment affirmed.

Broyles, C. J., concurs.

Luke, J.,

dissenting. I do not agree with the majority view that the evidence in the ease supports the verdict. The defendant was charged with criminal trespass. The evidence fails to show a wilful trespass as charged.


text:
    11589.
    JENKINS v. THE STATE.
    Decided July 15, 1920.
    1. A conviction upon an indictment charging possession, custody, and control of intoxicating liquor was authorized by evidence showing that near the house in which the accused lived, and in'a pasture in which he and another person kept their cows and which was under their joint control, two jugs of whisky were found, which the other person testified did not belong to himself.
    2. Objection to the whole when a part is admissible will not require exclusion of testimony.
    Indictment for possession of liquor; from Harris superior court — Judge Howard. May 3, 1920.
    Cited by counsel:
    17 Ga. App. 730 (2).

      Hardy & Peavy, for plaintiff in error.

      C. F. McLaughlin, solicitor-general, contra.
   Luke, J.

The defendant in this ease was charged with having in his possession intoxicating liquor. The evidence shows that out in a pasture and some 150 yards from his home, two containers were found with whisky in them. The evidence further shows that he and another person had joint control and occupancy of the pasture. The other person testified that the whisky did not belong to him, and the defendant stated that it was not his property.

Some of the testimony that the defendant moved to exclude was clearly admissible, and, his motion being to exclude all of it, it was not error to deny the motion. The evidence authorized the verdict.

Judgment affirmed.

Broyles, C. J., and Bloodworth, J., concur.


author: Jenkins, P. J.

text:
    9931.
    Robinson v. Central of Georgia Railway Company et al.

    Decided July 19, 1920.
    Action for damages; from Fulton superior court—Judge Pendleton. June 7, 1918.
    After the adoption of the act of Congress of March 21, 1918, “to provide for the operation of transportation systems under Federal control,” etc., and before the issuance of General Order No. 50 by the Director-General of Railroads, this action was brought against the Central of Georgia Railway Company and a street railway company for damages on account of personal injuries alleged to have been received on the 18th day of that month because of negligence in the operation of the defendant’s cars. By demurrer the Central of Georgia Railway Company contended that the action was not maintainable against it, because its railway was not under its control, but was under Federal control, at the time of the alleged injury. The judge of the superior court refused to allow the plaintiff to- amend the petition by substituting the name of the Director-General of Railroads as party defendant, and sustained the demurrer and dismissed the action as to the Central of Georgia Railway Company; and the plaintiff excepted.

      Hill & Adams, for plaintiff.

      Little, Powell, Smith & Goldstein, Colquitt & Conyers, for defendants.
   Jenkins, P. J.

The answers of the Supreme Court to the questions certified to it by this court in this case are to the effect that while the trial court did not err in dismissing the action on the grounds set out in the demurrer, yet, under the then state of facts as disclosed by the record, the .plaintiff should be allowed to amend his petition by substituting the name of the director-general of railroads as party defendant. 150 Ga. 41 (102 S. E. 532). The judgment of the court below is therefore affirmed, but with direction that unless there should be urged some other and valid objection not made by the record as now presented, the plaintiff be allowed to amend his petition by setting up the necessary facts in regard to, and naming the proper party defendant to, the said cause; and upon such amendment being-made and allowed, the case shall stand reinstated without prejudice. Judgment affirmed, with direction. Stephens and Smith, JJ., concur.


author: Stephens, J.

text:
    10108.
    Mays v. Curry, solicitor.
    Decided July 19, 1920.
    Claim; from city court of Richmond county—Judge Black. September 10, 1918.

      W. D. Irvin, Benjamin E. Pierce, for plaintiff in error.

      W. Inman Curry, solicitor, contra.
   Stephens, J.

1. The Supreme Court, in response to certain questions certified to it in this case, held that “ Where a father, having title and ownership of an automobile, lent it to a son for the purpose of the latter using it as a ‘hack’ or ‘jitney’ in a designated city, the son taking out a license in his own name to conduct a ‘ jitney ’ business, profits arising therefrom belonging to the son, and where the automobile was seized by the officers in the possession of and driven by the son, and found to contain a large quantity of whisky, the father having no knowledge that the car was to be used in transporting whisky, and the petition for condemnation alleged that the son was the owner, the automobile could not be condemned and sold in a proceeding brought under § 20 of the prohibition act approved. March 28, 1917 (Ga. L. Ex. Sess. 1917, p. 7). Shrouder v. Sweat, 148 Ga. 378 (96 S. E. 881); Lang v. Hitt, 149 Ga. 667 (101 S. E. 795) (101 S. E. 795).” 150 Ga. 290 (103 S. E. 458).

2. In view of the above ruling by the Supreme Court, the trial judge erred in overruling claimant’s motion for a new trial.

Judgment reversed.

Jenkins, P. J., and Smith, J., concur.


text:
    10353.
    Volunteer State Life Insurance Company v. McGinnis.
   Jenkins, P. J.

1. “A policy of ordinary life insurance, payable to a named beneficiary, provides: ‘ The insured may, at any time while this policy is in force, by written notice to the company at its home office, change the beneficiary or beneficiaries under this policy. . . This policy is issued with the express understanding that the insured may, without the consent of the beneficiary, receive every benefit, exercise every right, and enjoy every privilege conferred upon him by this policy.’ Held, . . that in an action on the policy by the beneficiary,' the beneficiary has not such interest in the policy as would render inadmissible in evidence statements made by the assured himself either before or after the issuance and delivery of the policy, tending to disprove one of 'the prescribed requisites of the policy that the assured should be in good health at the time the policy was issued and delivered.” This was held by the Supreme Court in answer to a question certified to it by this court in this case. 150 Ga. 162 (103 S. E. 168). The court below, therefore, erred in excluding the evidence set forth in grounds 10 to 17 (inclusive) of the motion for a new trial, and in instructing the jury in reference thereto as complained of in ground 20 of the motion.

Decided July 19, 1920.

Action on insurance policy; from Chattooga superior court — Judge Wright. December 31, 1918.

King & Spalding, John D. & E. S. Taylor, W. B. Miller, for plaintiff in error.

J. M. Bellah, Maddox & Doyal, contra.

2. The defendant having denied the allegation of the plaintiff's petition, that proofs of the death of the assured had been furnished to the defendant, this placed the burden upon the plaintiff of establishing the truth of the allegation (Bussey v. Grantham, 23 Ga. App. 709, 99 S. E. 236); and testimony tending to prove a waiver upon the part of the company of a compliance by the plaintiff with the requirements of the policy, as to furnishing proofs of death, was not admissible to show that the proofs of death had in point of fact been furnished, as alleged in the petition. Fidelity & Casualty Co. v. Gate City National Bank, 97 Ga. 634 (25 S. E. 392, 33 L. R. A. 821, 54 Am. St. Rep. 440); McLeod v. Travelers Insurance Co., 8 Ga. App. 765 (70 S. E. 157). See also Livsey v. Georgia Railway & Electric Co., 19 Ga. App. 687, 689 (91 S. E. 1074). Had the defendant not only denied the allegation, but also set up as an affirmative defense the failure of the plaintiff to furnish proofs of death as required by the policy, then the rule would have been different, and the plaintiff could have met such defense by showing a waiver of such requirement by the defendant. Supreme Lodge Knights of Pythias v. Few, 142 Ga. 240 (2) (82 S. E. 627). The trial court therefore erred in admitting, over objection, the evidence set out in grounds 6, 8, and 9 of the motion for a new trial, relative to the alleged waiver of proofs of death, and in charging the jury as to the effect of such evidence, since such evidence and the charge relative thereto were not authorized by the original pleadings or any amendment thereto; and since the evidence adduced did not demand a finding that proofs of death had been furnished, as alleged in the petition, the admission of the evidence and the charge of the court complained of can not be treated as harmless.error.

3. Since there must be a new trial because of the errors here pointed out, the general grounds of the motion for a new trial are not now passed upon.

Judgment reversed.

Stephens and Smith, JJ., concur.


author: Smith, J.

text:
    10414.
    Sally v. Bank of Union.
   Smith, J.

“ 1. When a surety has been sued separately from his principal, it is not then too late for the surety to give the notice, provided for in section 3546 of the Civil Code (1910), to proceed against the principal debtor (the principal debtor being within the ■ jurisdiction of this State). Said section provides that the surety. at any time ’ after the debt on which he is liable becomes due, may give the notice.

Decided July 19, 1920.

Complaint; from city court of Richmond county — Judge Black. February 19, 1919.

B. B. McCowen, for plaintiff in error.

Alexander & Lee, contra.

“2. The provisions of section 3546 of the Civil Code (supra) do not affect either the nature, obligation, construction, or validity of the contract, but go only to the remedy. See Vanzant v. Arnold, 31 Ga. 210 (4), 213, where this view was expressed in the opinion, but where the decision of the question was not necessary to the disposition of the case. ‘ The indorser derives his right to be released from the statute,’ and not from anything contained in the contract. Howard v. Brown, 3 Ga. 523, 531. See Thomas v. Clarkson, 125 Ga. 72 (3) (54 S. E. 77, 6 L. R. A. (N. S.) 658). The statute operates as the extinguishment of a remedy, and not of a right, and is therefore in the nature of a limitation 'of actions. 17 R. C. L. 666, and authorities cited.

“ 3. The statute law of North Carolina, providing tliat a married woman is liable upon her contract of suretyship if such contract was made in North Carolina, will not be enforced in this State. The Civil Code of Georgia (1910), § 3007, provides that ‘while the wife may contract, she cannot bind her separate estate by any contract of suretyship." The courts of this State will not enforce the laws of other States where their enforcement is contrary to the policy of this State as expressed by statute, as in this instance. Civil Code (1910), §§ 9, 4240; Benton v. Singleton, 114 Ga. 548 (40 S. E. 811) ; 12 C. J. 438, 439; 5 R. C. L. 911, § 5.”

In answer to certified questions by this court the Supreme Court made the rulings quoted above (150 Ga. 281, 103 S. E. 460), which compel a reversal of the judgment of the court below in this case.

Judgment reversed.

Jenkins, P. J., and Stephens, J., concur.


text:
    10456.
    Keiley et al. v. Cleage.
    Decided July 19, 1920.
    Action for contribution; from Fulton superior court — Judge Ellis. January 10, 1919.
   Jenkins, P. J.

In accordance with the ruling made by the Supreme Court, in response to a certain question certified to it in this case (150 Ga. 215, 103 S. E. 167), the judgment of the trial court, refusing to grant the motion for a new trial, must be affirmed.

Judgment affirmed.

Stephens and Smith, JJ., concur.

The question referred to in the decision was: “Where, ‘in consideration of ’ a creditor giving to a principal debtor ‘ a line of credit’ in a stated amount, guarantors become responsible for the payment of ‘ this loan ’ by signing such an instrument as is quoted . . , is all liability on the part of such guarantors' discharged upon its being shown that the creditor has actually refused the request of the principal debtor for a portion of the credit thus named in the guarantors’ agreement?” The guaranty was signed by certain stockholders and directors of an industrial corporation, in order to enable the corporation to borrow money from a certain bank, and was as follows: “The undersigned stockholders and directors in the Bock Springs Coal Company of Turley, Tenn., in consideration of your bank giving to this company a line of credit of ten thousand dollars ($10,000) on their notes to be renewed from time to time, without notice to us, guarantee the payment of this loan to your bank; this obligation to hold good until we give you notice in writing to the contrary. ” The bank lent $5,000 to the corporation, in pursuance of the contract, and refused to make an additional loan of $3,000, for which the corporation applied. On default of the corporation in payment of the $5,000, one of the guarantors paid the amount, and sued his coguarantors for contribution. The defendants pleaded a discharge, on the ground that the bank had refused to lend to the corporation the additional amount of $3,000. The trial of the case resulted in a verdict against the defendants, their motion for a new trial was overruled, and they excepted. The Supreme Court, in answer to the certified question, held that “the language in the contract referring to the total amount of loans to be made to the corporation was merely a limit upon the guarantors’ liability, and the refusal of the bank to loan the additional amount of $3,000 did not operate to discharge the guarantors from liability for the amount which was actually loaned by the bank.”

Spence & Spence, G. S. Peck,, for plaintiffs in error.

Anderson, Rountree & Crenshaw, contra.


text:
    10672, 10673.
    Hodges v. Montezuma Fertilizer Company; and vice versa.

    Decided July 19, 1920.
    Complaint; from city court of'Amerieus—Judge Harper.. May 9, 1919.

      Hixon & Pace, for Hodges.

      John B. Guerry, contra.
   Jenkins, P. J.

The Supreme Court, in response to certain questions certified to' it in this case, held that “ Where a contract for the purchase of fertilizers specifically provides from what source the phosphoric acid, the nitrogen, or the potash is to be derived, and where the fertilizer is furnished in accordance with such special order, such contract of sale would be void unless the fertilizers so furnished had been registered as provided by Civil Code (1910), § 1771. The fact that such fertilizers were furnished as ordered under a name or brand properly-registered with the commissioner of agriculture, but which registration gives a source other than the actual one from which the phosphoric acid, nitrogen, or potash is derived, would not operate to change the rule above stated.” 150 Ga: 248 (103 S. B. 231). The ruling made by the Supreme Court, in response to the questions certified in said case, is also to the effect that where a brand is registered and states that the nitrogen is derived from “blood, tankage, cyanimid, and sulphate of ammonia,” and the proof shows that in accordance with the contract of purchase, the nitrogen is derived from “ equal parts of fish-scrap, blood, and tankage,” there is such variance between the registered sources and the actual sources as would invalidate the contract of' purchase under the provisions of § 1771, supra, covering registration of fertilizer brands.

In accordance with the foregoing rulings by the Supreme Court, the contract of purchase and sale as to the guano sued for in this case being invalid, the judgment of the court below 'will be affirmed only in the amount of the principal sum of $430, besides interest at seven per cent, from October 1, 1917, representing the purchase-price of ten tons of acid phosphate and four tons of nitrate of soda, about which there is no dispute under the-pleadings and the evidence. Such judgment of affirmance by this court is entered with direction that the excess amount of principal and interest included in the judgment of the court below, and representing the guano sued for, be written therefrom. The answers of the Supreme Court in response to the questions made by the main bill of exceptions being controlling, the cross-bill is dismissed.

Judgment on main bill of exceptions affirmed, with direction; cross-bill dismissed.

Stephens and Smith, JJ., concur.


text:
    10716.
    SCHOFIELD v. HATFIELD.
    Decided July 19, 1920.
    When two persons are engaged in a violation of the same criminal statute in the same manner and at the same time, but the act of each is separate and distinct from the act of the other, and one of them is injured as a proximate result of such criminal act on the part of the other, he may nevertheless recover therefor, if Ms own criminal conduct has not proximately contributed to his injury. Under the evidence in this case, whether or not the injured party was injured as a proximate result of his own negligence, or solely as a proximate result of the negligence of the other, was a question of fact for the jury. The verdict which was found for the defendant not being demanded as a matter of law under the evidence, the first grant of a new trial to the plaintiff will not be disturbed.
    Action for damages; from city court of Macon—Judge Guerry. May 16, 1919.
    • Mrs. I. I. Hatfield brought suit against J. S. Schofield, for the homicide of her son, alleged to have been caused by a collision of the defendant’s automobile with an automobile which her son was driving along a public highway. Among various grounds of negligence, as the cause of the injury, she alleged the negligence of the defendant in running his automobile along a public highway at a dangerous and unlawful rate of speed in excess of 60 miles per hour, in violation of a penal statute of the State regulating the' speed of automobiles along public highways. There was evidence in support of these various allegations of negligence. It particularly appeared that both automobiles were traveling in the same direction along the highwaj^ at a rate of speed in excess of 60 miles per hour, that the automobile in which the plaintiffs son was driving was overtaken by the defendant’s automobile, and, while both were turning a curve in the road, the defendant’s automobile ran into the automobile driven by the son and wrecked it, thereby causing his death. The verdict was for the defendant. The plaintiffs motion for a new trial was granted, and the defendant excepted, contending that the verdict, under the undisputed evidence, was demanded as a matter of law.

      P. F. Broch, Miller & Jones, for plaintiff in error.

      R. C. Jordan, R. L. Berner, contra.
   Stephens, J.

(After stating the foregoing facts.) The plaintiffs right to recover must necessarily depend upon the defendant’s negligence as the proximate cause of the injury. She, of course, cannot recover upon her own negligence or that of the person injured. Any negligent act of the defendant in which the person injured participated and which was the joint act of both parties must necessarily be the negligence of the person injured as well as the defendant, and,- if the proximate cause of the injury, would necessarily bar a recovery. If, however, the negligence of the parties consists, not in the joint performance of an act, but in the performance of separate and distinct acts, although of the same character and contemporaneous and in violation of the same statute, the act of one not being the act of the other, the person injured is not debarred from a recovery, unless his own negligence was the cause of the injury. It is immaterial whether the negligence of the respective parties is established as a matter of law or as a matter of fact. The theory upon which an injured party is debarred of a right to recover when injured while engaged in the performance of an illegal or criminal act rests, not upon the ground that he is performing an illegal or criminal act, either alone or jointly with the defendant, but upon the ground that his conduct is negligent and -is the proximate cause of his injury. Even though negligence might be shown as a matter of law, the question of proximate cause may still be one for the jury. See, in this connection, Hughes v. Atlanta Steel Co., 136 Ga. 511 (71 S. E. 728, 36 L. R. A. (N. S.) 547, Ann. Cas. 1912 C); Moore v. Central of Georgia Ry. Co., 149 Ga. 581 (101 S. E. 668); Beach, Contrib. Neg. 74, 76; 1 Cooley, Torts, 271 et seq.

In the ease under consideration each party, in operating his automobile in violation of a criminal statute, was clearly negligent as a matter of law. Whether or not the evidence demanded the inference that such negligence upon the part of either party in any manner contributed to or caused the injury must necessarily depend upon whether or not a causal relation between the negligence and the injury was conclusively shown or was made an issue by the evidence. While each party was violating a criminal statute, they were not acting jointly, but the act of each was a separate and distinct criminal act. Although they were acting contemporaneously and violating the same statute, this does not render their actions joint. The injury to the deceased, therefore, may have been caused either by his own negligence or by that of the defendant. If he was injured by the defendant’s negligence and not by his own negligence, the plaintiff may recover. It cannot be said as a matter of law that the negligence of the deceased in operating his automobile at a rate of speed prohibited by law contributed to or caused the injury. Nor does the evidence demand the inference that any negligence on the part of the deceased caused the injury. The deceased may have been injured solely by the negligence of the defendant. The proximate cause of the injury may have been negligence on the part of the defendant other than the operation of his automobile at a rate of speed prohibited by law, or it may have been the other acts of negligence charged against the defendant and supported by the evidence. All these were questions of fact for the jury. The verdict as rendered for the defendant was therefore not as a matter of law demanded.

Even though both parties were not acting jointly in violation of a criminal statute, it is suggested that they were nevertheless committing a joint act of negligence in racing at a dangerous rate of speed along a public highway. Whether or not they were thus negligent, and whether or not .such negligence was the proximate cause of the injury, were questions for the jury.

Since the verdict for the defendant was not demanded, the first grant of a new trial setting it aside will not be disturbed.

Judgment affirmed.

Jenkins, P. J., and Smith, J., concur.


text:
    10719.
    Mays v. Mays.
   Stephens, J.

1. The act approved August 19, 1918 (Ga. L. 1918, p. 122), requires that the return of appraisers appointed to set aside a year’s support to the family of a decedent “shall,” when any land is included in the property set aside in the return, “fully and accurately describe said land and malee a plat thereof, which plat shall be made and recorded as a part of the appraisers’ return,” and that “upon the filing of said return the ordinary shall issue citation and publish notice, . . citing all persons concerned to show cause why said application shall not be granted.” While an accurate description of the land set aside as a year’s support and the making of a plat thereof as provided in the act are essential to the return, they are not conditions precedent to the right of the ordinary to issue citation and publish notice citing all persons concerned to show cause why the application should not be granted. Where land is included in the property set aside, a failure to make a plat of the land, to be recorded as part of the return, may be cured by an amendment to the return.

Decided July 19, 1920.

Application for year’s support—appeal; from Butts superior court—Judge Searcy. May 30, 1919.

H. U. Fletcher, C. L. Redman, Greene F. Johnson, for plaintiff in error.

Holden, Jennings & Holden, E. J. Reagan, W. E. Watkins, contra.

2. An appraiser appointed to set aside a year’s support to the family of a deceased person cannot impeach the return by testifying that the appraisers were governed by other considerations than a due regard to the circumstances and standing of the family previous to the death of the decedent. The trial judge properly excluded testimony of one of the appraisers, to the effect that the appraisers, in setting aside the year’s support, took into consideration the fact that the decedent had conveyed some of his property to the caveator.

3. It is the duty of the appraisers, appointed by the ordinary to set aside a year’s support to the family of a deceased person, to estimate the value of the property set aside for such purpose, in accordance with the circumstances and standing of the family previous to the decedent’s death, keeping in view also the solvency of the estate. Civil Code (1910), § 4041. Where a caveat is filed to the return of the appraisers, excepting thereto upon the ground that the value of the property set aside as a year’s support is excessive and disproportionate to the value of the estate, and that it was not set aside with due regard to the circumstances and standing of the family previous to the decedent’s death, the burden is upon the caveator to sustain the exceptions.

4. While, ordinarily, evidence as to the yearly amount expended by the decedent for food for the maintenance of the family, together with certain yearly amounts expended for his individual needs alone, is not-sufficient to establish the circumstances and standing of the family previous to his death, yet, where the estate of a deceased person is valued at $55,000 and the property set aside by the appraisers as a year’s support for the widow is of the value of $18,000, and it appears that the decedent in his lifetime incurred a yearly expenditure of only $1,000 for food for the family, there is presented an issue for the jury as to whether or not the property set aside as a year’s support is excessive and disproportionate to the value of the estate, and is not set aside with due regard to the circumstances and standing of the family previous to the decedent’s death. It was error upon the part of the trial judge to direct a verdict sustaining the return of the appraisers.

Judgment reversed.

Jenkins, P. J., and Smith, J., concur.


text:
    10731.
    Savannah Electric Company v. Johnson.
    Decided July 19, 1920.
    Action, for damages; from Chatham superior court—Judge Meld-rim. June 20, 1919.
    The following extract from the charge of the court contains the language complained of: “Her contention is, that the car came to a full stop at the place where it usually stopped; that there was a number of people on the car, and that, without warning to her and while in the act of stepping off the car at that place, it was moved suddenly forward and she was thrown to the ground and hurt. If you should find that to be the truth of the case, you would be authorized to find a verdict in behalf of the plaintiff. Unless there is negligence on the part of the defendant, there cannot be any recovery on the part of the plaintiff,'—that is, the negligence as averred in this petition; and by the negligence as averred in this petition the plaintiff must stand or fall. . . . But this defendant is not liable for injury to the plaintiff if'it appears that the defendant used such diligence, or if it appears that the accident occurred by reason of the negligence on the part of the plaintiff herself. According to the contentions made by the respective parties, the issue is narrowed down to one question: Did that woman, at the time and place where the car usually stopped, get up after it had stopped, go upon the platform, and while there, in the act of getting off, the car was suddenly moved forward and she was thrown? Is that the truth ? Or is the truth of it this,—that before the car stopped she jumped from a moving ear and was thereby hurt? If you find that the contention of the plaintiff is true, you would be authorized to find a verdict for her.”
   Stephens, J.

l..In an action to recover damages for personal injuries, where a certain state of facts proved by the evidence did not demand the inference that the plaintiff's injury was caused by the defendant’s negligence, it was error to instruct the jury that, should they believe such facts to be true, they would be authoried to find for the plaintiff. Such error is not cured by an instruction, elsewhere in the charge, that the plaintiff would not be entitled to recover unless the injury was caused by the defendant’s negligence. Such instruction was not calcu- • lated to disabuse the minds of the jury of the erroneous instruction that a certain state of facts constituted negligence and entitled the plaintiff to recover.

2. Allegations in a petition for damages for personal injuries, that petitioner “brings her suit for the services of her physician,” naming him, “in the sum of $25.00,” and that petitioner was treated by said physician “for a broken arm,” are sufficiently specific to withstand a special demurrer.

Judgment reversed.

Jenkins, P. J., and Smith, J., concur.

Osborne, Lawrence & Abrahams, for plaintiff in error.

Oliver & Oliver, contra.


text:
    10861.
    Savannah Electric Company v. Joseph.
    Decided July 19, 1920.
    Action for damages; from city court of Savannah—Judge Freeman. July 18, 1919.

      Osborne, Lawrence & Abrahams, for plaintiff in error.

      Anderson, Cann, Cann & Walsh, contra.
   Stephens, J.

1. In a suit against a street-ear company to recover for damage to personal property, caused by the running of one of the defendant’s cars, there is a presumption of negligence against the defendant, which presumption, taken together with the evidence of negligence on the pai't of the plaintiff, may constitute an issue for the jury. Even though plaintiff’s negligence be conclusively shown, its causal connection with the injury may nevertheless be a question for the jury.

2. It is not the duty of the trial judge to instruct the jury as to what facts constitute negligence. It was proper to refuse a request of the defendant to charge that “A railroad track is a place of danger, and one who goes thereon is bound to know that he is going into a place where he is subject to the dangers incident to the operation of cars upon that track.” While this is stated as a truism by the Supreme Court in Western & Atlantic Railroad Co. v. Ferguson, 113 Ga. 708, 713 (39 S. E. 306, 54 L. R. A. 802), it does not necessarily follow that it should be given in charge to the jury. Atlanta & West Pt. Railroad Co. v. Hudson, 123 Ga. 108 (51 S. E. 29).

3. The other special request to charge was, so far as pertinent, covered by the general charge.

4. A statement in the charge of the court not adjusted to the evidence is not reversible error when it is harmless and not prejudicial to the losing party.

5. The court correctly instructed the jury relative to the impeachment of witnesses by previous contradictory statements. It was therefore not error to fail to instruct the jury further in this connection, in the absence of any special request therefor.

6. The evidence supports the verdict and no error of law appears.-

Judgment affirmed.

Jenkins, P. J., and Smith, J., concur.


text:
    11023.
    Floyd v. Massachusetts Mills in Georgia.
    Decided July 19, 1920.
    Revival of judgment; from city court of Floyd county—■ Judge Nunnally. October 9,1919.

      Judson Andrews, L. L. Meadors, for plaintiff in error.

      Maddox & Doyal, contra.
   Jenkins, P. J.

1. It is the duty of a reviewing court to raise the question of its jurisdiction in all cases in which there may be any doubt as to the existence of such jurisdiction. Welborne v. State, 114 Ga. 793, 796 (40 S. E. 857); Tillman v. Groover, ante, 118 (102 S. E. 879).

2. Except in case of fast writs* appellate courts have no jurisdiction to consider a writ of error until after a final judgment in the court below, or unless a judgment such as the plaintiff in error contends should have been rendered instead of the one complained of would have been a final judgment. Park’s Code, § 6138. Therefore a writ of error will not lie to an order overruling the plaintiff’s demurrer to the plea of the defendant, where it does not appear that a final judgment has been rendered and exception taken thereto. Johnson v. Battle, 120 Ga. 649 (48 S. E. 128) ; Tinsley v. Gullett Gin Co., 21 Ga. App. 512 (94 S. E. 892) ; Turner v. Strauss-Epstein Co., 20 Ga. App. 735 (93 S. E. 234) ; Carhart v. Mackle, 22 Ga. 520 (96 S. E. 591).

3. The exceptions in this case being taken merely to the action of the trial judge in failing to sustain the plaintiff’s demurrer interposed to the plea of the defendant, and it not appearing that any final judgment has been entered in the ease and that exception has been taken thereto, the bill of exceptions in this case must be dismissed. The plaintiff in error is, however, granted leave, should he desire to do so, to file his bill of exceptions as exceptions pendente lite in the case. Park’s Code, §§ 6205, 6154.

Writ of error dismissed, with direction.

Stephens and Smith, JJ., concur.


text:
    11033.
    Charity Hospital and Training School for Nurses v. Taylor et al.

   Jenkins, P. J.

Where a plaintiff alleges that under a certain ^agreement moneys were to be solicited and collected by the defendants for the plaintiff’s benefit and for a specified charitable purpose, which contributions were to be deposited as a special fund, subject to be withdrawn and expended only by joint check of plaintiff and defendants, the latter being further obligated to make reports to the plaintiff of their collecleetions, and where the plaintiff further alleges that the defendants have failed and refused to make such reports, and have deposited the funds so collected in certain banks, subject to be withdrawn solely upon their own cheek, whatever might he the equitable rights and remedies available to the plaintiffs under such a state of facts, they do not authorize the rendition of a general judgment in favor of the plaintiffs as against the defendants, for the recovery of the funds in question. The trial judge did not err in sustaining the general demurrer.

Decided July 19, 1920.

Complaint; from city court of Savannah—Judge Freeman. October 1,1919.

This is a suit by the Charity Hospital and Training School for Nurses, a corporation, against designated members of the unincorporated Federation of Negro Women’s Clubs of Savannah. In the first paragraph of the petition it is alleged that the said federation, “on certain conditions,” agreed to solicit, collect, and pay over to the plaintiff contributions to be expended in the erection of a new hospital building. In the second paragraph it is alleged that the “conditions” of this written agreement “authorized said federation to collect in its name said money or fund, expressly stipulating (and which said federation thoroughly understood and agreed to) that said money as collected should be deposited in bank to the credit of Charity Hospital Building Fund, and withdrawn by signature of president of board of trustees of Charity Hospital, jointly with that of treasurer of said federation, and that complete and full reports and statements, as canvass progressed, should from time to time be made to Charity Hospital by said federation.” It is alleged that a certain named fund was, under such authority, collected by the defendants, but, contrary to the terms of said agreement, was deposited by the defendants in certain banks, not subject to joint check of the officials of said federation and of plaintiff, but subject to be withdrawn solely by the treasurer and president of said federation; that said federation has failed and refused on demand to deposit the money as provided for under the' agreement, and to make the reports as therein provided for, but, on the contrary, gave notice by publication that no further subscriptions would be received, and in such notice requested that all donors call for and-receive the return of the amounts actually paid in. Wherefore, plaintiff asks a judgment against the defendants in the sum of $2,000, representing the amount alleged to have been collected and to be thus held by said federation.

Defendants demurred generally and on the following special grounds: (1) The petition fails to allege with sufficient particularity in what capacity defendants are being sued; (2) it fails to show that the agreement referred to was in writing; (3) it fails to show under what ."conditions” defendants undertook to solicit, collect, and pay over the funds collected by them; (4) the agreement referred to is not 'attached to the petition; and (5) the purpose for which the fund was to be employed is not sufficiently set forth. The judge sustained the general demurrer and also special grounds 3 and 4, and overruled the other grounds.

Judgment affirmed.

Stephens and Smith, JJ., concur.

Hewlett & Farthing, A. L. Tucker, for plaintiff.

F. B. Pettie, for defendants.


text:
    11138.
    Withers v. State of Georgia.
    Decided July 19, 1920.
    Éule for contempt; from Hall superior court—Judge J. B. Jones. November 6, 1919.

      W. V. Lance, for plaintiff in error.

      J. G. Collins, contra.
   Stephens, J.

The superior courts of this State, having been established by the constitution, possess the power to define and punish contempts. Where, in the exercise of such power, an attachment is issued by a superior court, defining as a contempt the failure and refusal of a person to be and appear at court to prosecute a criminal case and testify as a witness therein, after he had originally instituted the prosecution by swearing out a warrant against the defendant in the criminal case, the attachment alleges a state of facts sufficient to constitute contempt within the, power of the court to define; and where the person proceeded against is adjudged in contempt, such judgment will not be arrested upon the ground that the acts set out in the attachment are not sufficient to constitute a contempt. Nor will the final order adjudging the respondent in contempt be set aside as contrary to law, where the allegations in the attachment are supported by the evidence. Bradley v. State, 111 Ga. .168 (36 S. E. 630, 50 L. R. A. 691, 78 Am. St. Rep. 157) ; In re Fite, 11 Ga App. 665.

Judgment affirmed.

Jenkins, P. J., and Smith, J., concur.


text:
    11152.
    HANSEN v. LEATH.
    Decided July 19, 1920.
    Where an administrator, without authority, rents to a tenant lands belonging to the intestate, and afterwards, at a regularly authorized administrator’s sale, sells the lands for the purpose of distribution and the payment of debts of the estate, the purchaser acquires the lands free from any right of possession in the tenant under the contract of rental previously had with the administrator. The tenant, on refusal to vacate after possession of the premises has been demanded by the purchaser, will he treated as a tenant holding over after the expiration of his term, and may he dispossessed by summary proceedings.
    Eviction; from Ben Hill superior court—Judge Gower. October 20, 1919.
    On June 2, 1919, E. J. Hansen instituted proceedings to dispossess J. W. Leath as a tenant holding- over after the expiration of his term of tenancy, and the tenant filed a counter-affidavit. Hpon the trial of the issue thus formed the following appeared from the evidence: J. W. Leath was a tenant of certain premises which he had occupied as tenant for a period of about ten years, having originally entered thereon under a parol contract with the owner, H. M. Warren, of rental for one year, the rent being payable monthly. After the expiration of the first year of the tenancy the tenant continued in possession of the premises as a tenant, without any further contract, and continued to pay the rent until the death of the owner, and continued thereafter to pay the rent to the owner’s administrator. There was an agreement between the tenant and the administrator, by the terms of which the rent contract was changed and an advance made in the amount of the rent, which advance rental the tenant paid. Afterwards, during the life of this agreement between the administrator and the tenant, the title to the property was acquired by E. J. Hansen, who purchased it at administrator’s sale, the sale occurring four years after the death of Warren. The purchaser acquired title to the land on May 6, 1919, and on the next day he notified the tenant to vacate the premises by the 1st of June following. On the latter date the tenant failed, or refused to vacate. The purchaser contended that the tenant’s contract of rental with the. administrator ceased upon the purchaser’s acquisition of the title under the administrator’s sale on May 6, and that on failure or refusal of the tenant to vacate by June 1, he was holding over beyond his term. The trial judge, after hearing the evidence, passed an order in the nature of a nonsuit, dismissing the ease.

      D. E. Griffin, for plaintiff.

      James E. Dodgen, A. J. McDonald, for defendant.
   Stephens, J.

(After stating the foregoing facts.) Upon the death of an intestate the lands descend to the heirs at law, but 'are incumbered with any right of possession previously given by the intestate to a tenant. The heirs, while having the legal title, cannot -enter and take possession during the term of the tenancy. Where, however, there is no tenancy, and the right of possession and use is undisposed of, the heirs have a right to immediate possession of the lands, subject to the dower rights of the widow, if there be any, and to the right of the administrator to administer the estate according to law. It follows, therefore, that should any tenancy or right of use or possession created by the intestate expire after his death, the heirs at law would have the right of possession, and the administrator, acting as such, would have no right to create a new contract of tenancy or otherwise dispose of the right of use or possession, unless perhaps this would be necessary for the purpose of administering the estate. Whether or not the administrator has the right to make a contract of rental and dispose of the use and possession of the land of the estate without the consent of the heirs at law, he cannot create any incumbrance upon the land which would not be divested by a due and legally conducted administrator’s sale. Since, in the case under consideration, it appears that the contract of rental in existence at the time the purchaser acquired title under the administrator’s sale was not with the intestate, but was a contract of tenancy with the administrator, either by express agreement between the administrator and the tenant to pay an advance rent, or by an implied renewal of a yearly contract which the tenant had with the intestate, who had been dead for four years prior to the administrator’s sale, it was not an incumbrance attached to the premises after title had passed under the administrator’s sale duly made for the purpose of distribution and paying the debts of the estate of the intestate, and, therefore, the purchaser at that sale had a right to dispossess the tenant in possession under the contract of tenancy. The tenant having been given a certain number of days in which to vacate, the purchaser had a right to dispossess him upon his failure to vacate after the expiration of the time allowed. It was therefore error to grant a nonsuit. See, in this connection, Autrey v. Autrey, 94 Ga. 579 (20 S. E. 431); Myers v. Pierce, 86 Ga. 786 (12 S. E. 978); McDaniel v. Edwards, 56 Ga. 444; 11 Am. & Enc. Law, 1057, 1136. Estate of Merkel, 131 Pa. St. 584.

Judgment reversed.

Jenkins, P. J., and Smith, J., concur.


text:
    11176.
    Bailey v. Holmes.
    Decided July 19, 1920.
    Action for damages; from city court of Sparta-—-Judge Johnson presiding. November 7,1919.

      G. L. Dickens, Wiley & Lewis, for plaintiff.

      Burwell & Fleming, for defendant.
   Jenkins, P. J.

Assuming, but not deciding, that, under the authority of the ruling made in Edenfield v. Brinson, 149 Ga. 377 (100 S. B. 373), the oral contract for the sale of land, the vendor’s alleged breach of which forms the basis of this action, was not void for uncertainty or insufficiency of description, still, under the statute of frauds (Civil Code (1910), § 3222), providing that “ to make the following obligations binding on the promisor, the promise must be in writing, signed by the party to be charged therewith or some person by him lawfully authorized, viz.: any contract for sale of lands, or any interest in or concerning them,” the alleged oral contract of purchase and sale was void and unenforceable, notwithstanding that the petition shows that the vendee went into possession and made valuable improvements thereunder, since it does not appear that such improvements or any part thereof were made at the cost of the vendee, but on the contrary it is shown by the petition that in the contract of purchase it was “expressly agreed that the money for the improvements necessary to make the place fit for farming should be spent for this purpose before any payments were to be made upon the purchase-price of said land,” and that “plaintiff continued in possession of said tract of land for the space of about two years after his agreement with defendant, accounting to no one for rent, nor was any demand made upon him by defendant, or by any one else, for rent or payment; and petitioner invested the entire earnings of said tract of land in making improvements thereon during the time he held the same.” Thus, construing the petition against the pleader, it cannot be said that any allegation therein would show that the alleged improvements were made at the vendee’s cost; and since mere possession of the premises is not sufficient to relieve the transaction from the operation of the statute, the court did not err in sustaining the demurrer and dismissing the suit.

Judgment affirmed.

Stephens and Smith, JJ., concur.


author: Smith, J. Stephens, J.,

text:
    11361.
    HENNON v. JONES.
    Decided July 19, 1920.
    1. Estoppel of the plaintiff to assert title to the automobile which she was seeking to recover in trover, and which had been seized while in her husband’s possession, carrying intoxicating liquor, and sold under condemnation proceedings, was shown by uncontradicted evidence; and the court did not err in directing a verdict for the defendant. Stephens, J., dissents.
    2. The assignments of error as to the admission and exclusion of evidence do not show reversible error.
    Trover; from city court of Eloyd comity—Judge Nunnally. December 17, 1919.

      W. B. Mebane, for plaintiff.

      L. H. Covington, J. F. Kelly, for defendant.
   Smith, J.

Mrs.' Hennon brought trover against Jones in the city'court of Eloyd county. At the trial it was admitted in open court by both parties that the sole issue was the question of title to the automobile sued for. It was further admitted that this automobile had been seized by the sheriff of Eloyd county on a public highway in that county, and that at the time of the seizure it contained five gallons of whisky; that condemnation proceedings had been instituted, and that under this proceeding the defendant purchased the car at the sheriff’s sale. The plaintiff is the wife of the man who was operating the automobile when the whisky was found in it. She testified that her money had paid for the car, and that she knew nothing about the whisky being in it or that it was being used for that purpose. She admitted on cross-examination that she had 'owned four cars, trading them one for the other until this car was bought. She also admitted that she had never signed any notes for the Buick car which was traded for this Eord car, that her husband made the trade and gave his notes for the difference. She testified that her husband was acting for her, and used this language, He is my general agent to do anything whenever I ask him to. He would tell me when he was going to use the car. The purpose of his telling me was not for the purpose of getting the car, but for the purpose of telling me where he was going and what time he would be back with it. He was my agent for trading generally. Me and him farmed together. He bought stuff on my account. He has authority to do that. He had general authority from me in reference to this Eord car.” She further testified that she “did not know when he [the husband] got the car on the night the whisky was found in it. He got up some time that night without my knowledge, and I did not know where he was until nine o’clock the next morning. . . When this automobile was taken in by the sheriff I told my husband to go and tell the sheriff it was mine,” and try to get him to give it up; that she sent her husband to Mr. Mebane to see what he could do, and that she herself went to see Mr. Mebane about getting the car back; that she “employed Mr. Mebane in that condemnation proceeding. He told me he would try to help me get it. He was my attorney. I employed him to get my car.” The defendant introduced in evidence a consent order for the sale of the automobile in question. This order was consented to by Mr. Mebane. The sheriff testified that “Mr. Mebane agreed to let the car go on and be sold. ” In rebuttal the plaintiff testified: “ I sent my husband to Mr. Mebane about getting the car; that was on the day after the car was taken, and in three days I came to see if I could get it. Put in a claim bond. My husband and I went together to see Mr. Mebane.” The consent order in question was signed by W. B. Mebane as attorney for Smiley Hennon, the husband of plaintiff.

This evidence shows conclusively that the husband had general authority as to the use of the ear in question, and that he also had authority to employ an attorney to represent both him and his wife as to the transaction; and also that the husband’s notes were given for the car, and that the wife (the plaintiff) was present in the office of the attorney when the consent order was agreed upon.

It follows that this evidence demanded a finding that the plaintiff, the wife, was estopped by her conduct from claiming the title to the car bought by the defendant at the condemnation sale; and that the court therefore did not err in directing a verdict for the defendant.

Judgment affirmed.

Jenkins, P. J., concurs.

Stephens, J.,

dissenting. I cannot agree to the conclusion that the evidence demanded a verdict for the defendant. I concede that had Mrs. Hennon consented to the sale of the automobile, she would now be estopped from asserting title in the trover suit to recover the property from the purchaser. The evidence, however, does not conclusively show that she consented to the sale. It does 'not necessarily demand any such inference. The giving of general authority to the husband to use the car or to employ an attorney to represent her in her efforts to recover the car and defeat its sale under condemnation. proceedings, or the employment herself of an attorney for such purpose, with general authority to represent her, does not demand the inference that either the husband or the attorney had the right to bind her by a sale of the car or a settlement of the ease. Besides, if either had any such authority, the evidence does not demand the inference that he exercised it. Mr. Hennon’s agreement, through his attorney, to a consent order in his own case, to which Mrs. Hennon was not a party, in law binds him alone, and not her. His conduct in his own case, where he does not expressly act also for his wife, does not necessarily demand the inference that he was in fact also acting for her and under any authority which he may have had from her. The action of Mr. Hennon’s attorney, in agreeing to this consent order, in law bound only Mr. Hennon, and did not bind Mrs. Hennon, who was not a party to the case. The attorney’s conduct, therefore, in agreeing to this consent order, whatever authority he may have had to act for Mrs. Hennon, does not demand the inference that he was at the'time acting for her. Nor does the fact that she was present in the office of the attorney when this consent order was agreed upon demand such an inference. Nor did her presence there under such circiimstances demand the inference that she consented to the sale of the car. The consent order recites the case as the State of Georgia versus Smiley Hennon as the owner of an automobile seized in the transportation of intoxicating liquors, and states that “The said Smiley Hennon now agrees that said automobile be sold,” etc., which is signed “W. B. Meba-ne, Att’y for Smiley Hennon.”

The evidence authorized the inference that the car belonged to the plaintiff, even though it may be said that her husband’s money purchased the same and he signed the purchase-money notes. He certainly had a right to make a gift of the car to his wife. She, however, testified that the car was bought with her own money.

Hnder no circumstances can the wife’s title to the car be divested in any condemnation proceeding against the husband alone and to which she is not a party. Such proceeding affects only Ms legal rights. The sale passed ño title from her unless she consented thereto.

I am therefore of the opinion that it was improper for the trial judge to direct a verdict for the defendant. It was not necessary to express any opinion upon the other assignments of error.


text:
    11454.
    Ohlen v. McCoy.
    Decided July 19, 1920.
    Motion to set aside judgment; from Fulton superior court — Judge Ellis. January 16, 1920.

      A. E. Wilson, for plaintiff in error.

      Guy Parker, contra.
   Smith, J.

1. This was a statutory motion to set aside a judgment (Civil Code, §§ 4358, 5958) ; and, it not affirmatively appearing on the face of the motion, or from movant’s affidavit (the only evidence offered in support thereof), that it was made during term time, and this being essential to the validity of such a motion, the same should have been dismissed. Lovett v. Vickers, 24 Ga. App. 407 (100 S. E. 755); Bedgood v. Floyd, 20 Ga. App. 617 (93 S. E. 218) ; Gillespie v. Farkas, 19 Ga. App. 158 (2) (91 S. E. 244) ; Malsby v. Studstill, 127 Ga. 726, 728 (56 S. E. 988), and cit.

2. “Where parties have a case in court, it is their duty to attend and look after their interests. They cannot remain away without sufficient cause and subsequently have set aside a judgment properly rendered against them, especially where, by the exercise of the least diligence, they could have ascertained the time when the ease was set for trial.” Seifert v. Holt, 82 Ga. 757 (3) (9 S. E. 843). This is true notwithstanding a motion to set aside a judgment is addressed to the sound legal discretion of the trial judge, since it should not be granted unless some meritorious reason be given therefor. Moore V. Kelly & Jones Co., 109 Ga. 798 (2) (35 S. E. 168); Ingalls V. Lamar, 115 Ga. 296, 299 (41 S. E. 573). The failure of the defendant’s counsel to appear and defend the case, solely because he inadvertently, in reading the court calendar, overlooked the case which was printed thereon, affords no such reason. See Kellam v. Todd, 114 Ga. 981 (41 S. E. 39) ; Ayer v. James, 120 Ga. 578 (48 S. E. 154).

3. While the above deals with the motion as one to set aside a judgment based on a verdict, even if it be treated as a motion to vacate a verdict it was legally insufficient (Ayer v. James, supra) ; and the judge erred in sustaining it and reopening the case.

Judgment reversed.

Jenkins, P. J., concurs. Stephens, J., concurs upon the grounds announced in paragraphs 2 and 3.