text:
    7459.
    THIRD NATIONAL BANK OF FITZGERALD v. BAKER et al.

    1. On the trial of an action on a promissory note, where the defendants pleaded that the note was based upon an illegal consideration and was void, because given for the purpose of suppressing a criminal prosecution against one of them, testimony as to statements made by him to the other defendants (his mother and his brother-in-law), that he had violated the law and that he was going to be prosecuted for the crime unless they executed a note with him, was admissible for the purpose of explaining their conduct in signing the note, hut not as proof that a criminal prosecution was threatened.
    2. Whether the. consideration of the note was the suppression of a threatened prosecution was purely a question of fact for the jury, under appropriate instructions from the court.
    3. Proof that the maker of a note was a cashier in a national bank and violated section 5209 of the Revised Statutes of the United States, that prosecution for such violation was threatened, and that he, his mother, and his brother-in-law signed the note for the purpose of suppressing and settling the threatened criminal prosecution, voids the contract.
    4. The court charged the jury; “In passing on this case, the court instructs you that the suppression of a criminal offense does not mean an imaginary violation of the law, but it does mean such facts as constitute at least a prima facie violation of the law or a technical violation of the law. It is contended that O. E. Baker did violate section 5209 of the Revised Statutes, and it becomes part of your duty, in the trial of this ease, to look into that question. If Mr. Baker did not violate any criminal law, did not amount to prima facie violation of a criminal law, then there could be no criminal prosecution. There would have to be a violation of some law before there would be a suppression of a criminal prosecution; and, if no violation of a criminal law, there could not be a suppression of a criminal prosecution as to those particular facts and items. It is contended that there was a violation of the criminal act as provided under section 5209 of thé Federal statutes.” Held, that, considering the whole charge of the court, this particular excerpt from the charge was not subject to the criticism that it was misleading or that it in effect instructed the jury that they should find for the defendants.
    Decided February 1, 1917.
    Complaint; from city court of Valdosta—Judge Cranford. April 21, 1916.

      E. N. Randolph,, Denmarle & Griffin, Wall & Grantham, for plaintiff. E. K. Wilcox, Eaygood & Cutis, for defendants.
   Luke, J.

The Third National Bank of Fitzgerald instituted suit upon a promissory note, against C. E. Baker, as principal, and Mrs. D. V. Baker and T. H. McKey as sureties. The defendants admitted the execution of the note, but denied indebtedness, and pleaded, in substance, that the note was void; that the plaintiff was a national banking association under the laws of the United States; that while C. E. Baker was cashier of said bank, and for some time prior to the termination of his connection with the bank, one J. A. Zorn was a customer of said bank and had borrowed from it considerable sums of money for use in his business oí manufacturing cross-ties; that said Zorn had negotiated for certain leases of cross-tie timber to be made, and the same were in some instances taken in the name of C. E. Baker, and said Baker had in instances individually guaranteed accounts made by said Zorn and which -were paid by said Zorn through said bank; that said Baker, as cashier of said bank, had taken in behalf of said bank certain commercial paper of one E. C. Zorn, a brother - of J. A. Zorn, and indorsed by said J. A. Zorn, and the aggregate amount of the indebtedness on which the said J. A. Zorn’s name appeared as maker and as indorser was in excess of the ten per cent, limit allowed by the national banking act to be made to any one borrower, and the loan thus made was really fof the benefit of said J. A. Zorn; that prior to the making of the note of E. C. Zorn the same indebtedness had been carried in the name of “Abba Cross-Tie Company,” the said Abba Cross-Tie Company being the said J. A. Zorn, and, upon objection having been made to the transaction, the Abba Cross-Tie paper was cancelled and new paper made in the name of E. C. Zorn; that said Baker and said J. A. Zorn had made an agreement whereby said Baker was to have a share of the profits of the cross-tie business in consideration of the financing of said business through said bank; that upon severing his connection with said bank the officials of said bank demanded of said Baker that he indorse the notes held by said bank at the time against J. A. Zorn and against E. C. Zorn, making the assertion that the indebtedness was the indebtedness of said Baker, and, under pressure thus brought, Baker did indorse the said papers; that, the said J. A. ¿Torn paper not being paid, the officials of the bank made demands upon Baker for the payment of the same, and, it still being unpaid, they coupled their demands with intimations that Baker would be in serious trouble with the government unless it was settled, and, to add greater force to their threats, procured a national-bank examiner to take the matter up with Bakér; that said bank examiner, acting under procurement of said 'bank officials, informed said Baker that he had come to get said matter settled, and that unless it was settled it would be necessary for him to report the matter to the department, and that this would result in serious trouble for Baker;, that numerous threats were continually being made, and the seriousness of the same caused Baker to mention the matter to his mother, the defendant Mrs. D. Y. Baker, and to his brother-in-law, defendant T. H. McKey, and thereupon negotiations resulted between, A. B. Cook, acting for the plaintiff, and the said McKey, in which threats were made known to said McKey and renewed to him and through him and said C. E. Baker to his mother, Mrs. D. Y. Baker; that the defendants were thus informed that unless the alleged indebtedness of said Baker (the Zorn. indebtedness) was satisfactorily settled by good paper or money, the entire matter, which had already been brought to the attention of the national banking department or comptroller of the currency, would be referred to the department of justice, and that the bank would prosecute the said Baker for violating the national banking law while he was cashier of said bank; that the prosecution referred to was an alleged violation of section 5209 of the Revised Statutes of the United States, in making a misapplication of the funds of said bank by obtaining the same under papers made in the name of J. A. Zorn, and in making false entries as to the same, in that the details of said loan were not made known and entered on the books of the bank, and in lending an amount in excess of ten per cenf. of the capital stock of said bank to one person, and being interested in such loans, and in not including the same in reports made to the comptroller of the currency; that, acting under the influence of these threats of criminal prosecution, and after being assured that if the note sued on was given, the entire matter of threats and criminal prosecution would be dropped, and solely for the purpose of avoiding the prosecution of said Baker in the United States Court on the charge aforesaid, the defendants executed the note sued upon; that said note was given for the purpose and consideration of suppressing a criminal prosecution, and was thus based upon an illegal consideration and void. The'defendant C. E. Baker pleaded also that he had been legally adjudicated a bankrupt, and was legally granted a discharge in bankruptcy in accordance with the bankruptcy laws of the United States; and tliat the demand or cause of action sued upon is one from which he was thus discharged. The trial of the cause resulted in a verdict in favor of defendants. The plaintiff duly filed its motion for new trial, and, upon the overruling of the motion, brought the case to this court, assigning error upon the refusal to grant a new trial.

1. Grounds 1 to 27, inclusive, of the amendment to the motion for a new trial assign error upon the rulings of the trial court in admitting certain evidence of Mrs. Baker, one of the sureties on the note sued on, over the objection that her statements were hearsay and self-serving declarations, not- in the presence of the payee, and communications between two defendants, and not authorized by the payee of the note; the court permitting her to testify to communications and statements made to her by her son, C. E. Baker, and her son-in-law, T. H. McKey, to the effect that the bank officials were going to prosecute 0. E. Baker for a crime committed while he was cashier of the plaintiff bank, and that the said criminal prosecution and crime could and would be settled if she and T. H. McKey would sign as sureties the note sued on. Ground 28 of the motion for a new trial assigns error because the court refused to rule out all the evidence introduced by the defendants of any threats against C. E. Baker which were communicated to McKey or Mrs. Baker by him, or by any other persons except representatives of the bank; the specific objections being, that communications by C. E. Baker to Mrs. Baker and McKey were hearsay, and -that communications between the defendants themselves, which were unauthorized by the bank and unknown to the bank, were self-serving, in so far as they attempted to show any threats against .Baker, or any agreement not to prosecute him if the note sued on was executed.

It is a general rule of evidence that hearsay has no probative value and is inadmissible, but this rule is subject to exceptions. Hearsay is admitted under our statute, in specified cases, from necessity. Civil Code (1910), § 5762. By section 5763 of the Civil Code it ísé provided, that “when, in a legal investigation, information, conversations, letters and replies, and similar evidence are facts to explain conduct and ascertain motives, they are admitted in evidence, not as hearsay, but as original evidence.” There is a marked difference between the admissibility of evidence and its legal effect when admitted. Mrs. Baker is a party to the case, and her testimony can not be treated as self-serving declarations, in so far as it related to statements explaining, her conduct and motives for signing the contract. Such evidence by her, in our opinion, is to be treated as original evidence . If the note sued on was in fact given to settle or suppress a criminal prosecution, it would be void even in the hands of an innocent purchaser without'notice. Jones v. Dannenberg, 112 Ga. 426 (37 S. E. 729, 52 L. R. A. 271); Small v. Williams, 87 Ga. 681, 682 (13 S. E. 589). If, therefore, Mrs. Baker was induced to sign the note under the circumstances set up in her answer, and if by reason thereof the note was void, it would in our judgment be permissible, under the law, for her to testify to the conversation had by her with her coobligor, for the purpose alone of ascertaining her motives and explaining her conduct in the premises. We think that such conversations and statements, inducing or leading up to the giving of .the note by her, would constitute a part of the res gestae of the transaction. We do not wish to be understood as holding that statements made to her by her co-obligor, inducing her to sign the note, which were unauthorized or not known of by the payee, would in themselves be sufficient to prove the truth of such statements, for the purpose of binding the payee in the note in any manner whatsoever, but we simply hold that her evidence was admissible solely to explain the facts and circumstances surrounding the signing of the note by her. In the case of Small v. Williams, supra, it was held: “Pertinent declarations made by a person whilst on his way to procure the execution of a mortgage to secure an antecedent debt or liability, the expedition having resulted in its procurement, are admissible in evidence against the mortgagee on the question whether the mortgage was procured by fraud or duress. They are a part of the res gestae of the transaction, and consequently are admissible in evidence irrespective of the relation of agency between the mortgagee and the person who procured for him the execution of the mortgage.” In the case of Snyder v. Willey, 35 Michigan, 483, the court held: “Where the defense is made to a suit on a promissory note that it was given in compromise of a criminal complaint against the maker’s son-in-law, and was procured through the entreaties of the daughter, whose fears had been played upon by the plaintiff for that purpose, it is competent to show what she said to her father to induce him to give the note, this being part of the transaction.” “Thus where the question is, whether the party acted prudently, wisely, or in good faith, the information on which he acted, whether true or false, is original and -material evidence,” says Greenleaf on Evidence, § 101. Hearsay is admissible as evidence to explain conduct. Stamps v. Newton County, 8 Ga. App. 229 (9), 235 (68 S. E. 947).

2. Grounds 29 to 32, inclusive, assign error upon the charge of the court. The remaining assignments of error are upon the ground that the judge failed to charge certain principles of law which the movant contends were applicable and should have been charged without request. We do not think that the charge of the court was misleading, and we do think that the charge of the court, when considered in its entirety, was full and fair upon the issues in the ease.

3. The remaining question for this court -to determine is whether the evidence was sufficient to sustain the plea of the defendants. The evidence clearly shows that C. E. Baker was guilty of concealing the transactions he had with Zorn, covering them up by entries upon the books; that the reports to the banking department did not show really what the transactions were; that in fact Baker was drawing a salary or profit from the business owned by Zorn in the cross-tie business; and that the bank did not know that Baker was financing the cross-tie business with the funds of the bank, because he himself was being paid something for his services. “The fact that entries in a report made by a national bank to the comptroller accurately state the facts as shown by the books does not prevent them from being false, where the books themselves do not correctly show the actual transactions of condition of the bank.” Morse v. U. S., 174 Fed. 539 (98 C. C. A. 321). The testimony shows that Baker was charged by the officials of the bank with a violation of the banking laws, and was advised by the offi- ■ cers and by the bank examiner of the seriousness of the charges and the seriousness- of the results, and that settlement must be made; in fact the evidence showed that the statement was made to Baber by an officer of the bank (Cook) that the president (Davis) had said that, “unless he (Baker) arranged that matter, the bank would spend $1,000 or put him in jail.” Cook testified that he told Baker that the president of the bank had said: “I don’t' mind losing $1,000, if he has violated the law [referring to Baker], I would like to spend $1,000 putting him in jail.” The facts show that the bank was trying to force Baker to take care of the Zorn debt and other indebtedness to the bank. Cook, an official of the bank, wrote to McKey, one of the sureties, on December 7, .1911, as follows: “My dear Mr. McKey: Some time last spring I wrote you a personal letter relative to Mr. Baker’s "affairs. At that time no definite arrangements had been made by him, and, not anticipating any trouble, I assumed you did not wish to act upon suggestions made. I trust you will regard this as a confidential communication, inasmuch as Mr. Baker was 'employed by this bank on my representation, based somewhat on your letter to me at the time, which no doubt justified my relations with him. But his indifference to claims held by this bank against him, as principal and indorser, makes it a very difficult matter for me to keep the board from reporting him to the government, in which event I can be of no service to him, as the matter will be entirely out of my hands, and I have held the matter over pending some adjustment of his affairs. He certainly does not realize the importance of preventing the institution of proceedings of this kind, or he would have made some disposition of the matter before now. However, I do not care to assume that his people were ignorant of the facts in the case, without giving them an opportunity of preventing, before it was too late, what might prove a rather serious matter.” Cook, on April 24, 1911, wrote to C. E. Baker and inclosed the following letter from the bank examiner: “Please inform me as to whether or not Mr. 0. E. Baker has made any further payment on his indebtedness to your bank. I would regret very much to be obliged to make a complaint concerning the lending to himself of so much of the funds of the bank without the knowledge or consent of the board. If I am obliged to do this it will of course give him a great deal of serious trouble. Please let me hear from you at your earliest convenience, and greatly oblige. Tours truly, J. K. McDonald, Examiner.” After further interviews Haygood and Cutts, .representing C. E. Baker, on December 16, 1911, addressed to the Third National Bank and Élkins and Wall, attorneys for the bank, the following letter: “Eeferring to your last suggestion and inquiry by your Mr. Wall to the members of our firm as to the adjustment of the differences between the Third National Bank and Mr. C. E. Baker, we beg leave to say that the note which was offered to the bank and which was in the custody of the directors, subject to their acceptance of it, and which the bank declined to accept and returned to Mr. Baker, was by him returned to the security, in order that it might be cancelled. Mr. Baker did not deem it proper to keep the note, and, for the satisfaction of the security, thought it best to return it. Such a note can be obtained, however, by Mr. Baker within forty-eight hours, but he dislikes to again ask for security to sign the note with him, unless there is some assurance that it would be accepted. Both Mr. Baker and the security not only desire to know that it would be accepted, but also that its acceptance would mean an entire settlement of all issues pending between the bank and Mr. Baker, and thus result in the satisfaction of the executions obtained against him, and the dismissal of the pending cases growing out of the same; and also that there will be no further effort made to embarrass Mr. Baker by the presentation of any kind of charges against him, which has been heretofore referred to in the correspondence between the parties as involving the submission of the matters to the department of justice. While Mr. Baker indignantly disclaims any suggestion of a violation of the national banking laws, and would have nothing whatever to fear if such threats were carried out, yet naturally he and the security would want to know that these suggestions, as well as all issues and differences, would be finally ended and settled. We would be glad to have your prompt reply to this letter, as Mr. Baker expects still to be able to obtain the security required, and, upon receiving your favorable answer to-day, will be able to obtain the note by Monday.” On December 19, 1911, the note sued on was delivered to the bank.

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

Judgment affirmed.

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


source: Caselaw Access Project

author: Luke, J.

license: Public Domain

text:
      7545.

      Jones et al. v. Maril.
   Luke, J.

1. A garnishment proceeding makes a case separate and distinct from that in aid of which it is instituted. It involves different parties, different issues, and a different cause of action; it requires a special place on the docket, and a separate trial on the merits; and, where instituted in aid of a pending action, it can not be tried until the main case is disposed of by a final judgment. Civil Code (1910), §§ 5269, 5281, 5292; Hammett v. Morris, 55 Ga. 644; Fourth National Bank v. Mayer, 89 Ga. 108 (14 S. E. 891); N., C. & St. L. Ry. v. Brown, 3 Ga. App. 561 (60 S. E. 319).

2. The defendant in the main case is not .a party to a garnishment which is undissolved; and in such a case he will not be heard to complain of the judgment rendered in favor of the plaintiff against the garnishee. Civil Code (1910), § 5280; Connally v. Rice, 77 Ga. 312; Foster v. Haynes, 88 Ga. 240 (14 S. E. 570) ; Leake v. Tyner, 112 Ga. 919 (38 S. E. 343).

3. The garnishee has no concern with the merits of the controversy between the plaintiff and the defendant any further than to see that, before judgment is rendered against himself on the garnishment, there is a judgment against the defendant in the main case which is not void. The garnishee therefore will not be heard to complain of a judgment in favor of the plaintiff and against the defendant alone. Civil Code (1910), § 5292; Exchange Bank v. Freeman, 89 Ga. 771 (15 S. E. 693).

4. Where, as in this case, the garnishment is undissolved, and two separate judgments are rendered in favor of the plaintiff, one against the defendant in the main case and the other against the garnishee in the garnishment ease (both cases being tried by the judge without a jury), such defendant and the garnishee are not joint parties to either pro- . ceeding, and will not be permitted to consolidate the two distinct proceedings by uniting in a motion which they denominate as their “joint and separate motion for a new trial,” wherein they complain that the separate judgment against each of them was contrary to law and without sufficient evidence to support it. Such a proceeding does not bring into question the sufficiency of the evidence to support either of the judgments thus complained of. Bones v. National Exchange Bank, 67 Ga. 339; Pupke v. Meador, 72 Ga. 230; Western Assurance Co. v. Way, 98 Ga. 746 (4) (27 S. E. 167); Morgan v. Latham, 111 Ga. 835 (36 S. E. 99).

5. Such joint motion for a new trial was a mere nullity, and should have been dismissed as such in the trial court; but, no ruling upon this point having been invoked by the plaintiff, the trial judge did not err in attaining substantially the same result by overruling the motion. Rich v. Kiser, 61 Ga. 370; Morgan v. Latham, supra.

6. The sole assignment of error in the bill of exceptions being based upon the judgment of the trial court overruling such a void motion for a new trial, the writ of error must be dismissed. Bones v. Bank, Pupke v. Meador, and Western Assurance Co. v. Way, supra; Erwin v. Ennis, 104 Ga. 861 (31 S. E. 444) ; Hicks v. Walker, 105 Ga. 480 (30 S. E. 383) ; Haralson County v. Pittman, 105 Ga. 513 (31 S. E. 183) ; Walker v. Conn, 112 Ga. 314 (37 S. E. 403) ; Wells v. Coker, 113 Ga. 857 (39 S. E. 298).

Decided February 1, 1917.

Rehearing denied February 16, 1917.

Garnishment; from city court of Savannah—Judge Davis Freeman. May 20, 1916.

Shelby Myriek, Payne & Jones, for plaintiffs in error.

Morris H. Bernstein, David S. Atkinson, contra.

Writ of error dismissed.

Wade, C. J., and George, J., concur.


author: Gíeorge, J.

text:
    7602.
    SWATTS v. HARRISON.
    It appearing from the evidence set forth in the petition for certiorari that the verdict complained of included usury, the judge of the superior • court erred in refusing to sanction the certiorari.
    Decided February 1, 1917.
    Petition for certiorari; from Grady superior court—Judge Cox. May 12, 1916.
    Harrison sued Mrs. Swatts, in the city court of Whigham, for the amount of her notes to him,—$1,545 principal, and interest at eight per cent, per annum from date. Liability was denied by her on the ground that the notes were given merely for the purpose of securing a loan to her husband; and she pleaded usury to the extent of $45.' The trial having resulted in a verdict and judgment-in favor of the plaintiff for the full amount sued for, the defendant presented to the judge of the superior court a petition for certiorari, which he refused to sanction; and error is assigned thereon.
    From the evidence set forth in the petition for certiorari it appears, that the notes sued on were for a loan made by the plaintiff, which was negotiated through N. F. Jones, and that the plaintiff did not deal with the defendant in person; that he gave J ones a draft payable to her, for $1,500, which she afterwards indorsed. The defendant testified, that when she signed the notes she understood that her husband was securing a loan and that she was putting up security for him; that'he, with T. J. Mills and some one else, came to her home with the notes and a mortgage or other papers, and she signed all the papers they wanted her to sign, and they carried the papers away with them; that she had no conversation with any of them; that her husband was not acting as her agent, and she had not authorized him or any one else to secure a loan from the plaintiff; that she “never made a loan from plaintiff;” that no part of the money was ever paid to her, and no accounting for any part of it was ever made to her; that the indorsement on the draft, which was followed by her husband’s indorsement, appeared to be in her handwriting, but the draft was never in her possession, and she did not remember having seen it. T. J. Mills testified, that at the time of the signing of the notes he was representing the defendant’s husband, but supposed the plaintiff, was depending on him to see that the papers were properly executed; that he did not remember any conversation at that time, and did not remember whether he turned the plaintiff’s draft over to the defendant herself, .or to her husband. The plaintiff testified, that the defendant’s husband got N. F. Jones to come to see him about making a loan, and he (the plaintiff) left the matter with T. J. Mills and N. F. Jones, to represent him and close it up as soon as the papers were signed; that he relied on T. J. Mills to see that the papers were properly executed, and he did not see the defendant during the transaction. Over objection he was allowed to testify that he “was making the loan to Mrs. Swatts, and not to her husband;” the defendant’s counsel .objecting on the ground that the witness had stated that he did not see the defendant during the transaction, and no agency had been shown. After the plaintiff’s counsel had made the opening argument to the jury and while the defendant’s counsel .was arguing the question of usury, the court, over objection, permitted the plaintiff to reopen the case and testify that when the defendant’s husband came to see him about the loan, he explained that he had the money already loaned out, and that if he called it in and made this loan to Mrs. Swatts, he would lose $45 interest, and Mr. Swatts replied, “We are willing to pay the $45 to get it.”
    In the petition for certiorari it was alleged, that the verdict was contrary to the evidence; that to the extent of $45 it included' usury; that the court erred in allowing the plaintiff to testify that he was. making the loan to the defendant, and not to her husband; that the court erred in allowing the plaintiff to reopen the case and testify further; and that the court erred in charging the jury that the question at issue was whether the parties intended the contract to be an. original undertaking of the defendant, or that she was to become surety for her husband.

      8. P. Cain, for plaintiff in error. R. R. Terrell, contra.
   Gíeorge, J.

1. There was no error in allowing the case reopened for the introduction of further testimony after the argument was begun.

2. ' On the facts set forth in the petition for certiorari, the'verdict is not contrary to the evidence nor without evidence to support it, except as to $45 usury included therein. Indeed, the evidence clearly disclosed that the notes were given for a loan of money in one sum of $1,500, and the draft for the money was made payable to the order of the wife. It matters not that she indorsed the draft and delivered it to the husband; which fact may be inferred by his indorsement upon the draft. As was said by Bleckley, J., in the case of Boland v. Klink, 63 Ga. 448, “Generally, when a wife wants an agent to represent her in a business transaction, she will select her husband.” The case from which this language is quoted is in large measure controlling on the facts of this case. When the wife makes 'a purchase through her husband “it is the same as if she made it in person; and when the transaction creates a debt for property which is transferred or conveyed to her by the creditor, and she gives the required security in person, the debt is hers, not her husband’s, and the act of giving security binds her.” \

It does affirmatively appear, from the facts alleged in the petition, that the sum of $45, included in tlie three notes sued on, is usury. The judgment refusing sanction to the writ of certiorari must therefore be reversed.

Judgment reversed.

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


author: George, J.

text:
    7680.
    GEORGIA REALTY CO. v. BANK OF COVINGTON.
    In the absence of an agreement or a special equity to the contrary, assignees holding separately several notes secured by a mortgage or otherwise are entitled to share pro rata, and without any preference, in the proceeds arising from the sale of the security, when insufficient to satisfy them all'; and this is true although the notes matured on dif; ferent dates and the assignments were made at different times.

      Where several notes are secured by a mortgage or otherwise, and the holder of the security transfers one of the notes and retains the others, the transferee has a preference over the assignor if the security is insufficient to pay all the notes. The equity existing in favor of the assignee and against the assignor in such case is considered sufficient to create a preference in favor of the assignee.
    Decided February 1, 1917.
    Money rule; from city court of Atlanta'—Judge Eeid. June 1, 1916.

      Smith, Hammond & Smith, for plaintiff in error.

      B. W. Milner, Dorsey, Shelton & Dorsey, contra.
   George, J.

S. O. and T. M. Callaway held title to land. On July 2, 1912, they conveyed this land by deed to E. V. Carter, guardian, to secure a loan of $8,000. All legal title was thereby conveyed. On September 30, 1912, the Callaways made a deed conveying this land to the Southern Finance Corporation, now the Southern Trust Company, subject to the said loan, title being still in E. V. Carter, guardian, as security for the loan.' On September 1, 1914, the Southern Trust Company executed its bond for title to the said land to J. T. Daves, subject to the said loan, title being still in E. V. Carter, guardian, as security for the loan. Daves, assumed payment of the loan, made a cash payment upon the land, and executed four notes of $3,000 each, maturing September 1st, 1915, 1916, 1917, and 1918, respectively, for the balance of the purchase-money. On October 27, 1914, the Southern Trust • Company sold the two notes maturing September 1, 1915 and 1916, to the Bank of Covington; the bank buying bona fide, for value, and before maturity. On December 16, 1914, the Southern Trust Company sold the two remaining purchase-money notes, maturing September 1, 1917 and 1918, to the Georgia Eealty Company, which also bought bona fide, for value, before maturity. The Southern Trust Company made a deed to the Georgia Eealty Company as additional security, conveying its equity in the said land and containing the following recital: “This deed is made to secure payment of two purchase-money notes for $3,000, each dated September 1, 1914, and maturing September 1, 1917, and September 1, 1918, respectively, and being Nos. 3 and 4, respectively, said notes having been given by said Joel T. Daves as part purchase-money for above-described property under bond for title above mentioned, notes 1 and 2 of the series having previously been sold to the Bank of Covington. An escrow deed in compliance with the aforesaid bond has this day been executed and deposited with the notes this day sold to the grantee. Wherefore, upon payment of the notes this day sold to the grantee herein and the production of notes Nos. 1 and 2 (sold to the Bank of Covington as aforesaid) marked ‘paid/ the escrow deed aforesaid shall be delivered to Joel T. Daves, or his assigns, whereupon this deed shall be void and of no further force or effect.” On February 9, 1915, the deed from the Southern Trust Company to the Georgia Bealty Company was duly recorded. In January, 1916, in the city court of Atlanta, judgment was rendered in the suit of the Bank of Covington against J. T. Daves (no other party defendant), for the amounts due on the two notes owned by it, and declaring a special lien on the land. In March, 1916, in the city court of Atlanta, judgment was rendered in the Suit of E. V. Carter, guardian, against S. C. and T. M. Callaway, for $8,000 principal, etc., secured by the fee-simple title to the land, and superior to all claims. The sheriff of the city court of Atlanta, under the Carter fi. fa., sold the entire legal title to the land for $10,000. Out of this fund the Carter fi. fa. was satisfied in full, and the sheriff retained the sum of $336.29. ■ The Georgia Bealty Company filed a petition for a rule against the sheriff, in the city court of Atlanta, claiming half of the fund. The Bank of Covington intervened, claiming the entire fund. The judge of the city court, by agreement, considered the case on the facts herein stated, and awarded the whole sum in the hands of the sheriff to the Bank of Covington; and to this judgment the Georgia Bealty Company excepted.

1. The intervenor (the defendant in error) insists that it had obtained priority by its judgment against Daves, with a special lien upon the land. We do not think so. Its judgment gives the bank no added security whatever. This judgment was not a judgment against the Callaways, the defendants in fi. fa. from the sale of whose property the funds in court for distribution was derived. Moreover, the judgment is in no way binding on the plaintiff in error, because the plaintiff in error was not a party to the suit in which the judgment was rendered. Strickland v. Bank of Cartersville, 141 Ga. 565 (81 S. E. 886); Marshall v. Charlando 109 Ga. 306 (34 S. E. 671); Sims v. Albea, 72 Ga. 751.

2. The recital in the deed from the Southern Trust Company to the Georgia Realty Company does not, in itself, create any priority in favor of the intervenor against the Georgia Realty Company. Manifestly this deed was given as security. It discloses that an escrow deed was deposited with the Georgia Realty Company at the same time. While it may have been unnecessary, it was certainly proper to provide that the escrow deed should not be delivered until not only the two notes owned by the Georgia Realty Company were paid, but also until the notes assigned to the Bank of Covington were' produced and marked satisfied. ■ It very clearly appears that this recital contained in the deed from the Southern Trust Company to the Georgia Realty Company was to accomplish nothing more than what the Southern Trust Company had, by its assignment of the notes to the contesting parties in this case, already done. -

3. The proceeding to distribute money in the hands of the sheriff by a rule against the sheriff is essentially an equitable proceeding. Resort to a court of equity need not be had. Rucker v. Tabor, 133 Ga. 720 (66 S. E. 917); National Bank of Athens v. Exchange Bank of Athens, 110 Ga. 692 (36 S. E. 265); Berrie v. Smith, 97 Ga. 782 (25 S. E. 757); Field v. Armstrong, 69 Ga. 170. The fact that the petition for the rule was filed in the city court of Atlanta does not alter the principle. Wright v. Brown, 7 Ga. App. 389 (66 S. E. 1034). The fact that the Georgia Realty Company had not sued and obtained judgment on its notes can not alter the principle. Smith v. Bowne, 60 Ga. 485.

4. Since the judge of the city court of Atlanta in this proceeding had the authority to determine the respective rights of the parties to the funds remaining in the hands of the sheriff after the payment of the Carter judgment, and since no priority in favor of either party against the other was created or obtained by the deed from the Southern Trust Company to the Georgia Realty .Company or by the judgment of the Bank of Covington against Eaves, the judgment awarding the fund to the bank can be sustained only upon the theory that, the security being insufficient to pay all the notes, the assignment to the bank of the notes first maturing being first made, the bank was entitled to priority over the subsequent assignee of the remaining purchase-money notes. This question is one of primary importance. Mortgages are daily executed and delivered, securing a series of notes. Lands are daily conveyed as security for debt evidenced by more than one note, and sales of personal and'real property are made in which title is reserved or a lien created as security for purchase-money, evidenced by many notes. These notes find their way into the channels of commerce. It is assumed, for the purposes of this-case, that the priority of notes secured by the same mortgage, or the purchase-money notes given for land, title to which is retained by the vendor, may be made the subject of contract between the parties interested, and that a general rule fixing such priority, in a case where the security is insufficient to pay the whole debt, applies only in.the absence of contract.

“There are three general rules, any one of which may govern the priority of notes secured by the same mortgage and in the possession of different holders: (1) The notes may have no priority, and share pro rata the insufficient proceeds of the mortgaged property. (2) The notes may .have priority in the order in which they, fall due, without regard to the date of assignment. (3) The notes may have priority in the order in which they have been assigned,”without regard to the date of maturity. In 27 Cyc. 1304 (e) these rules are referred to: “The rule as laid down in many cases is that, in the absence of an agreement or special equities to the contrary, the assignees and holders of the several separate notes of debts secured by a mortgage are entitled to share pro rata and without any preferences in the proceeds of the mortgage, when dnsufficient to satisfy them all; and it makes no difference that some of the debts matured earlier than the others or that the assignments were made at different times. According to a few cases the rule is that the holders of the notes, in áuch a case, are to be paid in the order in which their assignments were made, unless the mortgage or deed of trust which is the common security expressly prescribes a different order; but if all are assigned concurrently, all will share pro rata. . . . And there are still other cases holding that the assignment of one of such notes is an equitable transfer of the mortgage pro tanto, and the proceeds of a foreclosure, if not sufficient to .pay all the obligations, should be applied to the notes in the order of their maturity, the holder of the note first falling due being entitled to satisfaction in full and then the others in their order.” The intimation here is that the pro-rata rule is supported by the weight o£ authority. In 2 Jones on Mortgages (7th ed.),. § 822, this statement occurs: “When there is no implication of an intention to give priority to the note assigned, the indorsement and delivery of it carries with it a pro-rata portion of the security and nothing more. The generally received doctrine is that, in the absence of agreement or special equities to the contrary, the assignees of the separate notes or debts secured by a mortgage are entitled to share pro rata in the proceeds of the mortgage, without preference or regard to the order of assignment or maturity of the debts. Since the transfer of one of several notes secured by the same mortgage carries with it a proportionate share of the security, it has been held that the mortgagee thereafter holds the mortgage in trust for the assignee to the extent of his interest.” In the editor’s note to Lawson v. Warren, 42 L. R. A. (N. S.) 183 (94 Okla. 103, 124 Pac. 46, Ann. Cas. 1914C, 139), an Oklahoma case, these three general rules are discussed at length, and it is there concluded that the courts of final resort in a majority of the States adhere to the pro-rata rule, with varying qualifications. The decisions of New York, Massachusetts, Pennsylvania, California, Connecticut, Louisiana, Vermont, and a number of other States follow this rule. According to this note, the courts in Georgia hold to the pro-rata rule, but this statement is open to question. The earlier-maturity rule finds support in decisions of the following States: Florida, Illinois, Indiana, Iowa, Kansas, Missouri, Ohio, and Wisconsin, and the reason of this rule is strongly stated in the case of Horn v. Bennett, 135 Ind. 158 (34 N. E. 321, 956, 24 L. R. A. 800), from the Supreme Court of Indiana, from which we quote: “When a series of notes falling due at various dates are secured by mortgage, . . in case of an assignment of the notes to various persons they will be treated as several mortgages, and the persons holding notes maturing first will have a prior lien to those holding notes maturing subsequently thereto.” The rule there stated is that “The assignment of the note first maturing carries-with it a pro tanto interest in the mortgage security—pro tanto, and not pro rata.” The prior-assignment rule is supported by decisions of the courts of Alabama, Virginia, and West Virginia, according to the editor’s note to the Oklahoma case in the 42 L. R. A., supra.

Considering these general rules, it must be admitted that few courts have applied them rigidly. Generally they have been modified, abandoned, or reversed, where the intervening equities demanded it. For instance, under the pro-rata rule, if it were applied rigidly, the assignee of some of the series,of notes secured by one mortgage would have no priority over the assignor or mortgagee; but many of the courts adhering to this rule have considered the intervening equity existing between the assignor and assignee, the indorsement by the assignor, or at least the sale of the note to the assignee, as sufficient to work an exception to the general rule. The application of the earlier-maturity rule, if adhered to without exception, would operate in some cases to give the assignor or mortgagee a priority over his assignee, while the prior-assignment rule would in every instance give the assignee priority over the mortgage, without the necessity of introducing an exception to the general rule. It is to be observed that the prorata rule is the only one capable of universal application. The earlier-maturity rule presupposes that the notes secured by one mortgage mature at different dates, and the prior-assignment rule presupposes different dates of assignment.

Let us examine the decisions of the Supreme Court of this State. It is taken as settled in Wellborn v. Williams, 9 Ga. 86 (52 Am. D. 427), that the assignment of a note secured by a mortgage carries with it the lien of the mortgage as an incident thereto. In Roberts v. Mansfield, 32 Ga. 228, this general principle is recognized, and it is there said: “Where one holds two notes secured by mortgage and transfers the one, retaining the other, the mortgage lien accompanies the transfer of the note as an incident, and it would seem that in case the security falls short of paying both notes, the holder of the transferred note has a preference over the mortgagee who retains the other.” That decision and the decision in Crowder v. Dunbar, 74 Ga. 109, recognizing the same principle, are the basis for § 4276 of the Civil Code of 1910, which first appeared in the Code of 1895. This section declares: “The transfer of notes secured by a mortgage or otherwise conveys to the transferee the benefit of the security. If more than one note is secured and the mortgagee transfers some and retains others, the holder of the transferred notes has a preference over the mortgagee if the security is insufficient to pay all the notes.” For later cases bearing upon the general doctrine incorporated in this code section, see: Berrie v. Smith, 97 Ga. 782 (35 S. E. 757); Willingham v. Huguenin, 129 Ga. 835 (2), 840 (60 S. E. 186); Setze v. First National Bank of Pensacola, 140 Ga. 603 (79 S. E. 540). From these decisions and others dealing with the same question, it is deducible that the assignment of a note secured by mortgage or otherwise conveys to the transferee the benefit of the security. This is the doctrine of the first sentence of § 4276, supra. This is the general doctrine. This statement of the doctrine does not suggest that the whole security accompanies the note as an incident thereto, if the mortgage secures more than one note. It is clear that, while the transfer of one of a series of notes secured by the same mortgage transfers the benefit of the security to the assignee, such transfer does not have the effect of diverting out of the mortgagee or assignor all interest in the security. The general rule is, that, while the transfer of one of several notes secured by the same mortgage conveys to the. transferee the benefit of the security, it conveys to him only a pro-rata interest in the property covered by the mortgage. In the event the security is insufficient to pay all the notes, the equity existing between the mortgagee, who retains some of the notes, and his assignee of one or more of the notes, is considered sufficient to vary the general rule and to give the assignee preference over the mortgagee. In Smith v. Bowne, 60 Ga. 485, the Supreme Court held: “A mortgage upon land having been made to secure several negotiable notes, and the notes having been passed to several different holders, and one of the holders having obtained a general judgment, and another having foreclosed the mortgage in the name of the mortgagee for his use, a sale of the premises under the general judgment passed the title free from the mortgage lien, the attorney representing the judgment of foreclosure having placed the execution founded thereon in the hands of the officer of the law making the sale, and caused the title, unincumbered, to be sold, and there being no fraud in the sale, and the premises having brought full valué, or an amount approximating thereto. The notes not covered by either judgment can not be enforced against the land, but are thrown, in equity, upon the fund produced by the sale, for their pro-rata share thereof.” In that ease a bill in equity made substantially the case presented in the headnote quoted, and prayed that the lands be resold under the mortgage lien and the proceeds be appropriated to the satisfaction of the notes held by the complainants. The chancellor to vvhom the case was submitted decreed that the sale already made had “divested the lien of the mortgage as to all the notes, and that the purchasers acquired an unincumbered title; that the lien of the mortgage attached to the proceeds of the sale, and that complainants might have leave to enter a rule absolute to enable them to proceed against such proceeds.” Bleckley, J., in his opinion sustaining the chancellor, does not set forth the facts of this case in detail, but on examination of the original record it appears that certain lands were mortgaged for the purpose of securing twelve promissory notes, half of which matured upon one date and half upon a later date. Six of the notes were for $366.66 each, and six were for $266.66 each. The complainants were the purchasers of seven of the notes; one Truluck was the purchaser of one of the notes, and one Varner was the purchaser of four of the notes. All of the assignees purchased in good faith and for value. Truluck obtained a common-law judgment on his note, and an execution, issued thereon, was levied upon the property covered by the mortgage. Before the date of sale Varner foreclosed the mortgage and placed the mortgage fi. fa. in the hands of the sheriff. The complainants were not parties to either of these proceedings. The mortgaged property brought at the sale by the sheriff $1,505. This amount was insufficient to pay all the notes. While that case differs upon its facts from the instant case, it is held that the complainants in that case were “thrown, in equity, upon the fund produced by the sale, for their pro-rata share thereof.” According to the opinion of Judge Bleckley in the case last cited, it is apparent that the policy of the law is against repeated foreclosures of the same mortgage, and that, in harmony with this policy, provision is made for a single foreclosure where the debt secured thereby falls due in installments. See Civil Code (1910), §§ 3272, 3285.

It is urged by counsel for the defendant in .error that the Southern Trust Company could transfer to the Georgia Realty Company only the rights it had at the time of the transfer, and that when the trust company sold the two notes to the bank, and thereby transferred to it as a necessary incident the security of the mortgage, the rights of the parties became fixed and the priorities established, and nothing that the trust company could thereafter do could change those rights. If the mortgagee assigns one of the two notes secured by the mortgage, he does not thereby divest himself of all interest in the security, but retains his pro-rata interest therein, subject to this exception: If the security prove insufficient to satisfy both notes, by reason of the equities existing be-, tween the parties, the assignee has a preference over the mortgagee in the distribution of the jDroceeds arising from the sale of the security. He conveys only the pro-rata interest in the security to the assignee, and it is only in the event the security proves insufficient to pay the whole debt secured by the mortgage that the assignee is given a preference over the assignor, and that is by virtue of an exception to the general rule arising under the special equities in the case. When all of the notes secured by a mortgage are transferred,, although upon different dates to different transferees, the whole interest in the security passes as an incident to the notes transferred, but there exists, in the absence of contract to the contrary or special reason, no equity giving the first assignee the preference over a subsequent assignee. The mortgagee must be considered as the trustee holding title to the mortgage for the benefit of his assignees, and if he assign all the notes secured by the mortgage, each assignee is entitled to prorate in a fund derived from a sale of the mortgaged property. This conclusion of the matter will prevent a multiplicity of suits, and will prevent the splitting of the mortgage or lien. The earlier-maturity rule and the prior-assignment rule both have the effect of dividing the lien or splitting the mortgage. This, as we understand it, is against the settled policy of the law of this State. The sounder view is to consider the mortgage as securing one debt, evidenced by any . number of notes, and that the security is spread out over the whole debt, althpugh evidenced by many notes. The earlier-maturity rule necessarily considers the mortgage as a separate mortgage for each note after the first, as has expressly been declared in the decisions of the Supreme Courts of both Indiana and Iowa, where this doctrine is clearly defined. The prior-assignment rule, in effeet, does the same thing. Under this rule the date of the assignment, rather than the date of the maturity of the note, fixes the priority between contesting assignees. The logic of this rule is that the act of assignment divides the mortgage and converts the lien, in effect, into a first and second, or'third, mortgage, according to the number of assignments.

It is urged that one who buys some of the notes secured by a mortgage, with knowledge that the mortgagee is then the owner of the remaining notes secured by the mortgage, should be entitled to a preference over á subsequent assignee of the remaining notes; that he -is presumed to have given greater value for the notes. A sufficient reply to'this contention is that the purchaser of one or more of a series of notes secured by mortgage or otherwise may' always fully protect himself by a contract with the assignor, and if he fail to do so, and if there be no special equities in the ease, the holder of each note secured by the mortgage or other form of lien is entitled to prorate with him in the distribution of the security, regardless of the date of the maturity of the- notes or of the date of the assignment of the same. For the foregoing reason the judgment of the lower court is

Reversed.

Wade, G. J., and Luke, J., concur.


text:
    7884.
    GRANT v. THE STATE.
    Failure to charge, in the trial of a criminal case, a principle of law applicable to one of several defenses, based entirely upon the statements of the defendant and a codefendant tried jointly, no request in writing or otherwise having been made for such charge, is not error. Walker v. State, 122 Ga. 747, 751, last paragraph (50 S. E. 994) ; Gray V. State, 6'Ga. App. 428 (3), 432 (65 S. E. 191) ; Robinson v. State, 114 Ga. 56 (4), 57 (39 S. E. 862).
    Decided February 1, 1917.
    Accusation of sale of liquor; from city court of Dublin—Judge Hicks. July 17, 1916.

      Fred Kea, for plaintiff in error. S. P. New, solicitor, contra.
   George, J.

Dan Grant and others were jointly tried for the offense of selling whisky. One of the defenses relied upon by Grant in his statement at the trial was that he had acted merely as agent of the buyer, in procuring the whisky. Several exceptions to the admission of testimony were taken, but in the brief filed by counsel for plaintiff in error he insists a new trial should be granted him for the sole reason that the court did not give in charge the law applicable to the particular contention stated above. No request for such a charge was made, and the court did charge the jury that they might believe this defendant’s statement in preference to the sworn testimony.

Judgment affw'med.

Wade, G. J., and Luke, J., concur.


author: Wade, C. J.

text:
    7892.
    WHITE v. THE STATE.
    1. The description of property, in an indictment for larceny after trust, as “two bales of lint cotton, weighing about five hundred pounds each, . . and of the value of sixty dollars each,” the property of a named person, who, it was alleged, had intrusted the property to the defendant, was not insufficient.
    2. The court did not err in refusing to declare a mistrial because the prosecuting attorney, in his concluding argument to the jury, referred to the accused (a negro) as “a sweet-smelling shrub,” “big Injun,” and “big Ike.” If the effect of this language was prejudicial to the accused, the harmful effect was removed by the action of the judge in directing the attorney to desist from such references, and in ruling out the remarks complained of, and by the attorney’s withdrawal of the remarks and his apologies to the court.
    3. A conviction of larceny after trust is not authorized where the proof shows that the purpose of the trust was different from that alleged in the indictment.
    Decided February 1, 1917.
    Indictment for larceny after trust; from Eloyd superior court— Judge Wright. September 25, 1916.

      W. B. Mebane, Sharp & Sharp, for plaintiff in error.

      W. II. Ennis, solicitor-general, contra.
   Wade, C. J.

1. The indictment charged “the offense of larceny after trust delegated, for that” the accused, “after being intrusted by J. C. Sheppard with two bales of lint cotton, weighing about five hundred pounds each, then and there the property of said J. 0. Sheppard and of the value of sixty dollars each, for the purpose of selling same and paying the proceeds of said sale to said J. C. Sheppard, did fraudulently con vert, said two bales of cotton to his own use, to the injury and without the consent of the said J. C. Sheppard, and without paying to the said J. 0. Sheppard the full value or market price thereof, contrary to the laws,” etc. The court properly overruled the demurrer based upon the ground that the property alleged to have been converted was not described with sufficient definiteness and particularity to put the defendant on notice. Cody v. State, 100 Ca. 105 (2), 110 (28 S. E. 106); Sanders v. State, 86 Ga. 717 (3), 723 (12 S. E. 1058); Alderman v. State, 57 Ga. 367 (2); Keys v. State, 112 Ga. 392 (37 S. E. 762, 81 Am. St. E. 63). The case of Bright v. State, 10 Ga. App. 17 (72 S. E. 519), relating to an indictment for simple larceny, is not in point or in conflict with this ruling.

2. The remarks of the solicitor-general in his concluding argument to the jury, complained of in the only special ground of the motion for a new trial, were not of such harmful effect as to require that a mistrial be declared by the court. The prejudicial effect, if any, was sufficiently removed by the action of the court in directing the solicitor-general to desist from such references, and in ruling out the remarks complained of, and by the solicitor-general's withdrawal of the remarks and his apologies therefor to the court.

3. The indictment alleged a trust for the purpose therein set forth, and the proof showed a trust for an entirely different purpose. “The indictment being for larceny after a trust had been, delegated, in order to convict the accused it was necessary to prove the creation of the trust described in the indictment, and a fraudulent breach of.it in the manner alleged. To charge one trust and prove another would not suffice. Carter v. State, 53 Ga. 326; McCrary v. State, 81 Ga. 334 [6 S. E. 588].” McNish v. State, 88 Ga. 499, 500.(14 S. E. 865). The evidence failing to support the particular allegations made in the indictment, the conviction of the accused was unauthorized, and the court erred in overruling the motion for a new trial, based upon the general grounds.

Judgment reversed.

George and Luke, JJ., concur.


text:
    7909.
    McPHEARSON v. THE STATE.
    1. The evidence authorized the charge of the court on the law of voluntary manslaughter.
    2. On the trial of a criminal case it is not error for the judge to instruct ' the jury as to every lawful defense raised by the testimony, notwithstanding the accused makes a written request that the court instruct the jury that he relies upon one or more defenses only,, and not upon a special defense named. Where the court complies with such a request, the accused can not be heard to’complain; but it is within the power of the court, and eminently proper, to give the accused the advantage of every defense suggested by the evidence. Under the testimony in this case, leaving out of consideration the statement of the accused, it was not error for the court to instruct the jury .touching the right of a father “to kill another on account of ah injury done to his daughter, either by an effort to take her vii'tue, or by an assault made upon her. ”
    3. A reversal will not be granted because the trial judge refused to give certain requested instructions to the jury, where the same matter was fully and fairly presented in the charge given. Central of Georgia Railway Co. v. BlaoJoman, 7 Ga. App. 766 (68 8. E.'339) ; Mixon v. State, 7 Ga. App. 805 (7), 808 (68 S. E. 315) ; Carter v. State, 106 Ga. 372 (4), 375 (32 S. E. 345, 71 Am. St. R. 262) ; Perdue v. State, 135 Ga. 277 (5), 284 (69 8. E. 184). And where error is assigned upon the refusal to give a requested instruction to the jury, and no complaint is made that the request was not substantially covered by the charge given by the court, and the entire charge is not brought up, this court is unable to determine whether the refusal of the request was erroneous; and where it neither appears from the bill of exceptions nor from the record that the charge of the court was ever reduced to writing or was of file in the office of the clerk of the court below (Penal Code, §§ 1056, 1057), this court will not order it sent up under section 6149 (4) of the Civil Code. Perdue v. State, 17 Ga. App. 299 (86 S. E. 661). See also HawJoins v. Collier, 106 Ga. 18 (31 S. E. 755). In the absence of any assertion to the contrary, it will be presumed that the charge of the court sufficiently covered the precise doctrine referred to in the requested instruction. Therefore, that ground of the motion for a new trial which complains of the refusal to give a requested instruction relating to threats will not be considered.
    Decided February 1, 1917.
    Indictment for murder—conviction of manslaughter; from Eloyd superior court—Judge Wright. October 2, 1916.

      F. W. Copeland, for plaintiff in error.

      W. H. Ennis, solicitor-general, contra.
   Wade, C. J.

It is not necessary to add to what is said in the headnotes, further than by calling attention in the briefest manner to the substance of the evidence which, in the opinion of this court, authorized the trial judge to submit to the jury the question whether the accused was guilty of the offense of voluntary manslaughter, and which supports the verdict returned.

A wayward young woman’s father, who had been encouraged by her recent conduct to hope for her ultimate reformation, found that she was absent from his home at night,' and, guided by his knowledge of her past, armed himself with a gun and sought her in a part of a city apparently much frequented by rowdy and disreputable persons, where ho was informed that she had been seen in a bawdy-house with a certain man. He finally encountered her in the street, apart from this man, and induced her to accompany him home. On the way home she informed him that this man had insulted and slapped her, and had told her, when she threatened to report his conduct to her father, that he would provide a “wooden overcoat” for the father. It appears, from other evidence, that he had in fact abused and slapped her at the time stated; and this information reached the father from another source. After the father and the daughter arrived at home, the father remained on the front-porch, the daughter entered the house, and the father assumed that she had retired to her room, though in fact she had gone to her mother’s room. Some minutes later the father himself entered the house, and, failing to find his daughter in her room, concluded that she had returned to the scene of debauchery from which he had just removed her, and went back to the same locality, accompanied by his son-in-law, to discover her and bring her home. When they reached the place where he had previously found her, they encountered the man referred to, and the latter became embroiled in a difficulty with the son-in-law and shot the son-in-law, and immediately thereafter the father fired upon the man and killed him.

Cooling time is always a question for the jury, and whether or not, between the time when the father was informed of the presence of his daughter with the deceased in a lewd house, or was told by her that the deceased had abused and slapped her, and the time when he encountered and slew the deceased there was a sufficient interval for the passion to subside, which must have been instantly excited by this information, was wholly for determination by the jury; and by their verdict they declared that at the time of the killing the accused was, in their opinion, acting under the influence of irresistible passion, and not in self-defense or in other circumstances that justified the killing. It is clear that the circumstances narrated were amply sufficient to- provoke in the mind and heart of the average or normal father such a burning flame of anger as might rage without abatement not only for minutes but for hours, and the accused may well have been under the overmastering influence of that passion when he encountered the deceased for the first time after he had been apprised of facts indicating the participation of the deceased in the debauching of his daughter, and an entire contempt by the deceased for his right or ability to protect a member of his family who, whatever her past, was the child of his loins,—bone of his bone and flesh of his flesh.

The trial court therefore properly charged the law of voluntary manslaughter, and the evidence was amply sufficient to support the verdict finding him guilty of this offense.

Judgment affirmed.

George and Lulce, JJ., concur.


text:
    7930.
    Watkins v. The State.
   George, J.

1. Persons who have not the use of reason, as idiots, lunatics during lunacy, and children who do not understand the nature of an oath, are incompetent witnesses. Civil Code (1910), § 5862.'

2. The court must, by examination, decide upon the capacity of one alleged to be incompetent from idiocy, lunacy or insanity, or drunkenness, or childhood. Civil Code (1910), § 5865. The objection to competency, if known, must be taken before the witness is examined at all. Civil Code (1910), § 5866; Brunswick & Western Railway Co. v. Clem, 80 Ga. 534 (3), 538 (7 S. E. 84).

3. Accordingly, a motion to exclude testimony upon the ground that the witness was an idiot was properly overruled, where no objection to the competency of the witness was made before examination (the moving party having knowledge of such ground), and where it appeared that the witness had “sufficient understanding to apprehend the obligations of an oath and to be capable of giving a correct account of the matters she [had] seen and heard in reference to the questions at issue.” Cuesta v. Goldsmith, 1 Ga. App. 48 (3), 52 (57 S. E. 983) ; Pittsburg &c. Ry. Co. v. Thompson, 27 C. C. A. 333 (82 Fed. 720).

4. An exception that the court “failed to instruct the jury as to the law relating to idiots and lunatics as witnesses, and gave the jury no rule or instructions for guiding them in weighing and considering the evidence of idiots and lunatics,” will not require a reversal, where no such charge was requested, and where the court charged the jury as follows: “The court can not tell you what any witness swore or what any testimony in the case is. The court can not tell you what weight or what credibility you will give to the testimony that is introduced. You have the right, in passing upon the evidence in the case, to observe the witness’s manner on the stand; the witness’s interest or want of interest, bias, or prejudice, if any; the witness’s intelligence or want1 of intelligence; the witness’s knowledge or want of knowledge, as well as every circumstance that has occurred during the trial and in your presence, you have a right to consider, in passing not only upon the weight and credibility of the testimony of the witness, but upon the case itself. ” .

Decided February 1, 1917.

Indictment for murder—conviction of manslaughter; from Dawson superior court—Judge J. B. Jones. November 11, 1916.

B. P. Gaillard Jr., W. M. Johnson, for plaintiff in error.

Robert McMillan, solicitor-general, contra.

5. The court did not err in refusing to grant a new trial on the ground of the alleged newly discovered evidence, as it was merely cumulative and impeaching in character; and besides, it appears that the affiant to this evidence was subpoenaed as a witness by the State, sworn, and put under the rule, but not examined, and it further appears that the affiant was a half-brother of the defendant and was present at the time of the homicide, and this fact must have been known to the defendant, who upon his trial.admitted the killing but contended that it was done in self-defense. Bowers v. State, 135 Ga. 310 (69 S. E. 536).

6. The' evidence warranted the verdict, and the alleged errors of law dealt with above do not require a new trial.

Judgment affirmed.

Wade, 0. J., and Lulce, J., oonour.


text:
    7932.
    STOKES v. THE STATE.
    To sustain a conviction upon the testimony of an accomplice, there must be corroborating circumstances which, in themselves and independently of the testimony of the accomplice, directly connect the defendant with the crime, or lead to the inference that he is guilty.
    Decided February 1, 1917.
    Indictment for robbery; from Spalding superior court—Judge Searcy. October 21, 1916.

      Cleveland & Goodrich, for plaintiff in error.

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

Mattie Williams, Snet Banks, and Charlie Stokes were jointly indicted for the offense of robbery. The indictment alleged that the defendants did on a certain date, “with force and arms, and unlawfully, wrongfully, fraudulently, and violently, take and carry away from the person of T. N. Harris, and without his consent, thirty-five dollars in paper money and of the value of $35, the same consisting of two ten-dollar bills, one five-dollar bill, one two-dollar bill, and eight one-dollar bills, said money being in the possession of and the property of the said T. N. Harris, contrary to the laws,” etc. Mattie Williams entered a plea of guilty, and the jury returned a verdict of guilty against Banks and Stokes. Stokes made a motion for a new trial, based upon the general grounds, and also upon two special grounds.

On the trial the prosecutor, Harris, testified that when on his way home at night and while passing under some trees, which shaded the sidewalk close to an unoccupied hotel and rendered that locality dark, he was “held up” and robbed by two men and a. woman, two ten-dollar bills, one five-dollar bill, one two-dollar bill, and several one-dollar bills, aggregating in all $35, being taken from his person. He testified that each of the two men caught one of luis arms and pulled it behind his back and held him securely, and the woman then took his pocket-book out of his pocket, removed the money, put the pocket-book back in his pocket, and ran away; that the men then “slung” him around, turned him loose, and ran, and when they ran he “turned around and looked at them the best” he could; that the men did not face him, but came up on each side and jumped behind him and held his arms— one holding one arm and the other holding the other arm; that nothing was said to him before the money was taken, and not one word was spoken by any of the three persons; that he had never before met the two defendants on trial (Banks and Stokes), but the two men who engaged in the robbery would “compare with the size of these two men all right,” and in his opinion they would “fill the bill all right,” from what he saw of the robbers that night, and he was “satisfied” that these men were the parties; On cross-examination he repeated his testimony that neither of the two men on trial ever got in front of him, but that they stood be-, hind, pulling his hands back, while the woman removed the money from his pocket; that he recognized the woman as Mattie Williams, the defendant, but as it was dark at the time of the robbery, and the men had their backs to him when they turned and ran, he could not swear positively that the defendants on trial were the men that committed the robbery; that he could not tell whether the men who held him were black or mul’attoes, as he did not see their faces, but “only saw their sizes;” that “any man can tell what he imagines, if he was in the dark,” and that what he imagined was “all of it except what [he] could see”—he “could not see anything but the size,” he “could not see whether they were black or j^ellow,” he “could not see whether they had a mustache,” as he never saw the faces of either of the men, but “only had a glimpse, though not enough to say positively they were the parties;” that he did not tell the sheriff that he “could not tell whether they were the two men or not,” but he would not say positively now that they were the men, as his attention was then fixed on the woman more particularly, in order that he might know some of the parties if he saw them again, and he was looking at her for that purpose; that his sight was not good, as one eye was gone and the sight of the other was poor. Mattie Williams testified against the two defendants on trial, and said that they were in fact the two men who robbed the prosecutor, Harris, with her help, detailing the circumstances of the robbery very much as did the prosecutor in his evidence. The sheriff, Hudson, testified, that he arrested the defendants Stokes and Banks on Tuesday or Wednesday following the robbery; that he found Stokes at one Ola Lester’s house, where both Stokes and Mattie Williams lived; that Banks lived about 100 or 150 yards from that house, at the house of a sister of Ola Lester; that he found Banks near one John Taylor’s store, going down the street when he went to arrest Stokes, and that “he [referring to Banks, and not to Stokes] ran and hid-in a ditch and in some weeds and bushes; that it was about 50 or 75 yards from the house,” where the witness found him; that Monday before the arrest and after the prosecutor, Harris, had told him of the robbery, the defendant Stokes came to him and told him that the woman Mattie Williams was “at their house drunk, and that she had robbed an old man, two. or three nights before that, and wanted [him] to go down and get her;” that Stokes came to his house and told him this freely and voluntarily, without any threats on his part; that Harris described the woman, and identified her after the arrest, but told him that he “could not identify the men;” that Charlie Stokes told him that he had pawned a suit of clothes to John Taylor and went there Monday and got them, and in response to his inquiry said that the woman Ola Lester had furnished him the necessary money, two or three dollars, had given him a ten-dollar bill, and got the change back, and this was the next morning after the robbery. It was admitted that John Taylor would testify, if present, that Charlie Stokes came to his store and got a ten-dollar bill changed, but there was no testimony tending to identify the bill as one of the bills taken from the prosecutor. .

There is perhaps no better settled principle of criminal law in this State than that elaborated in Childers v. State, 52 Ga. 106, and adhered to without exception from that time to the present, that "to sustain a conviction upon the testimony of an accomplice, there must be corroborating circumstances which in themselves and independently of the testimony of the accomplice directly connect the defendant with the crime, or lead to the inference that he is guilty.” Baker v. State, 1.4 Ga. App. 578 (4), 585 (81 S. E. 805). See also Butts v. State, 14 Ga. App. 821 (82 S. E. 375); Taylor v. State, 110 Ga. 150 (35 S. E. 161), and cases cited. It has been several times -said that facts which create merely a grave suspicion of guilt are insufficient to furnish the necessary corroboration. McCalla v. State, 66 Ga. 346. Even where the facts in proof so far agree with the evidence of the accomplice as well-nigh to convert a grave suspicion against the accused into a moral conviction of his guilt, yet if these facts, when considered entirely apart from and independently.of the evidence of the accomplice, fail in themselves, and without regard to the testimony of the accomplice, to connect the accused with the commission of the crime, a conviction is unauthorized. The practical test appears to be that if the facts and circumstances proved by testimony other than that of the professed accomplice could be as well applied, without the aid of the testimony of the accomplice, to some person or persons other than the person accused by the accomplice and pointed out by the evidence of the accomplice, the necessary connection between the defendant and the crime is not independently shown or established. In the case of Baker v. State, supra, many of the circumstances detailed by the accomplice were clearly established by other testimony, yet every circumstance thus proved could have been admitted and no connection between the accused and the commission of the crime would be established unless the testimony of the accomplice be brought to its aid. It is true that the weight of corroboration is generally for the jury, but nevertheless the inflexible rule already referred to demands that there shall be some circumstances in proof, or some direct evidence from a witness other than the accomplice, which, entirely apart from and independently of the testimony of the accomplice, directly connects the defendant with the crime or leads to. the inference that he is guilty. In this case, leaving out of consideration the evidence of the accomplice, there is absolutely nothing that tends to connect Stokes with the commission of the robbery with which he was charged. The prosecutor could not identify him any further than to say that one of the actual robbers was about his size; and this description might ñt ten thousand men as well as the defendant, and certainly was insufficient of itself to identify him as one of the perpetrators of the crime, especially in view of his disclaimer of recognition. Testimony that two ten-dollar bills were taken from the prosecutor and that the defendant Stokes changed a ten-dollar bill the day after the robbery, while perhaps calculated to excite suspicion, could not itself be sufficient to connect Stokes with the commission of the crime, as the bill changed was not in any way identified as one of the two bills of that denomination lost by the prosecutor, and it appears further that the defendant, with apparent frankness, alleged- that he had procured the money from another person, and this statement was not denied.

It seems, from the evidence of the sheriff, that Banks fled at his approach; but even if this evidence referred to Stokes, whose trial is now under review, it is enough to say that proof of flight alone is not an incriminatory circumstance of sufficient probative value to authorize conviction of crime (Smith v. State, 16 Ga. App. 291, 293, 85 S. E. 281), and certainly in this case it did not tend to connect either Banks or Stokes directly with the commission of the robbery for which they were tried. See Griffin v. State, 2 Ga. App. 534 (58 S. E. 781). As was said in Huey v. State, 7 Ga. App. 398, 406 (66 S. E. 1023), “Flight may be a slight circumstance tending to show conscious guilt of some offense, but cerla inly it can not be sufficient proof of the particular crime charged. There must be other evidence of the particular crime, before flight becomes specially significant. Might is but a confession implied by conduct, and can have no greater weight than actual confession by words.” The fact that the accomplice testified that the accused said he had pawned his clothes with one Taylor, and proposed to get them out of pawn the next morning after the robbery,- and proof that the accused had in fact paid Taylor two or three dollars and took certain clothes out of pawn on that date, would not show or tend to show that .Stokes was one of the parties who committed the robbery, or had knowingly employed for that purpose money obtained from the prosecutor; for even accepting the testimony of the accomplice as true, this evidence would neither authorize an inference of his guilt nor connect him with the crime. There was no definite evidence in the entire record, excluding the testimony of the accomplice, from which the . guilt of the accused could be inferred; and in the absence of any definite or positive identification of the accused as one of the robbers, all the circumstances in proof, whether considered separately or together, are insufficient, when weighed apart from the testimony of the alleged accomplice, to connect Stokes with the robbery; and while perhaps the circumstances in proof, when taken in connection with the evidence of the alleged accomplice, may tend to cast upon the defendant a suspicion of guilt, nevertheless, under the rule laid down in the Childers case, supra, the evidence as a whole did not authorize the conviction of the accused. We must therefore hold that the trial judge erred in overruling the motion for a new trial, since the sole question for determination by us is whether the accused was convicted in accordance with law, and not whether he may possibly be guilty or innocent of the charge preferred against him.

It is contended that the court erred in charging the jury that “a corroboration as to the identity of these defendants, or one of them, as the party or parties who committed the crime,” if they found a crime was committed, would be sufficient corroboration of the testimony of the alleged accomplice. It is contended that this charge was error and prejudicial to the movant, because there were two defendants on trial, and the charge in effect authorized the jury to find them both guilty if the evidence of the .accomplice, Mattie Williams, was corroborated as to the identity of either of them. The excerpt complained of is somewhat inapt, and may possibly have been confusing to the jury, but tbe evident purpose of the court was to instruct the jury that they might find either defendant guilty upon other proof of his identity as one of the two persons named by the accomplice; and it is unnecessary to comment on this excerpt, since its lack of precision will doubtless be corrected on another trial.

The only remaining special ground of the motion for a new trial alleges error because the court instructed the jury as follows: “You take the law from the court, and you find the facts from the evidence in the case, including defendants’ statement.” This excerpt from the charge is complained of because the court referred to the defendants’ statement, Avhen in fact no statement was made by either defendant to the jury. This reference was doubtless made through inadvertence, and hence would scarcely recur on another trial; and since a new trial must be granted on the general grounds, it is unnecessary to determine definitely whether this slight reference to the defendants’ statement was sufficient error to require a reversal. If comment by State’s counsel on the fact that the accused failed to make a statement to the jury is improper and tends to injure the accused, it appears 'that such a reference by the court to the defendant’s statement as might call the attention of the jury to his omission to make any statement would be perhaps even more injurious; but whether the reference made in the charge of the court in this ease was sufficient to draw the attention of the jury to the fact that the defendant had made no statement need not be determined.

Judgment reversed.

George and Luhe, JJ., concur.


text:
    7964.
    Thomas v. The State.
    Decided February 1, 1917.
    Indictment for burglary; from Polk superior court—Judge Bartlett. October 2, 1916.

      Bunn & Trawiclc, for plaintiff in error.

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

Whether an extraordinary motion for a new trial, based upon the ground of newly discovered testimony, should be granted or refused rests largely in the sound discretion of the trial court; and this court is not inclined to interfere with the exercise of that discretion, where the newly discovered evidence is largely, if not entirely, im-. peaching and cumulative in character. Rogers v. State, 129 Ga. 589 (59 S. E. 288).

Judgment affirmed.

Wade, 0. J., and Luhe, J., concur.


text:
    8121.
    JONES et al. v. WRIGHT et al.

    1. In an action against an attorney at law to recover the amount of a claim alleged to have been lost because of his negligence or- misconduct, it is necessary to allege not only that the claim was a valid one, but that the debtor was solvent. In such case the attorney is liable only for the actual injury his client has received, and not for the mere nominal amount involved in the litigation.
    2. The petition against an attorney for the recovery of actual and punitive damages for negligent advice and conduct in the management of .a case, alleged to have resulted in the loss of the plaintiff’s claim, was properly stricken on demurrer, in the absence of an allegation that the claim was a valid one, and that the debtor was solvent.
    Decided February 1, 1917.
    Action for damages; from Eloyd superior court—Judge Nunnally presiding. Eebruary 2, 1916.

      J. P. Jones, Jones & Chambers, for plaintiffs. J. B. Dean, G. B. ■ Maddox, Little, Powell, Smith & Goldstein, contra.
   George, J.

Mrs. Jones and her two children brought suit against Seaborn and Barry Wright. The petition alleged, that the plaintiffs were legatees under the will of J. P. Jones, deceased, and that one T. R. Jones, of Bartow county, was the executor of said will, and that, as such legatees, they had a cause of action against the executor for failure to execute the provisions of the will; that the defendants were attorneys at law employed by the petitioners to represent them in the prosecution of their claim against the executor, and accepted the employment and undertook to perform the legal services necessary in their behalf. The petition is voluminous. Counsel for the plaintiffs have, however, in the main, properly construed the petition, and, according to their construction, all of the damage claimed against the defendants arose by reason of the following: “First: Erroneous legal advice rendered by said attorneys negligently during their employment, and in the conduct of litigation, as more particularly described in said original and amended petition. Second: The negligent handling, management, and conduct of said litigation entrusted to them by the plaintiffs. Third: The violation by said attorneys of express, direct, and material instructions given to them by the plaintiffs during their employment, and with reference to the institution, conduct, and management of said litigation. Fourth: The fraudulent conduct of said attorneys in continuing to advise plaintiffs erroneously, and in permitting plaintiffs to act on judgments and decrees negligently entered and taken by said defendants, and in thereby permitting said plaintiffs to become bound by said judgments or decrees, and to lose all rights to move to set aside said judgments or decrees, notwithstanding and after said defendant attorneys had knowledge of and knew of the legal effect of such previously entered decrees so negligently taken by them. Fifth: Fraudulently concealing from their clients, the plaintiffs, the aforementioned violation of and disobedience to instructions given by said plaintiffs with reference to and during the conduct of said litigation.” To the petition as amended the defendants filed demurrers, both general and special, and on argument the court sustained the demurrers generally and dismissed the petition.

The petition is based upon alleged negligence of the attorneys in giving erroneous advice to the petitioners, and in the conduct and management of the litigation. The whole case is predicated upon this ground. It is true that fraud is alleged, but all the allegations of fraud made in the petition were added by amendment to prevent the bar of the statute of limitations, the original petition disclosing that all the matters and things complained of occurred more than four years prior to the commencement of the action. Construed, as pleadings must be, most strongly against the pleader, this is the whole purpose of the fraud alleged in the petition. The petition does not allege that the executor, against whom the original action was brought, was solvent, but, on the contrary, the allegations show that he filed his petition in bankruptcy before, or during the pendency of, the litigation, and the inference is that he was insolvent. It is true that the petitioners claimed the benefit of a certain mortgage of the executor upon his home, but it is further true that the petitioners, through the services of the defendant attorneys, successfully sustained their lien on the property of the executor, over adverse claimants, and had a decree against the property to satisfy a judgment in excess of $5,000. It is neither charged nor shown, by any allegation in the petition, that the petitioners could legally have recovered any additional sum out of-the security of the mortgage alleged to have been executed by the executor for the benefit of the petitioners, if proper advice had been given and diligent service rendered by the defendant attorneys.

There was no error in sustaining the demurrer to the petition as amended. A discussion of the several grounds of the demurrer is, in our view of this case, unnecessary. In an action against an attorney to recover the amount of a claim, alleged to have been lost because of his negligence or misconduct, it is necessary that the petition against him show that the lost claim was a valid one under the law, and that the debtor was solvent. An action for the negligence of the attorney in the unskilful conduct and manage.ment of litigation is for the value of the claim lost through such negligence. The claim must be valid, and every fact essential to its validity, when called for by special demurrer, must appear, and it must further appear that the party against whom the claim was asserted was solvent. 5 Thomp. Neg. § 6698; 6 Corpus Juris, 710; Pennington v. Yell, 11 Ark. 212 (52 Am. D. 262); Staples v. Staples, 85 Va. 76 (7 S. E. 199); Civil Code of 1910, § 4390. The foregoing is simply an application of the doctrine, everywhere recognized, that a party claiming damages must prove not only the wrong, but the amount of his damage as well. In this case the petitioners5 damage, if any,.was the loss sustained by them of a claim against the executor; and it is necessary that the petitioners aver and affirmatively show that they held a valid claim against the executor, and that the executor was able to pay the claim or some part thereof. If the claim against the executor is not enforceable, or if the executor is not able to respond thereto, there can be no basis for a recovery of the attorneys for the negligent -manr agement of the litigation against the executor. If it is true that nominal damages may he recovered for actionable negligence of an attorney, either in the giving of erroneous advice or in the unskilful management of a cause, the petitioners in this case did not claim nominal damages, but, on the contrary, asked for substantial, actual, and punitive damages. Sparks Milling Co. v. Western Union Telegraph Co., 9 Ga. App. 728 (72 S. E. 179).

Judgment affirmed.

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


text:
    8152.
    Paschal v. Morgan, executor.
    Decided February 1, 1917.
    Motion to dismiss writ of error.

      M. C. Few, for plaintiff in error. Williford & Lambert, contra.
   Luke, J.

An agreement Between counsel that two eases be submitted at the same time to one jury did not amount to a consolidation of the eases, and did not authorize the losing party, who was a party to both cases, to file one bill of exceptions, attempting to bring both of the eases to this court for decision here, there being a separate judgment in each case. This court has no jurisdiction to entertain such a bill of exceptions, and therefore the writ of error must be dismissed. This court being without jurisdiction, the bill of exceptions can not be amended by striking one of the cases. Dickey v. State, 101 Ga. 572 (28 S. E. 980); Erwin v. Ennis, 104 Ga. 861 (31 S. E. 444) ; Hicks v. Walker, 105 Ga. 480 (30 S. E. 383); Walker v. Conn, 112 Ga. 314 (37 S. E. 403) ; Wells v. Coker Banking Co., 113 Ga. 857 (39 S. E. 298) ; Purvis v. Ferst, 114 Ga. 689 (40 S. E. 723) ; Brown v. L. & N. R. Co., 117 Ga. 222 (43 S. E. 498) ; Center v. Fickett Paper Co., 117 Ga. 222 (43 S. E. 498) ; Harris v. Gano, 117 Ga. 950 (44 S. E. 8) ; Cole v. Stanley, 118 Ga. 259 (45 S. E. 282); Valdosta Guano Co. v. Hart, 119 Ga. 909 (47 S. E. 212).

Writ of error dismissed.

Wade, C. J., and George, J., concur.


author: Ltjke, J.

text:
    8195.
    James v. Davis.
    Decided February 1, 1917.
    Certiorari; from Dougherty superior court—Judge Cox. October 8, 1915.

      Leonard Farlcas, Pope & Bennet, for plaintiff in error.

      B. J. Bacon, B. II. Ferrill, contra.
   Ltjke, J.

Upon tlie petition for certiorari and the answer of the ordinary, the court did not err in overruling the certiorari.

Judgment affirmed.

Wade, C. J., mid George, J., concur.


text:
    8221.
    Laurens County v. McLendon.
   George, J.

1. The provision of the Political Code of 1910, § 748, making counties primarily liable for injuries caused by any defective bridges, whether erected by contractors or by county authorities, is not applicable to a bridge erected over a watercourse which divides one county from another. To bridges of the latter class sections 419 and 423 of the Political Code of 1910 are applicable; and liability attaches only in accordance with section 768—that is, upon failure of the county to take a sufficient bond from the contractor. Brooks County v. Carrington, 7 Ga. App. 225 (66 S. E. 625); Cook v. County of DeKalb, 95 Ga. 218 (22 S. E. 151) ; Willingham v. Elbert County, 113 Ga. 15 (38 S. E. 348) ; Forsyth County v. Gwinnett County, 108 Ga. 510 (33 S. E. 892).

2. Counties are not liable to suit for any cause of action unless made so by statute. Political Code, § 348. There' is no statute authorizing suit against a county for failure to repair a bridge after seven years have elapsed from the date of its construction, where no bond was required of the contractor by the county. A failure by the county to require a bond from the contractor places the county in the same position as the contractor. The liability of the county extends no further and exists no longer than the contractor’s. County of Monroe v. Flynt, 80 Ga. 489 (6 S. E. 173) ; Arnold v. Henry County, 81 Ga. 730 (8 S. E. 606); Helvingston v. Macon County, 103 Ga. 106 (29 S. E. 596); Dougherty County v. Newson, 107 Ga. 811 (33 S. E. 660).

3. While the principles announced in the foregoing headnotes are well settled, it appears from the petition in this case, as amended, that, within seven years preceding the injury and damage complained of, the county expended more than $500 in the repairing and rebuilding of the bridge, originally constructed more than seven years prior to the date of the alleged injury, and in fact “renewed and rebuilt” the bridge; and the allegations are sufficient to withstand a general demurrer. The judge, therefore, did not err in overruling the general demurrer to the petition as amended. It is a question of fact for the jury whether the bridge was, within seven years preceding the date of the injury, rebuilt, or only repaired, the county having failed to require a bond for this work upon the bridge. Warren County v. Evans, 118 Ga. 200 (44 S. E. 986) ; Helvingston v. Macon County, supra.

Decided February 1, 1917.

Action for damages; from Laurens superior court—Judge Kent. October 26, 1915.

M. H. Blaclcshear, for plaintiff in error.

George B. Davis, 8. P. New, contra.

Judgment affirmed.

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


author: Broyles, P. J.

text:
    6264.
    Columbian National Life Insurance Co. v. Mulkey.
   Broyles, P. J.

1. There is no merit in the motion to dismiss the writ of error. The constitutional question raised, or attempted to 'be raised, in this motion was decided by the Supreme Court when this ease was before it on a certification by this court of a question of law therein, and when the motion of the defendant in error for that court to refuse to answer such question was denied; the Supreme Court ruling that the Court of Appeals had jurisdiction of the case at the time the certification of the question was ordered. 146 Ga. 267 (91 S. E. 106). This being true, it is obvious that this court did not lose jurisdiction of the ease merely because the clerk of this court did not transmit to the Supreme Court a certified copy of the question, together with'the record in the case, until after the expiration of the second term after the writ was brought, such action by the clerk being merely ministerial in its nature. The question was legally certified to the Supreme Court when this court passed the order certifying it.

2. Where suit is brought on an insurance policy which contains a stipulation to the effect that the policy will be void if procured by fraud on the part of the insured, a defense by the insurer that the policy is avoided on account of wilful and material misrepresentation, made by the insured in his application for the policy, is not an attempt to rescind the contract, but an attempt to have it declared void ab initio. In such a ease it is not necessary for the insurer, before pleading that the policy was voided by such misrepresentations, to return the premiums paid or the notes given therefor. The provisions of section 4305 of the Civil Code of 1910 are not applicable to such an action, but the law governing it is found in sections 2479, 2480, 2481. In other words, the insurer has a right to retain the premiums already received on the policy, and to avoid the policy because of the fraud practiced upon the insurer by the insured, and to plead such fraud as a defense to the suit. Columbian National Life Insurance Co. v. Mulkey, 146 Ga. 267 (91 S. E. 106).

3. Under the ruling of this court when this case was formerly before us (Columbian National Life Insurance Co. v. Mulkey, 13 Ga. App. 508, 79 S. E. 482), it was not error for the trial court to strike, paragraphs 3, 5, 6, and 7 of the original answer, or to strike the whole of the amendment allowed and filed November 1, 1913, or to strike the whole of the amendment allowed and filed December 15, 1914. This court in its previous decision of the case, however, did not pass on the question ruled upon in the preceding paragraph of this decision; and, under the decision of the Supreme Court in this case (supra), the trial judge erred in striking the paragraphs of the original answer, with the exception of those just mentioned, and in striking the amendment allowed and filed December 3, 1914, and in refusing to allow the defendant to sustain by proof the allegations therein made.

Decided February 1, 1917.

Action on insurance policy; from city court of Atlanta—Judge Beid. December 15, 1914.

Colquitt & Conyers, for plaintiff in error.

Horton Brothers, Anderson & Rountree, contra.

4. The error in striking the above-mentioned pleas of the defendant rendered the further proceedings in the case nugatory, and it is not necessary to discuss the other assignments of error.

Judgment reversed.

Jenkins and Bloodworth, JJ., concur.