text:
    8956, 9000.
    MAYOR AND ALDERMEN OF THE CITY OF SAVANNAH v. MONROE; and vice versa.

    1. The defendant in certiorari having assumed the position that “to render a decision upon any issue raised by the certiorari will . . be vain and useless,” and having induced the court to dismiss the certiorari in accordance with that position, and the plaintiff having acquiesced in that ruling, the defendant in certiorari is now estopped from taking any contrary position in the same case, or between the same parties respecting the subject-matter of the same ease; and this is true whether the judgment thus induced was right or wrong. Taylor v. Crook, 136 Ala. 354 (34 So. 905, 96 Am. St. E. 26) ; Eaber-Blum-Bloch Eat Oo. V. Friesleben, 5 Ga. App. 123 (62 S. E. 712) ; Manee v. State, 5 Ga. App. 230 (62 S. E. 1053) ; Long V. Lawson, 7 Ga. App. 461 (67 S. E. 124) ; Crusselle v. Reinhardt, 68 Ga. 619; Anderson v. Olark, 70 Ga. 362; Oheney y. Selman, 71 Ga. 384; Youngblood y. Youngblood, 74 Ga. 614; Miller v. Wilkins, 79 Ga. 475 ( 4 S. E. 261); Lynn v. New England Security Oo., 98 Ga. 442 (26 S. E. 750) ; American Grocery Go. y. Kennedy, 100 Ga. 462 (28- S. E. 241); Lulher v. Olay, 100 Ga. 241 (28 S. E. 46, 39 L. E. A. 95) ; Vaughn y. Strickland, 108 Ga. 661 (34 S. E. 192) ; Waldrop v. Wolff, 114 Ga. 619 (40 S. E. 830) ; Griffin v. Collins, 122 Ga. 107 (49 S. E. 827); Gate Oily Oolton Mills v. Cherokee Mills, 128 Ga. 174 (57 S. E. 320) ; Lancaster v. Brown, 139 Ga. 376 (77 S. E. 381) ; Davis v. Wakelee, 156 U. S. 680 (15 Sup. Ct. 555, 39 L. ed. 578) ; Bank of Irongate v. Brady, 184 U. S. 665 (22 Sup. Ct. 529, 46 L. ed. 739) ; Bensieck v. Cook, 110 Mo. 173 (19 S. W. 642, 33 Am. St. R. 422); Hodges v. Winston, 95 Ala. 514 (11 So. 200,, 36 Am. St. E. 241).
    2. The superior court having held that the certiorari presented only moot questions for decision, and there being no exception to that ruling which this court can consider, it must stand as the law of the case, binding alike upon this court and upon the superior court, until set aside in some one of the methods prescribed by law. Sims v. Ga. Ry. do. Oo., 123 Ga. 643 (51 S. E. 573); Matthews v. Slate, 125 Ga. 248 (54 S. E. 192).
    3. If the certiorari presented only moot questions for decision, a dismissal of the case could not prejudice any right of the plaintiff in certiorari in any other case, whether so provided in the judgment or not. See Bouvier’s Law Diet. (Rawle’s Third Rev.), “Moot,” and authorities there cited.
    4. Where a defendant in certiorari moves to dismiss the case, on the ground that only moot questions are presented for decision, and the plaintiff’s sole reply is that such dismissal might affect his rights in - another case, the superior court may, in sustaining the motion, expressly provide that the judgment shall be “without prejudice to the plaintiff in certiorari” in any other case. Eenderson V. Eoppe, 103 Ga. 684 (30 S. E. 653).
    5. This court will not consider moot questions, except to determine that they are or must be held to be moot, and to make such other rulings as result from a determination that the principal question is or must be held to be moot. Benton v. Singleton, 114 da. 548 (4) (40 S. B. 811).
    6. A motion in arrest of a judgment dismissing a moot case is itself moot.
    7. The record presents no other question that can be decided, and shows no error that requires a reversal.
    Decided April 11, 1918.
    Certiorari; from Chatham superior court—Judge Meldrim. May 25, 1917.

      B. J. Travis, D. 8. Atkinson, for City of Savannah.

      Osborne, Lawrence & Abrahams, for Monroe.
   Luke, J.

The record in this case discloses the following material facts: John H. Monroe held the office of chief engineer of j;he fire department of the City of Savannah. He was charged with insubordination, and the mayor and aldermen of that city tried him on that charge, and on April 18, 1916, adjudged him guilty and dismissed him from office. His petition for certiorari to review that judgment was duly sanctioned, filed, served, and answered; but before the certiorari was heard the defendant city moved to dismiss it, on the ground, among others, that, because of certain facts it set forth, “the rights claimed in his petition for certiorari no longer exist, and to render a decision upon any issue raised by the certiorari will at this time be vain and useless.” Monroe filed a reply to that motion, admitting the facts set up by the defendant’s motion, but averring that he had a claim against the city for his salary from the date of his expulsion to the date of the expiration of his term of office, and that it was necessary for the certiorari to proceed in order that his rights in that behalf might be subsequently adjudicated. Hpon considering the defendant’s motion to dismiss the certiorari, together with the plaintiff’s reply thereto, the superior court, on April 12, 1917, entered upon the motion a judgment as follows: “The within motion is sustained and the entire certiorari proceedings herein are dismissed, without prejudice to the rights of the plaintiff in certiorari in the case of John H. Monroe vs. The Mayor and Aldermen of the City of Savannah, now pending in this court and returnable to the June term thereof.”

Both parties apparently acquiesced in that ruling until May 24, 1917, during the same term, .at which time the defendant filed a motion in arrest of that part of the judgment quoted above which provides that the judgment shall be “without prejudice to the plaintiff in certiorari” in another proceeding. The grounds alleged for arresting the judgment were that it was not within the jurisdiction of the court and was not authorized by the pleadings. IJpon the hearing the motion in arrest of judgment was overruled. In the principal bill of exceptions now before this court the city assigns error upon the latter judgment only. In a cross-bill of exceptions Monroe assigns error upon the judgment dismissing the certiorari.

The headnotes need no elaboration.

Judgment on the main hill of exceptions affirmed; cross-hill dismissed..

Wade, G. J., and JenJcins, J., concur.


source: Caselaw Access Project

author: Luke, J.

license: Public Domain

text:
    8959.
    Western & Atlantic Railroad Company v. Williams.
    Decided April 11, 1918,
    Action for damages; from Whitfield superior court—Judge Tarver. May 26, 1917.

      Tye, Peeples & Tye, Maddox, McCamy & Shumate, for plaintiff in error.. W. G. Martin, W. E. Mann, contra.
   Luke, J.

1. Where a divorce decree awards the custody of a minor child to the mother, with the privilege of the father to see the Child, and directs that he contribute to the child’s support “as he has been doing,” the father is not relieved from his legal obligation for a proper support of the child. Brown v. Brown, 132 Ga. 712 (64 S. E. 1092, 131 Am. St. R. 229). He may, as next friend, institute an action against a railroad company for a negligent physical injury to the child. The court, after hearing evidence, did not err in overruling and striking the defendant’s plea in abatement, in which it was contended that by reason of the divorce decree, the father had no right to file the suit as next friend.

2. The evidence authorized the verdict, and the court did not err in overruling the motion for a new trial, which was based only on general grounds.

Judgment affirmed.

Wade, O. J., and JenJcins, J., concur.


author: Jenkins, J.

text:
    9046.
    Clyde v. Steger & Sons Piano Manufacturing Co.
   Jenkins, J.

The contract of an infant, except for necessaries, being voidable, may be repudiated by him either during minority or within a reasonable time thereafter. Bell v. Swainsboro Fertilizer Co., 12 Ga. App. 81 (76 S. E. 756). “If, however, the infant receives property or other valuable consideration, and after arrival at age retains possession of sueh property, or enjoys the proceeds of sueh valuable consideration, such a ratification of the contract shall bind him.” Civil-Code (1910), § 4233. By the terms of this section, no attempted repudiation of liability under sueh a voidable contract can be effective unless accompanied by a surrender of such property acquired thereunder as may still remain in his hands. He can not hold it and make use of its possession as a basis of further negotiation. In order that a tender of the property so received and held shall operate as the equivalent of its actual return, and so prevent a ratification of the voidable contract, the tender must be unconditional. Civil Code (1910), § 4322. A tender fails to be absolute even though the only condition accompanying it is such as to impose the performance of a duty actually . owing by the one to whom the purported tender is made. Elder v. Johnson, 115 Ga. 691 (42 S. E. 51). Thus, where a minor purchases certain personal property, and in part payment therefor turns over certain other property and for the remainder of the purchase-price executes his note, he can not, in a suit brought on the note after he has attained his majority, dispute its jmlidity - on the ground of his minority at the time the note was executed, where it appears that he still retains possession of the property acquired under the purchase, although it be further shown that he offered and still offers to return the purchased property on the' condition that the other property given by him to the seller in part payment therefor should first be surrendered back. The mere proposal to rescind the contract,' wherein only, a conditional tender 'of the purchased property is made, is not tantamount to actual repudiation.

Decided April 11, 1918.

Complaint; from Fulton superior court—Judge Pendleton. May 21, 1917.

Moore & Pomeroy, Charles E. Cotterill, for plaintiff in error.

Bell, Ellis & Bell, Joseph W. & John B. Humphries, contra.

Judgment affirmed.

Wade, G. J., and Luhe, J., concur.


text:
    9065.
    Fain v. Wilkerson.
   Jenkins, J.

1. A contract founded upon a consideration,^whereby goods are intrusted to another for the execution of a special purpose, after which they are to be returned to the one making -the delivery, constitutes the person receiving them a bailee for hire. Civil Code (1910), § 3467; Bates v. Bigby, 123 Ga. 727 (51 S. E. 717).

2. “A tort is a legal wrong committed upon the person or property, independent of contract;” it may, however, arise from “the violation of some private obligation by which' damage accrues to the individual.” Civil Code (1910), § 4403 (3). Thus, where the contractual relation of bailor and bailee’ exists between parties, -whereby a duty is imposed by law upon the bailee as being incident to and arising out of the contract of bailment, the complainant setting up a' breach of the duty may elect as to his remedy, and rely upon either his right under the contract or proceed for damages as in a case of .tort. Civil Code (1910), § 4407; Miller v. Ben H. Fletcher Co., 142 Ga. 668 (83 S. E. 521); DeLoach Mill Co. v. Standard Sawmill Co., 125 Ga. 377 (54 S. E. 157); Owens v. Nichols, 139 Ga. 475, 476 (77 S. E. 635); Carr v. Southern Railway Co., 12 Ga. App. 830 (79 S. E. 41). But it is not every breach of contract that gives a cause of action in tort; and so, where the breach complained of is simply the neglect of a duty such as is expressly provided for by the contract itself, the action will be construed and treated as one brought ex contractu. Howard v. Central Ry. Co., 9 Ga. App. 617, 619 (71 S. E. 1017).

Decided April 11, 1918.

Action for damages; from Floyd superior court—Judge Wright. July 11, 1917.

The petition alleges delivery by plaintiff of certain household effects to the defendant as a bailee for hire, under an agreement that the latter was to remove them within a few days from the house in which they were then stored to other designated premises ; that the defendant failed and. refused to remove the goods as he agreed to do, hut allowed them to remain there for a period of about sixty days, when they, with the house, were destroyed by fire. The suit is for the value of the goods, and it is' alleged that “the sole cause of the goods being burned up was the failure of said defendant to remove said goods as he had agreed to do.” Eubanks & Mebane, for plaintiff.

Sharp & Sharp, for defendant.

3. A bailee for hire is chargeable with the duty of ordinary diligence, and where such a bailee is sued for the value of property, the loss 5f which it is alleged was occasioned by his negligent failure to .perform a duty expressly imposed by the terms of the bailment, and the loss of the property is made to appear, the burden is upon him to show that such degree of care has been exercised. Civil Code (1910), § 3469. But, since the petition in this, case absolves the defenda’nt from any lack of diligence in protecting and keeping safely the goods bailed, ’ except as to the specific complaint setting up the total failure on his part to perform the special duty imposed by the contract, and since the 'neglect of this duty could not-naturally and in the usual course of things occasion the damage complained of, it was not error on the part of the trial judge to dismiss the suit as failing to set forth a cause of. action. Civil Code (1910), § 4395; Montgomery v. Alexander Lumber Co., 140 Ga. 51.(3) (78 S. E. 413).

Judgment affirmed.

Wade, C. J., and Luhe, J., concur.


text:
    9078.
    Howell v. Cordray.
    Decided April 11, 1918.
    Lien foreclosure; from city court of Blakely—Judge Sheffield. July 16, 1917.
    Cordray sued Howell on open account, asking a general judgment in the sum of $258.17, and that a special materialman’s lien be established in his favor on described realty; alleging that for thie .construction of a’certain house located thereon the material shown by the bill of particulars had been furnished and used. In accordance with the verdict a general judgment was entered in favor of plaintiff in the amount sued for, and the special lien as ,,-prayed for was set up and established. The account appears to have been proved, except an undisputed overcharge of $1.32 on an item of “2 pair sash,’2 charged in the bill of particulars at $10. The . plaintiff testified that the defendant told him that he (the defendant) was getting all the materials included in the account for the purpose, of using them in the construction of the house referred to above, and that while he was unable to swear that it was thus used, to the best of his judgment it all actually did go into the construction of that house. The defendant, by his plea, denied the allegations of the petition with reference to the use of the materials furnished, and in his testimony disputed the statement attributed to him by the plaintiff. According to his testimony he was'unable to state just what part of the material included in the suit was actually used in the construction of the building referred to, or how much was otherwise used, or disposed of by sale. It does, however, appear both from the evidence of < the defendant and from the testimony of a witness for the plaintiff, who was his bookkeeper at the time of the transactions, that one window, $2, one transom, $1, one door, $1.85, and the two pair of sashes ■ charged at $10 were specifically purchased by the defendant for use in another building, that they were so furnished by the plaintiff through this witness; and it appears that they did not go into the construction of the building upon which the special lien was sought. The defendant further showed that certain rooms of this building had remained either wholly or partly unceiled, and he undertook to prove by a carpenter’s method of calculation that the amount of flooring and ceiling included in the bill could not have been used in the structure as it thus stood when completed.
   Jenkins, J.

1. Under the Civil Code (1910), § 3352, a person furnishing material for the improvement of real estate is entitled to a special lien' on the premises so improved; and when, at the time the material is furnished, the owner represents., to the seller that the material contracted for is intended to be used in the improvement- of certain property, and the seller, relying upon that statement, actually and in good faith furnishes’ it for the purpose stated, the owner will be estopped by his representation; and, as between the parties themselves, it is no defense to a proceeding seeking to sot up the special claim on the property that some of the materials thus furnished the owner were not in fact so used and applied.

2. The judgment of the court below entering up general judgment in. favor of plaintiff is affirmed, with direction that $1.32 be written off from the amount thereof; and the judgment establishing a special lien in favor of.plaintiff on the premises described in the petition is affirmed, with direction that the lien be discharged in the amount of $14.85, so that it shall be enforceable only in and for the amount remaining after such a reduction from the amount of the original recovery. Rome Hotel Co. v. Warlick, 87 Ga. 34 (13 S. E. 116).

Judgment affirmed, with direction.

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

B. B. Collins, for plaintiff in error. Glessner & Park, contra.


author: Wade, O. J.

text:
    9086.
    Rosenthal v. Dew.
    Decided April 11, 1918.
    Rehearing denied May 15, 1918.
    Complaint; from city court of Savannah—Judge Freeman. July 9, 1917.

      O'Byrne, Partridge & Wright, for plaintiff in error.

      Anderson, Cann,- Cann &. Walsh, contra.
   Wade, O. J.

1. There was evidence to authorize .the conclusion reached by the jury, as to the existence of an implied obligation on the part of the defendant to pay the plaintiff for the special services rendered to him individually; and the amount of the recovery was likewise authorized thereby.

2. Under the foregoing ruling there is no merit in the various special grounds of the motion for a -new trial, complaining of different excerpts from the charge of the court and of the refusal of the court to give certain instructions to the jury, and likewise complaining that the amount of the verdict returned was excessive.

Judgment affirmed.

Jenlcins and Lulce; JJ., eoneur.


text:
    9095.
    Cowart v. Maddox.
    Decided April 11, 1918.
    Distraint; from city court of Dublin—Judge Flynt. June 20/ 1917.

      8. W. Sturgis, for plaintiff in error. J. S. Adams, cdntra.
   Jenkins, J.

A tenant can not dispute his landlord’s title, or attorn to another claimant, without first surrendering possession of the premises. The evidence introduced, with all reasonable deductions or inferences therefrom, having demanded a finding that no such surrender had been made, and there being no dispute as to the amount involved, the judge did not err in directing a verdict for the plaintiff in the distress warrant proceedings.

Judgment affirmed.

Wade, O. J., and Luhe, J., eon’eur.


author: Wade, C. J.

text:
    9285.
    Kelly v. Shores-Mueller Company.
    Decided April 11, 1918.
    Complaint; from Murray superior court—Judge Tarver.

      King & Starr, for plaintiff in error.

      F. K. McCutcheon, B. Noel Steed, contra.
   Wade, C. J.

Where exception is taken to a preliminary judgment overruling an oral motion to dismiss an action, and it appears from the bill of exceptions that a final judgment was rendered in the case, upon which there is no assignment of error, this court is without jurisdiction, and the writ of error must be dismissed. Lyndon v. Ga. Ry. El. Co., 129 Ga. 353 (58 S. E. 1047); Newberry v. Tenant, 121 Ga. 561 (49 S. E. 621); Kibben v. Coastwise Dredging Co., 120 Ga. 899 (48 S. E. 330); Ox Breeches Mfg. Co. v. Bird, 1 Ga. App. 40 (57 S. E. 975); Anderson v. Hall, 3 Ga. App. 555 (60 S. E. 294); Simmons v. Peagler, 7 Ga. App. 252 (66 S. E. 629; Tinsley v. Gullett Gin Co., 21 Ga. App. 512 (94 S. E. 892), and eases there cited.

Writ of error dismissed.

Jenhins and Luhe, JJ., concur.


text:
    9289.
    Dunson & Brothers Company v. Truitt Company.
    Decided April 11, 1918.
   Luke, J.

The decision of this court in Truitt Co. v. Dunson & Brothers Co., 20 Ga. App. 535 (93 S. E. 149), settled and fixed the respective rights of the parties to the fund over which the litigation arose. The court did not err in sustaining the demurrer to the amended intervention and in rendering judgment in favor of Truitt Company in accord with that decision:

Judgment affirmed.

Wade, C. J., and Jenhins, J., concur,

Money rule; from city court of LaGrange—Judge Harwell. September 20, 19Í7.

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


text:
    9441.
    King et al. v. Rodgers.
    Decided April 11, 1918.
    Motion to amend decree; from Muscogee superior court—Judge Howard. March 1, 19Í7.

      Hatcher & Hatcher, for plaintiffs in error.

      A. W. Cozart, J. H. Chapman, contra.
   Wade, C. J.

1. A judgment may be amended by order of the court, to make it conform to the verdict upon which it is predicated (Civil Code of 1910, § 5697) ; and such an amendment may be made after the expiration of the term at which the judgment was entered (Irby v. Brown, 59 Ga. 597); though it is otherwise as to tl\e amendment of a judgment on the merits of a cause, where it is sought to amend after adjournment of such term, by reason of facts or conditions subsequently occurring. Richards v. McHan, 139 Ga. 37 (76 S. E. 382). “The rule has always been recognized in this State that a judgment may be amended to conform to the verdict and pleadings at a subsequent term. Dennis v. Colley, 112 Ga. 114 (37 S. E. 119).” Scarborough v. Merchants & Farmers Bank, 131 Ga. 590, 591 (62 S. E. 1040). See also Rucker v. Williams, 129 Ga. 828 (60 S. E. 155)‘.

2. The bill of exceptions in this case was sued out to the Supreme Court, upon the idea that the proceeding in the lower court was an equitable one, and the judgment amended by the order of the trial court a decree in equity. The Supreme Court transferred the case to this court, holding that the pleadings upon which the ease was tried amounted merely to an action at l&w,' and that, owing to' the nature of the case, the judgment allowing an amendment to the former judgment was not a judgment in an equity case. King v. Rodgers, 147 Ga. 464 (94 S. E. 580). The judgment amended being merely a common-law judgment, and the amendment complained of merely making the judgment conform to the verdict, the trial judge did hot err in allowing the amendment. . Judgment affirmed.

Jenkins an'd Luke, JJ.\ concur.


text:
    9444.
    Maddox Coffee Company v. McHan.
   Wade, C. J.

1. “A motion in arrest of judgment differs from a motion for a new trial, in this: The former must be predicated on some defeet which appears on the face 'of the record or pleadings, while the latter must be predicated on some extrinsic matter- not so appearing. It also differs from' a motion to set aside a judgment, in this: The motion in arrest of judgment must be made during the term at which such judgment was obtained, while a motion to set aside may be made at any time within the statute of limitations.” Civil Code (191(f), § 5958. The limitation provided by the statute, as to the time within which each must be made, constitutes the only difference between a motion to set aside and a motion to arrest a judgment: Artope v. Barker, 74 Ga. 462; Regopoulas v. State, 116 Ga. 596 (42 S. E. 1014); Garfield Oil Mills v. Stephens, 16 Ga. App. 655, 660 (85 S. E. 983). There -was therefore no merit whatever in the contention, raised by demurrer, that- the motion to set aside should be dismissed because interposed subsequently to the term of the court at which the judgment was obtained.

Decided April 11, 1918.

Certiorari; from Fulton superior court—Judge Pendleton. No^, vember 26, 1917.

O. D. Maddox, 8. A. Massell, for plaintiff.

Mayson & Johnson, for defendant.

2. The defendant duly filed a plea presenting a meritorious defense to the action, and setting forth fully the alleged facts constituting his . defense, which was referred to in the motion to set aside the judgment against him and thus made a part of said motion, so that the motion itself disclosed th'e specific nature and character of the defense relied upon. Pryor v. American Trust &c. Co., 15 Ga. App. 822, 829 (84 S. E. 312). It was not incumbent upon the movant to establish or attempt to establish by proof the alleged defense set up in his motion to set aside, when filing the same, nor could evidence tending to negative the alleged defense be then properly introduced by the opposite party in resisting such motion. It was not , necessary for the court . to go further, in this connection, than to determine that a legally good and meritorious defense was, alleged by the movant.

3. The judge of the municipal court did not err in overruling the demurrer to the motion to set aside the judgment, and, under all the facts and circumstances in proof, in thereafter actually setting aside said judgment' and remanding the case for trial; and the judge of the superior court properly overruled the certiorari.

Judgment affirmed.

Jenkins and Luke, JJ., concur.


author: Bloodworth, J.

text:
    9145.
    Freeman v. Petty.
   Bloodworth, J.

1. When considered in connection with the entire charge, the excerpts therefrom complained of in the motion for a new trial contained no error harmful to the plaintiff in error.

2. The court did not err in failing in its charge to define "the words" “express warranty” and “express contract of warranty,” no proper and timely written request therefor having been made. Wakefield v. Lee, 18 Ga. App. 648 (4) (90 S. E. 224); Western Union Telegraph Co. v. Ford, 10 Ga. App. 606 (5) (74 S. E. 70); Pye v. Pye, 133 Ga. 246 (3) (65 S. E. 424); Georgia Southern & Florida Ry. Co. v. Young Investment Co., 119 Ga. 513 (2) (46 S. E. 644).

Decided April 11, 1918.

Complaint; from Cordon superior court—Judge Tarver. June 30, 1917.

. Starr & Paschall, for plaintiff in error.

R. Noel Steed, Lang & Lang, contra.

3. Where jurors were actually selected and empaneled to try -a case, and remarks were made by the trial judge to counsel in the hearing of the jurors, which counsel contend were of such a character as to prejudice the minds of the jurors hearing them against the cause of their client, a motion should have been made to have a mistrial declared, and upon the judge’s refusal to grant it his ruling would have been subject to review. Counsel having failed to make such a motion, and having, without objection, proceeded with the trial, can not, after verdict, raise a question as to the prejudicial nature of the remarks complained of in motion for a new trial. Rogers v. State, 18 Ga. App. 332 (89 S. E. 460); Perdue v. State, 135 Ga. 277 (69 S. E. 184).

4. No error was committed in refusing to give to the jury the instruction referred to in the last ground of the motion for a new trial. Even where it is proper to charge on the subject'of expense incurred in complying with the contract, and such a charge is requested, it must he correct and it must appear that the expense was “necessary.” Civil Code (1910), § 4402; Coweta Falls Mfg. Co. v. Rogers, 19 Ga. 416 (2) (65 Am. D. 602); Bryan v. Southwestern Railroad Co., 41 Ga. 71 (3).

5. The evidence was sufficient to support.the verdict.

Judgment -affirmed.

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


text:
    9161.
    St. Paul Fire & Marine Insurance Co. v. Jackson.
    Decided April 11, 1918.
    Action for damages; from Calhoun superior court—Judge Harrell. June 6, 1917.

      Erie B. Askew, 'A. L. Miller, for plaintiff. >

      L. M. Rambo, H. M. Calhoun, B. W. Fortson, for defendant.
   Bloodworth, J.

The only 'assignment of error is that the judge erred in awarding a nonsuit. A. consideration of the evidence being necessary to a determination of the issue, involved, and no proper brief thereof being made, the judgment must be affirmed. Tidwell v. Alabama Great Southern R. Co., 20 Ga. App. 826 (93 S. E. 511), and cases cited; Ryan v. Kingsbery, 88 Ga. 361 (2), 368 (14 S. E. 596); Moss v. Birch, 102 Ga. 556 (28 S. E. 601); Henson v. Derrick, 104 Ga. 856 (31 S. E. 199); Wall v. Mercer, 119 Ga. 346 (1), 349 (46 S. E. 420), and cases cited.

Judgment affirmed.

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


text:
    9177.
    Ocilla Southern Railroad Company v. Beavers.
    Decided April 11, 1918.
    Action for damages; from Ben Hill superior court—Judge Crum. July 25, 1917.

      Wall & Grantham, Quincey & Bice, for plaintiff in error.

      Shipp "& Sheppard, contra.
    The petition alleges, that the plaintiff was working for the defendant company as an engineer, and was, on November 13, 1916, on his run on a freight-train, leaving Nashville, Georgia, in the morning, and arriving at Perry, Georgia, in the afternoon, pulling the train with an engine known as No. 51, and when the train reached a place known as Salem, and while in the county of Ben Hill, the rear tank was derailed, causing six loaded cars behind the tank to be derailed also; that he was running about 18 miles an hour, and when the cars were derailed he shut off the engine and applied the emergency brakes; that he saw there was danger of the tank and freight-cars in the rear of the tank being thrown violently against the engine-cab where he was riding, and if this had been the ease he would have been crushed to death, and in order to escape this apparent and imminent danger he leaped from the engine-cab, and when he struck the ground the force of. the fall caused certain injuries described, for which he sues; that at the time of receiving the injuries he was free from fault, and that they were wholly caused by the negligence of the agents and em- ' ployees of the defendant, (a) in that 'the track where the train was derailed was allowed to sag, and one side was considerably lower than the other, which caused the trucks to leave the track; (5) in that the rear truck of the engine-tank was defective and out of alignment, and thus caused the wheels to mount the, track and-derail the ears; and-(c) in that the engine-tank did not have proper side-bearing supports, and the left-hand back side bearing was cracked and broken, and one bolt was gone and another loose. By amendment it was alleged, that at the time the plaintiff leaped from the engine-cab there was imminent danger, and it was apparent, and plaintiff was in a position of imminent danger of losing his life by being crushed to death by the tank and cars next to the engine that had been derailed, and the only way of extricating himself from such position of danger was to leap from the cab, and in so doing he was free from all fault and in the exercise of all reasonable care. The allegations of negligence were amended as follows:-By adding to subsection (a).that the defendant was negligent in not maintaining a reasonably safe track for its trains to travel over, in that at the point where the rear truck of the tank and the cars were derailed, one side of the track was allowed to become lower than the other side, and as the train reached this place the tank and cars lurched violently to one side, on account of the track not being level, and the. wheels mounted the rails and went over and off the track. By adding to subsection (5) that the rear truck of the engine-tank was so constructed that the right and left wheels were not parallel, but were at different angles, and in this way were out of alignment, and the wheels would not follow the rails, which were parallel to each other, but one wheel would have a tendency to go in one direction and the other in another, and was only held in place by the strength of the axle, and on account of being thus out of alignment the rear truck wheels mounted the rails and ran off and caused the cars to be derailed as set out above. By adding to subsection (c) that on account of the defects in the engine-tank, the body would sway up and down, as the side bearings did not support the body as it would go down, and this would throw all the weight of the body on the tank to one side, and would and did cause the wheels of the tank to mount the rails and-run off the track. It is further alleged that the .plaintiff did not know pf any of the alleged defects before receiving the injuries alleged, and could not have discovered them b.y the use of any degree of diligence.
   Bloodworth, J.

The petition as amended, was sufficient to withstand the demurrer, and the court ’did not err in overruling the demurrer.

Judgment affirmed.

Broyles, P. J., and'Harwell, J., eoneur.

The defendant demurred to 'the petition generally, and demurred specially to the allegations as to the danger that the plaintiff saw before leaping, and to the allegations of negligence.

Wall & Grantham, Quincey & Rice, for plaintiff in error, cited:

Walker v. A. & W. P. R. Co., 103 Ga. 820, 822-3; Blackstone v. Cen. Ry. Co., 112 Ga. 762; Price v. Cen. Ry. Co., 124 Ga. 899; E. T. &c. R. Co. v. Head, 92 Ga. 723; Stewart v. S. A. L. Ry., 115 Ga. 624; Roland v. Tift, 131 Ga. 683 (2); Hendrix v. Mfg. Co., 134 Ga. 712; Beck v. Tumlin Co., 13 Ga. App. 618; Kilgo v. Rome Mfg. Co., 16 Ga. App. 737 (4); McDonnell v. Cen. Ry. Co., 118 Ga. 89-90, and cases cited.

Shipp & Sheppard, contra,. cited:

Gainesville &c. Ry. v. Vandiver, 144 Ga. 852; Callahan v. W. & A. R. Co., 137 Ga. 726; Simmons v. E. T. &c. Ry. Co., 92 Ga. 658, and cases cited; Smith v. R. Co., 83 Ga. 671; Ga. R. Co. v. Rhodes, 56 Ga. 646; M. & W. R. Co. v. Winn, 26 Ga. 250; Cen. R. Co. v. Sanders, 73 Ga. 513 (3); Charleston &c. R. Co. v. Lyons, 5 Ga. App. 668 (2); Cen. Ry. v. Brandenburg, 129 Ga. 117; Standard Cotton Mills T. Cheatam, 125 Ga. 649; Charleston &c. Ry. Co. v. Attaway, 7 Ga. App. 231.


author: Bloobworth, J.

text:
    9182.
    Mangham et al. v. Head.
    Decided April 11, 1918.
    Petition for certiorari; from Pike superior court—Judge Searcy. August 25, 1917.

      B. C. Johnson Jr., Henry 0. Farr, for plaintiff in error.

      E. F. Dupree, contra.
   Bloobworth, J.

The court did not err in refusing to sanction the certiorari in this case.

Judgment affirmed.

Broyles, P. J., and Barwell, J., concur.


author: Harwell,. J.

text:
    9311.
    ALEXANDER, receiver, v. DEVER.
    •One holding stock in an insolvent bank, as life-tenant under the will of the original subscriber, transferred to her by the executors of the estate, is individually liable in an amount equal to the face value of the stock, in a suit brought by th'e receiver of the bank for the benefit of the depositors, under the provision's of the Civil Code (1910), § 2270.
    Decided April 11, 1918.
    Complaint; from Richmond superior court—Judge H. C. Hammond. October 8, 1917.
    Alexander, as receiver of the Irish-American Bank, brought suit against Ellen Dever, to collect from her as a stockholder of the bank an amount equal to the face or par value of the shares of its stock owned and held by her at the time of its failure. The petition alleged that the said shares were subscribed for by James Dever, and- by his will were bequeathed to Ellen Dever, and that. they were delivered to her by the executors of the will;, that she was a life-tenant under the will, and the stock was held by her as such life-tenant. When the case came on for trial she moved to dismiss the suit, on the ground that the petition showed no cause of action against her. The court sustained the motion and dismissed the suit, and the plaintiff excepted.

      Archibald Blaclcshear, for plaintiff.

      D.'G. Fogarty, for defendant.
   Harwell,. J.

The trial judge, in dismissing the petition, no doubt based his ruling upon the decision of this court in the case of Swicord v. Crawford, 20 Ga. App. 35 (92 S. E. 394). The Supreme Court, on certiorari, reversed that .decision (147 Ga. 548), ahd held that “Stockholders in a bank incorporated under the laws of this State since the passage of the act of 1893, whether original subscribers, or purchasers of stock from the corporation, or transferees of such stockholders, are individually liable equally and ratably (and not one for another as sureties) to depositors of said corporation for all moneys deposited therein, in an amount equal to the face value of their respective shares of stock.”

The petition in the instant case set out a cause of action. The fact that the defendant is holding the stock as a life-tenant of the original subscriber, James Dever, will not relieve her from liability. It is alleged that the executors have delivered the stock to her under a deed or bill of sale, and that she is now th® holder of said stock.

The language of the Federal statute (Rev. St. §§ 5151-2, U. S. Comp. St. 1916, § 9690), fixing the liability of shareholders of every national banking association, is very similar to that in the code of this State (Civil Code of 1910, § 2270). The Supreme Court of the United States has construed the Federal statute, and the following decisions are in point in the instant case. “The widow and heirs of a shareholder in the national bank, to whom the probate court allots the shares of stock in indivisión, proportioned to their interest in the estate, but who let the stock stand in the name of the deceased, without any notice of their title to it, are liable . . to assessments on the stock in case the bank subsequently becomes insolvent.” Matteson v. Dent, 176 U. S. 521 (20 Sup. Ct. 419, 44 L. ed 571). “On the death of a stockholder, this liability passes immediately to his estate, and would do so even were it not for paragraph '5152 of the Bevised Statutes. This is not by virtue of any new contract,. as the liability rests on the stock and is a part .of the contingent liability of the' estate.” Parker v. Robinson, 71 Fed. 256 (18 C. C. A. 36); Tourtelot v. Finke, 87 Fed. 840. “The beneficiaries of stock held in trust by a trustee are subject to the stockholders’ liability.” Smathers v. Western Carolina Bank, 155 N. C. 283 (71 S. E. 345, Ann. Cas. 1912C, 398); Witters v. Sowles, 32 Fed. 767. “M. bequeathed to his wife, for life or widowhood, forty shares of stock in the national bank, together with other personal property, providing she might use any of such personal property, if necessary, for her comfortable support, and that at her death or marriage whatever should remain of such property should go in equal shares to his four children. The administrator with the will annexed, of M.’s estate, transferred the stock on the books of the bank to M.’s widow. ’ The bank having become insolvent and an assessment having been made by the comptroller on the shareholders, for which a judgment was obtained against M.’s widow, which remained unsatisfied, the receiver of the bank brought suit against M.’s administrator to compel payment . . out of M.’s general estate. Held, that, whether the widow took an absolute title to the stock by virtue of her power of disposal, or a life-interest with remainder to the children, the beneficial ownership of the stock in either ease had passed from M’s .estate,.and his estate could not be made liable for the assessment. Held further, that the administrator properly transferred the stock to the widow, and was- not required to hold the legal title thereto as administrator or trustee during her life or widowhood, but that such transfer made no difference to the liability of the estate of M., since the beneficial interest would in either ease have been in the widow and children.” Blackmore v. Woodward, 71 Fed. 321 (18 C. C. A. 57). See also Christopher v. Norvell, 201 U. S. 215 (26 Sup. Ct. 502, 50 L. ed. 732, 5 Ann. Cas. 740); Chatham Bank v. Brobston, 99 Ga. 801 (27 S. E. 790), where it is said: “Where the charter of the bank imposes on all of its stockholders personal liability to its creditors, such liability attaches as well to those who acquire a complete legal title to the stock of the bank.by having the same transferred to them as collateral security for debts due by the transferrers, as to those who purchase stock outright. . . A stockholder is individually liable for his pro rata part of the corporation debts created Tpefore he acquired his shares of stock by transfer, as-well as for a'like part of those created during his ownership of the shares.”

The-court erred in. dismissing the petition. ,

Judgment reversed.

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


author: Harwell, J.

text:
    9357.
    JOHNSTON et al. v. SHEPPARD et al.
    Where a judgment against the ■ sureties for the principal sum in' an eventual condemnation-money bond, given in a trover suit, exceeds the penalty-named in the bond, the judgment as to the sureties is erroneous to the amount of the excess, and, on a motion timely made by the sureties, should be corrected accordingly. In the instant case direction is given' that such excess in the judgment against the sureties be--written off, and that the judgment stand against the sureties as to ..the principal sum recovered for the amount of the penalty fixed by their bond.
    Decided April 11, 1918.
    Motion to set aside judgment; from city court of Floyd county •—Judge Nunnally. October 11, 1917.
    J. C. Sheppard brought trover against Green White for two bales of cotton, alleging that the value of the cotton was $115, and its . yearly' value $8.05, being the interest thereon at seven per cent, per annum. Green White as principal, and Johnston and Harris as his sureties, executed the usual eventual condemnation-money bond, payable to the plaintiff, in the sum of $230. On the trial of the case the jury found for the plaintiff $241.50, and a judgment was entered against the principal and the sureties in that sum, with interest from the date ,of the judgment at seven per cent, per annum. At the term at which the verdict and the judgment were rendered, the sureties filed a motion to set aside the judgment as against them, alleging that the judgment was illegal ,and void: (1) Because it was for an amount in excess of the liability of- the sureties on their bond. (2) Because the plaintiff in a trover action can not recover a greater amount of principal than the amount alleged in his petition, and the' amount alleged in the petition in this case is $115, and no amendment was offered or allowed increasing the value. (3) Because the,bond signed by the sureties limits the amount that could be recovered against them to $115 principal, and no amount greater than $230- can be recovered against them, and any amount in excess of $115 must be cost' or other items not included in the principal. (4) Because the judgment is void on its face for want of authority in the pleadings to enter such a judgment.
    A rule nisi was granted, and service acknowledged thereon by Sheppard and Green White. Sheppard demurred to the motion, on several grounds, the purport of which is that no reason appears why the prayers as set out should be granted. He answered admitting the allegations of the motion, and a’sserting that the interests of the movants were properly protected by and through their principal, and that they were bound and their rights fixed by the verdict and judgment against the principal, and that under the allegations of the motion they had no right to have the judgment set aside, and he asked that the motion be dismissed. The trial judge overruled the motion, and the sureties excepted to this ruling.

      T. W. Lipscomb, for plaintiffs in error.

      G. I. Garay, John W. Bale, contra.
   Harwell, J.

(After stating the foregoing' facts.) “A judgment can not be arrested or set aside for any defect in the pleadings or record that is aided by verdict or amendable as matter of form.” Civil Code, § 5960; Merritt v. Bagwell, 70 Ga. 585; Steers v. Morgan, 66 Ga. 555; Artope v. Barker, 74 Ga. 465; Tietjen v. Merchants National Bank, 117 Ga. 501 (43 S. E. 730); Davis v. Bray, 119 Ga. 220 (46 S. E. 90); Sweat v. Latimer, 119 Ga. 615 (46 S. E, 835); Ayer v. James, 120 Ga. 578 (48 S. E. 154). A verdict and judgment for a larger amount than that sued for is not for that reason void. It is a mere irregularity. Philmon v. Marshall, 116 Ga. 811, 812 (43 S. E. 48); Buice v. Lowman Mining Co., 64 Ga. 769 (2); Blain v. Hitch, 70 Ga. 275 (3). The surety on a bond given by a.defendant in an action of trover for the eventual condemnation money is bound by the judgment against the defendant, and can not, after judgment, raise any question which could have been raised by the principal before judgment. Waldrop v. Wolff, 114 Ga. 610 (40 S. E. 830); Jackson v. Guilmartin, 61 Ga. 544; Thomas v. Price, 88 Ga. 533 (15 S. E. 11); Holmes v. Langston, 110 Ga. 861 (36 S. E. 251); Hogan v. Scott, 146 Ga. 126 (90 S. E. 863).

An irregularity in the judgment apparent on the face of the record may be corrected. Latimer v. Sweat, 125 Ga. 475 (3), 477 (54 S. E. 673), and cases cited. A surety on a bond is not liable for more than the penalty in the bond vdth interest thereon. Westbrook v. Moore, 59 Ga. 204. Judge Bleckley in this case, said:. “Possibly a bond with the prescribed condition would have been valid if no penal sum whatever 'had been expressed therein, and, if valid at all, it would have been good to the extent of the whole recovery against the principal; but here is a bond' in which the security has limited his undertaking by a definite expression of the amount. He stands for eighty dollars only. The officer might not have^been obliged to accept such.a bond, but he did accept it, and it contains the security’s contract and the money measure of his liability. Perhaps, 'without such a limitation as to amount, he would not have signed it. We do not know of any instance in which more than the penalty of a bond can be recovered of a security. The Code, section 3575 [Civil Code, § 5940], properly construed, does not contemplate anything of the.kind. It provides for a less, not for a greater recovery.” See also Witt v. Nesar, 145 Ga. 675 (89 S. E. 747). The plaintiff is not re: stricted however, in his recovery to the amount mentioned in the bond so far as the defendant, the principal in the bond is concerned. Phillips v. Taber, 83 Ga. 565, 568 (10 S. E. 370). In the Phillips ease, as to the surety, the excess in the judgment above the penalty in the bond was written off by the plaintiff.

The whole judgment will not be set aside because of error as to a part thereof, where it can b.e determined from the record how .much is erroneous. Jones v. Findley, 84 Ga. 52 (10 S. E. 541); Latimer v. Sweat, supra.

Under- the principles of law stated in the foregoing authorities, the judgment against the principal was properly entered for the full amount of the verdict. The surety in the trover bond was bound by the verdict against the principal to the extent of the penalty in the bond, $330, with interest from the date of the judgment. The court should, on motion timely made by the surety, have corrected the judgment accordingly. Direction is .therefore given that the sum of $11.50 be written off from the principal sum recovered against the sureties on the- bond, and that the interest recovered against the sureties be also corrected, to correspond with this reduction of the principal, and, as the plaintiffs in error have obtained a material modification of the judgment against them, it is directed that the cost of the writ of error be taxed against the defendants in error.

Judgment affirmed with direction.

Broyles, P. J., and Blood-worth, J., concur.


author: Broyles, P. J.

text:
    9453.
    Dillon v. Patterson.
    Decided April 11, 1918.
    Complaint; from Pickens superior court—Judge Morris. November 2, 1917.

      B. L. Smith, Thomas A. Brown, for plaintiff.

      F. O. & Howard Tate, E. H. Clay, William Butt, for defendant.
   Broyles, P. J.

This suit was for a balance alleged to be due on the purchase price of an automobile. The defendant filed no plea of total or partial failure of consideration, but merely denied liability. In the alleged purchase he -was represented by his son. The car was sold in Atlanta for $550, and was delivered to the son, who then signed' his father’s name to a cheek for $300, which he gave to the 'plaintiff, and drove the car to his father’s home in Pickens county. The plaintiff subsequently cashed this check and received the money on it. The defendant testified that his son had no authority to buy the car for him or to sign his name to the check, and that when the car was brought to his home in Pickens county he (the defendant) repudiated, the contract, and, as soon as the condition of the roads permitted, had his son to drive the ear back to the plaintiff in Atlanta; that the plaintiff refused to rescind the trade, but told the defendant’s son that if he would store the car in a certain garage in Atlanta he "(the plaintiff) would sell it for him. Accordingly the car was so stored, where it remained for some time, but the plaintiff failed to sell it. Subsequently the defendant paid the storage bill to the garage company and' removed the car to his home in Pickens county, where he kept it for some length of time, and it was used occasionally by members of his family. The defendant finally, without any notice to the plaintiff, sold the car to another motor company in exchange for one of its "cars. Held: The defendant by his conduct ratified the act of his son in the purchase of the car and made himself liable for the balance of the purchase-price, and, under the evidence and the pleadings, was not entitled to a verdict in his favor. See sections 3591 and 3593 of the Civil Code of 1910; Merchants Bank of Macon v. Central Bank of Georgia, 1 Ga. 418; Haney School Furniture Co. v. Hightower Baptist Institute, 113 Ga. 289 (38 S. E. 761); Home Fertilizer &c. Co. v. Dickerson, 12 Ga. App. 149 (76 S. E. 1040); Swearingen v. Virginia-Carolina Chemical Co., 19 Ga. App. 658 (91 S. E. 1050). The verdict in favor of the defendant was therefore contrary to. law and the evidence, and the court erred in overruling the motion for a new trial.

Judgment reversed.

Bloodworth and Harwell, JJ., concur.


author: Wade, 0. J.

text:
    9053.
    McWhorter v. Swilley et al.

    Decided April 12, 1918.
    Complaint; from Worth superior court—Judge Eve. May 31, 1917.

      J. H. Tipton, for plaintiff.

      Passmore & Forehand, for defendants.
   Wade, 0. J.

1. “Any act of the creditor, either before or after judgment against the principal, which injures the surety or increases his risk, or exposes him to greater liability, will discharge him.” Civil Code (1910), § 3544.

2. Where the fact of suretyship .does not appear on the face of the note, it may be proved by parol testimony. Civil Code (1910), § 3556. See also Buck v. Bank of the State of Georgia, 104 Ga. 660 (30 S. E. 872); Bishop v. Georgia National Bank, 13 Ga. App. 38 (2) (78 S. E. 947). There being evidence to show that the defendants in this case were sureties, this determines their' relationship to the contract; since this was a matter solely for the jury, and they so found.

3. Where a surety signs an ordinary promissory note, containing a homestead waiver, in ignorance that it is tainted with usury, the law relieves him from all liability thereon. Prather v. Smith, 101 Ga, 283 (2) (28 S. E. 857); Small v. Hicks, 81 Ga. 691 (8 S. E. 628); Lewis v. Brown, 89 Ga. 115 (14 S. E. 881); Harrington v. Findley, 89 Ga. 385 (15 S. E. 483); Vandiver v. Wright, 94 Ga. 698 (19 S. E. 990); Denton v. Butler, 99 Ga. 264 (25 S. E. 624); Whilden v. Milledgeville Banking Co., 3 Ga. App. 69 (1) (59 S. E. 336); Furr v. Keesler, 3 Ga. App. 188 (59 S. E. 596); King v. State, 9 Ga. App. 714 (3) (72 S. E. 177). There was ample evidence in this case to support a finding that the defendants had no knowledge, at the time they signed the note sued, ' on, that it was tainted with usury.

4. There being evidence to warrant the jury in sustaining the defense that the defendants were mere sureties on a homestead waiver note, tainted with usury of which they had-no knowledge, this court can not interfere; and the judgment overruling the motion for a new trial is

Affirmed.

Jenkins and Luke, JJ., concur.


text:
    9079.
    Krueger v. Simmons.
   Luke, J.

1. Where the only consideration expressed in a promissory note is “value received,” inquiry into the consideration, and proof of what the consideration in fact was, does not have the effect of varying an unconditional contract in writing. Either want or failure of consideration may be shown in defense to a suit on such a note, though the note be under seal. Toller v. Hewitt, 12 Ga. App. 496 (77 S. E. 650); Lacey v. Hutchinson, 5 Ga. App. 865 (64 S. E. 105); Empire Cotton Oil Co. v. Maxwell, 19 Ga. App. 493 (91 S. E. 792), and citations. If the note sued oil undertakes to express the consideration as. a term and condition of the contract, proof (unless fraud be shown) will not be admitted to show a different consideration (such as that the actual consideration was not “one bay horse,” as recited in the noté, but was “one grand piano)for such proof would vary the terms of the written instrument.

Decided April 12, 1918.

Complaint; from DeKalb superior court—Judge .Smith. March 16, 1917.

The action was on a promissory note in which the only recital as to consideration'was “value received.” In his answer the defendant denied indebtedness, and alleged, that a part of the consideration of the note was an agreement on the part of the plaintiff to obtain a loan of $6,500 on 73 acres of land belonging to the defendant’s wife; that it was agreed between the plaintiff and himself that the loan was to be obtained, and part of the consideration of the note was the obtaining of the loan, and it was never obtained; and the note was not paid, because the plaintiff failed to carry out his agreement. By amendment the defendant alleged that there was a total failure of consideration of the note, that it was agreed that the note was to be paid out of the loan, and there was to be no payment of the note until the loan was obtained, and it was not obtained, and, by reason of the failure of the plaintiff to obtain the loan, the plaintiff was not entitled to recover on the note. By further amendment it was alleged that the note was nudum pactum and void. The court, on motion of the defendant, struck the answer so far as it related to failure of consideration, and so far as it set up the defense of nudum pactum; and, on exceptions to this ruling, the defendant, after verdict and final judgment against him, brought the casé to this court.

Edmund’ W. Martin, for plaintiff in error, cited:

Park’s Code, § 4350; Toller v. Hewitt, 12 Ga. App. 496 (1); Pidcock v. Crouch, 7 Ga. App. 299 (2); Means v. Subers, 115 Ga. 371; Hansford v. Freeman, 99 Ga. 376 (1, 3); Atlanta &c. Ry. Co. v. American Car Co., 103 Ga. 254; Bonner v. Nelson, 57 Ga. 433 (1); Heitmann v. Commercial Bank, 6 Ga. App. 584, 593; American Jobbing Asso. v. Register, 5 Ga. App, 543.

Hewlett S Dennis, contra, cited:

Probasco v. Shaw, 144 Ga. 416; Lester v. Fowler 43 Ga. 190 (1); Scaife v. Beall, 43 Ga. 333-4; Dinkler v. Baer, 92 Ga. 432 (3); Pryor v. Ludden, 134 Ga. 289; Stafford v. Staunton, 88 Ga. 298 (1); Loudermilk v. Loudermilk, 93 Ga. 443-4 (1); Johnson v. Nisbet, 137 Ga. 150 (1); Hawkins v. Studdard, 132 Ga. 272; Lunsford v. Malsby, 101 Ga. 39 (2).

2. The court erred in striking ■ the defendant’s plea of total failure of consideration.

Judgment reversed,.

Wade, 0. J., and Jenlcins, J., concur.


text:
    9106.
    STRICKLAND v. HENDRICKS et al.

    Courts may, upon a proper showing, compel the production of a paper, to be annexed to interrogatories propounded by the party calling for the document, provided the court requires a copy of the document to be left in the place of the original, to be used in lieu thereof in case of the non-return of the original, and also requires bond and security from that party to the party producing the document, conditioned to be void only if the document be not lost, destroyed, or injured, but be restored to the latter party as soon as the object of its production shall have been accomplished. Faircloth v. Jordan, 15 Ga. 511; Davis V. Davis, 47 Ga. 81; Sibley v. Saslam, 75 Ga. 490, 493. The security to be thus exacted ought to be at least as much as a bond of indemnity and a consent that if the note or writing be not restored, objections to it shall be waived and the copy of it on file be read in its place,-not only in that case, but in all subsequent cases. Stevens v. Zachary, 27 Ga. 427. Without passing upon the sufficiency of the peti1 tion, the orders of the judge under the proceedings in the instant case did not conform to the procedure or to the requirements laid down in the eases cited above, and were therefore illegal. Under the precedents cited, the.motion to dismiss the bill of exceptions, as assigning error upon a ruling merely interlocutory, must be denied.
    Decided April 12, 1918.
    Complaint; from city court of Nashville—Judge Christian. July 17, 1917.

      W. B. Smith, William Story, J. P. Knight, for plaintiff.

      F. K. Wilcox, Hendricks, Mills & Hendricks, for defendant.
   Jenkins, J.

R.-A. Hendricks brought a petition to the city court of Nashville, alleging that he was a defendant in a named suit on a promissory note, in that court, and asked that the note sued on be impounded with the clerk of the court, in order that he, as a defendant, might be enabled to bring into court the evidence of certain non-resident witnesses, indispensable to his defense. The petition alleged, "that counsel for the plaintiff refuses to permit this defendant to use the said note sued upon, for the purpose of exhibiting the same to witnesses, taking testimony, and preparing the same for trial; that it is necessary to the ends of justice that the original note sued upon be impounded with the clerk of the city court of Nashville, wherein said case is pending, with the privilege that all parties interested in said case have free access to said note.” In response to the rule nisi on this petition, the plaintiff in the suit referred to filed! a demurrer and. an answer to the petition, and in the answer denied the allegations quoted above, and further answered as follows: “The defendants E. A. Hendricks and J. A. Sirmans, either 'or both, are at liberty to inspect the notes in question.. Either one of counsel for J. B. Strickland, to wit, J. P. Knight or W. E. Smith, here and now offers and agrees to permit either E. A. Hendricks or J. A. Sirmans, or both of them, to inspect and examine at their pleasure as often and at such times as they may desire.' Eespondents refuse, however, to impound said notes in the clerk’s office of Berrien superior court, or to tarn the same over to petitioner for.any purpose; but in this connection respondents say that they will be glad to produce the said notes anywhere, at any time, upon due notice given for the purpose of taking the depositions of any witness for petitioner.” On the hearing of the petition no evidence was introduced, but in a note by the presiding judge, appended ta the record, it is stated that “E. A- Hendricks, attorney for himself, stated in his place in open court that a plea of non est factum was filed in the case, and that he desired to take the testimony of certain non-resident witnesses, also resident female witnesses; that access 'to the original note was necessary in order to take this testimony, all of which he stated was relevant to^the case; that he had been 'refused the use of the original notes to use in taking testimony.” The court passed the two following orders:

"Georgia, Berrien County. Hpon reading and considering the above and foregoing application, and after a hearing upon the same, it appearing to the court that, in order that the ends of justice may be met, it is necessary for .the defendant to inspect the original notes sued upon in the matter herein referred to, and it further appearing that in'order to take the testimony of non-resident witnesses tending to sustain the defense filed in the cause; whereupon it is ordered that the said original note sued upon be deposited in the clerk’s office of the city court iff Nashville, for the inspection by the defendant and to be used by the defendant in the examination of non-resident witnesses. This July 17th, 1917. C. A. Christian, Judge City Court of Nashville.”

“J. B. Strickland vsl B. A. Hendricks and J. A. Sirmans.

City Court of Nashville, July term, 1917.

Suit on note.

“Georgia, Berrien County. An order having been granted in the above-stated ease, requiring the plaintiff to deposit in the clerk’s office of the city court of Nashville the original notes sued upon, for the inspection and examination' of the defendant, it is ordered that said clerk keep said notes securely locked’ and allow no one to remove same, except the defendant or his counsel, and then only- at such times as they may desire to take the testimony of witnesses touching said case. Defendant or his counsel to leave receipt for said note, when same is being used for the purpose of taking testimony, and tó be returned immediately after testimony is taken. This July 17th, 1917.

[Signed] C. A. Christian, Judge City Court of Nashville.”

To the orders thus entered, exception was taken.

The ruling stated in the headnote does not require elaboration.

Judgment reversed.

Wade, O. J., and Lulce, J., concur.


author: Wadé, C. J.

text:
    9123.
    BARNES v. MECHANICS SAVINGS BANK.
    1. In justices’ courts the docket entries control in determining whether there was a valid and lawful judgment.
    2. The power of a justice of the peace to amend a judgment rendered ,by himself is limited to mere matters of form. He has no power to change its legal tenor or effect.
    Decided April 12, 1918.
    Certiorari; from Chatham superior court—Judge Meldrim. July 11, 1917.'

      Wilson & Rogers, for plaintiff in error.

      Pettie &"Tucker, contra.
   Wadé, C. J.

The Mechanics Savings Bank instituted suit in a justice’s court in the city of Savannah, against the maker and the indorser of a promissory note. At the conclusion of the trial the magistrate, before whom the case was tried without the intervention of a jury, rendered a judgment in favor of the plaintiff, -which he entered in writing upon the summons. Subsequently a judgment in favor of the defendant and against the plaintiff was entered upon the docket of the justice’s court, and signed by him. When this conflict between the judgment as entered on the summons and the judgment as entered on the docket was discovered, the justices’ courts of Savannah had ,beei1 abolished, and the municipal court of Savannah created and established in their stead (Ga. L. 1915, p. 124); and to the municipal court the plaintiff-addressed a petition to amend the said docket judgment, so as to make it read in favor of the plaintiff, instead of in favor of the defendant. The facts set out in the plaintiff’s petition were substantially as above stated and were admitted to be true. The defendant demurred to> the petition generally, and on the ground that “the municipal court of Savannah has no jurisdiction and authority to grant the amendment to the judgment of the justice’s, court, the said amendment being a material amendment and not one of form.” The court overruled the demurrer, and, on certiorari, the superior court sustained the judgment of the municipal court. The case came to this court on exception to the overruling of the certiorari.

The Civil Code (1910), § 4679, requires justices of the peace “to keep a docket of all causes brought before them, in which must be entered the names of the parties, the returns of the officer, qnd the entry of the judgment, specifying its amount and' the day of its rendition.” To determine, therefore, whether there was a valid judgment, resort must be had to the docket entry, and to it alone. Mere verbal announcement of decision is no judgment. N., C. & St. L. Railway v. Brown, 3 Ga. App. 561 (2) (60 S. E. 319). See also Hargrove v. Turner, 108 Ga. 580, 582 (34 S. E. 1); McCandless v. Inland Acid Co., 112 Ga. 291, 298 (37 S. E. 419). It is cléar, therefore, from these citations, that to be enforced as the judgment of the justice (not on appeal), there must.be a written judgment actually entered on the docket during the term (whether consistent with his previous announcement or not)'; or) if no judgment is entered on the docket in term time, a judgment must be announced in term time and transcribed on the docket' after judgment. See Park v. Callaway, 128 Ga. 119 (57 S. E. 229)’. The docket, and not the original summons, is the'proper place to enter the. judgment (Ramsey v. Cole, 84 Ga. 147, 10 S. E. 598); and consequently the judgment actually entered on the docket is the one we must look to as the true judgment of the magistrate, and not the judgment written on the summons.

The question next arises: What powers does a justice of the peace have in regard to amending-or modifying a judgment formally entered by him. It is well settled that as a general rule, in courts of record,, judgments are in the breast of the court until the end of the term, and may be amended, modified, set aside, or changed, in form or effect, at the pleasure of the court. This power does not, however, exist in justice’s courts. O’Donovan v. Ocean Steamship Co., 1 Ga. App. 190, 191 (57 S. E. 982); Field v. Peel, 122 Ga, 503, 506 (50 S. E. 346), and cit.; White v. Burnett, 113 Ga. 151 (38 S. E. 332); Fields v. Jordan, 124 Ga. 685, 687 (52 S. E. 885). It is likewise well settled that the act of entering judgment on a verdict of a jury is controlled by entirely different principles from those affecting a judgment rendered by the magistrate himself. However, the right of amending a judgment based on a verdict of a jury is not involved in this case, since here the justice was sitting without the intervention of a jury. Although a magistrate has no power to set aside a judgment rendered by him, he nevertheless has some power to amend the same. Bell v. Bowdoin, 109 Ga. 209 (34 S. E. 339). In answering the question, “How far does it [the power to amend a judgment in a justice’s court] extend?” this court has said: “The power to amend a judgment so that it should, in its substantial effect; be different from what it was originally is equivalent to the power to set aside one judgment and substitute another. The only logical result, therefore, is that the magistrate may amend his judgments only in matters "of form. As in the case of Bell v. Bowdoin, supra, when the judgment expresses a finding against the defendant for the principal and interest sued for, an amendment of the pleadings, setting out definitely the amounts, does not vary the legal tenor and effect of the judgment, and is therefore permissible. An amendment which will give the judgment a legal effect different from that originally stated, or which will extend or limit its scope, is not allowable.” N., C. & St. L. Railway v. Brown, supra. In that case a judgment was rendered by the magistrate and entered on his docket in favor of the plaintiff, and against the defendant and the garnishee jointly, and upon this judgment an execution was issued, and the garnishee filed an affidavit of illegality. At the hearing of the illegality, the magistrate, on motion of the plaintiff, allowed the judgment to be amended by changing it into a separate judgment against the defendant and the garnishee. The garnishee sued out a certiorari to the superior court, and upon the hearing there the action of the magistrate'was sustained. To this judgment the garnishee excepted. The magistrate, in his answer to the certiorari, explained that he announced judgment against the defendant and the garnishee separately, but, by inadvertence of a clerical assistant, the joint judgment was written up and entered on the docket. The Court of Appeals reversed the judgment of the superior court, and held that the magistrate could not by amendment convert a joint judgment into a separate judgment. It would seem, therefore, that if a magistrate can not amend his judgment so as to n^ake it read against the defendant and the garnishee separately, instead of against the defendant and the garnishee jointly (this being a material change), he certainly could not amend a judgment so as to convert it into a judgment in favor of the plaintiff, instead of in favor of the defendant (as was sought to be done in the instant case), as such an amendment would undoubtedly .vary the legal tenor and effect of the judgment, or would at least give the judgment a legal effect different from that originally stated..

The judge of the superior court therefore erred in overruling the petition for certiorari.

Judgment reversed.

Jenkins and Luke, JJ., concur.


text:
    9242.
    May & Sons v. Adair et al.

   Wade, C. J.

Certain premises were occupied by tenants under a written lease for tbe term of one year commencing September I, 1914, and ending August 31, 1915, at a price named, payable monthly in advance. Shortly before the expiration of' the term the tenants requested the landlords to reduce the rent, and this request was refused; but the tenants agreed that the landlords might prepare a renewal lease (for the ensuing calender year, at the same price) which they would then “decide” upon. After the expiration of the lease, one of the tenants again asked the landlords for a reduction of rent, and this request was likewise refused. The tenants remained in possession of the premises after the expiration of the lease for a period of 6 months, without further agreement and regularly paying rent therefor, monthly, in advance, at the rate fixed by the contract for the previous year, during this entire period. At the end of this time the tenants vacated the premises, and the property remained unrented for the rest of the year following the expiration of the written lease aforesaid—a period of 6 months. The tenants notified the landlord's, about one month before they vacated the premises, of their intention so to vacate. At no time was there any agreement on the part of - the landlords either to reduce the rent or that the tenants-,might vacate before the expiration of 12 months from the date when the former contract expired. Held:

Decided April 12, 1918.

. Complaint; from Fulton superior court—Judge Ellis. September 8, 1917.

David Eichberg, for plaintiffs in error.

J. H. Porter, Posser, Slaton, Phillips & Hoplcins,' contra.

1. In view of the previous written 'contract covering a full calendar year and prpviding for the payment of rent in advance each month, and of the testimony showing the several definite refusals by the landlords to reduce the ren't as requested by tl!e tenants, and in the light of the agreement by the tenants that the landlords might prepare a lease on the same terms for their acceptance or rejection, and their continued occupation of the premises after the beginning of the new proposed term, with the payment of rent each month for six consecutive months, in accordance with such proposed terms, and notwithstanding a further refusal by the landlords to reduce the rent (soon after the new term had begun), and there being expressly no tenancy at will, and no time specified for the termination of the tenancy, the law will imply an agreement on the part of the tenants to hold the premises for a calendar year for the same rental, payable monthly. Civil Code, § 3708.'

2. Under the facts above recited, the court did not err in directing the verdict against the defendants..

Judgment affirmed.

Jenkins attd Luke, JJ., concur.


author: Luke, j.

text:
    9245.
    Gemes v. Vincent.
    Decided April 12, 1918.
    Complaint; from city court of Cartersville—Judge Aubrey. June 27, 1917.

      W. T. Townsend, for plaintiff in,error.

      Finley '& Henson, contra.
   Luke, j.

By agreement the trial judge, without the aid of a jury, heard and determined the cause. He did not err in ruling out evidence, as complained of; and there was evidence to authorize -the judgment.

Judgment affirmed.

Wdde, O. J., and Jenkins, J., concur.


author: •Wade, C. J.

text:
    9268.
    Bank of Harlem v. Phillips
    Decided April 12, 1918.
    Complaint; from Columbia superior court—Judge H. C. Hammond. September 15, 1917.
    P. B. Jolmson, John T. Wesi, for plaintiff.

      J. T. Olive, Archibald Blackshewr, for defendant.
   •Wade, C. J.

The motion for a new trial is based upon the general grounds only, and complains of a verdict which is supported by some evidence authorizing the inferences drawn by the jury, and the verdict has been • approved by the trial judge. This court is therefore without authority to interfere, and the judgment is

Affirmed.

Jenkins and Luke, JJ., concur.


text:
    9273.
    Nunez v. Emanuel County.
    Decided April 12, 1918.
    Action for damages; from city court of Swainsboro—Judge Kirkland. September 24, 1917.

      Williams & Bradley, for plaintiff.

      T. N. Brown, for defendant.
   Wade, C. J.

1. In a suit against a county for damage alleged to have, been caused by a defective bridge, the plaintiff can not recover unless the proper county authorities had knowledge of the defective condition, or unless the defect had existed for such a length of time that:-knowl- » edge thereof on the parr of the county authorities would be presumed (Stamps v. Newton County, 8 Ga. App. 230 (3b)) (68 S. E. 947); and it is a jury question as to what length of time a defect in a bridge must exist before a county is charged with knowledge of negligence. City of Rome v. Brooks, 7 Ga. App. 244 (66 S. E. 627); Enright v. Atlanta, 78 Ga. 289.

2. The evidence as a whole being sufficient to warrant the jury in finding that the county authorities did not have notice of the defect in the bridge, and that the defective condition had not existed for such a . length of time as to charge the authorities with such knowledge as would make them liable under the law, the trial court did not err in overruling the motion for a new trial, which was based on the general grounds only.

Judgment affirmed.

Jenkins and I/uke, J.J., concur.


text:
    9282.
    DUNCAN v. SHACKELFORD.
    The testimony on the only vital issue in this case was in direct conflict; and, the verdict set aside by the first grant of a new trial not being demanded by the evidence as a whole, the judgment granting a new trial can not be disturbed, under the express provisions of section 6204 of the Civil Code, and the unbroken precedents of the Supreme Court and of this court.
    Decided April 12, 1918.
    Distraint; from city court of Jefferson—Judge Mahaffey: September 9, 1917.

      Bay & Bay, John B. GamÚe, for plaintiff in error.

      Thomas J. Shackelford, F. G. Shackelford, contra.
   Wade, C. J.

According to the brief of counsel for the plaintiff . in error, “the sole issue for the jury to determine was whether or not plaintiff in error was the tenant of defendant in error.” The direct, positive testimony of the agent of the plaintiff, in the lower court, was that in behalf of his principal he rented the premises to the defendant, and not to her husband, for the year in question, for 2,000 pounds of middling lint cotton, to be delivered at a certain place and on a certain date. He further testified: Mrs. Duncan, the defendant, “delivered 450 pounds of cotton there at the gin, and when the balance of the cotton was not forthcoming I went up to her house to see her. I saw her at her house and reminded her of the fact that the cotton had not come up, and that they were picking probably elsewhere; she promised me that she would get the cotton.out and send it to the gin. She never made any complaint then nor throughout the entire year that she was not renting the place. . . As far as Mr. Duncan renting this place, I did not rent to him. He was about to go into bankruptcy, and I would not have been safe, but as an accommodation or as a matter -of sympathy, I did agree to rent to his wife, and told him so on two or three occasions.” There was testimony from one MeDougal that Mrs. Duncan cultivated the land during the year for which it was sought to recover rent, and “she said she traded with Thomas J. Shackelford [the agent of the plaintiff, who testified he had rented the land to her]. I took a noté down there for her to sign, but she did not sign it. She said she traded with Mr. Thos. J. Shackelford, and that was the excuse she gave. I took the note down there for H. N. Shackelford.” The defendant denied this, and testified: that her husband rented the place, and that she knew nothing of the matter until he came home; that she knew the witness McDougal, but that he did not bring any note to her to sign, but brought one for her husband; that she did not rent the land and did not owe the plaintiff anything for rent, and delivered no cotton to pay off rent,- but the bale of cotton paid on the rent was delivered by one of her boys, and her husband helped this boy to load the cotton and sent it to the plaintiff or his agent. She denied also having admitted to T. J. Shackelford, the agent of the plaintiff, that she had rented land from his brother through him. Her husband testified that he himself rented the land in question from the plaintiff, contracting through T. J. Shackelford, in his office at Athens, Georgia, when no one else was present, and agreed to pay as rent four bales of cotton weighing five hundred pounds. He further testified that his wife was at home, sick, at the time this contract was made, and that his son delivered one hale of cotton in part payment of the rent, and that he, his wife, and his children all helped to make the crop.

From the foregoing statement of the evidence it is apparent that there was a decided conflict between the testimony of T. J. Shackelford on the one hand, and the testimony of the defendant and her husband on the other. Even if it be admitted, as contended by counsel for the plaintiff in error, that the evidence of Shackelford that he rented this property to Mrs. Duncan was a mere conclusion on his part that the contract was with her, and therefore this testimony could have, no substantial value when opposed to the direct evidence to the specific effect that the contract was made with Duncan, and not with his wife, according to the testimony of Duncan, and conceding further that Mrs. Duncan was not present in person when the contract was made, it might have been inferred by the jury (if they accepted the testimony for the plaintiff as true) that Shackelford dealt with Duncan as agent for his wife, and through him made the- contract of rental with Mrs. Duncan, which was afterwards expressly ratified by her in the conversation to which Shackelford testified, and was further ratified -by the payment by her of a part of the rent contract. It is not intended here to intimate what was in fact proved, or what inferences the jury should have drawn, but merely to indicate what inferences might legitimately have been drawn from the testimony. Aside from this, however, it does not, from anything in the testimony of Th J. Shackelford, appear that it was a conclusion. He did not' even admit that Mrs. Duncan was not present when the original contract was made, and he testified positively that he did not rent to Duncan, “but did agree to rent to his wife,” and told Duncan so on two or three occasions) and, so far as appears, the witness was testifying as to facts, and not conclusions. It is true Mrs. Duncan and her husband ,both denied the making of any contract with Mr. Shackelford, dr its ratification by payment of rent under the alleged contract by her, and she likewise denied that she ever expressly ratified any rent contract or in any way agreed thereto, and denied the testimony of McDougal to the effect that she admitted to him that she had traded with T. J.

^Shackelford, the agent of the plaintiff, and had assigned this fact alone as a reason for not signing the note which he presented for execution, by its terms made payable to H. N. 'Shackelford. All this, however, but serves to illustrate the fact that the evidence was conflicting on the vital point in the case, and completely demonstrates the impossibility for this court to reverse the judgment of the trial .court in granting a first new trial, unless the unbroken line of precedent's of the Supreme Court and of this court be violated, since it can not reasonably be contended that the evidence, taken as a whole, demanded the verdict.

Judgment affirmed.

•Jenkins and Lulce,'JJ., concur.


text:
    9290.
    Lewis & Matthews v. Sams & Son et al.

    Decided April 12, 1918.
   Wade, C. J.

“Where no motion for new trial is made, the evidence should be embodied in the bill of exceptions, or attached as an exhibit thereto, and properly identified,” or, since the act of 1889 (Civil Code of 1910, § 5529), contained in a brief approved by the trial judge and made a part of the record. “A rule to distribute money having been tried on an agreed statement of facts, and exceptions being taken to the ruling thereon, the embodiment in the record of what purports to be a copy of the agreement, signed by counsel, is not sufficient.” Mann v. Archer, 69 Ga. 767. See also Partridge v. Hollinshead, 105 Ga. 278 (30 S. E. 787); Johnson v. Gleaton, 4 Ga. App. 383 (61 S. E. 493). The errors assigned being such as can not be determined without a consideration of the alleged agreed statement of facts, the judgment must be affirmed. See Silvey V. Brown, 137 Ga. 104 (72 S. E. 907).

Judgment affirmed.

Jenkins and Luke, Jj., concur.

Money rule; from Fayette superior court—Judge Searcy. September. 19, 1917

W. B. Hollingsworth, for plaintiffs in error.

J. W. Culpepper, contra.