author: Wade, 0. J.

text:
    9263.
    FINCHER v. SATTERFIELD.
    1. It appearing from the official entry thereon that the bill of exceptions was not filed in the office of the clerk of the superior court within fifteen days from the date of the trial judge’s certificate thereto, the writ of error must be dismissed.
    2. “The act of a clerk in filing or transmitting a paper does not stand on the same basis as the act of the judge in signing- the certificate to the bill of exceptions, which, with the bill of exceptions, constitutes the writ of error. Generally, upon proper suggestion, made in due time, that the date of filing entered by the clerk upon the bill of exceptions was erroneous, the clerk will be ordered to certify to this court the correct date of filing. But his .certificate can not be traversed, or extrinsic evidence be introduced to combat it.”
    There being no provision of law for traversing the certificate of the clerk (given in response to the order of this court.) as to the correct date when th'e bill of exceptions was filed, statements of counsel attacking the certificate can not be considered.
    Decided April 9, 1918.
    Writ of error; from Cherokee superior court.

      H. B. Moss, for plaintiff in error.

      Howell Broolce, J. Z. Foster, contra.
   Wade, 0. J.

To give this court jurisdiction, it must appear that the bill of exceptions was filed in the office of the clerk of the trial court within fifteen days from the date on which it was certified to by the presiding judge. The certificate in this case is dated .August 7, 1917, and the clerk’s entry shows that the bill of exceptions was filed in this office on August 24,-1917—more than fifteen days thereafter. On its face the writ of error is therefore subject to dismissal. Civil Code, § 6167; Woods v. State, 11 Ga. App. 383 (75 S. E. 491); Foote & Davies Co. v. Evans, 10 Ga. App. 194 (72 S. E. 1098); Nobles v. Smith, 17 Ga. App. 421 (87 S. E. 606); McDaniel v. Columbus Fertilizer Co., 109 Ga. 284 (34 S. E. 598). "Where the judge of the superior court signed a bill of exceptions as of a certain date, after the rendition of the judgment to which exception was taken, there is no provision of law for counsel to suggest that such certificate did not speak the truth in this respect, and for this court to require the judge to make an additional certificate as to the time when and the circumstances under which he signed the original certificate, with a view to determining whether it was signed within due time after the'judgment was rendered, or was filed within the time prescribed by the statute after it was signed.” Cordray v. Savannah Union Station Co., 134 Ga. 865 (68 S. E. 697).

It was held in the case just cited that the act of the clerk in filing a bill of exceptions does not stand on the same basis as the act of the judge in signing the certificate to the bill of exceptions, but that generally, upon proper suggestion made, in due time, the clerk will be ordered to certify to this court the correct date of filing. "But his certificate cannot be traversed, or extrinsic evidence be introduced to combat it.” In this ease it was properly suggested, in due time, that the date of filing appearing upon the bill of exceptions was erroneous, and this court passed an order requiring the clerk to certify the truth in this regard. In response to the order, the clerk made the following certification:

"In response to your honorable order of the 25th inst., regarding the date oí filing in the above-stated ease, beg to explain to the court the following facts: First, that during the month of August the draft act engaged my full time. Under pressure of the War Department we worked until late at night, often putting in as much as fifteen hours per day on this draft, thus necessitating inexperienced help in the clerk’s office. Second, that the said bill of exceptions in the above-stated ease was mailed into my office /from Marietta, Ga., and the clerk of this court does not know positively what the true date of its arrival was, but upon order from Judge N. A. Morris, of B. B. 0., to file it at its true date, undertook to do so from the postmarks on the envelope in which' it was mailed to said clerk, and to the best of my knowledge and belief the marks as indicated on said envelope was “Aug. 24th, 1917/ and the bill of exceptions was so filed.’ Third, there is no desire on the part of the clerk of said court to insist that this is an infallible entry, having no personal desire'to work hardship on any of the parties, and state that the date of filing was determined from the postmarks as I read them, and not from a personal knowledge as to the exact date the papers were received in this office. Bespectfully submitted. [Signed] J. W. Chamlee, Clerk Sup. Court Cherokee Co., Ga.

"Sworn to and subscribed before me the 26th day ,of March, 1918. [Signed] James V. Keith, J. P.”

It is apparent from an examination of this certificate, filed in pursuance of the order of this court, that the effect thereof is to verify the original filing. Certainly the certificate of the clerk does not establish the contention that the original date of filing was erroneous. There being, as stated in the headnote, no provision of law authorizing a traverse of the certificate made by the clerk in response to the order of this court, and no provision for the reception of extrinsic evidence by this 'court to combat the certificate as made, the statements of fact therein must be accepted and acted upon by this court as true and correct. Since, therefore, it appears that the bill of exceptions was not filed with the clerk of the superior court within fifteen days from the date of the certificate thereto by the presiding judge, the writ of error must necessarily be dismissed, as one of the essentials requisite to give this court jurisdiction is entirely lacking. It is almost unnecessary to say that in the light of the distinct ruling of the Supreme Court, quoted.'above, statements in the brief of counsel attacking or drawing into question the certificate of the clerk cannot be considered. This court is powerless even to consider the merits of the case, since it is absolutely devoid of jurisdiction, under the circumstances detailed above, as it would have been liad no bill of exceptions whatever been signed by the trial judge.

Writ of error dismissed.

Jeñlcins and Luke, JJconcur.


source: Caselaw Access Project

author: Bloodworth, J.

license: Public Domain

text:
    8243.
    Morris v. Southern Railway Company.
   Bloodworth, J.

In this case this court held that the trial court erred in sustaining the demurrer to the petition. Morris v. Southern Railway Co., 19 Ga. App. 495 (91 S. E. 878). By certiorari the case was carried to the Supreme Court, and the following deeisioxx was rendered:

“1. A common-law action against the last of several connecting carriers, to recover for injury or damage to a shipment of freight in the course of ixxterstate transportation, where the injury or damage complaixxed of was caused by the negligence of the last connecting carrier, is not prohibited by the terms of the act of Congress of June 29, 1906 (34 Stat. 595, c. 3591, sec. 7, pars. 11, 12), known as the Carmack amendment to the Hepburn act of February 4, 1887 (24 Stat. 386, c. 104, sec. 20 [U. S. Comp. St. 1916, §§ 8604a, 8604aa]). Under this amendment the lawfxxl holder of the bill of lading issued by the initial carrier for - freight to be tx-ansported in interstate commerce may maintain his eomnxon-law action against any one of several connectixxg carriers for loss or injury on its owxx line. Cincinnati &c. Ry. Co. v. Rankin, 241 U. S; 319 (36 Sup. Ct. 555, 60 L. ed. 1022, L. R. A. 1917A, 265).

“2. In a suit for damages agaixxst a carrier other than the initial carrier it must be alleged that the injury to the shipment of freight was caused by the negligence of the defendant to the action. Cincinnati etc. Ry. Co. v. Quincey & Rogers, 19 Ga. App. 167 (91 S. E. 220).

“3. The statute of this State (Civil Code, § 2752), which authorizes suits against the last connecting carrier receiving the goods ‘as ixx good order/ was superseded by the Cai'mack amendment to the Hepburn act, supra, in so far as the State statute applies to interstate shipments and is ixx conflict with the Federal act. Central of Georgia Railway Co. v. Yesbik, 146 Ga. 709 (2) (92 S. E. 527); Atchison &c. Ry. Co. v. Harold, 241 U. S. 371, 378 (36 Sup. Ct. 665, 60 L. ed. 1050). The proviso of the Federal statute, ‘That nothing, in this section [interstate-commerce act, § 20a] shall depxdve any holder of such receipt or bill of lading of any remedy or right of aetioxx which he has under existing law/ preserved only existing rights and remedies under the Federal law and common law, not ixxeonsistent with the rules and regulations prescribed by the act. Adams Express Co. v. Croninger, 226 U. S. 491 (33 Sup. Ct. 148, 57 L. ed. 314, 44 L. R. A. (N. S.) 257).

Decided April 9, 1918.

Action for damages; from FultOn superior court—Judge Bell. October 7, 1915.

W. W. Gaines, Reynolds & Whitman, for plaintiff.

McDaniel & Blaclc, Edgar A. Needy, for defendant.

“4. In Ms petition brought against the last of several connecting carriers, to recover damages for injury to a shipment of freight in the course of interstate transportation, the plaintiff expressly declared upon the State statute (Civil Code, § 2752), and did not set up a cause of action under the Eederal statute in respect to a carrier’s Common-law liability for injury occurring on its owxi line; xxor can the petition be held to state a cause of action for overcharges for the transpoi'tation, the allegation in that regard being merely that the plaintiff paid under protest a sum stilted as freight charges, which was ‘unjust^’ The petition did not allege that the freight paid was in excess of the legal •rate. The action was properly dismissed on demuri-er. The judgment of the Court of Appeáls, reversing the judgment of the trial court on demurrer, must itself be reversed.

“5. It is proper to say this case was decided by the Court of Appeals before the ease of Central of Georgia Railway Co. v. Yesbik, supra, which is controlling on the main question presented by the record.” 147 Ga. 729 (95 S. E. 284).

Under the foregoing rulings the trial court did not err in sustaining the demurrer and dismissing the petition; and the judgment of this court as originally rendered must be vacated, and the judgment of the tidal court Affirmed.

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


author: Bloodwokth, J.

text:
    8984.
    Southern Cotton Oil Company v. Horton.
   Bloodwokth, J.

1. When considered in connection with the pleadings and the evidence, and in the light of the entire chax-ge of the court, no error that would warrant the granting of a new. trial was committed in any of the following excerpts,.from the charge:

(а) “You should first determine the question of .whether or not the defendant is liable in the case. In order for it to be liable in the case ydu would have to find that, it was guilty of negligence in at least one of the ways set out in the petition, and that such negligence caused or contributed to the injury of the plaintiff.” Civil Code (1910), § 4426; Elk Cotton Mills v. Grant, 140 Ga. 727 (4a) (79 S. E. 836, 48 L. R. A. (N. S.) 656); Tift v. Jones, 74 Ga. 470 (6); City of Rome v. Dodd, 58 Ga. 238 (2); Hubbard v. Macon Ry. &. Light Co., 5 Ga. App. 223, 224 (62 S. E. 1018); Rollestone v. Cassirer, 3 Ga. App. 161 (3b) (59 S. E. 442). (Exception was taken to the words “or contributed.”)

(б) “In this ease it is for you to say whether any inspection was made, or could have been made, and whether or not the defendant exercised ordinary care and diligence in seeing to the keeping of its premises in a safe condition.” Civil Code (1910, § 3130; Eagle & Phenix Mills v. Moncrief, 17 Ga. App. 10 (1), 26 (86 S. E. 260); Smith v. City of Rome, 16 Ga. App. 96 (4), 105 (84 S. E. 734); Georgia Railroad v. Hunter, 12 Ga. App. 295 (7), 300, 302, 304 (77 S. E. 176); Southern Bell Telephone Co. v. Shamos, 12 Ga. App. 464 (5) (77 S. E. 312); Cochrell v. Langley Mfg. Co., 5 Ga. App. 317 (3), 321, 324 (63 S. E. 244); Hubbard v. Macon Ry. & Light Co., supra; Southern States Portland Cement Co. v. Helms, 2 Ga. App. 308 (58 S. E. 524); Betts Co. v. Hancock, 139 Ga. 198 (4), 205 (77 S. E. 77); Town of Belton v. Vinton, 73 Ga. 99.

Decided April 9, 1918.

Action for damages; from city court of Polk county—Judge John K. Davis. June 8, 1917’.

W. W. Mundby, for plaintiff in error. Irwin & Tison> contra.

(c) “A servant can rely upon the performance of the duty of furnishing a safe place in which to work. Danger arising from an unsafe place is not included within the risks assumed by the servant.” Southern Cotton Oil Co. v. Gladman, 1 Ga. App. 259 (2) (58 S. E. 249); King Mfg. Co. v. Walton, 1 Ga. App. 403 (3, 4) (58 S. E. 115).

(d) “If there are latent defects in the construction of the place of work which [are], or in the exercise of ordinary care could be, known to the master, and which are unknown to the servant, it is the duty of the master to warn the servant thereof.” Civil Code (1910), § 3130; Holland v. McRae Oil & Fertilizer Co., 134 Ga. 679 (8) (68 S. E. 555); Hubbard v. Macon Ry. & Light Co., Cochrell v. Langley Mfg. Co., supra.

(e) “If he was injured on account of defendant’s fault or negligence, he can recover. If both the plaintiff and defendant were at fault, and the plaintiff could not.have avoided the consequences to himself of the defendant’s negligence by the exercise of. ordinary care, the. plaintiff may recover1, but the damages shall be diminished by the jury in proportion to the amount of default attributable to him.” Hill v. Callahan, 82 Ga. 109 (8 S. E. 730); Southern Cotton Oil Co. v. Skipper, 125 Ga. 370 (12) (54 S. E. 110); Hilton & Dodge Lumber Co. v. Ingram, 135 Ga. 696 (70 S. E. 234). See also Western & Atlantic R. Co. v. Davis, 139 Ga. 493 (2) (77 S. E. 576); Central of Georgia Ry. Co. v. Brown, 138 Ga. 107 (3, 5), 111-113 (74 S. E. 839); Wrightsville & Tennille Railroad v. Gornto, 129 Ga. 204 (8) (58 S. E. 769); Americus, Preston & Lumpkin Ry. Co. v. Luckie, 87 Ga. 6, 8 (13 S. E. 105).

2. There is evidence to support the verdict, the presiding judge refused to set it aside, and so will this court.

Judgment affirmed.

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


author: Broyles, P. J. Harwell, J.,

text:
    9184.
    BANK OF DALTON v. HEARTSILL.
    It was not error, under the facts, to sustain a demurrer to the motion of the plaintiff to enter judgment, and to dismiss that motion.
    Decided April 9, 1918.

      Complaint; from Whitfield superior court—Judge Wright, presiding. August 2, 1917.

      C. D. McCutchen, F. K. McCutchen, for plaintiff.

      W. E. Mann, W. C. Martin, for defendant.
   Broyles, P. J.

1. At the April term, 1915, of the superior court of Whitfield county, a joint suit on an unconditional contract in-writing was brought against five defendants. Four of the defendants filed sworn defenses to the suit. The other defendant, B. L. Heartsill, filed no plea. Upon the trial a general verdict in favor of the ‘'defendants” was-rendered. Judgment was entered, however, in favor only of the four defendants who had filed pleas. No judgment in favor of or against Heartsill was entered. No motion was made to ’have the verdict corrected or construed, so that it would read in favor of the four defendants who had filed pleas, and against Heartsill, who had failed to do so. Instead of this a motion for a new trial was made by the plaintiff as to all of the five defendants; it was overruled, and the plaintiff excepted, naming in the bill of exceptions-all-five defendants as defendants therein, but the bill of exceptions was not served upon Heartsill, nor was service acknowledged by him or for him by another duly authorized; and the plaintiff in error failing to establish, to the satisfaction of this court, its contention that Heart-sill was not a necessary party to the bill of exceptions, the writ of error was dismissed. Bank of Dalton v. Clark, 19 Ga. App. 729 (92 S. E. 40). Thereafter, at a subsequent term of the lower court to that at which the trial was had, but before the remittitur from this court had been made the judgment of that court, or recorded upon ,its minutes, the plaintiff bank filed a written motion in the trial court to set aside the verdict in so far as any adjudication of plaintiff’s rights against Heartsill was concerned, and to allow the plaintiff to enter up judgment in its favor against Heartsill. A rule nisi was issued, and upon the hearing thereof the court sustained a demurrer to the motion and dismissed the motion; and the plaintiff excepted.

Under the facts stated above, and under the decisions of this court in Bank of Dalton v. Clark, supra, and in Pittsburg Plate Glass Co. v. Maril, 21 Ga. App. 682 (94 S. E. 903), the court did not err in dismissing the motion. This ruling being controlling, it is unnecessary to consider the other assignments of error.

Judgment affirmed.

Bloodworih and Harwell, JJ., concur.

Harwell, J.,

concurring specially. Inasmuch, as Ileartsill filed no plea, the writer would hold, as an original proposition, that the verdict, “We, 'the jury, find in favor of the defendants,” under the pleadings and the issues submitted by the charge of the court, was a verdict in favor of the four defendants only who filed pleas, and should not be construed as a verdict for Ileartsill, who filed no plea, and that the plaintiff would be entitled on motion to have judgment entered nunc pro tunó in its favor against Ileartsill. But the plaintiff seems to be concluded on this question by the judgment of this court when this case was here before. Bank of Dalton v. Clark, 19 Ga. App. 729 (92 S. E. 40). In holding that Ileartsill was a necessary party defendant and that he should have been served with the bill of exceptions, this court necessarily held, it seems to the writer, that the verdict was one in favor of Heart-sill. In fact this court said'in the opinion: “While Ileartsill has no judgment (based on that verdict) in his favor, he has nevertheless the verdict itself. As one of the five defendants he has an undivided fifth interest in the verdict and in upholding it, and as long as that verdict stands he is protected from any further attack on the part of the plaintiff in error.” That being the case, the motion of the plaintiff to enter up judgment nunc pro tunc in its favor against Ileartsill and to set aside the verdict was properly dismissed by the court.


author: Harwell,’J.

text:
    9303.
    BANKERS HEALTH AND LIFE INSURANCE COMPANY v. AUGUST.
    1. Under the terms of the insurance contract in the instant case, no suit could be brought on the policy after six months from the time the right of action accrued. To complete the right of action it was necessary that satisfactory proofs of the death of the insured be made by the beneficiary to the insurance company or its authorized agent. These satisfactory proofs were made when the affidavits wore submitted on or about November 1, 1916, to the agent of the insurance company, showing that the person who died on February 14, 1916, was Clifford August, the insured. Jadkson v. Southern Mutual Life Ins. Go., 36 Ga. 429, 431; Graham v. Niagara Fire Ins. Go., 106 Ga. 840 (32 S. E. 579) ; Voorheis ®. Peoples Mutual Benefit Society, 91 Mich. 469 (2) (51 N. W. 1109); Stinchcombe ®. New York Life Ins. Co., 40 Or. 316 (4) -(80 Eac. 213); Wilkinson v. Jolin Hancock Mutual Life Ins. Co., 27 R. I. 146 (61 Atl. 43, 8 Ann. Cas. 1063); 4 Joyce on Ins. § 3186; 4 Cooley’s Briefs on Insurance, 3973,
    2. The ruling herein made disposes of the question presented by the de- ■ murrers to the petition, which were properly overruled by the judge of the municipal court.
    3. The suit having been filed within six months after the right of action accrued, the judge did hot err in overruling the certiorari.
    Decided April 9, 1918.
    Certiorari; from Fulton superior court—Judge Bell. October 10, 1917.

      A. M. Brand, for plaintiff in error. J. Mallory Hunt, contra.
   Harwell,’J.

On October 35, 1915, Clifford August took out an insurance policy with the Bankers Health and Life Insurance Company, which provided for a death benefit of' $50, and in which his mother, Hattie August, was named as beneficiary. On February 14, 1916, one who went by the name of Jim Hunter died at the Grady Hospital, in Atlanta. On February 15, 1916, the death certificate was signed by Dr. L. G. Baggett, giving the name as Jim Hunter; and on the same date David Howard presented the death certificate to P. C. Carnes, the secretary and officer in charge of the insurance company. On February 16, 1916, Hattie August, the beneficiary under the policy, went to the office of Carnes, and stated to him that the deceased person who was named in the death certificate as Jim Hunter was in reality her son Clifford August, whose life was insured in said company at the time of his death. Ho proofs by affidavit or otherwise were presented at this time, identifying the deceased Hunter as Clifford August the insured. Carnes Tefused. to pay her anything upon the policy. ■On or about November 1, 1916, J. M. Hunt, attorney for Hattie August, presented to P. C. Carnes, secretary and officer in charge of said company, this death certificate, together with affidavits showing that Clifford August was also known as Jim Hunter, and that the deceased person named in the death certificate as Jim Hunter was in reality Clifford August. The insurance company again refused to pay the claim.

The policy provides, among other things, that the company shall pay “the amount of the death benefit stipulated in the schedule herein contained, within 34 hours after the acceptance at the home office of satisfactory proofs of the death of the insured during the continuance of this contract;” that “No suit shall be brought or action commenced against the company, under this policy, within thirty days from date the claim submitted was due, nor after six months from the time right of action accrued;” that “Claim for .death benefit must be accompanied by the surrender of the policy and premium-receipt book of the insured, and satisfactory proofs of death of the insured;” and that “No claim shall be considered or approved or paid that is not presented in accordance with the terms of this policy.”

There is no issue as-to the facts that Clifford August had a policy with the insurance company on February 14, 1916, that all premiums due were paid, and that Iiattie August was the beneficiary under the policy.. The real issue is whether or not more than six months had elapsed after the right of action accrued, before suit was brought; or, in other words, just when did the right of action in this case accrue.

The case was tried on April 10, 1917, before Hon. J. B. Ridley, judge of the municipal court of Atlanta, and judgment was rendered for the plaintiff, Hattie August, for the full amount sued for. The defendant sued out a writ of certiorari. The judge of the superior court passed an order overruling the certiorari and rendering judgment against the defendant and in favor of the plaintiff for the sum of $50, with interest at seven per cent, from December 1, 1916. To this order the insurance company excepted.

The headnotes require no elaboration.

Judgment affirmed.

Broyles, J., concurs. Bloodworth, J., disqualified.


author: Harwell, J.

text:
    9307.
    LOVE et al. v. REDWINE.
    1. The maker of the note set up no defense and showed no reason why, for his protection or ,to let in any defense, he should be permitted to inquire into the title to the note, and the court did not err in directing a verdict as to him.
    2. As to the indorser (payqe) : the testimony tended to show that the note was transferred by him to the plaintiff’s husband, and that if the plaintiff ever became the holder of the note at all, it was after maturity. The testimony tended also to sustain the plea of failure of consideration, filed by the indorser. The issues thus raised should have been submitted to a jury, and the court erred in directing a verdict as to the indorser.
    Decided April 9, 1918.

      Complaint; from Douglas superior court—Judge Bartlett. July 30, 1917. ' .
    E. L. Bedwine brought suit against Peter Love and T. J. Blair on a promissory note, alleging that Love gave the note to Blair, and .that Blair assigned and transferred it to the plaintiff,.and that the plaintiff was the holder and owner of the note. The defendants filed a plea, admitting the execution of the note, but denying that the plaintiff was the owner, and alleging that it was indorsed by Blair to TV. H. Bedwine in consideration of the transfer to Blair by TV. II. Bedwine of certain shares of the Tennessee Oil Company stock, which TV. II. Bedwine was to turn over to him; that TV. H. Bedwine represented that the Tennessee Oil Company was perfectly solvent, and he (Blair) could make a large amount of money by buying the stock; and, upon thes'e representations, which he believed, he delivered this note to Bedwine; that the representations were false and fraudulent, and the stock was never delivered tó him, and he received no consideration for the transfer of the note, and that the title to the note remained in him, and he asked that the court so decree.- It was further alleged that if he transferred this note to E. L. Bedwine, he (Blair) did not know it, and that all the' transactions he had about the note were made with TV. H. Bedwine, and that if TV. H. Bedwine was not acting 'for himself; he was acting as the agent of E. L. Bedwine, and made the statements as her agent.
    The trial judge directed a verdict for the plaintiff, and the defendants excepted.

      J. S. James, TV. A. James,, for plaintiffs in error.

      J. B. Hutcheson, contra.
   Harwell, J.

(After stating the foregoing facts.) The maker of’the note, Love, sets up no defense against the note, which recites that it is given by Love to Blair as part purchase-price for forty acres of land. The plea, so far as Love is concerned, shows no reason why he should inquire into the title of the holder, Bedwine, for his protection or to 'let in any defense which he -seeks to make. "The title of the holder of a note can not be inquired into, unless it is necessary for the protection of the defendant, or to let.in the defense which he seeks to make.” Civil Code (1910), § 4290. Tyson v. Bray, 117 Ga. 689 (45 S. E. 74); Miles v. Bank of Harlem, 139 G.a. 498 (77 S. E. 579); Bomar v. Equitable Mortgage Go., 111 Ga. 143 (36 S. E. 601); Johnson v. Cobb, 100 Ga. 139 (38 S. E. 72). See also 8 Corpus Juris, 799, 800, §§ 1057, 1058; 1 Dan. Neg. Inst. § 174 (a).

Blair, the payee and indorser, by liis plea does, as to any recovery against him, set up a good defense. He claims that W. H. Bedwine, the husband of the plaintiff, is the real holder of the note, and that if the plaintiff ever became the holder of the note at all, it was after maturity. He further claims that the consideration of the transfer of the note by him to W. H. Bedwine was the purchase of certain shares of oil-company stock which has Rever been delivered to him. The testimony of Blair tended to sustain his contentions, and the court therefore erred in directing a verdict against him. That portion of Blair’s plea which sets up that the title to the note is in him, and asks a decree of the court to that effect, it is not necessary to consider. It is not improper to suggest, however, that if his contentions are correct, he should have some means of preventing the payment of the proceeds of this note over to the plaintiff. •

In accordance with the foregoing, ruling, the judgment is affirmed as to the defendant Love, and reversed as to the defendant Blair.

Broyles, P. J., and Bloodworlh, J., concur.


author: Brotles, P. J.

text:
    9308.
    HOLLAND et al. v. JOHNSON.
    It was error to direct a verdict for the plaintiff in an action of trover for a mule, where from the evidence it appeared that he based his claim on his purchase of the mule from the defendants under a duly recorded contract with reservation of title in the vendors until payment of the purchase-price, which became due one day after the date of the contract and was never or only to a small extent paid; that he soon voluntarily left his home and family, without explanation, and without knowledge on their part or on the part of the vendors as to his whereabouts, leaving the mule without provision for its care, and that his wife, being unable to care for or feed it, took it to a third , person, with whom she left it, and this person, having nothing to feed it with, allowed the vendors to take possession of it. Under these \ facts, the plaintiff having virtually abandoned the mule and left it to starve, and the defendants having lawfully obtained possession of it, the right of possession, as well as the legal title, was in the defendants.
    Decided April 9, 1918.

      . Trover; .from Chattooga superior court—Judge Wright. Sep-^ tember 13, 1917.

      J. M. BeTlah, for plaintiffs in error.
   Brotles, P. J.

George Johnson brought a suit in trover against B. L. Holland and Gilbert S. Holland, to recover a mule. • The undisputed evidence was as follows; The mule had been sold to the plaintiff by the defendants under a duly recorded contract in which title to the mule was reserved in the vendors until full payment of the purchase-money. The contract was executed on January 2, 1915, and the purchase-price was to be paid one day after date. At. the time of the bringing of .the suit, August 5, 1916, only a small portion, if any, of the purchase-price had been paid. Johnson lived on the land of the vendors, and, shortly after executing the conditional contract of sale and obtaining possession of the mule, he voluntarily left his home, without any explanation to his wife and • children, and remained away for several months, his whereabouts being unknown to his family or to the vendors, The inescapable conclusion from the undisputed facts in the evidence for the plaintiff is that he went away to escape arrest under an indictment for selling whisky, leaving his wife unable to care for or to- feed the mule. His wife, having nothing with which to feed the mule, carried it'to a third person and left it in his possession. This third person, who also lived on the vendors’ place, kept the mule for several weeks, when, as he testified, having no .use for it and nothing to feed it with, he allowed the vendors to take possession of it.

■ Under these undisputed facts we think that the plaintiff had virtually abandoned the mule and left it to starve, and that the defendants lawfully obtained possession of it; and as the right of possession, as well as the legal title, was in them, the plaintiff could not maintain his action in trover. This ruling is not in opposition to the- well-settled principle of law that when a vendee is entitled to the possession of a chattel he may maintain a suit in trover for its conversion against the vendor, even though, under .the terms of the conditional sale, the legal title to the chattel is reserved in the vendor. The distinction is that in the instant case the vendee was not entitled to the possession of the property sued for. In our' opinion the court erred in directing a verdict for the plaintiff.

Judgment reversed.

Bloodwortli and Harwell, JJ., concur.


author: Bboxles, P. J. “ Harwell, J.,

text:
    9319.
    REYNOLDS et al. v. CITIZENS BANK OF MOULTRIE, GA.
   Bboxles, P. J.

1. Counsel for the plaintiff hank having stated in their brief1 in this court that they admitted on the trial that the plaintiff bank was not a bona fide purchaser, without notice, before maturity, of the note sued upon, it will not be considered as an innocent purchaser of the note.

2. Before a.transaction can be held to be within an exception to a general rule or principle of law, its right to be so considered should • eleárly appear. A general rule of law is that parol evidence is inadmissible to add to, take from, or vary a written contract. Civil Code (1910), § 4268. There are various apparent exceptions to or modifications of this rule. Such an exception is discussed in Hansford v. Freeman, 99 Ga. 376 (27 S. E. 706). That case is in many respects similar to the instant one. It was there held,'in the first headnote, that “Where a promissory note was signed and delivered by the maker to the payee’s agent, upon an express understanding and agreement that the latter was not to deliver the note to his principal except upon the happening of a certain event, but was to hold the note ‘for both parties’ until it could be ascertained whether or not this event would happen, and where in fact it did not happen at all, and the agent, in violation of the understanding and agreement above mentioned, delivered the note to his principal, sjuch delivery was not effective or binding upon the maker. . Under these circumstances, the agent was, as to the matter of delivery, the mutual agent of both the other parties.” It Will be noted from this headnote, and from the opinion (p. 380), that the material holding there was that par.ol evidence was admissible, under the facts of that case, to disprove the fact of the delivery of the note sued upon. In the instant case paragraph “B” of the defendant’s answer did not allege that the note sued upon and the contract of indorsement thereon were not actually delivered by the agent of the payee to the payee, or that such agent received-the note with the understanding that he was to hold it and not to deliver it to his principal until he had obtained the indorsement of another person upon the note. The ruling in the Hansford' c.ase will riot be extended to cover the facts of this ease. The court did not err in striking this paragraph of the answer.

j3. The contract of indorsement showed upon its face, from a fair inference, that it was executed for the express purpose of extending the time of payment of the original note so indorsed; and, although the payee may not have been bound to so extend the time of payment '(he not having signed the agreement), yet since the record and a fair inference therefrom discloses that as a matter of fact he did so extend the time of payment (suit upon the note not being brought until after the lapse of the extended time of paym'ent), there was a consideration which actually flowed to the original maker of the note by reason of such indorsement. It was immaterial that the indorsers themselves received no benefit. It follows that the court did not err in striking paragraphs “C” and “D” of the answer.

Decided April 9, 1918.

Complaint; from Colquitt superior court—Judge Thomas. ' October 2, 1917.

W. 0. Mather, Shipp & Kline, for plaintiffs in error.

Parker & Gibson, contra.

4. The court did not err in striking the entire answer of the defendants, or in thereafter directing a verdict in favor of the plaintiff.

■Judgment affirmed.

Bloodioorth, J., concurs.

“ Harwell, J.,

dissenting. Paragraphs “C” and “D” of the plea of the defendants Reynolds and Booker, the indorsers, set up the following as a defense: “There was no consideration for these defendants signing said note, these defendants receiving no consideration for so signing said note, the signing of said note by these deféndants being a nude pact. These defendants further say there was no consideration flowing to the original makers of said note, by reason of these defendants signing said note, and there was nothing done by said Battle or plaintiff by reason of these .defendants signing said note that extended the time of payment of said note, or withheld said plaintiff or Battle from taking any legal action thereon.” The indorsement on the note given by Ott to one Battle for the principal sum of $137.50, due October 15, 1916, was as follows: “We, the undersigned, hereby indorse and guarantee the payment of the within note and title as follows: $68.75 on Nov. 1st, 1916, and.balance on Jan. 15, 1917. This August 5th, 1916. [Signed] J. M. Reynolds. W. R. Booker.” In the opinion of the writer, this portion of the plea set up a good defense, and the court erred in striking it. It is true that an extension of the time by the payee or holder to the maker of the note would be a sufficient consideration for the accommodation indorsement by Reynolds and Booker, but whether this was done or not is a question .of fact to be passed on by the jury.

Moreover it appears that the attachment was sued out and the declaration filed for the full amount of the note, prior to the time the balance on the note was payable by the indorsers, which was January 15, 1917. This seems to negative the fact that the payee or holder ever agreed to an extension. The writer is therefore of the opinion that the court erred in striking the portion of the plea above referred to, and in directing a verdict for the plaintiff.


author: - Luke, J.

text:
    8934.
    SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY v. FREEMAN.
    1. Where a bill of exceptions is not tendered to the judge until after the time prescribed by law for tendering it for certification, he is without jurisdiction to certify to it; and a bill oí exceptions dismissed by the reviewing court because not tendered in the prescribed time is to be treated as void ab initio. In such case the judge’s certificate could not operate to arrest the running of the time in which, under the statute of limitations (Civil Code of 1910, § 4381), an action'may be renewed after nonsuit or dismissal. .
    2. The Supreme Court having dismissed, on the ground that it was not tendered in the time prescribed by law, the bill of exceptions by which it was sought to review a judgment of nonsuit as to an action renewed in the case now under consideration (Grant v. Southern Bell Telephone &e. Go., 145 Ga. 298, '89 S. E. 364), that bill of exceptions did-not arrest the operation of the statute of limitations; and, it appearing from the plaintiff’s petition that the second suit was brought more than six months after the judgment of nonsuit was rendered, and more than two years after the personal injury for which the plaintiff was suing, the court erred in overruling the defendant’s demurrer, in which the bar of the statute of limitations was set up.
    Decided April 10, 1918.
    Action for damages; from Cobb superior court—Judge Morris. June 4, 1917.

      Sanders McDaniel, Brutus J. Clay, E. H. Clay, Fred. Morris, for plaintiff in error.
    . ’ II. B. Moss, G. F. Gober, Joe Abbott, contra.
   - Luke, J.

If, as appears from the decision of the Supreme Court, the bill of exceptions in the former case between the parties to this case was not tendered in the time prescribed by law, the trial judge was without jurisdiction to grant a writ of error thereon. “To sign and certify a bill of exceptions tendered after” the prescribed time “has expired the trial judge has . . no more power than any private person.” Hamilton v. Georgia Pacific Railway Co., 85 Ga. 645 (11 S. E. 1029). And an act so clearly a nullity could not constitute a “bona fide writ of error” or have sufficient legal efficacy to arrest the operation of the statute of -limitations. If a tender delayed until after the expiration of the prescribed time could so operate, the time might be extended indefinitely. Why should a party not complying with the law in this respect be enabled'thereby to extend the time during which-the opposite party would be subject to suit ? As to petitions for the writ of certiorari “It is settled that if the first petition- . . be void for any reason, no renewal can be had under the statute.” Citizens Banking Co. V. Paris, 119 Ga. 518 (46 S. E. 638), and citations. And even though such a petition be valid, and there is issued thereon a writ of certiorari upon an order of sanction originally valid, it is held that in case of failure to give due notice of sanction, the proceeding is void ab initio, and the petitioner is not entitled to renew it. Brackett v. Sebastian, 18 Ga. App. 525 (2) (89 S. E. 1102). See also Tuten v. Showalter, 14 Ga. App. 690 (82 S. E. 154). There is no reason for holding that, as a means for arresting the statute of limitations, there is any greater efficacy in a certified bill of exceptions- not tendered in the time prescribed by law than in the certiorari held invalid in any of the cases cited. Bills of exceptions dismissed by the Supreme Court have been held sufficient to arrest the operation of the statute of limitations, where the dismissal was on the ground that the case was not properly presented in the bill of exceptions, or that the reviewing court was without jurisdiction to consider the particular question or kind^ of question presented (see Roach v. Sulter, 54 Ga. 458; s. c. 51 Ga. 170; Winn v. State, 126 Ga. 419, 55 S. E. 178; s. c. 124 Ga. 811, 53 S. E. 318), but such cases are very different from a case in which jurisdiction to grant a writ of error had passed out of the trial judge by expiration of the period to which suqh jurisdiction was limited by law.

The court erred in overruling .the defendant’s demurrer, in which the bar of the statute of limitations was set up.

Judgment reversed.

Wade, C. J., and Jenlcins, J., concur.


author: Jenkins, J.

text:
    9068.
    International Filter Co. v. LaGrange Ice & Fuel Co.
   Jenkins, J.

1. Where, under a contract of sale or return, it is provided that “this filter and unused disks are to be returned for credit in good condition to the International Filter Co., at Chicago, within thirty-five, days froni this date, if directions for use are followed and the results obtained are not satisfactory,” the return must be made within the time thus expressly limited, and the question of reasonable time doe's not enter. Newburger v. Hoyt, 86 Ga. 508, 514 (12 S. E. 925).

2. A mere notice by the purchaser, given prior to the expiration' of the time limit, that the machine had proved unsatisfactory, and that unless better results could be had it would be returned, can not be taken as a compliance with the terms of the contract. Dickey v. Winston Cigarette Machine Co., 117 Ca. 131 (43 S. E. 493); Malsby v. Young, 104 Ga. 205 (30 S. E. 854).

Decided April 10, 1918.

Complaint; from city court of LaGrange—Judge Harwell. July 12, 1917.

B. II: Ilill, Moon &. Davis, for plaintiff.

M. U. Mooty, for defendant.

3. It appearing that a period of forty-two days had elapsed between the date of the contract and the date when the machinery was returned,, and there being nothing in- the record as presented to us to indicate, expressly or. by implication, that the limitation imposed by the, contract had been in any way extended, upon its expiration the rights of the parties became fixed.

Judgment reversed.

Wade, C. J., and Duke, J., concur.


text:
    9091.
    Morgan Hardware Co. v. American Carriage Co.
   Jenkins, J.

This was a suit on a contract for the purchase-price' of a surrey, where the original right of action had become barred, and the plaintiff relied upon letters written by the defendant after the purchase, as constituting new promises to pay, such as would prevent a bar, under the statute, to the original action. Each of the letters thus relied on proposed payment only upon the express condition that credit should'first be given to the defendant for the value of the top belonging to the surrey, which top had been previously returned. It appears, from the evidence, that the terms of settlement thus proposed had never been accepted by the seller; that no adjustment of the amount of the credit thus claimed in general terms by the defendant had ever been effected. The suit as filed was for the full amount of the purchase, including the top, less a stated sum which plaintiff had previously, during the course of the controversy, offered to deduct, not as representing the value of the top, but solely by way of compromise, and which offer the defendant' had refused to accept. The defendant demurred to the petition as amended, on the ground that it showed the cause of action was barred. This demurrer was overruled. Pleas were also filled, sotting up a bar by the statute, and total failure of consideration. The jury found in favor of the plaintiff for a nortion of the amount sued for, and the defendant made a motion for a new trial, which wás refused, and the movant excepted. Held: Where a new . promise, accompanied by a condition, is relied upon as fixing a subsequent date from which the period of limitation or a right of action shall commence to run, the promise becomes effectual only upon acceptance and compliance with the condition accompanying it. Bulloch v. Smith, 15 Ga. 395 (4); 25 Cyc. 1347. The plaintiff never' having aecepted the offer as contained in the letters of defendant, but having declined to comply with the condition thereby imposed, it can not rely upon such a proposal as an absolute promise to pay; nor could a general admission of an indebtedness, unsettled in' amount, be relied upon as constituting a new promise to pay a particular demand, since, in order for such a promise to avail, it must be> for a sum which is itself definite, or one capable of being reduced to a certainty, and can not be dependent on the subsequent agreement of parties or the finding of a jury upon such an issue. 25 Cyc. 1331.

Decided April 10, 1918.

Complaint; fr.om city court of Polk county—Judge John K. Davis. July 3, 1917.

F. A. Irwin, Mundy '& Mundy, for plaintiff in error.

Fielder & Fielder, contra.

Judgment reversed.

Wade, O. J., and Luke, J., concur.


author: Luke, J.

text:
    9092.
    Rome Railway and Light Company v. Jones.
    Decided April 10, 1918.
    Appeal; from Floyd superior court—Judge Wright. May 31, 1917.
    • L-. II. Covington, Dean & Dean¡ for plaintiff in error.

      Maddox & Doyal, contra.
   Luke, J.

This case is here upon the first grant of a new trial. The evidence did not demand the verdict; and it was not error for the court to overrule the motion to dismiss the motion for a new trial, nor was it error to grant, a new trial.

Judgment affirmed.

-Wade, O. J., and Jenkins, J., concur.


text:
    9125.
    Rogers v. Jackson.
    Decided April 10, 1918.
    Action upon contract; from Barrow superior court—Judge Cobb. July 13, 1917.
    P. Cooley, Lewis C. Russell, for plaintiff in error.

      G. A. Johns, contra.
   Luke, J.

This case is here upon the first.grant of a new trial. The evidence did not demand the verdict, and it was not error for the court to grant the motion for a new trial upon the' grounds stated.

Judgment affirmed.

Wade, O. J., and Jenkins, J., concur.


text:
    9129.
    Parrish v. Adams, executor.
    Decided April 10, 1918.
    Certiorari; from Bibb superior court—Judge Mathews. 'July 27, 1917. .

      Robert L. Berner, for plaintiff in error.

      Hardeman, Jones, Parle & Johnston, Harry 8. Strozier, contra.
   Luke, J.

1. Where there is an acknowledgment of service of a bill of

exceptions as provided by law, the bill of exceptions may be amended in the reviewing court by adding, as a party defendant iu error to the cause, any person bound by such service, although he may not have been named in the bill of exceptions. Park’s Ann. Code, § 6164 (b); Toole v. Geer, 12 Ga. App. 409 (77 S. E. 368). Accordingly, in the ease under consideration, the plaintiff in error is allowed to amend the bill of exceptions by inserting, after" the words C. B. Adams, the words “executor of Jas. E. Laidler, deceased,” so that the bill of exceptions may conform to the record in the court below.

2. Under the act of 1913 (Ga. L. 1913, p. 91), the legatee under a will is liable for tlie inheritance tax imposed by that act, and the executor of the will may recover of the legatee such sum as may be by law due by him, upon the refusal of the legatee to pay the same. 1 Park’s Ann. Code, § 1041 (e, f).

3. A party compelled by operation of law to pay a debt which in equity and good faith another party should have kept him from paying may recover from the other party the amount paid. Ticonic Bank v. Smiley, 27 Mo. 225 (46 Am. D. 593).

4. The court did not err in overruling the certiorari.

Judgment affirmed.

Wade, O. J., and Jenhins, J., eoneur.


author: Wade, C. J.

text:
    9137.
    LEXINGTON PRESBYTERIAN CHURCH v. REID et al.

    The suit was based upon a contract under the terms of which the defendants agreed to purchase from the plaintiff certain stock in an insurance company, at.a specified price, in case of removal of the corporate domicile of the company from its then location to another county. The evidence did not show that any amendment to the charter of the corporation was ever obtained authorizing the removal of its principal office as stipulated in the contract; and consequently no complete legal removal was ever in fact effected. The allegations in the petition, therefore, not being sustained by proof, a nonsuit was proper.
    Decided April 10, 1918.
    Action for breach of contract; from Fulton superior court— Judge Bell. June 26, 1917.

      Joel Cloud, Colquitt, Conyers & Latimer, for plaintiff.

      Frank A. Hooper, for defendants.
   Wade, C. J.

The plaintiff brought suit against the defendants under the provisions of a written contract in which the defendants agreed to purchase from the plaintiff certain stock in the Empire Life Insurance Company at a specified price, “in case Empire Life Insurance Company is moved to Augusta.” The petition alleged, that, “in so far as the corporate action [of] said Empire Life Insurance Company to that effect was possible, the said amendment was accepted and said removal was accomplished, and defendants as officers and agents of said Empire Life Insurance Company for more than two years treated said removal as accomplished.” The only witness introduced for the plaintiff was Joel Cloud, who made the contract with the defendants as one of the trustees of the Lexington Presbyterian Church. He testified that ip. consequence of the execution of the aforementioned contract he withdrew his objection (for and in behalf of the plaintiff) to a proposed amendment to the charter of said insurance company, «^hanging its-principal office to Augusta, and thereupon such amendment was authorized by all the stockholders present at a meeting duly called for that purpose. This action was taken by the stockholders in attendance at said meeting on October 29, 1912, the same day the contract sued upon was executed. It does not appear from the testimony in behalf of the plaintiff that an amendment to the charter, authorizing the change of the principal office of the insurance company to Augusta, was ever in fact obtained, or even that any further steps were taken in this direction. In 1913 the legislature passed an act (Acts of 1913, p. 49, et seq.), which was approved on August 19 of that year, providing before such an amendment to the charter of an insurance can be allowed it must be made to 'appear, by á certified abstract from the minutes of the board of directors, “that the application for the proposed amendment has been authorized by the vote of a majority in amount of the entire capital stock at a meeting of the stockholders called for the purpose.” The evidence does not disclose that lefore the passage of the act of 1913, under and by virtue of the authority conferred in the stockholders’ meeting of October 29, 1912, the necessary steps were in fact taken to effect a legal removal of the principal office of the Empire Life Insurance Company from Atlanta, Ga., to Augusta, Ga., by , a change in the charter of the corporation. Neither does it appear that subsequently to the passage of the act of 1913 any stockholders’ meeting was called to consider any such proposed amendment, or that the change of location was authorized as required by said act. Conceding the contention of the plaintiff in error that the judgment of the superior court overruling various demurrers to the petition became the law of the case, since no exception was taken thereto, and therefore that the petition set forth a good cause of action and the allegations therein contained, if sustained by proof, would authorize a recovery by the plaintiff, the plaintiff failed to carry the burden of establishing such allegations. The 14th paragraph of the plaintiff’s petition is as follows: “In so far as the corporate action [of] said Empire Life Insurance Company to that effect was possible, the said amendment was accepted and said removal was accomplished, and defendants as. officers and agents of said Empire Life Insurance Company for more than two years treated said removal as accomplished. Contracts for sale of large amounts of stock were made with citizens of Augusta, Georgia, and agreements entered into by which the investment of a large amount of money in an office building in Augusta was entered upon and begun. Petitioner avers that in fact and in law the removal of said Empire Life Insurance Company from Atlanta to Augusta was made; but that, even if the actual physical removal has not been completed, defendants are estopped from making any such contention.” It will be observed that the paragraph above quoted contains the following precise allegation: “In so far as the corporate action [of] said Empire Life Insurance Company to that effect was possible, the said amendment was accepted and said removal was accomplished.” Under the ruling made on demurrer (which was unexeepted to), if this allegation had been sustained by proof, together with other necessary allegations in the petition, a recovery for the plaintiff must have resulted. The facts likewise alleged in the 14th paragraph of the petition, as a basis for the conclusion therein set forth, “that even if the actual physical removal has not been completed, the defendants are estopped from making any such contention,” if admitted to be true, were met by the plea in avoidance, set out in the 6th paragraph of the defendants’ answer, settir/g up that the original steps taken on October 29, 1912', towards the removal of the principal office of the' company were rendered nugatory by the act of 1913 aforesaid, which changed the law under which such a removal could be effected before the-contemplated amendment to the charter was in fact obtained, and further alleging that no corporate action bad been taken by the insurance company since the passage of the aforesaid act of 1913, and therefore its headquarters had never been moved to Augusta and the legal residence of the corporation remained in Fulton county.

The contract upon which the suit was based was expressly conditioned upon the removal of the insurance company to Augusta, and under its terms the defendants were not hound to purchase the stock of the plaintiff at the price specified whenever such removal should bo authorized by the corporation or attempted by its officers, or the fact of such removal recognized or understood by such officers; hut to make the contract binding there must have been an actual completo and entire removal at law, and this could not have been effected so far as this plaintiff'was concerned until all the requisite legal steps had been taken and the charter itself amended so as to constitute Augusta, Georgia, the principal office of the company. Not only was no amendment obtained, but no such removal was even accomplished as alleged in the petition, to wit, “in so fardas the corporate action” of the insurance company to that effect was possible, since it was not shown that in pursuance of the resolution authorizing the change, any further corporate action whatsoever was taken towards obtaining the proposed amendment to the charter, by the directors or other officers of the company, before the approval of the act of 1913; nor was it shown that after that act went into effect, the necessary authority under its express requirements was obtained from the stockholders, or any other corporate action whatsoever taken to effect the removal which had been authorized before the passage of said act. Hence, in the absence of any evidence showing even that a petition to change the principal office of the corporation was ever filed in accordance with law, by virtue of the resolution adopted by the stockholders on October 29, 1912, prior to the time when such resolution was nullified by the passage of the act of 1913, or that any steps whatever were taken by. any of the officers or stockholders of the corporation after the passage of said act towards effecting the removal, it is clear that the plaintiff failed to establish the necessary allegation that the removal was in. effect accomplished “in so far as the corporate action [of] said Empire Life Insurance Com-pany to that effect was possible;” and no removal being accomplished even so far as the corporation was able, to act through its officers, neither under the precise terms of the contract nor in law was the case made out, and the trial court properly awarded a nonsuit.

Judgment affirmed.

Jenlcins and Luhe, JJ., concur.


text:
    9452.
    Beckham, trustee, v. Lindsey.
   Wade, C. J.

Lindsey went into possession of certain realty as a tenant, and "in April, 1915, the property was regularly and legally sold under a tax execution against his landlord, and, he becoming the purchaser, a conveyance was executed and delivered to him by the proper officer, vesting in him the title to the property, subject only to its possible redemption within twelve months after the sale, under the provisions of section 1169 of the Civil Code of 1910. On December 30 of the same year the landlord was duly adjudicated a bankrupt, and on April 20, 1916 (more than twelve months after the sale of the property under the tax execution), the plaintiff in error was duly qualified as trustee for " the bankrupt. The tenant remained in possession of the property during that entire period, and still remains in possession, being actually so in possession when the time expired within which the defendant or his creditors, or others thus protected by the statute, had the privilege of redeeming the property by repaying the amount paid by the purchaser, with ten per cent, premium thereon from the date of the purchase to the time of payment. The tenant paid the rent in 1915 in full, but, failing to pay the rent for 1916, the trustee of his landlord, appointed by the court of bankruptcy, sued out a distress warrant to recover $100 as rent for the year 1916. Neither within twelve months from the date of the purchase nor at any time since was the' purchase-money ever tendered back. The jury found a verdict in favor of the trustee in bankruptcy for $20 only, the verdict evidently being for the rent of the premises in dispute from the first of January of that year to the second Tuesday in April, 1916, when the period of redemption expired. The trustee made a motion for a new trial, which was overruled, and he excepted. Eeld:

1. A purchaser at a tax sale gets title subject only to the. right of redemption; and if the property be not redeemed within the time prescribed by law, his title becomes as absolute as a grant from the State could make it. Verdery v. Dotterer, 69 Ga. 194, 198; Bennett v. Southern Pine Co., 123 Ga. 618 (1,2) (51 S. E. 654); Elrod v. Owensboro Wagon Co., 128 Ga. 361 (57 S. E. 712).

(a) It is 'otherwise as to a certificate of sale by a deputy-collector of internal revenue for internal-revenue taxes, for in such cases the certificate is not evidence that title has passed, but is evidence only that the holder has the right to acquire title by deed or receive money, necessary to effect a redemption. Flemister v. Flemister, 83 Ga. 79 (9 S. E. 724).

Decided April 10, 1918.

Distraint; from Colquitt superior court—Judge Thomas. November 24, 1917.

P. Q. Bryan, James L. Bowling, for plaintiff.

ParTcer & Gibson, for defendant.

(b) The decision in Eppstein v. Orahood, 156 Eed. 42 (84 C. C. A. 208, 17 L. R. A. (N. S.) 465), to the effect that a pre-existing tax lien or claim can not be converted into a full title by the procurement of a tax deed without the court’s sanction, is not applicable- to this ease. Here the title, subject only to a possible defeasance, was vested by deed in the purchaser at the tax sale at the time of his purchase, and no affirmative act on his part or on the part of any other person was necessary to make the title absolute. The trustee did not in fact qualify as such until after the legal title had become absolute in the defendant; and, since he took no greater rights than those possessed by the bankrupt, and no tender was or could have been made by him within the period of limitation, the right of redemption having expired, the title became absolute.

(e) The defendant being actually in possession when his title became absolute upon the expiration of the period of redemption, from that date no rents were recoverable from him.

2. Since rents accruing within twelve months after a tax sale may not be used to supplement cash tendered) in redemption (Lamar v. Sheppard, 84 Ga. 561, 10 S. E. 1084), and a purchaser at a tax sale is not entitled to rents, issues, and profits accruing between the time, of - his purchase and the redemption of the property (Jones v. Johnson, 60 Ga. 260), rent for the premises after the legal sale, not paid by the tenant purchaser, was recoverable up to the time his deed became absolute.

3. There was evidence to sustain the verdict, and the trial judge did not err in overruling the motion for a new trial.

Judgment affirmed.

Jenkins apd Luke, JJ., eoneur.


author: Bloodwosih, J.

text:
    9010.
    BURG v. MALONE.
    The suit being for damages on aeeounf?\of the breach of a contract for the sale of certain property of J. M. Williams to the defendant, which contract was executed by “R. A. Malone, attorney in fact for J. M. Wil-. liams,” and by the defendant, and the petition being in the name of “R. A. Malone, as attorney in fact for J. M. Williams,” and not disclosing any fact that would give Malone a right to bring the action, the court erred in not sustaining the defendant’s demurrer.
    Decided April 10, 1918.

      Action on contract; from city court of Albany—Judge playton Jones. May 16, 1917.
    The petition is by'“R. A. Malone, as attorney in fact for J. M. Williams,” and alleges, that the “petitioner entered into a contract "with . . defendant [S. 0. Burg], whereby'he sold to him certain lands;” that “petitioner has complied with each and every condition of said contract in full,” and the defendant fails and refuses to perform the same; and by reason of the breach of said contract by the defendant, petitioner has been injured and damaged in the sum of $500; for which judgment is prayed. The contract, as appears from a copy attached to the petition, is signed: “R. A. Malone, attorney in fact for J. M. Williams. S. 0, Burg.” It begins as follows: “We, the undersigned, hereby agree as follows : that whereas R. A. Malone, true and lawful attorney in fact for J. M. Williams, has this day sold to S. 0. Burg lots of lands Nos. 160 and 161 in the first district of Dougherty county, Ga., same being the property of the said Williams; and whereas the said S. 0. Burg has this day deposited in the Georgia National Bank of Albany, Georgia, the sum of $500 as evidence of his good faith and as part payment of the purchase-price of the above-described lands, now, therefore, it is agreed by the parties hereto that the said bank; shall hold the said $500 so deposited under this agreement until the said Malone shall furnish the said Burg with a complete abstract of title to the property hereinbefore described and the title shall have been approved by the attorney at law .for the said Burg.” It is further agreed that if the title to the property is satisfactory to Burg “the said Malone shall make and deliver” to him a bond for title to the property, and the bank shall immediately turn over to the said Malone the $500 so deposited;' and that if the title is not satisfactory to the attorney at law for the said Burg, the $500 deposited shall be turned over by the bank to Burg; that the purchase-price shall be $9,000, to be paid in a manner specified in the contract, and upon the payment of the last purchase-money note “the said Malone hhall execute'and deliver to the said Burg a good and sufficient warranty deed to the above-described property;” and that in the event Burg shall fail to comply with any part of this agreement the money deposited with the bank therewith shall be declared forfeited and the bank is authorized to turn the same over to the said Malone.

      Grounds 1, 2 and 3 of the demurrer, to which the decision refers, are: (1) The petition has no proper party authorized by law to sue on the contract upon which the suit is based; (2) the person who holds a legal interest in and to the contract sued on is not a party to the suit; and (3) the petition sets forth no cause of action against the defendant.

      R. J. Bacon, R. H'Ferrill, for plaintiff in error, cited:
    Civil Code (1910), § 5516; Tiller v. Spradley, 39 Ga. 35; Gill v. Tyson, 61 Ga. 161; Rawlings v. Robson, 70 Ga. 595; R. & D. R. Co. v. Bedell, 88 Ga. 591 (4); Ellis v. Lockett, 100 Ga. 719 (2), 731; 39 Cyc. 1510.

      Thomas IT. Milner, contra, cited:
    Civil Code (1910), § 3609; Field v. Price, 50 Ga. 136; Pearson v. Horne, 139 Ga. 453; Spence v. Wilson, 102 Ga. 762; Brown v. Atlanta &c. Ry. Co., 113 Ga. 468; Petty v. Brunswick &c. Ry. Co., 109 Ga. 666 (3); Heard v. Dooly County, 101 Ga. 620.
   Bloodwosih, J.

1. This was a suit for breach of contract relative to the purchase of real estate. The contract was signed by the prospective purchaser, S. O. Burg, and on the part of the landowner was signed: “B. A. Malone, attorney, in fact for J. M. Williams,” The petition was brought in the name of “B. A. Malone, as attorney in fact for J. M. Williams.” The Civil Code (1910), § 3609, declares that “Generally an agent has no right'of action on contracts made for his principal.” One of the exceptions (subsection 5) is “in case of agency coupled with an interest in the agent, known to the party contracting with him.” However, when the petition discloses agency, the agent can not maintain the action in his own name without alleging “that his agency was coupled with an interest in the agent, known to the party contracting with him.” R. & D. R. Co. v. Bedell, 88 Ga. 591 (4), 592 15 S. E. 676). “Where one can not, except under special circumstances, maintain a suit in his own behalf or for the benefit of another, it is incumbent upon him to disclose the facts giving him a right to bring the action.” Stanley v. Stanley, 123 Ga. 122, 124 (51 S. E. 287). See also Greenfield v. McIntyre, 112 Ga. 691 (38 S. E. 44); Crummey v. Bentley, 114 Ga. 746, 749 (3) (40 S. E. 765). The petition in this ease contained no such allegation as is required by these rulings. Paragraphs 1, 2,, and 3 of the demurrer to the petition were good and should have been sustained.

2. As the foregoing ruling is controlling, the remaining grounds of the demurrer need not be considered.

Judgment reversed.

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


author: Bloodworti-x, J.

text:
    9021.
    McANALLY v. BANK OF ABBEVILLE.
    1. That the defendant on the day of the trial was too ill to attend court is not cause for á new trial, if no motion to'continue was made, and if it be not shown that .lie endeavored to communicate to the court the fact of his illness, or that he was so situated that he could not do so.
    2. That counsel’s announcement of ready for trial was made in the absence and without the knowledge, consent, or approval of the client, a party to the case, is not cause for a new trial.
    3. The evidence authorized the verdict.
    Decided April, 10, 1918.
    Complaint; from Wilcox superior court—Judge Crum. June 5, 1917.

      M. B. Cannon, H. E. Coates, for plaintiff in error.

      Hal Lawson, contra.
   Bloodworti-x, J.

When this case was called for trial the defendant was absent, but one of his attorneys was present,, and the other came into court before the trial proceeded. There was no motion to continue the case, but a new trial was asked upon the ground that the defendant was too ill on the day of the trial to attend court. However, it is not shown that he made any effort to communicate this fact to the court or to his attorneys, or that he was so situated that he could not do so. This shows lack of diligence. “Where a party to a suit has ample opportunity to inform the court of his sickness and obtain a continuance, after verdict in his absence, a new trial will not be granted on the ground that he was sick, and—not expecting the case to be fried—did not send any affidavit of his sickness. 51 Ga. 241; 53 Ib. 149; 54 Ib. 60; 59 Ib. 83." Lumpkin v. Respess, 68 Ga. 822.

In the motion for a new trial it is stated that any announcement of ready for trial by counsel for the defendant'was “without his knowledge, consent, or approval. ” In Williams v. Simmons, 79 Ga. 654 (7 S. E. 135), Chief Justice Bleckley said: “There is full power'on the part of the counsel to represent the client, and it is just the same as if the client were there in person; and it is no answer to a decree, a solemn judgment of a court, for the client to come in and say that the counsel misrepresented the client’s interests, or did not represent the client’s wishes. Let the client see that the counsel conforms to instructions; and if there is any injury by failure to' do it, let the counsel answer for it, and not the other party.”

Under the rulings above, the grounds of the amendment to the motion for a new trial in this case are without merit. See also Sparks v. Ober & Sons Co., 138 Ga. 316 (75 S. E. 135); Denmond v. Hillyer, 129 Ga. 698 (59 S. E. 806); Glover v. Dimmock, 119 Ga. 696 (46 S. E. 824); Burton v. Etheridge, 19 Ga. App. 511 (91 S. E. 927).

The evidence authorized the Arerdict, and a new trial was properly refused.

Judgment affirmed.

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


text:
    9158.
    Gaines v. Continental Aid Association.
    Decided April 10, 1918.
    Petition for certiorari; from Bibb superior court—.Judge Mathews. August 3, 1917.
    Gaines sued the Continental Aid Association, in the municipal court of Macon. On the first trial of the case the judge directed a verdict for the defendant. The plaintiff made a motion for a new trial, which was overruled; a certiorari was sustained; and on the second trial the jury found for the plaintiff. The defendant then made a motion for a new trial, which the judge of the municipal court granted, and a petition for certiorari, assigning error thereon, was presented by the plaintiff to the judge of the superior court, he refused to sanction the certiorari, and the plaintiff excepted.
   Harwell, J.

1. The contention of the plaintiff in error in his brief, that this was virtually the second grant of a new trial by the judge of the municipal court, and was unauthorized, under the provisions of the act of the General Assembly creating the municipal court of Macon (Ga. L. 1913, p. 252), was not made in the petition for certiorari, and can not be considered by this court. Civil Code (1910), § 5199; Perry v. Brunswick & Western Ry. Co., 119 Ga. 819 (47 S. E. 172); Richards v. Little, 88 Ga. 176 (14 S. E. 207); Western & Atlantic R. Co. v. Jackson, 81 Ga. 478 (8 S. E. 209); Callaway v. Atlanta, 6 Ga. App. 355 (64 S. E. 1105).

2. The evidence being in conflict, it was within the discretion of the judge of the municipal court to grant a new trial, and the judge of the superior court did not err in refusing to sanction a certiorari, under the facts of the case.

Judgment affirmed.

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

S. L. Wisenberg, H. F. Bawls, for plaintiff.

Napier & Maynard, G. M. Nottingham, for defendant.


author: Harwell, J. Broyles, P. J.

text:
    9187.
    MUSCOGEE MANUFACTURING CO. v. CADY.
    1. It not being alleged wbat duties in mill No. 2 required tbe plaintiff to go daily to that mill from his place of work on the fifth floor of mill No. 5, the court erred in overruling the special demurrer calling for this information.
    2. Where injury to a servant results from concurrent negligence of the master and a fellow servant, but would not have been sustained but for the master’s failure to perform his duty, the master is liable.
    3. The ruling of the trial judge on the general demurrer and on the special grounds of demurrer other than that dealt with in the first headnote, was not erroneous, but, on account of the error stated above, the judgment is reversed.
    Decided April 10, 1918.
    Action for damages; from city court of Columbus—Judge Tigner. September 4, 1917.
    Cady brought suit against the Muscogee Manufacturing Company for damages on account of personal injuries, alleging (paragraph 2) that he was employed by the defendant to work in its cotton mills as a weigher and examiner of cards on the end of frames, and to keep a record thereof, showing the weights and numbers, and the name of the winder hand. He alleged (paragraph 3) that "his duties required, and it was necessary, that he go daily from mill No. 2 to the 5th floor of mill No. 5, wherein said frames were located, in order to secure the record aforesaid;” (paragraph 4) that on the 26th of March, 1917, "in the performance of his duties as aforestated, he had gone to the fifth floor of mill No. 5, when he started to return to mill No. 2;” and (paragraph 6) that he was returning by the elevator, and, when it had started down and gone a certain distance, a truck with a box attached fell from the fifth floor down the elevator shaft, striking him and causing described injuries. It was alleged that this truck and box weighed about 250 pounds with the bobbins therein, and was constructed for the purpose of carrying bobbins and other material, being rolled on the floor on wheel's; that on each floor, where the elevator passes through, there is a door which opens to permit the elevator to pass through, and that after the passing of .the elevator the doors automatically close, thereby closing the opening in the shaft, this being to prevent an opening being left in the shaft on a level with the floor; that in addition to the doors the shaft and opening is protected by a gate extending along the shaft, about four feet in height, and that when the gate is closed it is impossible for an object to roll from the floor into the shaft, and that when the gate is raised it. is held by an automatic spring attached to the frame of the elevator, so that when the elevator would pass and relieve the pressure of the spring, the gate would fall and close the opening in the shaft; that the doors were not in working order and did not close as they were constructed to do, but were nailed back to a post-frame of the elevator, thereby preventing their closing as intended; and that the gate was not in working order, in that the automatic spring, which closes the gate after the elevator has passed and relieved the pressure, failed to close the gate, by causing it to fall to the floor and close the opening in the shaft. The petition contained the usual allegations of knowledge on the part of the master of these defects, and want of knowledge on the part of the plaintiff, and other allegations in reference to the plaintiff’s injuries, and alleged that the negligent acts of the defendant, set out in the petition, caused his injuries. The. defendant demurred to the petition, upon numerous grounds, general and special, which the court overruled, and the defendant excepted.

      Slade & Swift, for plaintiff in error.

      Hatcher & Hatcher, Ed. Wohlwender, contra.
   Harwell, J.

(After stating the foregoing facts.) The'defendant demurred specially to paragraphs 2, 3, and 4 of the petition, upon the ground that it was not alleged why it was necessary for the plaintiff to go from mill No. 5 to mill No. 2, and it was not alleged what his duties were in mill No. 2. The demurrer as to these paragraphs is well taken. It is alleged that it was his duty, as a weigher and examiner of cards on the end of frames, to keep a record thereof showing the weights, numbers, etc., and that the frames were located on the fifth floor of mill No. 5. That was his place of work. It does not appear why it was necessary for hirn^to go daily from mill No. 2 to the fifth floor of mill No. 5. He says that his duties required him to do that, but that allegation is a conclusion, and the special demurrer calls for and makes it necessary for him to explain why it was necessary for him to go to mill No. 2. He should allege what his duties were in mill No. 2 which made it necessary for him to go to that mill in the performance of his work. It must appear that he was in the line of his duty when he was injured. Neff v. Broom, 70 Ga. 256 (2); Atlanta & Charlotte Air-Line Ry. v. Ray, 70 Ga. 674 (4); Eagle & Phenix Mills v. Johnson, 131 Ga. 45 (61 S. E. 990).

The defendant demurred to the following allegation in paragraph 6: “While he was standing in said elevator ¡the truck with the box fell from the fifth floor down said elevator shaft, striking him,” etc.; basing the demurrer to this paragraph on the ground that it is too vague, indefinite, and uncertain, it not being alleged-who or what caused the truck to fall down the shaft; that it is not alleged whether a vice-principal or a fellow servant, or some accidental force caused the truck to fall, and it does not appear whether the truck was thrown down the shaft or what caused it to enter the shaft. It appears from the petition that when the gate was closed it was impossible for any object to roll from the floor into the shaft. This truck with a box on it containing bobbins, which fell down the shaft, it is alleged fell from the fifth floor and weighed 250 pounds, and was on rollers, and was used in carrying bobbins and other materials from place to place in the mill. Prom the allegations in the petition it was impossible for it to have rolled from the floor into the shaft if the gate had been in working order and closed as the elevator went down after the plaintiff entered. It appears further that it could not have fallen down the shaft if the door which closed had been in working order, instead of being nailed to the post, and had closed as the elevator descended. The defendant claims that the plaintiff should have gone further and alleged who or what projected this into the shaft, and that if a fellow servant rolled or shoved the truck into the shaft through this open gate, the plaintiff could not recover. If that, contention is sound, then the special demurrer is good, and the plaintiff should have gone further and shown that a fellow servant did not cause the truck to roll or fall into the shaft. Wo can not agree with this contention of the defendant. "The negligence of a fellow servant does not relieve the master from liability to a coservant for an injury which, would not have happened had the master not been negligent himself.” Loveless v. Standard Gold Mining Co., 116 Ga. 427. "The negligence of a fellow servant does not excuse the master from liability to a coservant for an injury which would not have happened had the master performed his duty.” Cheeney v. Ocean Steamship Co., 92 Ga. 726 (19 S. E. 33, 44 Am. St. R. 113). "It is the duty of the master to provide for his servant a reasonably safe place in which to work, and to that end he is bound to make reasonable provision for protection of the servant against dangers to which he is exposed while engaged in the work he is employed to perform. For a failure to perform such duty the master is liable to the servant for injuries caused thereby, and this is true though the injuries resulted from the concurrent negligence of the master and a fellow servant of the one injured, where the injury could not have been sustained but for the failure of the master to perform such duty.” Jackson v. Merchants & Miners Transportation Co., 118 Ga. 651 (45 S. E. 254). See also Southern Bauxite Co. v. Fuller, 116 Ga. 695 (43 S. E. 64); King Manufacturing Co. v. Walton, 1 Ga. App. 403 (3), 410 (58 S. E. 115). It is well settled, therefore, that if the injury is caused by the concurrent negligence of the master and a fellow servant, and could not have happened had the master performed his duty, the master is liable. How is it material, then, as to who or what caused this truck to fall into the shaft? If it was impossible for it to have gone into the shaft but for the alleged negligence of the master in failing to keep the elevator in repair, then the negligence of the master was the proximate cause of the injury, and it is not necessary for the plaintiff to go further and allege and prove who or what caused the truck to fall into the shaft. There is no merit, therefore, in this portion of the special demurrer.

In our opinion there is no merit in the other special demurrers. The petition set forth a cause of action, and is sufficient to withstand the attack of a general demurrer. On account, however, of the error of the trial judge in not sustaining the portion of the special demurrer as heretofore stated, the judgment overruling the demurrers is

Reversed.

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

Broyles, P. J.

I agree with the majority opinion of the court, except that I think the special demurrer should have been sustained as to paragraphs 9, 10, and 11 of the petition.


text:
    9333.
    WEST et al. v. ATLANTA LOAN AND SAVING CO.
    1. The demurrer not being set out, and no exception pendente lite to the ruling of the court thereon appearing, the question raised by it can not be considered.
    2. The court did not err in refusing to grant a nonsuit because of an alleged failure of the plaintiff to produce, under notice, certain records.
    3. Inasmuch as the trial judge directed a verdict for only the principal and legal interest, it is not necessary to determine as to the right of the plaintiff under its charter to charge interest, and fix and collect penalties for non-payment of installments duo on loans. The verdict was authorized, and the court did not err in dismissing the certiorari.
    Decided April 10, 1918.
    Certiorari; from Eulton superior court—Judge Bell. October 11, 1917.
    The Atlanta Loan and Saving Company sued Mrs. J. E. West et al., in the municipal court of Atlanta, on a promissory note. The defendants filed a special demurrer to the petition. It was overruled, and a verdict was rendered in favor of the plaintiff. A new trial was granted on motion of the defendants; and upon the second trial they insisted on their special demurrer. The trial judge held that the demurrer having been overruled in a preceding trial, the question raised by it was closed, and could not be opened oh a second trial of the cause. The case proceeded to trial, and a verdict for the plaintiff was directed for principal and legal interest, less than the amount for which suit was brought. The defendants sued out certiorari, the certiorari was dismissed by the judge of the superior court, and they excepted.

      Hill & Adams,-for plaintiffs in error. Philip Wdiner, contra.
   Harwell, J.

This case was tried twice in the municipal court. The petition for certiorari alleged that on the second trial the plaintiffs in error insisted on the demurrer which had been overruled on the first trial. The demurrer not being set out, and, according to the answer, no exception pendente lite having been taken to the order overruling the demurrer, this ground can not be considered.

The motion made by the defendants to grant a nonsuit, because of an alleged failure of the plaintiff to produce, under no'tice (Civil Code, § 5839), certain records, was without merit. The book of fines and penalties was produced by the plaintiff; and as to the original carbon copies of certain notices, the testimony for the plaintiff was that it kept no carbon copies. Moreover, “Before judgment can be entered against a party for failure to produce books or papers in accordance with a notice served upon him in terms of the statute, it is necessary that there should be a peremptory written order made by the judge and entered upon the minutes of the court, requiring the party to produce the books or papers within a reasonable time, according to the circumstances of the ease.” Marshall v. MeNeal, 114 Ga. 622 (40 S. E. 796); Central Railway Co. v. Lewis, 2 Ga. App. 428 (58 S. E. 674); Carter v. Southern Railway Co., 3 Ga. App. 39 (59 S. E. 209).

The petition for certiorari complains that the court erred in refusing to grant a nonsuit at the conclusion of the plaintiff’s testimony. It also complains that the court erred in directing a verdict for the plaintiff, upon the general ground that the direction of a verdict was contrary to law; and further because it is insisted that the plaintiff, the Atlanta Loan and Saving Company, is not a building and loan association or like association under the provisions of the Civil Code, § 2878, and is not entitled to the privileges of those associations as to interest charges; and that the note and contract given to the plaintiff by the defendants was infected with usury and void, and that the plaintiff was not entitled to recover any amount. The defendants introduced no evidence. Since the court directed a verdict for only the principal and legal interest, it is not necessary to determine whether the plaintiff is entitled to the privileges granted building and loan associations or like associations under the provisions of the Civil Code, § 2878. That the note charged or reserved a rate of interest in excess of the legal rate would not make it void. If usurious, the effect is simply to forfeit the excess of interest above the legal rate; the note and contract having been made on May 25, 1916, prior to the act of the legislature, approved August 18, 1916, which forfeits all interest in,a usurious contract. Code section 3444, which-makes it a misdemeanor-to charge more than a certain rate, does not attempt to annul the contract. The section following (3445) says: "The preceding section-shall not be construed as repealing or impairing the usury laws now existing, but as being cumulative thereto.” A contract is not rendered void under the laws of this State by the fact that it is tainted with usury. We do not mean to say that the contracts made by the plaintiff were usurious. It may be strictly within its- rights under its charter for such charges of interest and penalties as it makes. We simply say that, since the court directed a verdict for only the principal and legal interest, it is not necessary to determine this question.

Judgment affirmed.

Broyles, P. J., and Bloodworfh, J., concur.


text:
    9360.
    Morris v. Charleston & Western Carolina Railway Co.
    Decided April 10, 1918.
    Action for damages; from city court of Richmond county— Judge Black. November 7, 1917.-
    The petition alleges, that the plaintiff was employed by the railway company in its yard as a common laborer in repairing its cars; that in repairing its cars its employees were sometimes required to use jacks and to jack up or raise one end of the car so that the wheels could be removed from under the car; that the jacks used for this purpose were furnished by the company and were left about in the yard to be used by the employees 'as the necessity of the occasion required, and it was required that the employees, when they needed the jacks, should get the first ones that came handy; that the plaintiff and coemployees were in the yard, working on a box-car, one end of which had been raised, and it was desired to lower the end of the ear, and when the plaintiff undertook to work the jack under the car to lower the end, the jack slipped, the handle flying up and striking him in the jaw, and inflicting injuries, described, for which he sues; that "said injury was caused by the said jack slipping from being old and worn, and the cogs were so worn that they would not hold; which condition was known to the defendant company, or in the exercise of ordinary care and diligence should have been known, and which condition was not known to . . petitioner, it not being his duty to inspect said tools; and which condition could have been discovered by inspection only;” that “the injuries complained of were caused solely by the negligence of defendant company, in .that (a) it failed to furnish . . petitioner with safe tools, machinery, and appliances with which to do his work,” and in 'that (b) it “failed to discharge its duty in inspecting said jacks and discover'ing their worn-out condition and remedying the same before furnishing them to petitioner for use, and not notifying him of their unsafe condition;” that he “was free from fault in the"premises and did hot know of the worn-out condition of said jacks, and did not have equal means with the company of ascertaining said worn-out condition, and was in the exercise of all ordinary care and diligence for his own safety.”
   Bloodworth, J.

The court did not err in sustaining the demurrer to the petition.

Judgment affirmed.

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

The demurrer was on the grounds that no cause of action was set out, and that it was apparent that the plaintiff was injured “as the result of his own action.” ■

T. F. Harrison, T. 8. Peebles Jr., for plaintiff, cited:

Lawrenceville Oil Mill v. Walton, 143 Ga. 259 (1); Williams v. Garbult Lumber Co., 132 Ga. 227.

W. K. Miller, for defendant, cited:

Bolden v. Central Ry. Co., 130 Ga. 456-7; Lee v. A. C. L. R. Co., 125 Ga. 655; Banks v. Schofield’s Sons Co., 126 Ga. 667; Southern Ry. Co. v. Hightower, 146 Ga. 279; W. & A. R. Co. v. Bradford, 113 Ga. 276; A. & C. Air-Line Ry. v. Ray, 70 Ga. 674 (3); Ga. R. Co. v. Nelms, 83 Ga. 70; R. & D. R. Co. v. Dickey, 90 Ga. 491 (2); Stewart v. S. A. L. Ry., 115 Ga. 624, 628; Southern Ry. Co. v. Taylor, 137 Ga. 704; Up-church v. Culpepper, 17 Ga. App. 577; Belk v. Lee Roy Myers Co., 17 Ga. App. 684; Williams v. A. C. L. R. Co., 18 Ga. App. 120.


author: Broyles, P. J.

text:
    9401.
    Western & Atlantic Railroad Company v. Holt.
   Broyles, P. J.

1. The excerpt from the charge of the court, complained of in the 4th ground of the amendment to the motion for a new trial, when considered in connection with its context, is not erroneous.

Decided April 10, 1918.

Action for damages; from Gordon superior court—Judge Tarver. November 3, 1917.

Tye, Peeples & Tye, O. N. Starr, for plaintiff in error.

J. G. B. Erwin Jr., contra.

2. The court did not err in failing to charge upon the subject of the impeachment of witnesses, there being no appropriate written request to charge thereon.

3. The other assignments of error depend upon a consideration of the evidence; and there being no proper brief of the evidence, but only what purports to be such a brief, containing many objections of counsel to the admission of evidence, rulings of the court upon various questions, colloquies between court and counsel, and much other immaterial matter, these assignments will not be considered by this court. Civil Code (1910), § 6093; Mayor &c. of Cordele v. Williams, 7 Ga. App. 445 (3) (67 S. E. 116).

Judgment affirmed.

Bloodworth and Harwell, JJ., eoneur.


text:
    9457.
    Hunt v. Chambers & Samples.
    Decided April 10, 1918.
    Motion for new trial; from city court of Hall county—Judge Wheeler. November 34, 1917.

      Ed. Quillian, for plaintiff in error.

      G. N. Davie, Boyd Sloan, contra.
   Broyles, P. J.

Where a motion for a new trial has been made, and, after several subsequent terms of the court have elapsed, counsel for the movant submits to the court what purports to be a correct brief of the evidence, and its correctness is denied by counsel for the other party, and counsel for both parties are unable to agree upon a brief of the evidence, and the court, by reason of the long delay of counsel for the movant in the presentation of the brief of evidence, is unable to remember what the evidence was, there is no error in refusal of the court to approve the brief of evidence, or in dismissal of the motion for a new trial. Martin v. Mendel, 10 Ga. App. 417 (73 S. E. 620); Scoggins v. Knox, 143 Ga. 599 (85 S. E. 753).

Judgment affirmed.

Bloodworth and Harwell, JJ., eoneur.


text:
    9552.
    Thomas v. The State.
   Bloodworth, J.

1. No question for determination by this court is presented by a bill of exceptions pendente lite which ■ alleges: “Upon hearing argument on the indictment the same was overruled by the judge presiding in said case. To the overruling of said indictment the defendant then and there excepted, now excepts, and assigns said ruling so overruling said indictment as error on all the grounds contained therein, and now within the time allowed by law files these his bill of exceptions pendente lite and prays that the same may be certified as true, in order that the errors alleged to have been committed therein may be reviewed and reversed, and he will' ever pray.” (Italics ours.)

Decided April 10, 1918.

Indictment for forgery; from Laurens superior court—Judge Kent. November 2i, 1917.

Hal B. Wimberly, for plaintiff in error.

E. L. Stephens, solicitor-general, contra.

2. So far as the record brings to this court any question of review there is nothing attacking the legal sufficiency of the indictment. It charges a violation of only one criminal statute, and the verdict is not illegal for the reasons urged in the first ground of the amendment to the motion for a new trial. Brazil v. State, 117 Ga. 32 (2) (43 S. E. 460); Martin v. State, 10 Ga. App. 795 (74 S. E. 304).

3. Grounds 2 and 3 of the amendment to the motion for' a new trial are not complete within themselves. To determine them would' require reference to other parts of the record, and, under numerous decisions of this court and of the Supreme Court, such assignments of error will not be considered. Braxley v. State, 17 Ga. App. 196 (4) (86 S. E. 425); City of Atlanta v. Sciple, 19 Ga. App. 694 (1), 696 (92 S. E. 28), and cit.; Smiley v. Smiley, 144 Ga. 546 (2) (87 S. E. 668); Louisville & Nashville R. Co. v. Ogles, 146 Ga. 20 (90 S. E. 476); Bowen v. Smith-Hall Grocery Co., 146 Ga. 157 (4) (91 S. E. 32).

4. The evidence supports the verdict.

Judgment affirmed.

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


text:
    8946.
    Hagedorn v. Powers & Baird.
    Decided April 11, 1918.
    Action upon bond; from Troup superior court—Judge Terrell. May 17, 1917.

      E. T. Moon, for plaintiff in error. M. U. Mooty, contra.
   Luke, J.

1. A plaintiff in execution may bring suit in his own name on a forthcoming bond payable to the levying officer, given by a claimant, and, on proof of a breach of the bond, ..may recover the value of the property delivered under the bond, if the value does not exceed the amount of his judgment. Civil Code, § 13. See also Hart v. Thomas, 75 Ga. 529; Bowman v. Kidd, 13 Ga. App. 351 (79 S. E. 167).

2. The court did not err in overruling the demurrer to the petition, or in overruling the defendant’s motion for a new trial.

Judgment affirmed.

Wade, C. J., and Jenkins, J., concur.