author: Per Curiam. Stephens, J.,

text:
    9725.
    MARTIN v. ENGLISH, sheriff.
    1. Where an automobile, while conveying intoxicating liquors on a public road or a private way of this State, is seized by a sheriff under the provisions of section 20 of the prohibition law approved March 28, 1917 (6a. L. Ex. Sess. 1917, p. 16), and is being lawfully held by him in his official character as an arresting officer, pending the condemnation proceedings authorized by the statute or subsequently to the judgment of the court and pending the sale of the property, an action of trover against the sheriff can not be maintained by the owner of the automobile. The property is in custodia legis, and trover does not lie in such a case. Smith v. Kershaw, 1 Ga. 259; Wallace v. Kolly, 13 Ga. 389 (58 Am. D. 518) ; Chipstead v. Porter, 63 Ga. 220; Haslett v. Rogers, 107 Ga. 245 (33 S. E. 44); Geer v. Thompson, 4 Ga. App. 756 (62 S. E. 500); Barton v. Thompson, 13 6a. App. 786 (80 S. E. 30); Hoyt v. Smith, 20 Ga. App. 595 (93 S. E. 224); Bernstein v. Higginbotham, 148 6a. 110 (96 S. E. 1); 35 Cyc. 1737. The cases of Riley v. Martin, 35 6a. 136, and Wilson v. Paulsen, 57 6a. 596, and others wherein an apparently contrary ruling is made, are easily distinguishable by their facts from the instant case and the cases cited above.
    Decided February 27, 1919.
    (o) While in this ease there was no demurrer to the petition, nor a motion to strike it, substantially the same result was reached by the verdict for the defendant.
    2. Even if an action' of trover would lie under the circumstances stated above, the agreed statement of facts in this case shows that the defendant sheriff had the right of possession of the automobile sued for, and that the plaintiff owner was not entitled to recover. “The gist of the action of trover is the injury to the right of possession” Roper Wholesale Grocery Co. v. Faver, 8 6a. App. 178. (68 S. E. 883). In some cases, to recover in trover, it is essential that the plaintiff show both title and the right of possession. In this class of cases, although the plaintiff may show that he has legal title, if it appears from the evidence •that the defendant is rightfully entitled to retain possession of the property sued for, a verdict for the defendant is not only authorized but demanded. Geer v. Thompson, supra; Birmingham Fertilisser Co. v. Dossier, 13 6a. App. 759 (79 S. E. 927) ; Clark v. Fleming, 78 6a. 782 (4 S. E. 12); Mitchell v. 6eorgia & Alabama Ry. Co., 111 6a. 760 (36 S. E. 971, 51 L. R. A. 622) ; 38 Cyc. 2061, 2081 (B).
    Trover; from city court of Sandersville—Judge Jordan. April 18, 1918.
    In this action L. J. Martin sought to recover a certain automobile from B. A. English, sheriff of Washington county, Georgia. The defendant filed an answer in which he admitted possession of the automobile and denied that it was the property of the plaintiff, and further answered as follows: Defendant is the. duly elected and qualified sheriff of Washington county, and by virtue o'f that fact is under the law the sheriff of the.city court of Sandersville. The automobile referred to in plaintiff’s petition as being in the possession of this defendant was seized by George W. Crawford, deputy sheriff of said county and of the city court of Sandersville, under and by virtue of the provisions of section 20 of the act of the General Assembly at its extraordinary session held on March 20-28, 1917, approved March 28, 1917, dealing with use and transportation, etc., of intoxicating liquors, said automobile being then and there used in conveying liquors and beverages the sale of which was prohibited by law. Subsequently, under and by virtue of said section, J..Hines Wood, as solicitor of said city court, instituted condemnation proceedings in the name and behalf of the State of Georgia against said ear and against one Marvis McBride as owner, in said city court. Said condemnation proceedings are now of file in said court, having been filed on August 21, 1917. In said condemnation proceedings the judge of said city court passed and entered up the following order or decree: “It having been made to appear to the court that copy of the within petition was duly served upon Marvis McBride on the 24th day of August, 1917, and that no answer has been filed by the said Marvis McBride, the same is hereby declared in default, and the sheriff is hereby directed to proceed to advertise, for two issues, in the Sandersville Progress, the legal organ of Washington county, said car described in the petition hereof, and to sell the same and apply the proceeds thereof as the law directs. This 2nd day of Oct. 1917. (Signed) E. W. Jordan, Judge City Court of Sandersville.” The said car in the possession of the defendant and to which said plaintiff has claimed title is the ear referred to in the order set forth aboye, and he holds the ear as sheriff of the city court, under and by virtue of the said order and for the objects and purposes required of him therein as sheriff. He does not hold possession of it or claim any right, title, or interest in it in his individual capacity, but holds it in the performance of his duty as sheriff and for the purpose of carrying out the process and mandate.of this court; and under the law the plaintiff can not and should not be permitted to maintain against him such action of trover. /
    The case was tried on an'agreed statement of facts as follows: It is agreed that the answer filed by the defendant is true, and the case is submitted to the court upon the petition and the answer and the following facts: On January 27, 1917, Hardwick McBride executed and delivered to L.J.- Martin a bill of sale to the'property described in the plaintiff’s petition, to wit, one Eord automobile of the value of $100, and the automobile now in the possession of the defendant is the automobile covered by the bill of sale, which was duly recorded in the office of the clerk of the superior court of Washingtqn county, Georgia, -on January 30, 1917. Ben. A. English as sheriff acquired possession of said automobile on August 15, 1917, having .seized it while in the' possession of Marvis McBride on one of the highways of said county and when said automobile was being used to- transport intoxicating liquors. On August 21, 1917, J. Hines Wood, the solicitor of said city court, brought a petition for the condemnation of said automobile, which was served upon Marvis McBride, alleging that he was the owner thereof; which petition was heard by Hon. E. W. Jordan, judge of said city court, who, on October 2, 1917, passed an order directing.' the sheriff to advertise said automobile for sale and sell it at public outcry. The trover suit was' filed on October 2, 1917, and at that time the defendant, English, as sheriff, was in possession of the property described in the plaintiff’s petition, and more than ten days .prior to filing the said trover suit the plaintiff, Martin, made a -demand on the defendant for the said property, and the defendant refused to deliver the saíne.
    The trial resulted in a verdict for the defendant, the plaintiff moved for a new trial, on the grounds that the verdict was contrary to law and to the evidence, the motion was overruled, and the movant excepted.

      Evans & Evans, for plaintiff, cited:
    19 Ga. App. 822; 3 Ga. App. 357; 116 Ga. 732 (2); 35 Ga. 136; 75 Ga. 697; 19 Ga. App. 706; 38 Cyce. 2041, 2023; 15 A. D. 150; 41 A. D. 126; 14 A. D. .358; 19 A. D. 345.

      J. J. Harris, M. L. Gross, for defendant, cited the. statute and cases cited above in the headnotes, and distinguished 19 Ga. App. 822.
   Per Curiam.

The majority of the court are of the opinion that ■ the headnotes require no elaboration. In view, however, of the lengthy dissenting opinion of Judge Stephens, it was thought advisable to set forth briefly the views of the majority of the court. The agreed statement of facts specifically shows that the condemnation proceedings were begun within ten days from the date of the seizure of the automobile; and that-statement of facts and the answer of the sheriff (which the plaintiff admitted was true) clearly show that in all other respects the proceedings- were in substantial compliance with the provisions of the statute; and no question as to the irregularity or illegality of the proceedings, including the order of the judge for the sale of the automobile, or as to the jurisdiction of the trial court, was raised in that court or in this court; nor was any attack made upon the statute by the plaintiff in error in either court. The brief of his counsel in this court states that "the only question in the case was whether or not trover would lie against the sheriff when brought by the real owner of the ear.” With all due respect to our learned brother, we do not think the questions referred to above, as to the legality of the condemnation proceeding, or as to jurisdiction, are in the case. It is only when it clearly appears from the record that a judgment has been rendered by a court having no jurisdiction of the subject-matter that this court will of its own motion reverse the judgment. Smith v. Ferrario, 105 Ga. 51.(31 S. E. 38). No such lack of jurisdiction appears from the record in this case.

In our opinion the alleged owner of the automobile could not maintain an action in trover to recover it. As was said by Mr.’ Presiding Justice Beck in the Bernstein case, supra: “The act of the legislature to which we have last referred provides a plain statutory remedy to promptly try the question of title where vehicles are seized under circumstances attending the seizure of the one in question. Chipstead v. Porter, 63 Ga. 220.” And that remedy is not an action in trover. A complete answer to the inferential attack upon the act itself, made in the dissenting opinion, is found in the recent able and exhaustive opinion of Justice George, speaking for the Supreme Court, in Mach v. Westbrook, 148 Ga. 690 (98 S. E. 339). If, however, we are wrong in holding that under the facts of the case an action of trover will not lie, then, under the answer of the sheriff (which was admitted to be true) and the agreed statement of facts, the verdict for the defendant was clearly the only legal one possible.

Judgment affirmed.

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

Stephens, J.,

dissenting.

L. J. Martin instituted a suit in trover in the city court of Sandersville against B. A. English, sheriff of Washington county, for the recovery of a certain automobile,' alleged to be in the possession of the defendant, to which plaintiff claimed title. The defendant answered, and by way of defense set up that he held possession of the automobile in question by virtue of a judgment or decree of the judge of the city court of Sanders-ville condemning the automobile and ordering it sold; alleging in his answer that the car had been seized by one of his deputies while it was being used to transport intoxicating liquors, that the said seizure had been made under section 20 of the prohibition act of 1917, providing for the seizure by a sheriff and the condemnation and sale of any vehicle or conveyance engaged in the transportation of intoxicating liquor®, and also alleging that a condemnation proceeding had been instituted in the city court of Sandersville against “said car and against one Marvis McBride as owner.” In an agreed statement of facts the answer of the sheriff was agreed to as true; and it further appeared from the agreed statement of facts that the solicitor of the said city court instituted the condemnation proceeding within the ten days required by the statute, and that the petition in such proceeding was served upon “ Marvis McBride alleging that he was the true owner thereof;” that the plaintiff, L. J. Martin, was the true owner of the automobile at the time of the seizure, and that the plaintiff had made demand on the defendant for the delivery of the property and the same had been refused. The judgment or decree of the judge, appearing in the defendant’s answer and admitted in evidence, was as follows: “It having been made to appear to the court that copy of the within petition was duly served upon Marvis McBride on the 24th day of August, 1917, and that no answer has been filed by the said Marvis McBride, the same is hereby declared in default, and the sheriff is hereby directed to proceed to advertise for two issues in the Sandersville Progress, the legal organ of Washington county, said car described in the petition hereof, and to sell the same and apply the proceeds thereof as the law directs.” TJpon the issues thus made a verdict and judgment were rendered for the defendant. A motion for new trial, on the general grounds only, was overruled, and on exception thereto the case was brought to this court for review.

The majority <>£ the court are of the opinion that an action of trover does not lie; that the verdict and judgment are supported by the evidence and are not contrary to law. The judgment is therefore affirmed. In this judgment of affirmance and the reasons giv.en therefor I cannot concur. I make no attack upon the act itself. I am of the opinion that the plaintiff proved his title and right to possession, and that the defendant sheriff failed to set up, either in his answer or by the evidence, that the automobile in question had been condemned according to the terms of the statute. I am of the further opinion "that under the showing made hy the defendant sheriff the property is not in custodia legis, and trover is the proper remedy, and that the verdict and judgment for defendant are contrary to law.

The plaintiff made a prima facie case. Did the defendant, admitting the plaintiff’s title at the time of the seizure, show, by hiá answer and the evidence, that plaintiff became divested of his title and that the same was acquired by the State of Georgia? The proceeding against the property, being in invitum and predicated upon a drastic statute derogatory of the common- law and common right, must be strictly pursued. It must affirmatively appear that the court, under whose order the property was condemned and the true owner claimed to have been divested of his title, had jurisdiction in the particular case. All jurisdictional facts must appear of record. ■

That no person shall be deprived of his property without due process of law is a well-settled constitutional doctrine. Notice to the person whose property is sought to be taken is an essential element of due process of law. This is fundamental and needs no argument. Our legislature, in enacting the statute urfder which this seizure is justified, recognized this constitutional provision, and provided that a copy of the petition in the condemnation proceeding should be served upon “the owner or lessee if known, and if the owner or lessee is unknown,” then service must be perfected by publication. If the owner is known, service upon him would be sufficient. If, however, he is not known, the State proceeds at its peril in seeking to condemn his property by service upon some' other person. Only service by publication will then protect the State, unless, perhaps, service upon a lessee would suffice -under the terms of the statute. The notice required under the statute is jurisdictional. The proceeding is in rem, and the notice required is prerequisite to the power and jurisdiction of the court to condemn property and order it sold under the authority of this statute. In Bradstreet v. Neptune Insurance Co., 3 Sumn. 607 (Fed Cas. No. 1793), Justice Story said: “It is a rule, founded in the first principles of natural justice, that a party shall have an opportunity to be heard in his defense before his property is condemned, and that the charges on which the condemnation is sought shall be specific, determinate and clear.” In Brown on Jurisdiction, 189, it is said: “When a legal proceeding is commenced against a person or corporation, whether resident within the jurisdiction of the court in which it is begun or not, and whether the proceeding is in rem or in personam, the defendant must be served with process in some one of the forms provided by law, • or a voluntary appearance must be made by or on his behalf. The notice, if there is no appearance', is jurisdictional.. Although much has been said by courts touching jurisdiction derived from the filing of a petition, seizure of prop erty by attachment, garnishment or other means of sequestration, we hold that the rule today is that there must be service of process made on the defendant in sonae form to give the court jurisdiction over the property seized; otherwise the judgment would be an arbitrary edict, condemning without hearing.” At page 191 the author, further says: “Without notice one essential element of jurisdiction is absent—the party defendant. . •. Where the statute prescribes the form of service, or mode of obtaining it, that mode must be pursued strictly. The law requiring process to be served also gives the' implied right to the defendant to appear and 'defend; and if this right is refused him the judgment is void. The judgment is based oh the service as much as subject-matter. The petition simply says: I have a cause of action against the defendant. The law says: Notify the defendant of the proceedings and the court will hear you. Hence the notice must be given under the forms of law. Where it provides a form, or gives direction as to the manner of service by publication, the statute must be complied with strictly; the direction is mandatory. At page 239: “The proceeding in rem is a proceeding to acquire, dissolve, forfeit, confiscate, or sell and apply a thing for some legal purpose, or its proceeds. In the latter proceedings, when regular, it is said- to bind the world. This, however, is subject to conditions, for the owner must be notified in some form, of the proceedings, but personal service is not necessary. The State in which the thing is situated may prescribe a form of service and seizure other than personal service of the notice of the suit on defendant, usually by publication. It is such proceedings■ that, when regular, bind the world.” At page 250: “There are certain conditions and means under and by which the res'is brought under the control of the court: (1) The court must have jurisdiction over the subject-matter and actual dominion over the thing. (2) A petition or information must be filed in a court of competent jurisdiction asking the seizure of the thing, setting forth a right of action against the thing or the owner of the thing attached, and praying for judgment or condemnation or sale for the debt. (3) Notice must be given to the owner of the thing of the seizure and the nature of the proceedings against it, or notice to the world, where the action is purely against the thing. (4) Opportunity for intervention and defense by the owner of the thing must be given. (5) A judicial finding of the facts alleged in the information or petition and a judgment of condemnation or sequestration are necessary. (6) The cqnclusiveness of the decree rests upon the sufficiency of the notice and regularity of the proceedings.” (Italics mine.) At page 132: “To render a valid judgment the court rendering it must acquire jurisdiction over the defendant in the action, and all the authorities agree that if it does not, then the judgment is invalid and void, a mere arbitrary edict and entitled to no respect. The defendant must be subject to the jurisdiction of the court, and in order that, the judgment be valid, the process must be served within such jurisdiction.. It is also shown that the judgment rendered by the court must be such a one as it is authorized to render in the proceedings before it or it will be coram non judice.”

The Supreme Court of the United States, in the case of Thatcher v. Powell, 6 Wheaton (19 U. S.), 119 (5 L. ed. 221), held that “in summary proceedings, where a court exercises an extraordinary power under a special statute, which prescribes its course, that course ought to be strictly pursued, and the facts which give jurisdiction ought to appear on the face of the record. Otherwise, the proceedings are not merely voidable, but absolutely void, as being coram non judice.” In Galpin v. Page, 18 Wall. 85 U. S. 350 (21 L. ed. 959), that court held that “where the special powers conferred are exercised in a special manner, not according to the course of the common law, or where the general powers of the court are exercised over a class not within its ordinary jurisdiction upon the performance of prescribed conditions, no such presumption of jurisdiction will attend the judgment of the court. The facts essential to the exercise of the special jurisdiction must appear in such-cases upon the record.” See also D’Antignac v. Augusta, 31 Ga. 700, approved in Frank v. Atlanta, 72 Ga. 432, and in DuBignon V. Brunswick, 106 Ga. 322 (32 S. E. 102).

Section 20 of the. prohibition act of 1917 provides, that in a proceeding to condemn a vehicle or conveyance on the ground of its being engaged in the transportation of intoxicating liquors, a copy of the condemnation proceeding “shall be served upon the owner or lessee, if known> and if the owner or lessee is unknown, notice of such proceeding shall be published once a week for two weeks in the' newspaper in which sheriff’s advertisements are published.” Under the foregoing authorities cited, the perfection of notice in some manner as required by this statute is jurisdictional, and all jurisdictional facts must appear upon the face of the record. Notice is a condition precedent, under the statute, to the right and power of the court to render judgment condemning a vehicle or conveyance seized upon the ground of its being engaged in the transportation of intoxicating liquors. "When the record before us shows 'that before the rendition of the judgment of condemnation, under which the sheriff justifies his possession of the automobile in question, service was perfected upon a certain person by name, it will not be presumed, even if it was not necessary for the record to disclose áueh a jurisdictional fact, that other or different service than such service upon the party named was perfected. In other words, it will be taken as a fact that the plaintiff in this case, who was at the time the true qwner of the property, was neither served personally nor was there any service by publication. In the case of Galpin v. Page, supra, it was held that “when the record states the evidence or makes an averment with reference to a jurisdictional fact, it will not be presumed that there was other or different evidence respecting the fact, or that the fact was otherwise than as averred.”

The judgment of the city court of Sandersville condemning the property, which was pleaded and admitted in evidence by consent, does not recite on its face such jurisdictional facts as are required by the foregoing authorities cited. This judgment merely recites that, “it having been made to appear to the court that a copy of the within petition was duly served upon Marvis McBride” on a named date, and'“that no answer has been filed.by the said Marvis McBride, the same is hereby declared in default.” It does not recite who Marvis McBride is, whether he is lessee or owner. So far as appears from this judgment, in the absence of the pleadings, Marvis McBride, the only party served with notice, was a perfect stranger to the case. He does not appear to be either owner or lessee. Jt therefore does not appear from the judgment that the owner or the lessee was served, nor does it appear that there was any service perfected by publication. The judgment on its face fails to show the jurisdictional fact -of such service as is required by the statute, and therefore fails to show jurisdiction, in the court which rendered it. Neither does it show that the condemnation proceedings were instituted by the solicitor of the court within ten days after notice to him by the officer seizing the vehicle, as required by the statute, nor that any one was ever in possession of the automobile, nor that the automobile was ever seized by any one, nor that it was ever engaged in the transportation of intoxicating liquors, nor that service was perfected within the jurisdiction of the court, nor that anything transpired within the jurisdiction of the court,—all of which are jurisdictional facts. The judgment, therefore, failing to show jurisdiction over the subject-matter, is absolutely void and constitutes no defense for the defendant.

The judgment relied upon by the sheriff, in addition to failing to show jurisdictional facts, fails to show that it was based upon a proceeding under the condemnation statute. These omissions might have been aided by the pleadings, but the latter are not in evidence. The absence of the pleadings is fatal. The judgment being relied upon to show a judicial result, i. e., a condemnation under the terms of the statute, the pleadings are absolutely essential to establish the particular state of facts upon which the judgment is predicated, including service or notice. This was held to be the law in Gibson v. Robinson, 90. Ga. 756, 763 (16 S. E. 969, 35 Am. St. R. 250), Mr. Justice Samuel Lumpkin used the following language : “It is well recognized as a general rule, that where a judgment is relied upon as an estoppel, or as establishing any particular state of facts of which it was the judicial result, it can be proved only by offering in evidence a complete and duly authenticated copy of the entire proceedings in which the same was rendered. But where the only direct object to be subserved is to show the existence and contents of such judgment, this rule does not apply, and a certified copy of the judgment entry of a court of record possessing general original jurisdiction is admissible, by itself, to prove rendition and contents. . . Such entry will be prima facie evidence of a valid judgment, and on being admitted, all the legal incidents attach which the law annexes to judgments of that class. It will not, however, be conclusive either of jurisdiction of the parties, service, or of any other matter material to the rendition of a valid judgment.” (Italics mine.) This opinion was cited with approval of by the Supreme Court of this State in Kerchner v. Frazier, 106 Ga. 440 (32 S. E. 351). See also Weaver v. Tuten, 138 Ga. 103 (74 S. E. 835); Little Rock Cooperage Co. v. Hodge, 112 Ga. 526 (37 S. E. 743).

The defense, therefore, is fatally defective and fails to establish in the defendant sheriff any right to hold the automobile for the purpose claimed.

The judgment, failing to show any seizure or any other jurisdictional fact, is void on its face. Can such jurisdictional facts be supplied by evidence aliunde? If so, the burden would be upon one defending under the judgment to establish such facts. This the defendants fails to do. It is. true that in the agreed statement of facts the evidence recites that a seizure was made, that it was made within the jurisdiction of the court, and that the condemnation proceedings were instituted against the automobile and against one “Marvis McBride as owner,” and that the petition in such proceedings was “served upon Marvis McBride alleging that he was the owner thereof.” Any allegation, if there were any, in the petition for condemnation which alleged ownership in anyone, or that •service was perfected on Marvis McBride, “alleging that he was the owner,” certainly constituted no judicial determination of the ownership of the automobile claimed to have been seized and sought to be condemned. The recitals in the petition were merely what the State alleged or claimed in the case. Under no view do such recitals adjudicate or judicially determine anything, certainly nothing as against this plaintiff, who was not a party to that case, not having been served and not having entered an appearance. Besides, there is nothing in the evidence whatsover from which it can be remotely inferred that the fundamental jurisdictional fact of seizure was adjudicated or determined in the condemnation proceeding. The evidence, therefore, utterly fails to supply the jurisdictional facts laclcing on the face of the judgment. A judicial determination upon the trial of the condemnation proceedings of all jurisdictional facts was necessary to a valid judgment of condemnation, and essential to the defendant’s defense. It nowhere appearing that such determination was had, the verdict and judgment in the case before us are unsupported by the evidence, and are therefore contrary to law, as set out in the general grounds of the motion for new trial.

Nowhere does it appear, either from the record or from the evidence, that the proceeding was against the “owner” or the “lessee,” or the whole world by virtue of a newspaper publication. No notice whatever, as the statute requires, having been given, the defendant sheriff’s right to hold and sell the property manifestly fails, and his answer and the evidence set up no defense against the true owner.

The automobile is not being condemned in the proceeding now before us. The sheriff here is defending upon the ground that it was condemned in the former proceeding. This defense he fails to substantiate, in the absence of proof, either in the judgment of condemnation or in the evidence produced, that the automobile was legally and judicially condemned. '

Whatever presumption of ownership or legal possession may arise from mere possession can be disputed in this proceeding by the plaintiff- when the fact of ownership or right of possession was not ’ adjudicated in the condemnation proceedings. The plaintiff certainly stands as well before the court in this respect in the trover suit as does the defendant. As to the argument that one in possession of personal property is presumed to be the owner, it is. a-sufficient reply to say that the proof here conclusively shows that the person in possession of -the automobile when seized was not the owner. Besides, the statute destroyed any such presumption by recognizing that the party in possession of the vehicle or conveyance proceeded against might be a lessee. Whether notice to a lessee binds the owner, we are not called upon to decide, since there is nothing whatever in the record to connect Marvis McBride with, the owner as a lessee. There nowhere appears any privity between them. So far as the evidence and the record disclose he may have been in wrongful and illegal possession of the automobile. Besides he was proceeded against, not as a lessee, but, according to the evidence, as the owner. He clearly was not the latter. Be that as it may, as evidenced from the judgment, so far as the recitals disclose, he was not proceeded against either as a lessee or as the owner.

That, under the terms of this statute, an automobile worth five thousand dollars can be taken from its owner, confiscated and sold, and the proceeds'of the sale paid over to the State, upon the automobile being found transporting liquor of the value of only fifty cents, is to say the least a harsh and drastic proceeding. It is. a matter strictissimi juris. For this- reason the statute should be enforced most strictly and in accordance with its very terms. Only then should its enforcement work a forfeiture and a destruction of property rights. The constitution of this State declares that “protection to person and property is the paramount duty of government, and'shall be impartial and complete.” Civil Code, § 6358. Therefore, no fiction of ownership founded upon a mere presumption from possession should prevail when confronted with the absolute fact that the party in possession, and who alone was served and notified, was not the owner.

I am not unmindful of the decisions of this court and of the Supreme Court which hold that an action of trover will not lie against a sheriff to recover personal property held by him under judicial process. These decisions are based upon the ground that such property is in custodia legis and cannot be interfered with. The instant case, however, is distinguishable from them. It appears here that the court had no jurisdiction, and that the sheriff holds the property under a void judgment. The property, therefore, is not in custodia legis, but is being held by the sheriff tortiously and illegally. Under such circumstances, the authorities abundantly sustain the proposition that trover will lie at the instance of the true owner, to recover personal property iú the possession of a sheriff. A sheriff as such is not exempt from an action of trover to recover property which he claims to hold in his official capacity. In Riley v. Martin, 35 Ga. 136, where a levying officer made a lawful levy and afterwards tortiously converted the property, although acting in his official capacity, it was held that trover would lie against him. In 38 Cyc. 2041, where this case is cited with approval, it is stated that “an action for conversion may be maintained for the wrongful seizure and disposition of property under an attachment, execution or distress.” In support of the proposition that trover will lie against a sheriff to recover property in his custody, where there was either an unlawful seizure or a wrongful conversion, see Leise v. Mitchell (1893), 53 Mo. App. 563, and Abercrombie v. Bradford (1849), 16 Ala. 560. A wrongful levy constitutes a conversion. Stuart v. Phelps (1874), 39 Iowa 14; Marks v. Bright (1892), 81 Wis. 572 (51 N. W. 882); Vaden v. Ellis (1857), 18 Ark. 355; Lyon v Yates (1868), 52 Barb. (N. Y.) 237.

Plaintiff relies upon title in himself; the sheriff defends upon title in the State. The issue that is being tried is one of title, and trover, therefore, must be the remedy. The owner may rest secure on his title and demand that his property be taken by due process of law, and in accordance with the terms of the statute.

The uneontradicted testimony showing title in the plaintiff at the time of the alleged seizure of the automobile, and the answer of the defendant sheriff and the evidence failing to show that plaintiff’s title had become divested, and that such title had by due process of law been transferred to the State of Georgia, the sheriff fails to set up any title in the State which would justify him in withholding from the plaintiff the automobile in question, after plaintiff had demanded of him its surrender. In my opinion the verdict and judgment were contrary to law, and the judgment of the trial judge overruling the motion for new trial should be reversed.


source: Caselaw Access Project

author: Broyles, P. J. Stephens, J.,

license: Public Domain

text:
    10349.
    HARDISON v. GUERRY, judge.
    1. “In passing upon an application for mandamus to compel a judge to certify a bill of exceptions wliich is presented in proper form, this court will not look into the merits of any assignment 'of error therein made; but mandamus will not lie to compel the trial judge to sign and certify a bill which is so defective in form as to necessitate a dismissal of the writ of error in case it should be certified and brought to this court.” Sistrunk v. Pendleton, 129 Ga. 255 (58 S. E. 712).

      (a) Where no sufficient assignment of error is contained in a bill of exceptions, the writ of error will be dismissed. Fidelity & Deposit Co. v. Anderson, 102 Ga. 551 (28 8. E. 382) ; Kimball v. Williams,, 108 Ga. 812 (33 S. E. 994) ; Peavy v. Athinson, 108 Ga. 167 (33 S. E. 956) ; Wheeler v. Worley, 110 Ga. 513 (35 S. E. 639) ; Collins v. Carr, 111 Ga. 867 (36 S. E. 959) ; Carter v. Jackson, 115 Ga. 676 (42 S. E. 46) ; Patterson v. Beck, 133 Ga. 701 (66 S. E. 911) ; Willingham v. Cedartown Supply Co., 11 Ga. App. 464 (75 S. E. 823) ; Joiner v. Stovall, 12 Ga. App. 19 (76 S. E. 753).
    2. “There are three exceptions to the general rule that this court will not consider the merits of the bill of exceptions upon the application for mandamus. One is where an extraordinary motion for a new.trial has been made. Another is where all of the points made in the bill of exceptions have been passed upon by the appellate court, or where the bill of exceptions is so defective in form as to necessitate a dismissal of the writ of error should it be certified. And the third is in that class of eases in which the reviewing court is without jurisdiction. In the latter case, of course, a dismissal necessarily results. . . Barring these exceptions the appellate court, upon an application for mandamus, will not itself consider the merits of the bill of exceptions; though it will decline to’ make the mandamus absolute ii the judge in his answer presents a sufficient reason for not having certified the bill of exceptions.” Pelham Manufacturing Co. v. Scaife, 7 Ga. App. 446 (67 S. E. 111).
    Decided March 1, 1919.
    3. Under these rulings and the facts of the instant case, if the bill of exceptions tendered to the judge should be certified and brought to this court, a dismissal of the. writ of error would result. This court therefore will not by mandamus compel the judge to certify the bill of exceptions.
    Application for mandamus.

      Robert W. Barnes, for movant.
   Broyles, P. J.

The petition for mandamus alleged: that on January 13, 1919, a bill of exceptions which was in due and legal form, and which was true and correct, was tendered to the trial judge; that three days later, on January 16, 1919, the judge returned to counsel for petitioner the bill of exceptions uncertified, together with the following written statemént: “Being of the opinion, after consideration, that I have neither the legal authority or legal right to certify it, I hereby respectfully decline to do so. Dupont Guerry, J. C. 0. M.” The bill of exceptions, as set forth in the petition, was as follows:

“Georgia, Bibb County. R. G. Hardison, plaintiff in error, vs. The State of Georgia. In the Court of Appeals of Georgia, January, 1919. Error from city court of Macon. Accusation for violation of the prohibition law, and plea of guilty.

“ (1) Be it remembered: That on the 11th day of January, 1919, the regular the December term, 1918, of the city court of Macon, before the Honorable Dupont Guerry, judge presiding, there came on to be heard the case of the State vs. R. G. Hardison, the same being an accusation charging the defendant with a violation of the prohibition laws of said State...

“ (2) The defendant waived arraignment and entered a plea of guilty to the accusation, whereupon the court imposed a sentence of eight (8) months imprisonment in the State Farm, four (4) months of which he might be relieved upon the payment of a fine of $200.00.

“(3) Judgment of the court was entered accordingly.

“ (4) To this sentence and judgment of the cour£, the defendant excepted, and now excepts, and assigns error on the same, upon the ground that the same was contrary to law; was cruel and unusual; was in violation of article 1, paragraph 9 of the constitution of Georgia, prohibiting cruel and unusual punishment; and upon the ground that the penalty attached to and provided in said law is contrary to law in that the same is cruel and unusual and in violation of article 1, paragraph 9 of the constitution of Georgia, prohibiting cruel and unusual punishments.

“(5) Plaintiff in error specifies as material to a clear understanding of the errors complained of the following portions of the record in said case, to wit:

“(1) Affidavit and accusation.

“(2) Plea of guilty.

“(3) Sentence and judgment of the court.

“And now comes the plaintiff in error, within the period allowed by law, and presents this his bill of exceptions, and prays that the same may be signed and certified, in order that the errors complained of may be considered and corrected. This 13th day of January, 1919.”

The answer of the trial judge to the mandamus nisi was as follows:

“To the Honorable Court of Appeals of the State of Georgia.

“In answer to the order to show cause before the honorable court why I should not be required to sign and certify the bill of exceptions in the above-stated case, I most respectfully submit the following statement of facts and reasons, which I then believed and now believe legal and sufficient: The bill of exceptions was true in its recitations of fact, except the usual recitation in paragraph 4 of the bill of exception, that ‘the defendant excepted,’ the first and only exceptions being those contained in the bill of exceptions. The statement in paragraph 4 of the petition, that ‘To this sentence and judgment of the court, your petitioner did then and there except and object to upon certain named grounds and reasons set forth in his bill of exceptions to the said sentence and judgment which was in due and legal form tendered to said court, the Hon. Dupont Guerry,’ is denied.

“The plea of guilty was entered on January 11th to an accusation containing two counts for violations of the prohibition law, one for ‘selling,’ and the other for ‘possession,’ and the court thereupon asked Mr. Barnes, counsel for defendant, if he desired to say anything in reference to. the sentence, and he responded in an appeal for clemency, and was joined, therein by the defendant and' two others, who said the defendant was a man of good character. The court thereupon sentenced the defendant as set forth in the bill of exceptions, and no question of constitutionality or other question was raised or mentioned before the sentence was pronounced or upon its being pronounced. An hour or more after that’and on the same day, January 11th, while the court was in recess, ‘the defendant being dissatisfied with the verdict (when there was no verdict) and the judgment of the court/ tendered a motion for a new trial (when there had been no trial) on the sole ground ‘because the judgment and sentence of the court is cruel and unusual punishment and in violation of art. 1, par. 9, of the constitution of Georgia, in that the sentence and judgment of the court is cruel and unusual; and that the penalty attached to and provided in said law which petitioner is charged with-violating is cruel and unusual.’ A full copy of said motion is as follows: ‘And now comes, the defendant in the above-stated case, through his attorney of record, and, being dissatisfied with the verdict and the judgment of the court, moves'for a new trial, on the following grounds, to wit: (1) Because the judgment and sentence of the court is a cruel and unusual punishment and in violation of art. 1, par. 9 of the constitution of Georgia, in that the said sentence and judgment of the court is cruel and unusual, and that the penalty attached to and provided in said law which petitioner is charged with violating is cruel and unusual. Wherefore the defendant asks that these, his grounds for a motion for a new trial, be inquired into, and prays a new trial may be granted to him.’ The court refused to recognize the same on the ground that a motion for a new trial could not be made in a case in which the defendant had pleaded guilty, and' because the ground alleged therein was not a ground for a new trial.

- “On January 13th the bill of exceptions was tendered as alleged, and, after such consideration as was practicable (the court being at the time engaged in court matters)", I refused to sign and certify the same on February [January ?] Í 6th, for the reason then given in writing, as follows: ‘Being of the opinion, after consideration, that I have neither the legal authority or legal right to certify it, I hereby respectfully decline to do so.’ Upon such refusal the court on the same day returned the bill to Mr. Barnes, notifying him of such refusal. Eight days after this, on 24th of January, Mr. C. A. Glawson, attorney for the' defendant, presented an application for a modification of the sentence, and the court, by written order, refused the same, for the reason that it regarded the sentence a moderate, one and. because the defendant had on the 21st of January been taken to the State Farm, where he was serving'his sentence, and the court had no power to modify the same. Since then the defendant has filed an application for executive clemency with the prison commission, and I have been, requested _.by the .same to say whether there was any reason why the same should or should not be granted, and on the 3rd inst. I responded, giving reasons in the negative. So far as I am informed or believe, that application is still pending in the executive department of the State.' For one offense under each count the defendant was punishable under the law by sentence to the State Farm or the chain-gang twelve months, by imprisonment in jail six months, and by fine one thousand dollars, so that for the two offenses he was punishable by twenty-four months to the State Farm or the chain-gang, twelve months in jail, and by fine two thousand dollars. He was sentenced to eight months, with the privilege of paying a fine of two hundred dollars and being thereupon relieved of four months. Should he pay the fine, it would be only one tenth of the full amount in which he was finable for the two offenses, and the remaining four months would be only one sixth of the time he could have been sentenced and he would suffer no jail imprisonment. If he should not pay the two hundred dollar fine, the eight months sentence to the State Farm would be only one third of the period for which he could have been sentenced for the two offenses and he would not pay any fine or suffer any jail imprisonment. When the difference in hardship and disgrace between State Farm sentence and a chain-gang sentence is considered, it may be safely said that his sentence is not more than one tenth, of the full measure of punishment provided by law.

“Of course any defendant in any criminal proceeding in the city court of Macon may except to any sentence pronounced by that court, but, as I understand, he must except in accordance with law, and his exceptions must be to some decision made by the court below, and upon some question that the reviewing court has jurisdiction to review. With neither of these requirements did the bill of exceptions comply. The first assignment is that The sentence is contrary to law’, and, in view of the contents of the bill of exceptions, this is of itself no assignment at all, because there is no distinct specification of a point on which error is assigned and no error is plainly and specifically set forth. It is not a ease in which a general exception to a final judgment is sufficient because error is assigned on previous controlling rulings or on any rulings at all. General and vague exceptions make no issue of law that can be passed on by the reviewing court. Neither in this exception nor in any other exception in the bill is there any allegation that the court erred in any decision or ruling, or that the court made any decision or ruling.

“The second assignment is that the sentence was cruel and unusual. The sentence of the court shows that the punishment was neither cruel nor unusual, but quite to the contrary, and. there is no specification as to how or why or wherein it is cruel and unusual. Giving the phrase used its constitutional signification, the .very mild punishment imposed is clearly excluded therefrom. If, however, these views are incorrect, how' can the honorable Court of Appeals pass upon whether the sentence is cruel and unusual or not? Upon what data could it act in declaring that the same is cruel and unusual? If the honorable court should decide that the punishment is cruel and unusual, how could the court decide to what extent the same is cruel and unusual? What could it do or direct to be done? What jurisdiction would it have to do anything or direct anything to be done ?

“The third and fourth assignments are as follows: The sentence was in violation of art. 1, par. 9 of the constitution of Georgia prohibiting cruel and unusual punishments, and the penalty attached to and provided in said law is contrary to law, in that the same is cruel and unusual and in violation of art. 1, and par. 9 of the constitution of Georgia, prohibiting cruel and unusual punishments. These two assignments have the infirmities of their two predecessors, and other infirmities. The Supreme Court of Georgia holds that if the question of constitutionality is not made in the lower court, it will not be passed upon by the appellate court; also, that if the question of constitutionality of a statute is not presented in the lower court, it will not be considered by the Supreme Court. This honorable court has held that it will not certify a constitutional question to the Supreme Court unless raised in a lower court. As has already been stated, no constitutional question was ever mentioned in the city court before or upon sentence. Before pleading guilty the defendant had opportunity to raise such question. If he could have raised it after plea and before, or upon sentence when orally pronounced or before it was reduced to writing and signed, he did neither. Afterwards, during the recess, he sought to raise such question by a motion for new trial and the court refused to recognize the same, as before stated, and the defendant two days afterwards tendered his bill of exceptions, in which he makes no exceptions to such refusal. Assuming that the exceptions in the bill of exceptions would be valid in a ease in which they could be legally taken, they are legally impossible in the instant case, because there is nothing to which the defendant can legally except in a bill of exceptions. It may be said that the city court of Macon, in sentencing the defendant, decided by implication that the law under which the sentence was imposed was constitutional, but the defendant makes no assignment of error on such decision. If such decision by implication in a criminal case can be excepted to and the judge of the court below must certify the bill of exceptions and thereupon grant a supersedeas, the end of litigation in criminal cases would certainly be made more remote. The rule would apply to sentences in all criminal cases, from murder down to the most trivial misdemeanor, and upon verdicts as well as upon pleas of guilty. A fair and reasonable presumption is that the defendant is seeking a reduction of the punishment imposed, on account of its severity, but this court and the Supreme ..Court have both held that they have no jurisdiction to act on such a subject-matter by review. Such a question, it is manifest, appertains to the executive department, under .the constitution.

“I assume the case will turn on the bill of exceptions I refused to certify, and not on allegations in the application which are denied. My view was that I had no authority to sign the bill of exceptions, because it was not a bill of exceptions, because it contained no exceptions and the recitations therein showed that there was no decision or ruling excepted to or that could be excepted to; and, separating-(perhaps illogically) the question into two questions,— that of authority and that of right,—I believed I had no right to certify the bill of exceptions presented and cause it to be transmitted to the honorable court. The judge of the lower court can not exercise any discretion either in certifying a bill of exceptions or in refusing to do so, and under my. conviction as to- the law it was my duty to the honorable court, as well as otherwise, to refuse. Most respectfully, Dupont Guerry, Judge of the City Court of Macon.”

We think the answer of our learned brother of the trial bench, even when shorn of those paragraphs which may bear upon the merits of the assignments of error in the bill of exceptions, gives several sufficient reasons (and one is enough) why he should not be required to certify' the bill of exceptions which was tendered him.

When properly construed the bill of exceptions contains but a single assignment -of error,—in effect as -follows: The judgment and sentence of the court, and the penalty attached to and provided in the prohibition law of the State, are contrary to law, in that the same are in violation of article 1, paragraph 9, of the constitution of Georgia, prohibiting cruel and unusual punishments. This exception attempts to raise a constitutional question. If the question were raised, this court would have no jurisdiction to entertain the bill of exceptions, but would transfer it to the Supreme Court. It is obvious, however, that no constitutional question is raised, and therefore, there being no other assignment .of error, the. bill of exceptions presents no question for determination by this court, and if it were certified and brought up, the writ of error -would necessarily be dismissed. . This ruling is not in -conflict with the decision in Taylor v. Reese, 108 Ga. 379 (35 S. E. 917), and the other numerous decisions of the Supreme Court and of this eouxrt which hold that in passing upon a petition for mandamus the reviewing court will not consider the merits of the questions presented by the bill of .exceptions. As was said by Mr. Justice Candler in Willis v. Felton, 119 Ga. 634 (46 S. E. 857): “This case is, of course, clearly distinguishable from those, where this court has held that it will, without enquiring into the merits of the case, issue a mandamus absolute to require a trial judge to certify the truth of a bill of exceptions complaining of the overruling of a motion for a new trial or of any ruling which necessarily controlled the verdict of the fury. It belongs rather to that class of easés where the merits of the questions sought to be reviewed have already been determined, and a further consideration of thpm would be futile.” (Italics ours.) Furthermore, we do not think that any of those decisions ever conceived of a bill of exceptions so wholly without even the shadow of a meritorious assignment of error as the one now under consideration. As was said by Mr. Justice Cobb in Rawlins v. Mitchell, 127 Ga. 24 (55 S. E. 958), in referring to the decision in Taylor v. Reese, supra: “While in the case just cited some very broad language is used by Mr. Presiding Justice Lumpkin in the opinion, the case that he was then dealing with must be kept in mind, and it was a case where the first bill of exceptions after a trial and verdict was tendered to the judge. ' It is worthy of remark, in passing, that it afterwards developed that the bill of exceptions presented a meritorious case, the judgment being reversed when the case was finally passed upon by this court. See Taylor v. State, 108 Ga. 384 [34 S. E. 2]. . . While no party will be deprived of a hearing on the merits of his case, no matter what may be its character, whether an extraordinary motion for a new trial, motion to set aside a judgment, or other proceeding after verdict, the judge of the superior court will riot be compelled to certify a bill of exceptions in such proceeding unless it is made to appear to this court that the applicant has been denied some right guaranteed to him by law. . . But the case will not be prolonged by requiring the bill of exceptions to be certified, when it is apparent from the averments of the petition for mandamus and the bill of exceptions .that an affirmance of the judgment complained of would in any event be the inevitable result. . . The ruling now made is in line with the view of the majority of the court in Willis v. Felton [supra]. The writer dissented in that case on the idea that the case of Taylor v. Reese, supra, was controlling; but upon further reflection and investigation he is of the opinion that that case did not go to the extent then contended for, and he is therefore prepared to concur in the view above set forth.” (Italics ours.) In the same case (Rawlins v. Mitchell), in a concurring opinion, Justices Evans, Lumpkin, and Atkinson said: “We concur in the ruling in this ease, and the result reached. We think, however, that, while generally a first bill of exceptions which is true and duly prepared and presented in accordance with law, and which assigns error on a final judgment, should be signed, yet it is not an arbitrary and invariable rulé that this court will by mandamus compel the signing even of a first bill of exceptions, wholly regardless of what it contains.”

It has often been said by law-writers, and quoted approvingly in numerous decisions of both of the reviewing courts of this State, that “the law does not require the doing of a vain thing.” The bill of exceptions in the present case is upon its face so absolutely and utterly devoid of any merit whatsoever that to require it to be certified and brought to this court would be merely a waste of time and “an idle and useless ceremony”.

Mandamus absolute denied.

Bloodworth, J., concurs. Stephens, J., dissents.

Stephens, J.,

dissenting.

“Either party in any civil cause, and the defendant in any criminal proceeding, . . may except to any sentence, judgment, or decision. . . Such bill of exceptions shall specify plainly the decision complained of, and the alleged error.” (Italics mine.) Civil Code, § 6139.

If the bill of exceptions be true, and contain a valid assignment of error presenting a question within the jurisdiction of this court, and does not fall within the exceptions mentioned in Pelham Mfg. Co. v. Scaife, cited and referred to in headnote 2, and being the first bill of exceptions presented to the trial judge after the rendition-of the judgment or sentence complained of, the trial judge should by mandamus absolute be ordered to certify to the bill of exceptions, in order that the merits of the questions presented in the valid assignment of error may be determined by this court in the manner regularly provided by law.

The bill of exceptions before us assigns error upon the sentence upon the ground that it “was contrary tp law, was cruel and unusual ; was in violation of article 1, paragraph 9, of the constitution’ of Georgia, prohibiting cruel and unusual punishment.” Whatever may be the merits of the question here raised, the assignment of error is good and presents a question for determination. It is well settled that this court will entertain a direct bill of exceptions to a final judgment even though no objection was made to its rendition in the court below. Epping v. Columbus, 117 Ga. 264 (10) (43 S. E. 803); Kelly v. Strouse, 116 Ga. 874 (8 c) (43 S. E. 280) ; Wyly v. Burnett, 43 Ga. 438 (2).

The constitutional amendment of 1916 fixing-the jurisdiction of this court provides that the Court of Appeals shall have certain jurisdiction except in “cases that involve the construction of the Constitution of the State of Georgia or of the United States, or treaties between the United States and foreign governments; [and] . . cases in which the constitutionality of any law of the State of Georgia or of the United States is drawn in question.” So far as this assignment of error is concerned, the applicant does not seek to raise any question as to the constitutionality of any law of the State of Georgia or of the United States, nor does he raise a question that involves the construction of the constitution of this State in the sense in which the expression “construction of the constitution” is here used. Under the constitutional amendment of 1906 creating the Court of Appeals, which was in this respect substantially the same as the above-quoted language from the amendment of 1916 now fixing the jurisdiction of this court, this provision was construed by this court in the case of Fews v. State, 1 Ga. App. 122 (58 S. E. 64), where the following language was used by Judge Powell: “The constitutional amendment creating this court provides, that ‘Where, in a case pending in the Court of Appeals, a question is raised as to the construction of a provision of the constitution of this State or of the United States, or as to the constitutionality of an act of the General Assembly of this State, and a decision of the question is necessary to the determination of the ease, the Court of Appeals shall so certify to the Supreme Court, and thereupon a transcript of the record shall be transmitted to the Supreme Court, which, after having afforded to the parties an opportunity to be heard thereon, shall instruct the Court of Appeals on the question so certified, and the Court of Appeals shall be bound by the instruction so given/ Acts 1906, p. 26. It will be seen from the above that, since the question presented in'this case does not involve the constitutionality of an act of the General Assembly, it must appear that it raises a question as to the construction of a provision of the constitution, before this court is required to certify it to the Supreme Court. A ease that involves merely the applicability of a concededly unambiguous clause of the constitution to a given state of facts raises no question of construction. Likewise, where a clause in the constitution has been construed by the Supreme Court as having a certain meaning and intendment, and such fixed judicial construction is unchallenged, there is still no question raised as to the construction of a clause of the constitution. The excerpt from the constitutional amendment creating this court, quoted above, is also to be construed in pari materia with another provision in the same law, that ‘The decisions of the Supreme Court shall bind the Court of Appeals as. precedents.’ Therefore, if the identical question of construction has been before the Supreme Court, and that court has judicially given a construction to the clause in question, it. is unnecessary to certify and to continue to certify such a question to the Supreme Court every time a party may seek to raise it.” See Cox v. State, 19 Ga. App. 289 (91 S. E. 422) ; Atkins v. State, 7 Ga. App. 202 (66 S. E. 479); Tilton v. State, 5 Ga. App. 60 (.62 S. E. 651).

The section of the constitution of this State which the applicant, in his assignment of error, refers to has been construed by the Supreme Court of Georgia as being a limitation upon legislative authority. See Whitten v. State, 47 Ga. 301; Plain v. State, 60 Ga. 284; Loeb v. Jennings, 133 Ga. 796 (67 S. E. 101, 18 Ann. Cas. 376); Allen v. Jennings, 134 Ga. 338 (67 S. E. 883). As this clause of the constitution has “been construed by the Supreme Court as having a certain meaning and intendment, and such fixed judicial construction is unchallengfed, [and as] there is. still no question raised as to the. construction of a clause of the constitution,” a question is presented in the bill of exceptions for determination by this court. That this court would be compelled, upon an inquiry into the merits of the question presented by this assignment of error, to decide against the applicant’^ contention does not affect his right, under the repeated rulings of the Supreme. Court and of this court, to have his bill of exceptions certified and the case brought regularly to this court, where the question' can be decided upon the bill of exceptions after a hearing, rather than upon an’ application for mandamus without an opportunity to be heard.

The cases of Willis v. Felton, 119 Ga. 634 (46 S. E. 857), and Rawlins v. Mitchell, 127 Ga. 24 (55 S. E. 958), relied upon in the majority opinion, relate to a bill of exceptions presented, to the trial judge after the case had already been once reviewed in the appellate court upon'a former bill of exceptions. Such cases have always been regarded as exceptions to the general rule requiring a mandamus to compel the trial judge to certify to a first bill of-exceptions when it speaks the truth and contains a valid assignment of error. The question seems to me to be settled by Taylor v. Reese, 108 Ga. 379 (33 S. E. 917), where it was held that upon a- presentation to the trial judge of a first bill of exceptions, which was true and contained a valid assignment of error, the court, without inquiring into the merits of the question presented by the bill of exceptions, would by mandamus absolute compel the trial judge to certify the same. This case has never been overruled. It was commented on by the Supreme Court in the opinion rendered by Mr. Justice Cobb in Rawlins v. Mitchell, supra. Justice Cobb there said, “When a case has been tried in the superior court and a verdict rendered therein,- the losing party is entitled to make a motion for a new trial, and to bring to this court for review the decision of the judge overruling the motion. . . . When a bill of exceptions, in such cases, is tendered to the judge, and the averments therein are true, it is the duty of the judge to certify the same, in order that the case may be brought to this court, according to the usual practice governing such matters. When in such a case the judge refuses to certify the bill of exceptions, and an application for mandamus is made to this court to compel him to certify the same, the only question that will be determined on such application is whether the bill of exceptions is in due form and it is shown by the petition for mandamus that the averments therein are true. The merits of the assignments of error therein will not be dealt with. In such cases it is immaterial whether the assignments of error are meritorious. The case must reach the Supreme Court in the ordinary way. . . It will be seen that there are two classes of cases relating to the duty and authority of this court upon an application for a mandamus- to compel the judge to certify to a bill of exceptions. If it is the first bill of exceptions after verdict, the merits of the ease will not be considered upon the application for mandamus. . The ease now under consideration is not a ease of the first bill of exceptions after verdict. . . But it is to a ruling relating to a motion to set aside a judgment made after the term at which the judgment was- rendered, but within three years from the date of the judgment. Shall a case of this character be classed with those which are embraced in the rule in Taylor v. Reese, supra, or shall it be classed with those embraced in the rule laid down in Malone v. Hopkins [49 Ga. 221] and the numerous cases following it? The reason at the foundation of the latter class of cases is undoubtedly that there must be a termination of a criminal case; and while no party will be deprived of a hearitg on the merits of his ease, no matter what may be its character, whether an extraordinary motion for new trial, motion to set aside a judgment, or other proceeding after verdict, the'judge of the superior court will not be compelled to certify a bill of exceptions in such proceeding unless it is made to appear to this court that the applicant has been denied some right guaranteed to him by law.” Malone v. Hopkins was a ease where the trial judge refused to certify to a bill of exceptions complaining of a ruling upon an extraordinary motion for new trial. When brought to the Supreme Court upon application for mandamus' a mandamus was refused. In the casé of Rawlins v. Mitchell, supra, just quoted from, three of the Justices, while concurring, stated obiter that in their opinion “it is not an arbitrary and invariable rule' that this court will by mandamus compel the signing even of a first bill of exceptions.” Be that as it may, the doctrine of Taylor v. Reese, as above stated, has not been overruled.- In my opinion the doctrine there laid down controls the ease now before us.

Whether or not there appears to be any merit in the questions • raised in the bill of exceptions exhibited to us in this case, I' do not think that we should close the door of this court in the face of the applicant and deny to him the privilege of at least one hearing on the merits of the questions presented in his bill of exceptions, after a proper certification thereof and upon its being regularly-submitted to this court. The doors of courts are supposed to be open, not barred.

Even though, under the law as at'present announced, the contention of the applicant may not be meritorious, he unquestionably has the right to a hearing wherein he can seek to have overruled the decisions which confront him. The latter can be accomplished • only upon a review on a bill of exceptions- regularly bringing the case up. It cannot be done on an application for a mandamus to compel the signing of the bill of exceptions.

While it would be a great relief of this court could we refuse to grant a mandamus absolute in any case where the questions raised in the bill of exceptions were palpably without merit, yet under the liberal practice ^obtaining- in this State, allowing resort to this court as a matter of right to every litigant east in the court below, it would seem that we should not refuse, except in extraordinary cases, to allow a losing party, upon his first complaint of a decision of the court below, the right to regularly come to this court and have his ease here once reviewed. Such relief should be granted by legislation, rather than by a refusal on our part to issue a mandamus for the purpose of having certified a bill of exceptions which presents no meritorious question for our review.

For the above reasons I feel constrained to hold that a mandamus absolute should be granted, and therefore must dissent from- the judgment denying it.


author: Bloodwórth, J.

text:
    10005.
    McIntosh v. The state.
    Decided March 7, 1919.
    For an alteration of a writing to be the basis of a prosecution for forgery the alteration must be a material one. ,

      (a) “The figures in a check, following the words in the body thereof denoting the sum called for, are not a material part of the instrument, the words being controlling in determining the legal effect.”
    Indictment for forgery; from Bibb superior court—Judge Mathews. July 15, 1918.

      John R. Cooper, for plaintiff in error.

      John P. Ross, solicitor-general, contra.
   Bloodwórth, J.

The indictment charged that the defendant forged and altered a cheek or draft, “by altering and raising the figures and numerals on said check, to-wit, $3.60 to the figures and numerals, to wit, $57.60,” said cheek or draft being.in substance and tenor as follows:

Form No. 1840.

Southern Bailway Company, Account Department, June 1917. Boll 3144 Line 6 Washington, D. C., July 16, 1917. No. 33389. H. C. Ansley, Treasurer, Southern Railway Co., Washington, D. C. Pay to the order of Thomas McTntosh ($57.60) [the figures on said draft and cheek being $3.60 before its alteration and .said figures $3.60 being falsely and fraudulently altered and made to be $57.50 as aforesaid] Two 60/100 Dollars. Not valid if drawn for more than three hundred (300) dollars. In full for services rendered during the month of June, 1917, when endorsement is in-exact accord with name of payee and is guaranteed by an agent of the company. Not negotiable unless countersigned by either A. H. Plant, Comptroller, H. E. Bruce, B. E. Green, P. Herman, K. Hurt, E. Marceron, C. E. Moore, H. T. Binck, H. E. Bruce.

Printed on margin the following :

“This check will be paid by any of the banks named oA the back having sufficient funds of the Company in its hands or by any agent having sufficient funds of the Company in his hands. It is receivable also in payment of freight or fares. Payable not later than sixty days from date.”

Endorsed on the back of the check or draft were the names of a number of banks.

To this indictment a demurrer was filed, as follows: “1. Because the said indictment does not allege a crime against the laws of the State of Georgia. 2. Because the alleged alteration in the check described in said indictment is not a material alteration and does not constitute a forgery. 3. Because the check described in said indictment is not alleged to have been altered or changed in amount in the body of said check, the only alteration being in the marginal figures, and therefore the alteration did not constitute a forgery.” The demurrer was overruled, and the defendant excepted.

■This case has not been without its serious difficulties. That for an alteration of a writing to be the basis of a prosecution for forgery the alteration must be a material one was easily determined from text-boqks, books of reference, and the opinions of the courts of last 'resort in many jurisdictions; but the question of what was a material alteration was not so easily settled. After a very thorough examination of the reports and digests in search of precedents, three cases directly in point were found, two of these holding that under facts similar to those in the instant case the defendant was' not guilty of forgery, and one that he was. In Commonwealth v. Hide, 94 Ky. 517 (23 S. W. 195), it was'held: “Where a check for ‘seventy cents/ the amount of which was also written in figures, thus: ‘$¿|/ near the top of the cheek, was altered by inserting the figure ‘3’ between the dollar mark and the figures ‘70/ leaving the words ‘seventy cents’ in the body of the check unchanged, the alteration constituted a forgery, although the person to whom the check was presented for payment could, by close observation, have detected the forgery and prevented the consummation of the fraud.” This case is referred to with disapproval by the Supreme Court of Appeals of West Virginia, and by the .Supreme Court of Illinois, as will hereafter appear. In State v. Lotono, 62 W. Va. 310 (58 S. E. 621), the 2d and 4th headnotes are as follows: “An alteration in an instrument, to constitute forgery, must be of a material part thereof; and a material alteration of an instrument is one which makes it speak a language different in legal effect from that which it originally spoke, or which carries with it some change in the rights, interests or obligations of the parties to the writing. The figures in a check, following the words in the body thereof denoting the sum called for, are not a material part pf the instrument, the words being controlling in determining its legal effect.” In the opinion in that case Judge Miller said: “An alteration in an instrument, to amount to forgery according to the authorities cited, must be such as to make it speak a language different in legal effect from that which it originally spoke or which carries with it some change in the rights, interests Or obligations of the parties to the writing. It follows that an immaterial change—a change which if true would not affect the legal liability of the parties in an action on the instrument—would not amount to forgery. 1 Bish. Cr. L., § 572; State v. Poindexter, 23 W. Va. 805. The test is the legal effect of the change or alteration, not whether some one may be misled or deceived by the paper. Here the only change was in what are called in some eases the marginal figures, which, while they might mislead one who should fail to observe the body of the instrument, could not change or affect the legal status of the parties, or tend in legal effect to prejudice another’s rights. The alteration of the check in this case did not deceive the bank; and its legal effect was not changed. The materiality of the alteration is a question of law for the court upon the admissibility of the altered instrument in evidence, and, the alteration being shown, nothing remains for the jury to pass upon. Mfg. Co. v. Watson, 58 W. Va. 189, 195 [52 S. E. 515]. Was the alteration of the figures in the check a material one? We think not. It is true the figures follow the words in the body of the check denoting the sum called for, as is frequently the case, and are not strictly marginal;'but we do not think they form a material part of the paper. They are for ready reference; as if written at the top or in the margin, and for convenience; they are not controlling, and do not change the legal effect of the paper. The words are the controlling portion, and 'the figures constitute no material part of the instrument. Many authorities so hold. 2 Cyc. 196, 211, and cases cited; Schryver v. Hawkes, 22 Ohio, 308. We are cited to only one ease which holds the contrary—Commonwealth v. Hide, 94 Ky. 517. That case stands alone, unsupported, and we do not think it states the law correctly.”

To the same effect as the Lotono case is that of Wilson v. State, 85 Miss. 687 (38 So. 46), the 1st headnote of which is as follows:

“Under Code 1892, § 1106, defining forgery and confining the crime to instances where any person may be affected, bound, or in any way injured in his person or property, the mere alteration of the figures, following the character f$’, in the upper right-hand corner of a draft, changing ‘2.50’ to ‘$12.50’, does not constitute forgery where in the body of the instrument the sum ordered paid was • . distinctly written Two and 50-100 dollars,’ and this is especially true where the paper upon which the draft was written had distinctly stamped upon its face the words “Ten dollars or less,’ since the alteration was of an immaterial part of the instrument and could not injure any one.” While the opinion in the Wilson ease is based upon a local statute, the general principles announced therein are applicable to the instant ease. In addition to the above the following cases throw light upon the question at issue. In State v. Means, 47 La. Ann. 1535 (18 So. 514), one of the head-notes is as follows: “The forgery charged, and altering, were not alleged with the required certainty. The extent and character of the altering were not shown; whether the figures (it is alleged) were forged were of a material character, or merely marginal; whether the writing expressed was forged or only the figures.” In the decision Mr. Justice Breaux, speaking for the court, said: “To constitute a charge of alteration and forgery of an instrument it must be averred that it was altered in a material part. It does not appear with certainty whether the alteration was of a material part. Of course, if the accused feloniously forged and altered the figures 2.75 so as to make them read 29.75 by adding 9 to a material part of the order, he is guilty of forgery; in other words, if there was no writing of the amount, and if the order read, pay 2.75, and was thus'altered, it is forgery.' But if the 2.75 was merely marginal, or in character marginal, as relates to a writing of the amount, it was not forgery.” In Lawless v. State, 114 Wis. 189 (89 N. W. 891), it was held that “Insertion of the figure 5 before the-figure 9 in'a cheek reading 'Pay to [defendant] or order $9..:.....fifty cents...........dollars’ is a material alteration, constituting a forgery, although the written words remained unchanged and the person cashing the check might by close observation have detected the change and prevented the consummation of the fraud.” In the opinion in that case the Hide case, supra, is referred to as “a case similar in nearly all its aspects.” The difference in the two eases is very marked. In the Lawless case the number of dollars was not written out in words, but only expressed in figures, while in the Hide case the amount was expressed in both words and figures.

In State v. Lewinger, 252 Ill. 332 (96 N. E. 837, Ann. Cas. 1912D, 239), it was held that “Altering'the marginal figures of a check to make them correspond with the amount expressed in written words which are not ambiguous or uncertain is not forgery, as the written words, under section 17 of the negotiable-instrument act of 1907, control the amount of the check, and the alteration does not change the legal effect of the instrument.” In discussing that ease Mr. Justice .Cartwright said: “The alteration of the figures, therefore, did not change the legal effect of the instrument. That was the law as established before the passage of the negotiable instrument act. . . Other courts have held that an alteration of marginal figures on a check in which the amount payable is plainly expressed in words is not forgery,” citing the Wilson, Lotono, and Means cases, supra, and Jackson v. State, 72 Ga. 28. While the Supreme Court of Wisconsin referred to the cases of Lawless and Hide, supra, as similar eases, the Supreme Court of Illinois said in the Lewinger case, “We do not regard them as of the same nature.” Nor do we. The difference in the two cases is pointed out above. - So it appears that the Supreme Court of West Virginia was right when it said in the Lotono case that the Hide case “stands alone, unsupported.”

From the foregoing opinions it appears that before the alteration of a check or draft can be the basis of a prosecution for forgery, the change must be such that it would affect the “legal liability of the parties in an action on the instrument.” It is well established that when the amount of a check is expressed both in words and figures, and there is a conflict between the two, the amount stated in words controls; See, in this connection, Bryant v. Georgia Fertilizer & Oil Co., 13 Ga. App. 448 .(79 S. E. 236). Applying the above rulings to the facts as alleged in the indictment in the instant case, it follows that the change in the check, upon which the prosecution was based, was not material, and therefore the court erred in overruling the demurrer to the indictment. This error rendered the further proceedings nugatory.

Judgment reversed.

Broyles, P. J., and Stephens, J., concur.


author: Broyles, P. J.

text:
    10213.
    Crowley v. The State.
    Decided March 7, 1919.
    Accusation of sale of liquor; from city court of Nashville— Judge Christian. October 14, 1918.
    J. C. Smith, W. R. Smith, for plaintiff in error.

      J. H. Gary, solicitor, H. L. Jackson, contra.
   Broyles, P. J.

The defendant’s motion for a new trial contained only the usual general grounds. Upon the trial the defendant introduced no evidence and made no statement. The evidence for the State not only authorized but demanded the verdict rendered, and the coui-t did not err in refusing to grant a new trial.

Judgment affirmed.

Bloodworth and Stephens, JJ., concur.


text:
    10225.
    Williams v. The State.
    Decided March 7, 1919.
   Broyles, P. J.

1. The fact that a juror is related within' the prohibited degree to a ^witness for the State in a criminal prosecution does not render him incompetent to serve as a juror upon the trial of the case. Athinson v. State, 112 Ga. 411 (37 S. E. 747) ; Atlantic Coast Line R. Co. v. Mead, 22 Ga. App. 70 (95 S. E. 476); 16 R. C. L. 259, § 77.

'(a) The contention of the accused, as set forth in his motion for a new' trial, was that the witness who was related to one of the jurors was the “prosecuting witness,” and-“to all intents and purposes was in fact the prosecutor in said case.” Even if this contention were supported by the affidavits submitted, and even if the proof of this contention were sufficient in law to establish the disqualification of the juror, yet, as the evidence submitted by the movant 'was met by a counter-showing by the State, the judge was the trior of this issue, and it does not appear that he abused his discretion in resolving it in favor of the State.

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

Judgment affirmed.

Bloodicorth and Stephens, JJ., concur.

Accusation, of misdemeanor; from city court of Blackshéar— Judge Mitchell. October 26, 1918.

James R. Thomas, W. W. Bennett, for plaintiff in error..

S. F. Memory, solicitor, contra.


text:
    10231.
    Dorsey v. The State.
    Decided March 7, 1919.
    Indictment for possession of intoxicating liquor; from Cherokee superior court—Judge Morris. September 24, 1918.

      W. D. Mills, Howell Brooke, for plaintiff in error.

      John T. Dorsey, solicitor-general, Herbert Clay, contra.
   Broyles, P. J.

The defendant’s motion for a new trial contained only the usual general grounds; the verdict was amply authorized by the evidence; and the court did not err in overruling the motion for a new .trial.

Judgment affirmed,.

Bloodworth and Stephens, J.J., concur.


author: Bloodworth, J.

text:
    10232.
    Cash v. The State.
    Decided March 7, 1919.
    Accusation of possession, of intoxicating liquor; from Butts superior court—Judge Searcy. November 2, 1918.

      C. L. Redwine, for plaintiff in error.

      E. M. Owen, solicitor-general, contra.
   Bloodworth, J.

The motion for a new trial contains the general grounds only, the evidence was sufficient to authorize the jury to convict, the verdict has the approval of the presiding judge, and this court will not interfere.

Judgment affirmed.

Broyles, P. J., and Stephens, J., eoneur.


text:
    10252.
    Green v. The State.
   Bloodworth, J.

1.' “On the trial of one charged with a violation of the act of 1910 (Acts 1910, p. 134 [Park’s Ann. Penal Code, § 348a]), the State makes out a prima facie case when it proves that the accused carried a pistol on his person, or had manual possession of a pistol, not at his home or place of business, and the burden is upon the accused to show, in answer to this evidence, that he had a license as prescribed by the act.” Blocker v. State, 12 Ga. App. 81 (3) (76 S. E.784). See also Russell v. State, 12 Ga. App. 557 (77 S. E. 829) ; Harden v. State, 17 Ga. App. 322 (86 S. E. 736); Elkins v. State, 17 Ga. App. 479 (87 S. E. 713).

Decided March 7, 1919.

Accusation of carrying pistol; from city court of Millen—Judge Dekle. October 28, 1918.

James A. Dixon, for plaintiff in error.v

William Woodrum, solicitor, contra.

2. The motion for a new trial contained only the general grounds, there was evidence to support the verdict, which has the approval of the presiding judge, and the judgment must be

Affirmed.

Broyles, P. J., and Stephens, J., concur.


author: Stephens, J.

text:
    10256.
    Glover v. The State.
    Decided March 7, 1919.
    Indictment for assault with intent to rape; from Forsyth superior court—Judge Morris. November 2, 1918.
    The accused was convicted of assault and battery. In the fourth ground of the motion for a new trial it is alleged that the court eTred in charging the jury as follows: “If this defendant assaulted this woman named in the indictment, put his hands on her in a rude manner, whether in an angry manner or not, with the intention of gaining [her] consent to have sexual intercourse with him, and without the intent to overpower her and commit rape, then he would be guilty of the crime of assault and battery.” It is alleged that this was error because the laying of hands upon a person in a rude manner must be without the consent of the person, to be criminal; that however rude the manner of the man might be, if it was with the consent of the woman it could not be assault and battery. Instructions to the same effect as those set out above are complained of in the fifth ground of the motion for a new trial.

      J. P. Brooke, for plaintiff in error.

      John T. Dorsey, solicitor-general, contra.
   Stephens, J.

1. Under the particular facts of this case the 'trial judge committed no error as complained of in the fourth and fifth grounds of the motion for new trial.

2. The evidence supports the verdict, and the trial judge did not err in overruling the motion for new trial.

Judgment affirmed.

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


text:
    10277.
    Elam v. The State.
    Decided March 7, 1919.
    Indictment for manufacture of intoxicating liquor; from Lincoln superior court—Judge Walker. November 27, 1918.

      C. J. Perryman, for plaintiff in error.

      R. C. Norman, solicitor-general, contra.
   Broyles, P. J.

None of the special grounds of the motion for a new trial is meritorious; the verdict is amply supported by the evidence; and the court did not err in refusing a new trial.

Judgment affirmed.

Bloodworth and Stephens, JJ., concur.


text:
    10306.
    Parks et al. v. Dorsey, solicitor-general.
    Decided March 7, 1919.
    Motion for correction of brief of evidence; from Forsyth superior court—Judge Morris. December 24, 1918.

      H. B. Moss, for plaintiffs in error.

      John T. Dorsey, solicitor-general, contra.
   Broyles, P. J.

The decision of this court in Parks v. State 23, Ga. App. 276 (98 S. E. 90), has'caused the questions in "the present bill of exceptions to become moot. The writ of error is therefore

Dismissed.

Bloodworth and Stephens, JJ., concur.


text:
    10352.
    Anthony v. The State.
    Decided March 7, 1919.
    Accusation of manufacture of intoxicating liquor; from city court of Macon—Judge Guerry, January 28, 1919.

      Hunter & Wimberly, for plaintiff in error.

      Will Qunn, solicitor, contra.
   Stephens, J.

The verdict being authorized by the evidence and approved by the trial judge, the judgment overuling the motion for a new trial is affirmed.

Judgment affirmed¡

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


text:
    7787.
    Swicord v. Crawford et al., receivers.
    Decided April 4, 1919.
    Complaint; from city court of Cairo—Judge Willie. July 19, 1916. .

      S. P. Cain, Little, Powell, Smith & Goldstein, for plaintiff in error.

      M. L. Ledford, Claude Christopher, contra.
   Broyles, P. J.

L “Stockholders in a bank incorporated under the laws of this State since the passage of- the act of 1893, whether original subscribers, or purchasers of stock from the corporation, or transferees of such stockholders, are individually liable equally and ratably (and not one for another as- sureties)' to depositors of said corporation for all moneys deposited therein, in an amount equal to the face value of their respective shares of stock.” Crawford v. Swicord, 147 Ga. 548 (94 S. E. 1025). " .

2. “In a suit brought by the receivers of an insolvent bank, chartered under the laws of Georgia since the act of 1893 (Acts 1893, p. 70), against a stockholder thereof upon his statutory individual liability to depositors of the bank (Civil Code of 1910, § 2270), the defendant can not set off the amount of his individual deposits which he had in the bank when it became insolvent and ceased to operate. . . Nor can he set off an amount of money which, subsequently to the insolvency and closing of the bank but prior to the commencement of such suit against him, he voluntarily paid to other depositors of the bank to reimburse them for the loss of their deposits.” Swicord v. Crawford, 148 Ga. 719 (S. E.).

3. The first ruling stated above was made by the Supreme Court when this case was carried there by certiorari, and the contrary rilling by this court (20 Ga. App. 35, 92 S. E. 394) was thereby reversed and overruled. Under the ruling of the. Supreme Court, the. trial court did not err in overruling the general demurrer to'the plaintiff’s petition. The contrary ruling by this court is, on review, hereby expressly overruled.

4. Under the ruling in paragraph 2, supra, the judge, sitting without the intervention of a jury, did not err in rendering judgment for the plaintiff for the full amount sued for.

5. The former judgment of reversal rendered by this court and reported in 20 Ga. App. 35, is ordered vacated, and the plaintiff in error is taxed with all costs of the proceedings in the trial court and in the reviewing courts.

Judgement affirmed.

Bloodworth and Stephens, JJ., concur.