text:
    77719.
    PEEPLES et al. v. CITY OF ATLANTA.
    (377 SE2d 889)
   Birdsong, Judge.

The appellants, Mrs. Mattie Peeples and Mrs. Henrietta Jackson, are the mother and administratrix, respectively, of Millie Ann Peeples, who was killed when a stolen car being chased by Atlanta Police Officer M. S. McCrary collided with her car. Appellants filed this wrongful death action against the police officer and the City. The City filed a motion to dismiss or in the alternative for partial summary judgment as to any liability over the amount of self-insurance, and that appellants’ prayer for punitive damages be dismissed. The trial court, after “having reviewed the record and the briefs on file, and after hearing argument of counsel,” gave judgment for the City and dismissed the City “as a party defendant.” This appeal followed. The City has filed a motion to dismiss, arguing the trial court’s judgment was not one subject to direct appeal but was reviewable only via certificate of immediate review. Held:

1. The City of Atlanta was one of two parties being sued. “The entry of a judgment [including dismissal] as to one or more but fewer than all of the claims or parties is not a final judgment under Code Ann. § 6-701 (a) 1 [now OCGA § 5-6-34 (a)] and lacks res judicata effect unless the trial court makes an express direction for the entry of the final judgment and a determination that no just reason for delaying the finality of the judgment exists.” Culwell v. Lomas & Nettleton Co., 242 Ga. 242, 243 (248 SE2d 641). The judgment of the court in this instance did not include the statutory words of finality. See OCGA § 9-11-54 (b). However, this finality rule does not apply where the judgment is a grant of summary judgment which is on the merits, has the collateral effect of res judicata, and is directly appeal-able under OCGA § 9-11-56 (h). Culwell, supra at 243. Thus, we must determine whether the court’s order was one for summary judgment.

Under OCGA § 9-11-12 (b), “[i]f, on a motion to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in” OCGA § 9-11-56. Subsection (c) of this statute also treats motions for judgment on the pleadings in the same manner. Although the present motion to dismiss is not couched in terms either that the complaint failed to state a claim, or prayed for judgment on the pleadings, in effect, the relief requested is the same because the claim of immunity is based on the wording of the complaint and matters outside of the pleadings were considered by the court in reaching its decision.

A motion grounded on a claim of sovereign immunity is one in bar — the same as a claim of the running of the statute of limitations. This court has held that “[s]ince the bar of the statute of limitation appears on the face of the complaint, the defendants could and did raise the question at the trial term by their motion to dismiss the complaint” and the trial court “did not err in . . . sustaining the defendants’ motions to dismiss.” Addington v. Ohio So. Express, 118 Ga. App. 770, 772-773 (165 SE2d 658). The Supreme Court explained that “ ‘[w]hile generally defenses such as the statute of limitation or laches must be affirmatively raised by written answer [cit.], yet where the facts as to such an issue are uncontradicted, it may be disposed of by summary judgment, motion to dismiss or motion for judgment on the pleadings.’ ” O’Quinn v. O’Quinn, 237 Ga. 653, 654 (229 SE2d 428). Thus, where a motion to dismiss is based on a statute of limitation and “it is clear that the trial court considered matters outside the complaint[,] [t]he appellee’s motion should therefore have been treated as one for summary judgment and disposed of as provided in Code Ann. § 81A-156 [now OCGA § 9-11-56].” Hoffman v. PMC Dev. Co., 238 Ga. 258 (232 SE2d 541); accord Atlanta Assoc. v. Westminster Properties, 242 Ga. 462 (249 SE2d 252). Accordingly, even though the trial court dismissed the action as to the City, it must be treated as one for summary judgment and the grant of summary judgment is directly appealable under OCGA § 9-11-56 (h). The motion to dismiss is denied.

2. Appellants enumerate as error the trial court “taking from the jury the issue of whether the City of Atlanta is liable for the ministerial acts of its agents.” The basis for this claim of error is grounded upon OCGA § 36-33-1 (b), which states: “Municipal corporations shall not be liable for failure to perform or for errors in performing their legislative or judicial powers. For neglect to perform or improper or unskilled performance of their ministerial duties, they shall be liable.” The Supreme Court has phrased it thusly: “A municipality is immune from suit for acts it performs which are authorized by law and executed ... in the exercise of a governmental function. [Cits.] . . . However, the municipality is liable where there is negligence or error ... in the exercise of a ministerial duty. [Cits.]” Mayor &c. of Savannah v. Palmerio, 242 Ga. 419, 425 (249 SE2d 224). Hence, at issue was whether the act of the police officer, in pursuing a driver of a stolen automobile, was performing a “ministerial” or “governmental” function.

“We conclude this constituted a question of law for the trial court and not a question of fact for [the] jury.” City of Valdosta v. Bellew, 178 Ga. App. 423, 425 (343 SE2d 111). Thus, the trial court did not err in “taking from the jury the issue of whether the City of Atlanta is liable for the ministerial acts of its agents.” Counsel’s enumeration did not include the issue of whether the act of the officer was “governmental” or “ministerial” and we will not address that question. But see Mills v. City of Atlanta, 175 Ga. App. 8 (1) (332 SE2d 319).

3. Error is enumerated in the ruling of the trial court that the City had not “partially waived its immunity by reason of its ownership, maintenance, operation or use of its motor vehicles, as authorized by OCGA § 33-24-51 (b).” This code section provides, in part: “(a) A municipal corporation, a county, or any other political subdivision of this state is authorized in its discretion to secure and provide insurance to cover liability for damages on account of bodily injury or death resulting from bodily injury to any person or for damage to property of any person, or for both arising by reason of ownership, maintenance, operation, or use of any motor vehicle by the municipal corporation. . . .” When a municipal corporation “shall purchase the insurance authorized ... to provide liability coverage for the negligence of any duly authorized officer, agent ... or employee in the performance of his official duties, its governmental immunity shall be waived to the extent of the amount of insurance so purchased.” Id. (b).

Our Constitution provides that the General Assembly may waive the immunity of municipalities. Art. IX, Sec. II, Par. IX, 1983 Ga. Const. Thus, the General Assembly has stated that “it is the public policy of the State of Georgia that there is no waiver of the sovereign immunity of municipal corporations of [this] state . . . except as provided in Code Section 33-24-51. . . .” OCGA § 36-33-1 (a). Moreover, “[a] municipal corporation shall not be liable for the torts of policemen or other officers engaged in the discharge of the duties imposed on them by law.” OCGA § 36-33-3. Hence, the sovereign immunity of municipalities has not been waived, except to the extent of insurance purchased or the city is self-insured (OCGA § 33-24-51 (b)), and in any event the municipality is not liable for the torts of policemen during the discharge of their duties (OCGA § 36-33-3). The City admitted that it is self-insured in the amount of $1,000 in any one incident, for liability arising from the operation or use of its motor vehicles.

At the outset, we will note that appellant’s action is based in tort, on state law, and not on a federal cause of action. See Davis v. City of Roswell, 250 Ga. 8 (295 SE2d 317); Acker v. City of Elberton, 176 Ga. App. 580, 581 (336 SE2d 842). The complaint is grounded upon the actions of a police officer, in the performance of his duties, while attempting to apprehend a fleeing felon. See Mills, supra. This court has held that the operation of a police department is a governmental function. City of Atlanta v. Fry, 148 Ga. App. 269 (251 SE2d 90), aff’d 243 Ga. 517 (255 SE2d 48).

Decided January 5, 1989 —

Rehearing denied January 23, 1989.

Carr & Kessler, Kathleen Kessler, for appellants.

Robin S. Phillips, Marua J. Brooks, M. Carole Cooney, for appel-

Under the foregoing facts and law, it is clear that the police officer was in the performance of his official duties and the trial court did not err in granting summary judgment to the City. We do not view plaintiff’s decedent’s death as arising from the use, maintenance or operation of the City’s motor vehicle. Plaintiff’s decedent’s death was due to the negligence or wilful misconduct of a fleeing felon in running a red light and as a consequence thereof striking the decedent’s car. “Implied waivers of governmental immunity should not be favored.” City of Atlanta v. Gilmere, 252 Ga. 406, 409 (314 SE2d 204).

Judgment affirmed.

Banke, P. J., concurs. Beasley, J., concurs in judgment only.


source: Caselaw Access Project

author: Deen, Presiding Judge. Sognier, Judge,

license: Public Domain

text:
    77788.
    SERVICE LINES, INC. v. TRUST COMPANY BANK.
    (377 SE2d 872)
   Deen, Presiding Judge.

From April 1982 through June 1983, appellant Service Lines f/k/ a Trans-State, Inc. (Trans-State), had in its employ one Papanicolaou, a defendant below but not a party to the instant appeal. Papanicolaou was engaged to handle certain financial and accounting duties and, according to the record, was the designated registered agent for Trans-State at all times relevant to this appeal. He was also named a director of the corporation.

On May 15, 1982, Papanicolaou opened an account in Trans-State’s name with appellee Trust Company Bank (“the bank”), completing an account information form on which he identified himself as Trans-State’s secretary and treasurer. At the same time Papanicolaou submitted to the bank a Corporate Certificate of Authority, bearing the corporate seal and containing a corporate resolution which named him as secretary and treasurer of Trans-State and authorized him on the corporation’s behalf to enter into any of the bank’s checking, savings, or time deposit accounts and to sign checks, drafts, or other orders on the account(s). The corporate resolution also authorized the bank to accept for deposit checks or other instruments payable to the order of Trans-State. Between May 1982 and April 1983, Papanicolaou deposited twenty-one checks (made payable to Trans-State, Inc., or a slight variant of the corporate name) to Trans-State’s account, and in April 1983 withdrew all the monies deposited. At about the same time he deposited a check payable to Trans-State into an account which he had opened in the name of Papco Transportation, Inc.

Papanicolaou was subsequently removed from Trans-State’s Board of Directors, and in May of 1987 Trans-State filed a conversion action against Papanicolaou and the bank. In May 1988, the trial court granted summary judgment to the bank on the twenty-one checks deposited in the Trans-State account but denied summary judgment as to the check deposited in the Papco Transportation account. Trans-State appeals from the summary judgment, enumerating as error the award of summary judgment, and alleging that the trial court erroneously relied on OCGA §§ 7-1-352 (a) and 14-2-4 and this court’s ruling in Flo-Control v. Northeast Bank, 150 Ga. App. 880 (258 SE2d 695) (1979). Held:

OCGA § 14-2-4 (a) provides, in pertinent part: “With respect to any contract, conveyance, or other similar document executed by and on behalf of a corporation, . . . the presence of the corporate seal. . . attested by the secretary ... of the corporation shall attest: (1) That the corporate seal, or facsimile thereof, affixed to the document is in fact the seal of the corporation . . . ; (2) That any officer of the corporation executing the document does in fact occupy the official position indicated, that one in such position is duly authorized to execute such document on behalf of the corporation, and that the signature of such officer subscribed thereto is genuine; and (3) that the execution of the document on behalf of the corporation has been duly authorized.” Subsection (b) provides: “When the seal of a corporation or facsimile thereof, is affixed to any document and is attested by the secretary ... of a corporation, a third party without knowledge, or reason to know, to the contrary may rely on such document as being what it purports to be.”

OCGA § 7-1-352 (a) provides, in pertinent part: “Whenever any agent ... or other fiduciary, whether bona fide or mala fide, shall deposit any money in any bank to his credit as an individual, or as such agent ... or other fiduciary, . . . such bank shall be authorized to pay the amount of such deposit, or any part thereof, upon the order of such agent... or other fiduciary, . . . without being accountable in any way to the principal ... or other person or corporation who may be entitled to or interested in the amount so deposited.”

In a factual situation closely similar to that of the case at bar, this court in Flo-Control, supra, considered the intent and scope of the cited statutes and quoted a portion of the holding in Trust Co. v. Nationwide Moving &c. Co., 235 Ga. 229 (219 SE2d 162) (1975), at 230: “It is clear that [OCGA § 7-1-352 (a)] is designed to protect a bank from liability where an agent or fiduciary misappropriates funds of the owner in breach of his agency or trust without the bank’s knowledge. The bank is not required to scrutinize every check written by a fiduciary or agent to see if the check is written in compliance with the agent’s authority.” This court then went on to hold, at 882: “Similarly, we hold that a bank when presented a corporate resolution proper on its face together with a seal affixed as here is not required to make further inquiry behind it to determine whether it is genuine or a forgery. Once a resolution is received [which appears] regular on its face, the bank can rely on it and on this statutory defense when a breach of trust by an agent or fiduciary occurs.”

In Trust Co. Bank of Augusta v. Henderson, 185 Ga. App. 367 (364 SE2d 289) (1988), aff’d 258 Ga. 703 (373 SE2d 738) (1988), the owner/operator of a motel introduced a certain motel employee to bank personnel as the motel’s general manager. The latter individual was provided by the owner with an endorsement stamp which contained a restrictive endorsement, but he proceeded to cash checks and/or deposit them to his account by hand and in blank, rather than through use of the restrictive endorsement stamp. The jury found for the motel owner against the bank, and this court affirmed the judgment (except for the award of attorney fees), as did the Supreme Court.

In its affirmance the Supreme Court held that “the bank is not shielded by OCGA § 7-1-352 [supra] but is subject to the provisions of OCGA § 11-3-419,” which Code section (Subsection (1) (c)) describes an instrument as “converted” when paid on a forged endorsement, but in Subsection 3 “absolves a party from liability to the true owner in conversion . . . when the party has dealt with an instrument or its proceeds in good faith in accordance with reasonable commercial standards.” The court reasoned that since “there was no evidence that the party to whom the checks were payable [had] authorized [the manager] to negotiate the checks . . . [otherwise than] through the use of a restrictive endorsement stamp . . . [, e]vidence of . . . facts regarding the restrictive endorsement authorized the jury to find that the bank was put on inquiry as to the propriety of the endorsements,” and therefore had not acted in accordance with reasonable commercial standards. Specifically, the Supreme Court in Henderson cautioned: “We read [OCGA § 7-1-352] to mean that the bank incurs no liability for the uses to which trust funds are applied after they are withdrawn. On the other hand, the statute contains no language protecting the bank against liability for honoring forged or otherwise improper checks or endorsements.” Id.

In Henderson, unlike the case sub judice, the manager presented no document bearing the corporate seal and purporting to authorize him to engage in any transaction outside the scope of the restrictive endorsement stamp, whereas in the instant case Papanicolaou had no restrictive endorsement stamp and presented documents which, under OCGA § 14-2-4 (a) and (b), supra, appeared to give him very broad authorization. Because of these significant factual distinctions, the Supreme Court’s holding that the bank in Henderson was not protected by OCGA § 7-1-352 would not be applicable in the instant case; to the contrary, the result here would be dictated by Trust Co. v. Nationwide Moving &c. Co., supra, and Flo-Control, supra. We therefore find no merit in appellant’s enumeration of error.

Decided January 3, 1989 —

Rehearing denied January 23, 1989

Charles C. Pritchard, for appellant.

King & Spalding, Ross O. Silverman, James E. Thompson, Ralph A. Pitts, Gary J. Toman, for appellee.

Judgment affirmed.

Carley, C. J., concurs. Sognier, J., concurs specially.

Sognier, Judge,

concurring specially.

I agree with the majority’s reasoning and -result. I write specially to point out that in my view the language from Flo-Control v. Northeast Bank, 150 Ga. App. 880 (258 SE2d 695) (1979) employed by the majority to explain OCGA § 7-1-352 is overbroad. My concern is that it is capable of being, and has been, in the past, misapplied. I find that the language used by the Supreme Court in Trust Co. Bank of Augusta v. Henderson, 258 Ga. 703 (373 SE2d 738) (1988), reading OCGA § 7-1-352 to mean that the bank incurs no liability for the uses to which trust funds are applied after they are withdrawn and not as protecting the bank against liability for honoring forged or otherwise improper checks or endorsements, is more precise and better states the scope and purpose of the statute.


author: Deen, Presiding Judge. Carley, Chief Judge,

text:
    77916.
    TANNER et al. v. GOLDEN. TANNER et al. v. NELSON.
    77917.
    (377 SE2d 875)
   Deen, Presiding Judge.

In August 1987, Rena Golden and Martha Nelson were both terminated from their positions as school teachers by the Muscogee County School District for their inability to pass the Teacher Certification Test (TCT) required under the Quality Basic Education Act. Golden had been employed for 7 years as a speech therapist, and took and failed the TCT 5 times between May 1986 and August 1987. Nelson had been employed for over 10 years as a special education teacher, and took and failed the TCT 3 times during the same period; she finally passed the test in December 1987 and was rehired by the school district. Neither Golden nor Nelson used staff development services made available to assist teachers in preparing for the test, but both did use various study aids and materials available.

Both Golden and Nelson were awarded unemployment compensation benefits by the initial claims examiner with the Department of Labor, but following an administrative appeal by the school district benefits were denied. In both cases, however, the superior court reversed the Board of Review of the Department of Labor and found Golden and Nelson entitled to benefits. This court then granted these discretionary appeals, consolidated because both involve the identical issue of whether failure of the TCT could constitute valid cause for disqualification of unemployment compensation benefits. Held:

Under OCGA § 34-8-158 (2), an individual may be disqualified for unemployment compensation benefits where the individual has been discharged “for failure to obey orders, rules, or instructions or for failure to discharge the duties for which he was employed . . .” Before such disqualification is appropriate, the employer must show that the discharge was caused by the deliberate, conscious fault of the claimant. Millen v. Caldwell, 253 Ga. 112 (317 SE2d 818) (1984); Roberson v. Tanner, 174 Ga. App. 128 (329 SE2d 210) (1985). In both cases here, the appellant contends that Golden’s and Nelson’s failure of the TCT, which barred their employment as school teachers, must be regarded as the deliberate and conscious fault of the claimants, because they did not take the TCT all of the times the test was offered before the termination of their employment and because they did not participate in certain staff development services available to assist teachers in preparing for the test. However, where it is undisputed that each claimant did take the test several times and utilized other study aids, the only possible conclusion is that the claimants’ efforts to pass the TCT were bona fide. Under these circumstances, their failure of the TCT would not constitute the conscious, deliberate fault necessary to disqualify them for unemployment compensation benefits.

Judgments affirmed.

Sognier, J., concurs. Carley, C. J., concurs specially.

Carley, Chief Judge,

concurring specially.

I am constrained to concur in the majority opinion affirming the superior court’s determination that, on the basis of the records in these cases, the appellees were entitled to unemployment benefits. However, in my opinion, the only reason that the application of the “any evidence” rule does not require the reversal of the superior court’s decision in this case is that there were no rules or regulations adopted by the school district requiring that a teacher take the exam every time or mandating that a teacher participate in specified study programs. “By simply promulgating or communicating, and uniformly enforcing, any reasonable work rule, an employer can readily avoid two untoward consequences: throwing the employee out of work, and being liable for his or her unemployment benefits. If the employee refuses to comply with a specific, equitably applied and reasonable rule, then the employer may fire him or her for misconduct and be confident that no unemployment compensation benefits under OCGA § 34-8-158 (2) will be paid.” Millen v. Caldwell, 253 Ga. 112, 114 (317 SE2d 818) (1984). I must opine that had there been such a rule or regulation in this case, and had the evidence shown deliberate conscious disregard of such rule, the application of the any evidence rule would have precluded the superior court from disturbing the administrative determination.

Decided January 3, 1989 —

Rehearing denied January 23, 1989

Hatcher, Stubbs, Land, Hollis & Rothschild, James E. Humes II, Michael J. Bowers, Attorney General, Marion O. Gordon, First Assistant Attorney General, Wayne P. Yancey, Senior Assistant Attorney General, Annette M. Cowart, Assistant Attorney General, for appellants.

Milton D. Jones, for appellee (case no. 77916).

Hirsch, Beil & Partin, John P. Partin, for appellee (case no. 77917).


author: Carley, Chief Judge.

text:
    74727.
    WALDEN v. THE STATE.
    (378 SE2d 418)
   Carley, Chief Judge.

After appellant was convicted and sentenced for a traffic offense, a $382.20 judgment for court costs was entered against her. This judgment was comprised of the following elements: $100 for bailiffs; $150 for six jurors; $63 for witnesses; and, $69.[2]0 for the services of the clerk of the trial court. Appellant appealed from the judgment for court costs and this court affirmed with direction that $53 of the $63 representing witness fees be written off. Walden v. State, 185 Ga. App. 413 (364 SE2d 304) (1987).

The Supreme Court granted a writ of certiorari “to review the question whether a trial court may tax the costs of bailiffs and jurors against the defendant in a criminal case.” Walden v. State, 258 Ga. 503 (371 SE2d 852) (1988). The Supreme Court held that “the costs in question are not taxable to criminal defendants. . . .” Walden v. State, supra at 504. Accordingly, the judgment of the Supreme Court is made the judgment of this court and the $382.20 judgment against appellant is affirmed with direction that $100 representing the cost for bailiffs, $150 representing the cost for jurors and $53 of the $63 representing the cost for witnesses be written off.

Decided January 23, 1989.

Larry W. Yarbrough, for appellant.

Patrick H. Head, Solicitor, Melodie H. Clayton, Philip Goldstein, Assistant Solicitors, for appellee.

Judgment affirmed with direction.

Deen, P. J., McMurray, P. J., Banke, P. J., Birdsong, Sognier, Pope, Benham and Beasley, JJ., concur.


author: Beasley, Judge.

text:
    76428.
    SMITH v. MILLIKEN & COMPANY.
    (377 SE2d 916)
   Beasley, Judge.

Smith appeals the judgment entered in his non-jury trial of his claim under the Georgia Equal Employment For The Handicapped Code, OCGA Title 34, Chap. 6A, Ga. L. 1981, p. 1803, et seq. The sole basis of his appeal is the denial of a jury trial.

Smith, a quality control/personnel manager for Milliken, developed Ankylosing Spondyltis (AS) in January 1985. As a result of his illness, a degenerative disease of the spine, he developed difficulty performing manual tasks and lost a good deal of time from work due to medical treatment.

On February 28, 1986, Milliken dismissed Smith due to claimed insubordination in not attending a meeting he was directed to attend. Smith contends the real reason was prohibited discrimination due to his handicap.

Smith prayed in his complaint only for “back pay . . . from the date of termination through the date of the award, plus interest, as well as court costs and reasonable attorney fees. . . .”

Although not in the record, it is apparently undisputed that Smith sought a jury trial which Milliken opposed. The trial court ruled that the action “under OCGA § 34-6A-6 (a) (b) is a nonjury matter because such action was unknown at common law, did not arise from a common law right and requires the Court to exercise its injunctive powers, and therefore does not come within any State or federal constitutional rights to jury trial in civil cases.”

We transferred the case to the Supreme Court under Ga. Const. 1983, Art. VI, Sec. VI, Par. III (2) but it returned it, stating that the case is within our exclusive jurisdiction.

1. To the degree that Smith based his claim below on the Federal Seventh Amendment, the court’s ruling was correct in that it does not apply to suits in state courts. Butler v. Claxton, 221 Ga. 620, 621 (146 SE2d 763) (1966); LaBarre v. Payne, 174 Ga. App. 32, 33 (1) (329 SE2d 533) (1985).

2. OCGA § 9-11-38 provides that “[t]he right of trial by jury as declared by the Constitution of the state or as given by a statute of the state shall be preserved to the parties inviolate.”

Ga. Const. Art. I, Sec. I, Par. XI provides that “[t]he right to trial by jury shall remain inviolate, except that the court shall render judgment without the verdict of a jury in all civil cases where no issuable defense is filed and where a jury is not demanded in writing by either party.” This right has been contained in the Constitution with only minor changes in wording since the Georgia Constitution of 1789 where it appeared in Art. IV, Sec. III. Strange v. Strange, 222 Ga. 44, 45 (1) (148 SE2d 494) (1966).

OCGA § 9-11-40 (b) allows the court sitting without a jury to “hear and determine by interlocutory or final judgment any matter or issue where a jury trial is not required or has been waived.”

The Supreme Court’s retransfer is an adjudication that there is no equity jurisdiction in this case. Carter v. State, 93 Ga. App. 12, 14 (1) (90 SE2d 672) (1955); see Matuszczak v. Kelly, 233 Ga. 914, 915 (1) (213 SE2d 875) (1975); Boze v. Atlanta Veterans Transport, 218 Ga. 274 (127 SE2d 466) (1962). We construe it as ruling that the instant case involves only the legal issue of back pay, not any equitable issue such as injunction. Matthews Group &c. v. Wages, 180 Ga. App. 151, 152 (1) (348 SE2d 695) (1986); Alexie, Inc. v. Old South Bottle Shop, 179 Ga. App. 190 (345 SE2d 875) (1986). This does not, however, entitle Smith to trial by jury. The Georgia constitutional provision merely guarantees “the continuance of the right unchanged as it existed either at common law or by statute in the particular State at the time of the adoption of the constitution.” Metropolitan Cas. Ins. Co. v. Huhn, 165 Ga. 667, 672 (2) (142 SE 121) (1927); Strange, supra.

The inquiry under the Constitution is whether an action such as one under the GEEHC existed at common law. Georgia recognizes employment at will, pursuant to which “in the absence of a controlling contract, ‘permanent employment,’ ‘employment for life,’ ‘employment until retirement’ is employment for an indefinite period, terminable at the will of either party, which gives rise to no cause of action against the employer for alleged wrongful termination. [Cit.]” Georgia Power v. Busbin, 242 Ga. 612, 613 (1) (250 SE2d 442) (1978); Taylor v. Amisub &c., 186 Ga. App. 834, 835 (1) (368 SE2d 791) (1988). Smith’s employment was such.

This situation parallels that of the rights created under the Workers’ Compensation Act and the Uniform Reciprocal Enforcement Act. Both were challenged as unconstitutional because they did not provide for jury trials. Strange, supra; Metropolitan Cas. Ins. Co. &c. v. Huhn, 165 Ga. 668, supra.

In rejecting these claims, the Supreme Court stated: “The Uniform Reciprocal Enforcement Act for the support of the dependent children and others is wholly of statutory origin and unknown to the common or statutory law of England prior to our first Constitution, and therefore, in a proceeding under this Act, the father of the minor children is not entitled to a jury trial as a constitutional right.” Strange at 47. “The entire procedure involved in the act [Workers’ Compensation] has been brought into existence or created by the legislature since the adoption of our constitution containing the provisions that the right of a trial by a jury shall remain inviolate. ... In a number of cases in this State it has been held that in civil actions the right of jury trial exists only in those cases where the right existed prior to the first constitution, and that the guaranty does not apply to special proceedings not then known or subsequently created or provided by statute. For examples: proceedings in the court of ordinary, [cit.]; contested-election cases, [cit.]; proceedings against road defaulters, [cits.]; partition proceedings, [cit.]; condemnation proceedings, [cit.]; proceedings to validate bonds, [cit.]” Metropolitan at 672; Woods v. Delta Air Lines, 237 Ga. 332, 333 (227 SE2d 376) (1976).

Likewise, the GEEHC Act creates a right and a remedy which were unknown at common law. The court was correct in finding no constitutional right to trial by jury.

3. Smith contends that OCGA § 34-6A-6 (b) provides for the right to a jury: “[t]he court may grant as relief, as it deems appropriate, any permanent or temporary injunction, temporary restraining order, or other order, including but not limited to hiring, reinstatement, or upgrading of employees; admission or restoration of the aggrieved individual to union membership; admission to or participation in a guidance program, . . . ; and the utilization of training related criteria in the admission of individuals to such training programs and job related criteria for employment. The court may award to the plaintiff back pay. The court may award court costs and reasonable attorneys’ fees to the prevailing party.”

The argument is not that the wording specifically provides for a jury, which it clearly does not, but that the language and history of the GEEHC Act “indicates that the Georgia legislature did not intend to deprive litigants [of] the right to a jury trial.” Since, however, there is no such right in this context absent specific statutory authorization, this argument fails.

Decided January 23, 1989.

Knox & Zacks, David M. Zacks, Jeffrey C. Baxter, for appellant.

Thompson, Mann & Hutson, Jeffrey Lerer, Randy C. Gepp, for appellee.

4. Smith further argues that the court abused its discretion in not empanelling a jury to assist it in resolving a question of fact. It may do so, if it so chooses. See Hanson v. First State Bank &c., 254 Ga. 235, 236 (327 SE2d 730) (1985); Guhl v. Davis, 242 Ga. 356 (249 SE2d 43) (1978); Shaw v. W. M. Wrigley, Jr. Co., 183 Ga. App. 699 (359 SE2d 723) (1987). That does not mean, however, and we do not conclude, that the court abused its discretion.

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.


author: Pope, Judge.

text:
    77225.
    ARNOLD v. THE STATE.
    (377 SE2d 918)
   Pope, Judge.

Dudley Arnold appeals his conviction of driving with a suspended license.

1. Appellant first argues that the trial court erred in admitting into evidence an excised certified record from the Department of Public Safety showing the suspended status of appellant’s license. Appellant objected on grounds that the document was irrelevant and prejudicial and that it was marked “For Court Use Only” and therefore could not be exhibited to the jury.

Appellant was stopped by Lt. Freeman of the Athens Police on September 1, 1986. After running a computer check, Lt. Freeman advised appellant that his license was suspended. On February 14, 1987, Lt. Freeman saw appellant driving as Lt. Freeman passed appellant on the street. He testified that he and the appellant made eye contact. Lt. Freeman then radioed another police officer to stop appellant’s car. When appellant’s car stopped, and before the officer approached, appellant got into the back seat and a passenger in the front seat of the car slid under the steering wheel.

In order to establish the offense of driving with a suspended license, the State must show that the accused was driving, that his license was suspended, and that the accused had received actual or legal notice of the suspension. OCGA § 40-5-121; State v. Orr, 246 Ga. 644 (272 SE2d 346) (1980); Barrett v. State, 173 Ga. App. 452 (1) (326 SE2d 816) (1985). The document in question showed that appellant’s license had been suspended for a period of one year effective May 5, 1986. Thus, it was relevant to show that the license was suspended at the time of the offense charged, February 14, 1987. Nor does the marking “For Court Use Only” render the document inadmissible. Appellant argues that such a marking makes the document usable only by the judge for purposes of sentencing. This argument is refuted by OCGA § 40-5-2 (d) (1) which expressly provides for disclosure of such records by prosecuting officials and judges in the performance of their duties. In addition, OCGA § 40-5-2 (e) provides that the certified records of the Department of Public Safety shall be admitted as evidence in any civil or criminal proceeding as proof of the contents of the record. The trial court did not err in admitting the record.

Decided January 23, 1989.

Donna L. Avans, Kathleen J. Anderson, for appellant.

Ken Stula, Solicitor, for appellee.

2. Appellant argues that the trial court erred in failing to direct a verdict because the State failed to prove sufficient notice. We disagree. On September 1, 1986, Lt. Freeman directly notified appellant that his license was suspended. Thus, appellant had actual notice of the suspension. The fact that appellant attempted to conceal that he was driving when the police stopped him is sufficient evidence to enable the jury to conclude that appellant knew his license was in suspension. The facts here are not analogous to those in Sumner v. State, 184 Ga. App. 374 (361 SE2d 536) (1987). In Sumner, the officer asked the accused if he had gotten his license back yet and the accused replied no. The accused testified that he knew that the sheriff or state patrol or somebody had his license. However, there was no direct evidence that the license was suspended. Such is not the case here.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.


text:
    77379.
    GRUDE v. THE STATE.
    (377 SE2d 731)
   Carley, Chief Judge.

Appellant was tried before a jury on an indictment which charged him with commission of aggravated assault by shooting the victim with a handgun. He appeals from the judgment of conviction and sentence entered on the jury’s verdict of guilty.

1. Appellant enumerates as error the trial court’s refusal to give a requested jury instruction on the defense of accident or misfortune.

“A person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears there was no criminal scheme or undertaking, intention, or criminal negligence.” (Emphasis supplied.) OCGA § 16-2-2. Although appellant gave conclusory testimony that the shooting of the victim had been an accident, his description of the actual events shows that the shooting was nevertheless the result of his criminal conduct. Appellant testified that the victim, who had been sharing his dwelling, was packing to move out. Appellant armed himself with a pistol for a confrontation with the victim because he was “insistent” on getting his keys back. Appellant stated that, as he had approached the victim from behind, he pulled the gun out of his pocket and, in doing so, he unintentionally “hit her in the back of the head” with the weapon. The gun then discharged and the victim was struck by the bullet.

Appellant’s testimony clearly does not show that his shooting of the victim was the result of an “accident,” and not the result of his intent to commit a crime upon the victim. His testimony shows only that his criminal attempt to commit an aggravated assault upon the victim was “accidentally” completed in a manner other than he had intended. At the time the gun discharged, appellant’s own testimony shows that he was engaged in an attempt to commit an aggravated assault upon the victim by drawing the gun and pointing it at her. See OCGA § 16-5-20 (a) (2). He would not be entitled to a charge on the defense of accident simply because his criminal attempt had the unintended consequence of completing the offense by actually causing a violent injury to the victim. See OCGA § 16-5-20 (a) (1). “[AJppellant pointed a pistol at the victim [, and t]hat constitutes the felony of aggravated assault. [Cit.]” Smith v. State, 253 Ga. 476, 477 (3) (322 SE2d 58) (1984). “Of necessity the pistol was pointed at the [victim] when she was [hit] by the bullet fired from that pistol.” Brown v. State, 150 Ga. App. 831, 834 (4) (258 SE2d 641) (1979). “Where, as in the instant case, it is shown by the evidence, and admitted [by appellant], that the [violent injury to the victim] occurred by the discharge of a gun held by the accused and used in an attempt to [place the victim in reasonable apprehension of immediately receiving a violent injury], even if the discharge of the gun was unintentional, the offense is [aggravated assault]; and in no view of such facts does it involve . . . accident. . . . Accordingly, the court properly declined to give the requested [charge]. [Cits.]” Ford v. State, 202 Ga. 599, 603 (3) (44 SE2d 263) (1947).

2. The trial court excluded testimony from certain defense witnesses which was to the effect that, in out-of-court statements, appellant had described the shooting as an accident. Appellant enumerates this evidentiary ruling as erroneous under Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985).

“[I]t is a well-established general rule that a statement of a party, whether oral or written, which is of a self-serving nature is not admissible in his favor.” Denton v. Etheridge, 73 Ga. App. 221 (3) (36 SE2d 365) (1945). Thus, in a criminal case, “self-serving declarations made by a defendant are not admissible. [Cit.]” Thomas v. State, 248 Ga. 247, 252 (10) (282 SE2d 316) (1981). Appellant has cited no case, and we have found none, holding that this “well-established general rule” has been abrogated by the Supreme Court’s opinion in Cuzzort, supra. See Beck v. State, 254 Ga. 51, 53 (11) (326 SE2d 465) (1985) (wherein the rule was applied by a unanimous Supreme Court shortly before Cuzzort was decided). It would not appear that Cuzzort purports to address the issue of the admissibility of self-serving declarations. The out-of-court declarations in Cuzzort were made by the victim and were to the effect that she had been molested by the defendant. Such out-of-court declarations were not self-serving of the victim, but were inculpatory of the defendant.

However, even assuming that Cuzzort were to be construed as overruling sub silentio the “well-established general rule” that self-serving, out-of-court declarations are inadmissible, there was no error in disallowing the admission of the self-serving declarations of appellant in this case. Whether or not a defendant has committed a proscribed act, such as the molestation of the victim in Cuzzort, is a question of fact. Whether or not a defendant’s proscribed act, such as the shooting of the victim in the present case, is totally excusable as an “accident” is a mixed question of law and of fact. See Division 1. Testimony, such as that in Cuzzort, relates to a given set of facts and is admissible. Opinion testimony, such as that excluded in the present case, relates to the legal consequences of a given set of facts and is not admissible. “One’s purpose in doing a specified act is immaterial and irrelevant, if the legal consequences of such act are definitely fixed by law. Where the only effect of testimony sought to be adduced is to elicit the opinion of the witness upon a question of law, and not one of fact, such testimony should be repelled.” Connor v. Hodges, 7 Ga. App. 153, 154 (8) (66 SE 546) (1910). Accordingly, the trial court properly refused to allow defense witnesses to repeat what was, in effect, appellant’s own erroneous legal opinion that, under his version of the events, the shooting of the victim had been an “accident.”

3. Although appellant was indicted pursuant to subsection (a) (2) of OCGA § 16-5-21, the trial court’s charge to the jury included an instruction on the entirety of the code section. Appellant enumerates the giving of this instruction as error.

A review of the jury charge as a whole shows that, after instructing the jury on the entirety of OCGA § 16-5-21, the trial court restated the specific allegations of the indictment and instructed the jury that a guilty verdict would be authorized only if it found “beyond a reasonable doubt each and all of these contentions of the State to be the truth of the case.” Since the charge as given nowhere authorized the return of a verdict of guilty based upon acts which were not alleged in the indictment, there was no error in fully instructing the jury on the offense of aggravated assault. Searcy v. State, 168 Ga. App. 233 (1) (308 SE2d 621) (1983). See also Boscaino v. State, 186 Ga. App. 133 (2) (366 SE2d 789) (1988).

Decided January 23, 1989.

Michael T. McClain, for appellant.

Lewis R. Slaton, District Attorney, Richard E. Hicks, Assistant District Attorney, for appellee.

Judgment affirmed.

Deen, P. J., and Sognier, J., concur.


text:
    77436.
    PALMER v. THE STATE.
    (377 SE2d 920)
   Pope, Judge.

Defendant Kevin Linard Palmer, a seventeen-year-old tried as an adult, appeals his convictions of the offenses of kidnapping and aggravated assault. Prior to defendant’s arrest and indictment, the victim and two witnesses identified defendant in a photographic line-up. A police officer then met defendant in the parking lot of the high school he attended and explained to him that the police wanted him to appear in a live line-up. The officer testified that defendant had already been informed he was a suspect in the case. The officer further testified that he informed defendant he did not have to come with him to the line-up and that he could refuse, seek legal counsel and discuss the situation with his parents if he wished. Defendant responded that he did not want his parents to know and he voluntarily participated in the live line-up. The line-up was conducted ten days before defendant was indicted.

Defendant admits the line-up was not unnecessarily suggestive or conducive to mistaken identification. Defendant’s sole assertion of error is that evidence concerning the identification at the line-up should not have been admitted because he was seventeen years of age at the time and was not fully advised of his rights to have an attorney present.

The right to counsel at a line-up attaches only when the identification takes place “at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” Kirby v. Illinois, 406 U. S. 682, 689 (92 SC 1877, 32 LE2d 411) (1972). Accord Fudge v. State, 164 Ga. App. 392 (3) (297 SE2d 329) (1982); Coleman v. State, 160 Ga. App. 158 (1) (286 SE2d 494) (1981). Here, the line-up was conducted prior to the initiation of any adversarial proceedings against defendant. It is uncontested that the officer fully informed defendant of the purpose of the line-up and that he could refuse to participate and could consult with an attorney or his parents. Defendant has presented no evidence or legal authority to persuade us that he was entitled to any further consideration as a result of his age. Under these circumstances, defendant’s rights were not violated and testimony concerning the identification at the live line-up was properly admitted.

Decided January 23, 1989.

Raymond A. Majors, Jr., for appellant.

Dupont K. Cheney, District Attorney, Thomas E. Durden, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.


text:
    77545.
    DAY v. BURNETT.
    (377 SE2d 734)
   Beasley, Judge.

Plaintiff Day appeals the grant of defendant Burnett’s motion to dismiss the complaint based upon the statute of limitations.

Day’s action was filed on May 9, 1986, seeking to recover for personal injuries sustained in an automobile collision on December 5, 1984. Personal service was not obtained at that time and was not perfected until December 29, 1986. This was not within the statutory time. OCGA § 9-3-33. Day’s attorney offered as an excuse for the tardy follow-up on service that he was injured in an automobile collision and was absent from work almost the entire month of February of 1986 and that his secretary of twenty-two years was also injured and absent from February 3 to November 10.

Day contends that this presented a factual issue which should have been submitted to a jury rather than decided by the court as a matter of law. Ordinarily, whether a cause of action should be barred by the statute of limitations is a mixed question of law and fact to be decided by a jury. “[B]ut where the facts are undisputed, it is for the Court to determine whether they take the case out of the statute or not.” Martin v. Broach, 6 Ga. 21 (5) (1849). Accord Fleming v. Lee Engineering &c. Co., 184 Ga. App. 275 (361 SE2d 258) (1987).

Decided January 23, 1989.

Charles E. Muskett, for appellant.

Albert B. Wallace, for appellee.

“Under OCGA § 9-11-4 (c), where the limitation accrues between the date of filing and the date of service and is more than five days after the filing, whether or not the service relates back is a question for the trial court, which considers the length of the elapsed time and the diligence of the plaintiff.” Ellerbee v. Interstate Contract &c. Corp., 183 Ga. App. 828, 830 (2) (b) (360 SE2d 280) (1987). “[T]he correct test must be whether the plaintiff showed that he acted in a reasonable and diligent manner in attempting to insure that a proper service was made as quickly as possible.” Childs v. Catlin, 134 Ga. App. 778, 781 (216 SE2d 360) (1975). This court will not intervene in the trial court’s exercise of discretion to determine the cause of the delay, “if it is attributable to the plaintiff and the court dismisses the complaint.” Bible v. Hughes, 146 Ga. App. 769, 770 (2) (247 SE2d 584) (1978).

Under the facts we cannot hold as a matter of law that the trial court abused its discretion by deciding that Day did not exercise due diligence in attempting to perfect timely service on Burnett. Brumit v. Mull, 165 Ga. App. 663, 666 (3) (302 SE2d 408) (1983); Deal v. Rust Engineering Co., 169 Ga. App. 60, 61 (1) (311 SE2d 499) (1983).

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.


text:
    77554.
    METHVIN v. THE STATE.
    (377 SE2d 735)
   Beasley, Judge.

Following the denial of his motion for new trial, Methvin appeals his conviction and sentence for criminal attempt to commit burglary, OCGA §§ 16-4-1; 16-7-1.

1. Appellant contends that the trial court abused its discretion in denying his motion for new trial because the evidence was insufficient to support his conviction. He argues that the State did not prove beyond a reasonable doubt the corpus delicti, specifically by failing to prove felonious intent. He further maintains that assuming the State sufficiently proved the corpus delicti, the State nevertheless failed to prove beyond a reasonable doubt his identity as a perpetrator of the offense.

The evidence when viewed in a light most favorable to the verdiet, Thomas v. State, 175 Ga. App. 873, 874 (1) (334 SE2d 903) (1985), showed the following: At approximately 1:00 or 1:15 a.m., the car dealership’s security officer was making rounds, had gone behind the body shop, and was about halfway back to the gate when he heard glass break. He ran to the gate and saw two young men at the back of the double wide mobile home that was used for the security office. No one other than security had permission to be in that area of the lot or to enter the building. The building contained two computers, a file cabinet, and paperwork.

As the guard ran up to the gate, he saw one of the men “coming off” a cement block that was turned up on end and had been placed beneath one of the building’s windows. The block had not been there before and had come from a nearby construction site. The outside pane of one of the double windows had been broken. Another block was lying on the ground with the broken glass.

The guard yelled for the two men to stop and they began to run. The men turned and looked back at the guard but continued to run. At this time the men were in the center of the lot which was very well lit with floodlights and regular security lights on every pole. They ran in the direction of the Huddle House and another restaurant. The guard could not catch them and called the police.

The guard, whose vision was good at the time of the incident, was able to give the police detailed descriptions of the men. Based on the guard’s descriptions, a search was made near the Huddle House. One of the restaurant’s employees knew Methvin because Methvin’s wife worked with her and she told police that Methvin fit the description. The employee had seen Methvin three times that night. The first two times he had come into the restaurant looking for his wife. The third time was when the employee saw Methvin run across the restaurant parking lot toward a bank parking lot where Methvin’s car was parked. A little while later the police came.

The employee told the police where to look for Methvin, who was staying at an apartment less than a fourth of a mile from the restaurant. An officer located Methvin at the apartment. Another man was in the apartment but the officer did not do anything with that individual at that time. Methvin agreed to go to the car dealership.

At the guard’s request, the officers kept Methvin the same distance from the guard as the guard had seen the suspects. The guard positively identified Methvin.

In order to commit the offense of criminal attempt, a person must have the intent to commit a specific crime. OCGA § 16-4-1. The question of intent to commit burglary “ ‘is for the determination of the jury under the facts and circumstances proved.’ [Cit.]” Griffin v. State, 148 Ga. App. 311 (1) (251 SE2d 161) (1978). “ ‘As a general rule the state must, of necessity, rely on circumstantial evidence in proving intent. [Cit.]. . . .’ [Cits.]” Kinney v. State, 155 Ga. App. 95, 96 (1) (270 SE2d 209) (1980).

The presence of valuables inside the premises, in this case computers, could support an inference of the intent to steal particularly when no other motive is apparent. Bradshaw v. State, 172 Ga. App. 330, 332 (2) (323 SE2d 253) (1984); Parrish v. State, 141 Ga. App. 631 (1) (234 SE2d 174) (1977). Furthermore, the jury was permitted to infer guilt from evidence of Methvin’s flight. Cohran v. State, 157 Ga. App. 551, 552 (278 SE2d 133) (1981).

These circumstances in conjunction with the presence of the cement block under the broken window, the positive identification of Methvin by the guard, and the restaurant employee’s sighting of Methvin in a time frame consistent with the criminal act was sufficient to enable any rational trier of fact to find Methvin guilty of criminal attempt to commit burglary beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant further contends that the trial court abused its discretion in denying his motion for new trial because it erred in admitting evidence of his previous conviction for burglary.

“ ‘When one is on trial charged with the commission of a crime, proof of a distinct, independent, and separate offense is never admissible, unless there is some logical connection between the two, from which it can be said that proof of the one tends to establish the other.’ [Cit.] ‘Once the identity of the accused as the perpetrator of the offense separate and distinct from the one for which he is on trial has been proven, testimony concerning the independent crime may be admitted for the purpose of showing identity, motive, plan, scheme, bent of mind, and course of conduct. [Cits.]’ [Cit.]” Wright v. State, 165 Ga. App. 790, 791 (3) (302 SE2d 706) (1983).

“The only separate crimes which are admissible are those that are either similar or logically connected to the crime for which defendant is being tried. Crimes which are not similar or which are not logically connected to the crime for which defendant is being tried should be excluded from evidence. Proof of crimes which are similar or are closely connected to the crime charged does tend to establish the crime charged.” State v. Johnson, 246 Ga. 654, 655 (1) (272 SE2d 321) (1980).

The burglary which the State got admitted into evidence as a similar transaction occurred approximately ten months prior to the incident on trial and in the same county. Methvin was employed at a service station and was fired. He kept a set of keys and two days after the firing, he and his brother-in-law used the keys and entered the station around 2:00 a.m. Methvin left his car parked about half a block down the street in another store’s parking lot. The intent was to take some money that was kept in the back room of the station. The two were caught in the act. Nothing was taken and Methvin admitted to the burglary.

Decided January 23, 1989.

Michael S. Webb, for appellant.

Thomas C. Lawler III, District Attorney, for appellee.

The court found sufficient similarity between the burglary and the attempt at issue to permit evidence of it to be submitted to the jury to show scheme, bent of mind, and identity. The court so instructed the jury.

Were the acts sufficiently similar or logically connected so that proof of the former tended to prove the latter? Manning v. State, 170 Ga. App. 721, 722 (2) (318 SE2d 191) (1984).

Both acts involved the burglary of commercial structures for automobile-related businesses, buildings that Methvin was or should have been familiar with in that he worked in the service station and lived a quarter of a mile from the car lot. Both involved an accomplice, occurred in the early hours of the morning, with Methvin’s car parked at another business’ parking lot nearby. The two incidents were within ten months of each other. The only substantial dissimilarity is the forced nature of the attempt, i.e., the broken window, but forced entry was unnecessary at the service station because Methvin had keys.

The similarities rendered the evidence relevant to show identity and bent of mind and therefore did not run afoul of the prohibition of OCGA § 24-2-2. Compare special concurrence in Bernyk v. State, 182 Ga. App. 329, 331 (355 SE2d 753) (1987). The trial court did not err in allowing evidence of the prior burglary.

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.


text:
    A89A0658.
    STANCIL v. KENDRIX et al.
    (378 SE2d 417)
   Pope, Judge.

The trial court’s denial of appellant’s Motion for New Trial was filed in the clerk’s office on October 6, 1988. Appellant’s Notice of Appeal was filed in the clerk’s office on November 8, 1988. Although the 30-day period for filing a notice of appeal allowed by OCGA § 5-6-38 (a) ended on November 5, that date was a Saturday. By operation of OCGA § 1-3-1 (3), appellant had through the following Monday, November 7, to file a timely notice of appeal. While the notice of appeal is dated November 7, it was not filed until November 8. Timely filing is the necessary act; without it, this court is without jurisdiction and the appeal must be dismissed. Moncrief v. Tara Apts., 162 Ga. App. 695 (293 SE2d 352) (1982).

Decided January 23, 1989.

Cornwell, Church & Healy, Timothy P. Healy, for appellant.

John M. Brown, for appellee.

Appeal dismissed.

McMurray, P. J., and Benham, J., concur.


author: Broyles, J.

text:
    7827.
    GILLESPIE v. MAYOR AND COUNCIL OF MACON.
    A petition for certiorari to review the judgment of a police or recorder’s court, unless a pauper’s - affidavit is made, must affirmatively allege (among other things) that the petitioner has filed with the clerk of that court, if it has a clerk, a bond payable, etc., and conditioned, etc., which has been approved and accepted by said clerk; and there should be attached to the petition a certified copy of the bond, together with á certificate from the clerk- of the court that the bond was filed with him and was approved and accepted by him. Unless all these things appear, to.wit, the aforesaid allegations in the petition, the certificate of the clerk of the court verifying them, and a certified copy of the bond given, the certiorari should not be sanctioned, and, if sanctioned, should be dismissed on the hearing.
    Decided November 16, 1916.
    Rehearing denied December 8, 1916.
    Certiorari; from Bibb superior court—-Judge Mathews. June 15, 1916.

      John R. Cooper, W. A. McClellan, for plaintiff in error.

      W. D'. McNeil, contra.
   Broyles, J.

One of tbe mandatory requirements of the statute providing how a writ of certiorari to review the judgment of a police or recorder’s court can be obtained (Acts of 1902, p. 105; Park’s Ann. Code, § 5191 (a)) is that the accused, after his conviction, shall file with the clerk of the court (if it has a clerk) a bond, payable, etc., and conditioned, etc., with surety acceptable to and approved by the said clerk. In this ease, in which it was sought to review by certiorari a judgment of the recorder's court of Macon, there is no allegation, either in the bill of exceptions or in the petition for certiorari, that the defendant had filed any bond with the clerk of the recorder’s court of Macon, or that any bond had been approved and accepted by the clerk. The mere fact that “a bond” was specified in the bill of exceptions as a material part of the record to be sent up to this court, and that there is attached to the bill of exceptions what purports to be a copy of a certiorari bond in the case referred to, and that it appears from this copy that this bond was approved by the clerk of the recorder’s court of Macon, is not sufficient. Johns v. Tifton, 122 Ga. 734 (50 S. E. 941), and Veazey v. Crawfordville, 126 Ga. 89 (54 S. E. 817). All the essential facts as to the giving of the bond, its approval by the proper officer, etc., its condition, etc., should be affirmatively alleged in the petition for certiorari, and, in addition, a certified copy of the bond should be attached to the petition, together with a certificate from the clerk of the court (if there be a clerk), verifying the allegations in the petition that the bond has been approved and accepted by said clerk. Hubert v. Thomasville, 18 Ga. App. 756 (90 S. E. 720). Unless all of these things are done, the certiorari should not be sanctioned, and, if sanctioned, should be dismissed on the hearing, as a petition for certiorari can in no case be amended. This ruling is not in conflict with Stallworth v. Macon, 125 Ga. 250 (54 S. E. 142), for in that case the petition for certiorari distinctly alleged that “petitioner has filed with the clerk of said recorder’s court a bond, approved by the said clerk, . . and said bond accepted by said clerk of said recorder’s court.” As the mandatory provisions of the statute were not complied with in this case, the certiorari should not have been sanctioned. The judge of the superior court, however, having sanctioned it, committed no error in overruling and dismissing it after a hearing upon its merits. It does not appear in the judgment of dismissal for what reason the certiorari was overruled, but, as the judgment of dismissal was correct, it should nevertheless be affirmed. Memmler v. State, 75 Ga. 576 (1a); Kendricks v. Millen, 16 Ga. App. 273 (3), 277, 278 (85 S. E. 264); Flynn v. East Point, 18 Ga. App. 729 (90 S. E. 372). Judgment affirmed.


author: Hodges, J.

text:
    7850.
    BROOKS v. THE STATE.
    1. The law as to the presumption of innocence was given in charge to the jury; and the court did not err in not giving an instruction, not requested, that no presumption against the accused arises from an accusation or indictment.
    2. Where the defendant’s counsel, in argument to the jury, stated that in the event of the defendant’s conviction he would be fined and the solicitor-general would receive the money, an instruction by the court, that it was “no concern of the jury who would receive the money in the event the defendant should be convicted,” was not subject to exception on the ground that it impressed upon the jury that he should be convicted.
    3. The instructions as to the weight to be given to direct and circumstantial evidence were not subject to the exceptions taken.
    4-6. The instructions as to what constitutes a “place of business” within the meaning of the prohibition law, and as to keeping on hand “liquor” at a place of business, were correct and contained no expression or intimation of opinion that the a'ccused kept on hand at his place of business, or sold, intoxicating liquor.
    7. The instructions to the jury as to the sale of liquor were not unauthorized by evidence.
    8. It was proper to admit in evidence the contracts for a telephone in the place alleged to be the place of business of the accused, one signed by him, and the other signed in his name by another person and being a continuance of the former contract.
    9. The court did not err in allowing a witness to testify that he bought at the defendant’s place “something that looked like whisky.”
    10. Testimony that the witness thought that the place .of business in question was owned by a named person, not the accused,—that he “so understood it,”—was properly excluded as merely an opinion or conclusion of the witness.
    11. The admission of testimony as to telephone calls for the accused, received on the telephone at the place of business in question, was not ground for a new trial.
    12. The court did not err in admitting in evidence whisky bottles and their contents, over the objection that they were obtained by illegal search and seizure, nor on the ground that they were not properly identified.
    13. The evidence authorized the verdict of guilty.
    Decided November 16, 1916.
    Rehearing denied December 8, 1916.
    Accusation of misdemeanor; from city court of Macon—Judge Guerry. September 8, 1916.

      John R. Cooper, for plaintiff in error.

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

Brooks pleaded not guilty to an accusation charging in one count that he “unlawfully did sell and barter for a valuable consideration, directly and indirectly, and keep on hand at his place of business, alcoholic, spirituous, malt, and intoxicating liquors, and other drinks, which, if drunk to excess, will produce intoxication.” He was convicted, his motion for new trial was overruled, and he excepted. The State’s evidence was, in substance, as follows: The agent of the owner of a certain storehouse in the city of Macon testified, that from October 1, 1915, to January, 1916, the accused rented the premises, and that he continued in the place after January 1, 1916. The place had á sign: “Drink at Lawrence’s.” The rent contract' covered downstairs, upstairs, and the upstairs next thereto. The staircase went from inside the store and from the alley. The entrance on the alley had a staircase. Harden rented the barber shop, but Brooks paid the rent, as he rented the place. The accused paid the rent to the witness personally, but the witness could not say who kept the place. The regular rent collector testified that the place was kept by the accused, and the rent was usually sent to the rental agency; he collected it one month, but did not know who paid it. There was evidence that the accused signed the contract for the telephone in the place. There were two telephone contracts, and the last one was signed by some one who said he represented Brooks. It was shown by the evidence that whisky was bought and sold at this place from 1915 to March 11, 1916, and that it was served over the counter. One Stanley was the barkeeper and sold the whisky, and Brooks was there when Stanley sold some whisky. A witness testified that it was Brooks’s place, and that he saw whisky sold there during the time indicated. The barkeeper poured out the whisky, and it was sold several times. '.Another witness testified that it was Brooks’s ¡olace and that he had seen “something that looked like whisky sold there,” and “had seen whisky sold in there.” It had the appearance of whisky and was served in whisky glasses. The witness thought he had bought whisky from Brooks, Stanley, or Dewberry. His recollection was very indistinct-, but he thought he.had bought whisky from the parties named. He had seen whisky in there several times. Dewberry testified that the license was in his name, and that Brooks agreed to lease it for him and to put Dewberry in charge of the place. Witness put the money in the safe, but did not know who took it out. He and Brooks were the only ones who had access to the safe. Sometimes he took the money out of the register, sometimes Brooks did, though the witness never saw Brooks do so. Witness said he did not want to answer whether he had seen whisky in the place. Four or five pints were there when the officers came. Sometimes Brooks carried the store key, and sometimes the witness carried it. Brooks and the witness purchased the cigars and soft drinks for the place, and the witness said he did not know who paid, though he had bought “coca-cola.” It was shown that the chief of police closed the place, and that it was closed when the detectives came. It was further established that Brooks sold beer from behind the counter, and sold something from behind the counter that looked like whisky, served in glasses and bottles. The sign over the place was “Brooks’ Place,” and he was in the place during the period the sign was there. Brooks on one or two occasions gave orders, to the serving boy, and was seen to have opened the cash register, according to the testimony of one of the State’s witnesses. The witness stated that the place was known as Stanley’s place. A witness stated that he took down a sign in front of the place, reading: “Drink with Brooks.” The sign had been there a long time, and Stanley was there four years. A police officer testified that he knew Brooks’s place, and that when he visited it just prior to the filing of the charge, he found Brooks and two negro boys there, and found from six to ten half-pints of whisky in the iron safe in the beer saloon where the counter was, and turned the whisky over to the sheriff’s office. Some papers were in the safe. Upstairs certain bottles and cases marked “whisky” were found. While the officer was there the telephone rang and called for Brooks, and the witness said he was not in. The witness knocked on the door to get in, and eight or ten people came to the door, and when they saw the police officer they went out. The papers referred to and the whisky were placed in a basket and turned over to the sheriff. Brooks gave Huhn the combination to the safe after he had said he did not know the combination. The inside door of the safe was broken open and the papers found. A search warrant had been issued for the place and was probably read to Brooks, though the witness was not certain as to that. The sheriff identified the basket and bottles as being the articles received from the police officer, and they were admitted in evidence. Dewberry testified that the accused asked him if he wanted to run the place, and that he, Dewberry, did not have any money to pay the license -and did not furnish any. According to testimony, cool beer was found when the officers came. The accused stated that he had been out of the beer business two years the first of January preceding the trial, and had gone into the automobile business; that he sold the place in 1914, and in 1915 rented it to Stanley; that he had not sold any liquor; that he met his friends there, but had nothing to do with the place; that he was as innocent as the jury; that Dewberry was mistaken in his testimony; that he had nothing to do with any whisky in the place; that he did not know how it got there; that Dewberry knew the combination to the safe, and that he went to get him to open it. Seven pint whisky flasks labelled “Belle of Jefferson Whisky,” each with unbroken seal over the stopper and each full of liquid contents having the color and appearance of rye whisky, and several envelopes addressed 'to J. B. Brooks, the contents of which related to fire insurance and other business matters, were admitted in evidence.

1. In the first special ground of the motion for a new trial it is complained that the trial judge did not instruct the jury that an accusation or bill of indictment raised no presumption against the accused. No timely written request was made for such an instruction, and the exception is without merit.

%. The instruction that “it is no concern of the jury who would receive the money in the event the defendant should be convicted” is complained of upon the ground that it impressed upon the jury that the defendant should be convicted. The judge added a note to this ground, as follows: “ Counsel for the defendant in his argument stated that in the event of the defendant’s conviction, he would be fined simply, and that the solicitor-general would receive the money.” There is no merit in this ground of the motion.

3. A witness testified: “My best recollection is I have bought whisky in that place during the period asked about. I have got beer in there, and I think I have got whisky in that place during the period asked about. I have got beer in there and I think I have got whisky in there. I bought it from Brooks or Stanley or Dewberry, one of them; my recollection is indistinct as to which. My recollection is very indistinct, but it is that I have bought whisky in there from each of them. My recollection is clear that I have seen whisky in there a number of times. I think it was quite frequent to see whisky sold in there. It is my recollection that it was seen several times.” From a perusal of the testimony above set out it will be observed that the witness testified that his best recollection was that he had bought whisky in that place, and that he had bought it from Brooks, Stanley, or Dewberry, but that his best recollection was that he had bought whisky in there from each of them. He was clear in his statement that he had seen whisky in that place a number of times. After all, a witness can only testify to the best of his knowledge and belief, and the weight to be attached to evidence of this character is a matter entirely for the jury. This testimony would seem to take the case out of the rule as to circumstantial evidence, and in the light of the testimony it would seem that any charge by the court on circumstantial evidence could not have been harmful to the accused. There is no merit in the exception to the charge as to the weight to be given to direct and circumstantial evidence, the jury being fully and correctly instructed on reasonable doubt and circumstantial evidence.

4. The court instructed the jury as follows: “I charge you that by 'place of business’ is meant public place of business; not public in the sense that it belongs to the public; not public in the sense that it is done with any great degree of publicity; but it must be a place' to which the public is invited, either expressly or by implication, to come for the purpose of trading or transacting business; and a place of that character to which the public is invited, where business is carried on, is a public place of business; it makes no difference whether the amount of business be great or small. By 'public’ is meant that the public is invited to it and has access to it for a purpose within the scope of the business that is carried on.” This excerpt is a correct definition of a “place of business” within the meaning of the prohibition law as construed by the courts, and is not subject to the exception “that the judge assumed that the whisky in question was sold at the defendant’s place of business.”

5. .Exceptions are taken to the following instructions: “You will notice the verbiage of the statute; it says 'keeping on hand,’— to keep on hand at their place of business. Eor one to keep liquor in his particular place of business in a building, if he has more than one, would be within that statute; but I charge you that it is not necessary for the liquor to be kept in any particular room, or kept in the place where the main business is kept or carried on, or in a public place; that is to say,'it is not necessary for it to be kept openly or publicly. It may be kept secretly; it may be kept in another room on the same floor of the building; it may be kept in another room on a different floor of the same building; but if it is kept in connection with the business, easily accessible to the men or persons operating the business,—if it is kept in that way, it does not matter whether it is in the same room or on the same floor; in- ■ deed, it would not be necessary for it to be in the same building; if it is kept at the place of business, convenient to it, in connection with it, so as to be available, and in a way indicating that it was intended to be available and used in connection with the business (and I charge you that it would not be necessary, for it to be such a place of business, to show any sale of any liquor), the keeping of it there is a violation of the law.” It was contended that the court in this instruction assumed that the accused kept on hand at his place of business liquor for sale. It will be observed that the court used the expression, “for one to keep liquor in his particular place of business in a building, if he has more than one, would be within that statute.” The language used was not an expression or intimation of opinion as to the guilt of the accused, and in no way assumed that he kept on hand at his place of business liquor, contrary to the statute. The definition of the term “place of business” is in line with the construction of this court in numerous cases, and there was no error in so defining it to the jury. Generally the term “liquor” implies intoxicating liquor (Carswell v. State, 7 Ga. App. 198, 68 S. E. 488; Smith v. State, 17 Ga. App. 118, 86 S. E. 283; Gates v. State, 18 Ga. App. 94 (3) (88 S. E. 910)); and the jury could not have misunderstood the meaning of this word as used in the charge. It is proper to charge the jury, as a matter of law, that whisky is intoxicating. There was no error in the excerpt upon the grounds taken.

6. The court charged the jury: “If, up to the time when it was found, business was still carried' on there, although it may have been to a more limited extent, although it may have been done privately, or more privately than theretofore, but was nevertheless carried on, the liquor was kept' there, and the business was carried on in the building by the defendant at the same place, selling to some extent and carrying on business to some extent as he did before, it would still be his place of business, however limited, and although not so'publicly as before, provided it was still a place which the public was expressly or impliedly invited to visit for the purpose of trade.” Exception was taken to this part of the charge, on the ground that the judge thereby “expressed his opinion in regard to the facts, with no evidence in the case that the business was carried on to a limited extent,” and that “the court decided that this was the defendant’s place of business, instead of leaving it to the jury to decide.” There is no merit in this exception.

7. Selling and keeping on hand being charged in one count, the following instruction was not error: “ Or if you believe, beyond a reasonable doubt, from the evidence, that at any time within a 'period of two years prior to the date of this accusation, he sold any person any quantity of liquor in this county, you would be authorized to find him guilty.” This is not subject to the exception that it was not authorized by the evidence.

8. There was no error in admitting in evidence the contracts for a telephone in the place in question, one signed by the accused and the other signed “J. B. Brooks, per Stanley;” it appearing that the latter contract was but a continuance of the former, for the same place and telephone.

9. A witness may testify as to the appearance of any article bought by him, and to permit a witness to say to the jury, “I bought something that looked like whisky,” was not error.

10. There was no error in excluding the following testimony: “I think Stanley owned the place of business; I so understood it;” this being merely the individual opinion and conclusion of the witness.

11. It appeared that the defendant made the original contract with the telephone company for the telephone at the place of business in question, and that the second contract with the company was regarded by the agent of the company as a continuance of the first contract; and the evidence that the defendant was called over the telephone at that place several times was admissible, as a circumstance tending to throw light on the issue as to his guilt.

19. The following exceptions were taken: “The court erred in admitting, over objection of defendant’s counsel, the following testimony: ‘The basket and contents consisting of whisky is admitted in evidence.’ The defendant objected to the basket and contents, though said to contain whisky, because in the first place it was not properly identified. Defendant also registers objection to., the testimony upon the ground that the property was obtained as the result of an illegal search and seizure, which was in contravention of the State and the United States constitutions, which tended to force defendant to furnish evidence against himself. The defendant objected to the testimony further upon the ground that it was in contravention of the constitutional rights of the defendant.” The articles were sufficiently identified; and the constitutional question has been so often adjudicated by the Supreme Court and this court that we deem it unnecessary to discuss the question. See Calhoun v. State, 144 Ga. 679 (87 S. E. 893).

13. From a careful reading of the record this court is of the opinion that the verdict is authorized by the evidence.

Judgment affirmed.


author: Wade, C. J.

text:
    6573.
    Hope et al. v. Hedgerose Heights Company.
   Wade, C. J.

1. Under the ruling by the Supreme Court in this ease, a judge of the municipal court of Atlanta, Eulton section, has authoi'ity to direct a verdict demanded by the pleadings and the evidence in the case. Hope v. Hedgerose Heights Co., 146 Ga. 73 (90 S. E. 530).

2. No question as to the admissibility of evidence is presented by grounds in the motion for a new trial which fail to set out literally or in substance the evidence to which they relate, or which fail to give the expected answers to questions which the court refused to allow, or to state what grounds of objection to testimony admitted were urged at the trial. Stewart v. Bank of Social Circle, 100 Ga. 496 (28 S. E. 249) ; Benton v. Baxley, 90 Ga. 296 (15 S. E. 820) ; Tolbert v. State, 16 Ga. App. 311 (85 S. E. 267) ; Odum v. Rutledge, 16 Ga. App. 350 (1, 5) (85 S. E. 361); Cooner v. State, 16 Ga. App. 539 (85 S. E. 688); Howard v. Macon Railway & Light Co., 17 Ga. App. 55 (3) (86 S. E. 256) ; Roddenberry Hardware Co. v. Merritt, 17 Ga. App. 425 (87 S. E. 681) ; Carlisle v. Ragan-Malone Co., 17 Ga. App. 435 (87 S. E. 608).

3. A strict application of the "statutory rule requiring the brief of evidence accompanying a motion for a new trial to be a condensed and succinct brief of the material parts of the oral testimony and of interrogatories read on the trial (Civil Code of 1910, § 6093) would perhaps require a holding that there was no legal brief of the evidence in this case; but, waiving this question, there was no testimony which tended to rebut the presumption created by law in behalf of the holder of a negotiable instrument; and consequently the court did not err in directing a verdict for the plaintiff, by whom the notes sued upon were apparently obtained from the original payee before maturity and for value, without notice of any defect or defense.

Decided November 22, 1916.

Complaint; from municipal court of Atlanta. April 19, 1915.

Paul L. Lindsay, for plaintiff in error.

T. A. Perry Jr., L. Z. Rosser, A. G. Brotvn, IF. A. Fuller, George L. Bell Jr., G. J. Simmons, contra.

4. The court properly excluded testimony offered to show that the words of negotiability in the notes were placed there through mistake on the part of the makers or by fraud on the part of the original payee, since there was no testimony tending to show knowledge thereof or fraud on the part of the holder, in whose name the suit was brought. Fraud in the procurement of a note must be fraud on the part of the holder, in order to avail as a legal defense. Hancock v. Empire Cotton Oil Co., 17 Ga. App. 180 (86 S. E. 434) ; Citizens Banking Co. v. Tootle, 17 Ga. App. 692 (87 S. E. 1098) ; Pate v. Allison, 114 Ga. 651 (40 S. E. 715).

5. The appellate division of the municipal court of Atlanta did not err in overruling the motion for a new trial. Judgment affirmed.


text:
    7291.
    CITY OF MACON v. JOINER.
    '“The plaintiff may dismiss his case at any time before the verdict is published, if unknown to him.” Peeples v. Root, 48 Ga. 592. “The plaintiff’s right to dismiss can not be exercised after the verdict, or a finding by the judge which is equivalent thereto, has been reached, if he has acquired actual knowledge of the verdict or finding, whether the same has been published or not. Merchants Bank v. Ratals, 7 Ga. 191 [50 Am. D. 394]; Peeples v. Root, 48 Ga. 592; Cherry v. Building and Loan Association, 55 Ga. 19; Meador v. Bank, 56 Ga. 605 (4) ; Brunswick Grocery Co. v. Railroad Co., 106 Ga. 272 [32 S. E. 92, 71 Am. St. R. 249].” Peoples Bank v. Exchange Bank, 119 Ga. 366, 368 (46 S. E. 416). '
    Decided November 22, 1916.
    Action for damages; from municipal court of Macon—Judge Chambers. January 20, 1916.

      W. D. McNeil, Roy W. Moore, for plaintiff in error.

      G. G. Hardeman, contra.
   Wade, C. J.

Error is assigned in this case upon the action of the trial court in allowing the plaintiff to dismiss his suit after the court had directed a verdict for the defendant, and the verdict as directed had been prepared and signed by the foreman of the jury, and after the plaintiff had been thus informed as to what the verdict would be, but before the verdict had been read by counsel for the defendant. The bill of exceptions makes the following recitals of fact: “The evidence in said case was introduced by both the plaintiff and the defendant in the due course of procedure, after which time the defendant in said case moved to direct a verdict in favor of the defendant, for the reason that the evidence introduced by the plaintiff failed to make out a case against the City .of Macon. The motion was sustained, and his honor directed a verdict for the defendant. After the foreman of the jury had signed the verdict as directed by the court, and after the plaintiff in said case was informed as to what the verdict would be, but before the signed verdict had been read by the defendant’s counsel, the said plaintiff in said ease moved to dismiss his suit, which motion the court sustained; to which ruling the defendant excepted and now excepts, and assigns the same as error.”

Notwithstanding it does not appear that the verdict signed by the foreman of the jury under the direction of the court had been delivered to counsel for the defendant, or to any other person directed by the court to receive it (Irvine v. Grant, 15 Ga. App. 269, 82 S. E. 819; Merchants Bank v. Rawls, 7 Ga. 191, 50 Am. D. 394), it is clear, from the recitals in the bill of exceptions, that the verdict signed by the foreman of the jury was known to counsel for the plaintiff before he interposed his motion to withdraw the case. As was said in Peoples Bank v. Exchange Bank, supra, “After a party has taken the chances of litigation and knows what is the actual result reached in the suit by the tribunal which is to pass upon it, he can not, by exercising his right of voluntary dismissal, deprive the opposite party of the victory thus gained. It is knowledge of the actual, not of the possible, result of a case which precludes the exercise of the right of dismissal.” It is further held in that case that “When a verdict in favor of the defendant has been reached but not returned into court, and the plaintiff in some way acquires actual knowledge of the finding, he can not'exercise his right to voluntarily dismiss.” The trial judge therefore erred in allowing the plaintiff to dismiss his action after the court had directed a verdict in favor of the defendant and this verdict had actually been signed by the foreman of the jury.

This was not a mere oral decision by the judge from which no appeal could be entered, but the decision had been entered in writing and signed by the proper official, and, so far as the plaintiff was concerned, had been duly published. Judgment reversed.


author: Wade, O. J.

text:
    7302.
    Gann v. McGee et al.

    Decided November 22, 1916.
    Rehearing denied December 8, 1916.
   Wade, O. J.

1. The homestead exemption covering a “Eord automobile” can only have been allowed under the provisions of section 3377 of the Civil Code of 1910, and could not be upheld as a statutory or “short” homestead (Civil Code of 1910, § 3416), since only the specific things named in the statute may be exempted by the latter, and an automobile is not so named. The conclusion that a homestead was sought and obtained under section 3377, supra, is further authorized by the fact that the application gave the names and addresses of the creditors of the husband of the applicant, from whose property the homestead was set apart, and was published, as required by section 3417 of the Civil Code.

2. A collateral attack on a judgment setting aside a constitutional homestead (Civil Code, § 3377) is not allowable (Bartlett v. Russell, 41 Ga. 196), though allowable as to a “short homestead.” Marcrum v. Washington, 109 Ga. 296 (34 S. E. 585) ; Dunagan v. Stadler, 101 Ga. 474 (29 S. E. 440); Greaves v. Middlebrooks, 59 Ga. 240.

3. Where there is a misnomer in the printed notice, a. judgment granting a homestead is of no force as against a creditor. Smith v. Lord, 60 Ga. 463. The requirement as to notice is intended, however, for the benefit of the creditors of the person out of whose estate the homestead is to be set apart, and a defect in the advertisement would not avail one for whose benefit the publication was not made. Moreover, a judgment of the court of ordinary setting aside a constitutional homestead is the ■judgment of a court of competent jurisdiction, and not subject to collateral attack. Dunagan v. Stadler, supra. “The judgment concludes on all the facts necessary to appear before the court can give a judgment.” Harris v. Colquit, 44 Ga. 663, 665. See also Gamble v. Central Railroad &c. Co., 80 Ga. 595 (4), 601 (7 S. E. 315, 12 Am. St. R. 276).

4. The description of the automobile, in the application for homestead, as “one five-passenger Eord automobile,” was sufficient to identify the property, and the description in the suit, though fuller, was not at variance therewith. See Nichols v. Hampton, 46 Ga. 253, 256; Welsh v. Lewis, 71 Ga. 387; Beaty v. Sears, 132 Ga. 516 (64 S. E. 321) ; Clark v. Dodson Printers’ Supply Co., 137 Ga. 324 (73 S. E. 580) ; Reynolds v. Jones, 7 Ga. App. 123 (66 S. E. 395) ; Stimpson Specialty Co. v. Parker, 10 Ga. App. 295, 296 (73 S. E. 412). The sufficiency of the identification was, however, a matter for the jury.

5. Allegations in an application for homestead in behalf of the applicant and her minor children, that she is a resident of the county in which the application 'is filed, and that her husband, who is a resident of the county, refuses to apply, are sufficient to give the ordinary jurisdiction. Long v. Bullard, 59 Ga. 355. See also Blacker v. Dunlop, 93 Ga. 819 (21 S. E. 135); Hughes v. Purcell, 135 Ga. 174 (68 S. E. 1111) ; Civil Code, § 3393.

6. The judge of the municipal court of Macon did not err in overruling the demurrer to the petition and the exhibits attached thereto, upon each and all of the grounds here insisted upon. Judgment affirmed.

Trover; from municipal court of Macon—Judge Chambers. February 16, 1916.

B. W. Barnes, for plaintiff in error. B. Q. Powers, contra.


text:
    7328.
    Esa v. The State.
   Wade, O. J.

2. “Where a juror is put upon a defendant being tried under indictment - for a criminal offense, and peremptorily challenged by the defendant, the juror is not so disqualified that he could not be again put upon the defendant at a subsequent trial for the same offense under the same indictment, either because the defendant would thereby be deprived of his full twenty strikes, or because it would deny him his constitutional right of a fair and impartial trial and equal protection of the laws.” Esa v. State, 146 Ga. 17 (90 S. E. 278). The trial court did not err in overruling the challenge to the array, or the challenge to the poll, based upon the alleged disqualification of the array and of a particular juror upon the ground above suggested.

3. The court did not err in refusing to declare a mistrial, or in failing, in the absence of a timely written request, to instruct the jury not to consider, to the prejudice of the statement of the accused, an apparently involuntary exclamation of a spectator at the trial, who was a brother of the deceased, which challenged the truthfulness of the explanation of the homicide, then being presented to the jury by the defendant. This unseemly interruption did not necessarily tend to discredit the statement of the defendant in the minds of the jury, but might tend equally well to beget sympathy for him and to excite prejudice against the prosecution. If a mistrial must result as a legal consequence of such conduct, calculated interruptions might prevent the execution of the law, unless attendance of others on the trial of those accused of crime be more strictly regulated than is contemplated or allowable under our present system. The matter addressed itself to the discretion of the trial judge, and it does not appear that his discretion was abused.

4. There is no merit in the 8th ground of the motion for a new trial, as there is 'nothing in the record to indicate that the alleged confession was induced by the slightest hope of benefit or the remotest fear of injury.

5. The charge of the court was sufficiently full in regard to the weight and value to be attached to confessions, in the absence of a written request for other and fuller instructions; and no opinion that certain confessions had been proved was intimated to the jury by the words “these confessions,” in the following excerpt from the charge of the court: “Wherever confessions are offered in evidence, they should be carefully considered; and you would not be authorized to convict on confessions alone, unless these confessions are corroborated by other evidence in the case. ” Clearly the court was giving an abstract instruction.

Decided November 22, 1916.

Conviction of manslaughter; from Bibb superior court—Judge Mathews. February 9, 1916.

E. G. Powers, W. D. McNeil, for plaintiff in error.

Jolm P. Ross, solicitor-general, contra.

6. There is no merit in the exceptions to the following instructions to the jury: “You must believe in -this case, in order to convict this man, that with a razor he cut and killed the deceased at a time when there was no necessity for it at all, and no apparent necessity for it at all; remembering that an apparent necessity is equivalent to a real necessity, provided it amounts to such a necessity as to make the defendant believe, as a reasonable man, that the necessity exists.” This instruction did not take from the jury the right to determine the issue of fact involved or the right to consider the statement of the defendant; nor did it require the defendant to show that an actual necessity .existed before he could claim the benefit of the doctrine of apparent necessity. This ruling applies also to the 12th ground of the motion for a new trial.

7. Construed together and in the light of the entire charge, the instructions complained of in the 11th and 13th grounds of the motion for a new trial are not subject to the exceptions taken.

8. There was evidence to authorize the verdict, no error of law was committed on the trial, and the court did not err in overruling the motion for a new trial. Judgment affirmed.


author: Hill, J.

text:
    7402.
    Travers v. Macon Railway and Light Company.
   Hill, J.

“Damages are given as compensation for the injury sustained.” Civil Code (1910), § 4390. Therefore, in a suit to recover damages for personal injuries, where the verdict establishes liability, and the proof shows actual damages resulting from the injuries sustained, in lost time and service, medical attention, etc., amounting to $107, and also pain and suffering, a verdict for one dollar for the plaintiff was grossly inadequate and contrary to law and the evidence. The amount of the verdict was not sufficient even as nominal damages (Civil Code, § 5984), and the case was one for compensatory damages in some adequate amount. A new trial should have been granted. Moseley v. Jamison, 68 Miss. 336 (8 So. 744); Prewitt v. Telegraph &c. Co., 46 Tex. Civ. App. 123 (101 S. W. 812). Judgment reversed.

Decided November 22, 1916.

Action for damages; from city court of Macon—Judge Hodges. April 6, 1916.

R. L..Berner, for plaintiff. Ellis & Qlaioson, for defendant.