text:
    9397.
    BOARD OF EDUCATION OF DOERUN v. BACON.
    1. The position of a teacher in a public school of a town or city is not an “office,” but is merely an “employment.”
    2. The board of education of a town or city lias the authority, unless such authority is expressly or impliedly denied by statute, to contract with a teacher for the latter to teach in its public schools for a fixed term; and where, in the absence of such a statute, such a contract has been made, and has been breached by the board of education by the discharge of the teacher without cause, before the contract term has expired, the teacher has a right of action against the board of education for damages for breach of the contract.
    {«.) Where the language of a statute is that the board of education of a named town “shall have.power to suspend or remove” its teachers, the board is not thereby prohibited, either expressly or impliedly, from making contracts with teachers for a definite period of time; and such contracts are valid and binding.
    Decided March 14, 1918.
    Adhered to on rehearing, April 23, 1918.
    Action for breacli of contract; from Colquitt superior court— Judge Thomas. November 24, 1917.

      P'writer & Gibson, Adams & Adams, for plaintiff in error.

      J. L. Dowling, R. J. Bacon, G. H. Richter, contra.
   Broyles, P. J.

This was a suit for damages for the breach of a contract of employment, brought against the Board of Education of the Town of Doerun, Georgia, by one of its school-teachers. Her petition alleged, that she had been employed by the board, under a special contract,'to teach in its schools for a period of nine months, at a salary of fifty dollars per month; that after teaching for something over four months she was wrongfully discharged without notice and without cause; that she had sought diligently, but unsuccessfully, to secure other like employment to lessen the damages arising from the wrongful discharge. The defendant’s general demurrer to the petition was overruled, and upon that ruling error is assigned.

The General Assembly, in creating the public-school system of the Town of Doerun (Georgia Laws, 1901, p. 372), provided, in section 5 of the act (p. 373), “that said board of education shall have power tg design and adopt a system of public school, or schools, for said town; to appoint a superintendent and employ teachers; to suspend and -remove such superintendent or teachers; to fix their compensation; to provide schools by rent, building, or otherwise; to make and hold titles to such property; and to mate rules and regulations for the government of said schools as they deem proper and not in conflict with the laws of this State; and to do any and all things promotive of the best educational interests of said town, not in conflict with the provisions of this act or the laws of Georgia.” It is insisted by the learned counsel for the school board that under the language of this act, to wit, “that said board of education shall have power . . to suspend and remoye such superintendent or teachers,” the board has the authority to dismiss a teacher at its pleasure, without cause, whether the teacher is a public “officer” or a mere “employee.” We can not agree with this contention. Possibly the board would have that' authority in a case where it had made ,no contract with a teacher for a certain fixed time; but where it had made such a contract, in our judgment it could discharge a teacher for cause only,—provided it had the authority to make such a contract; and, in our opinion, the latter question, to wit, whether the Board of Education of the Town of Doerun had the' authority to make the contract with the teacher in the instant case, is the only question to be determined. Nowhere in the act just quoted from is the board of education prohibited, either expressly or by reasonable implication from the language used, from making such contracts. It is insisted, however, that as this act did not expressly authorize the making of such contracts by the board of education, and as the term of the teachers’ employment was not fixed therein, the teachers employed by the board held their positions at its pleasure, and that the board had no. authority to change this status by fixing definite terms for such positions. In support of this contention counsel cite Wright v. Gamble, 136 Ga. 376 (71 S. E. 795, 35 L. R. A. (N. S.) 876, Ann. Cas. 1912C, 372). In that case the Supreme Court held as follows: “Where the tenure of an office is not prescribed by law, the power to remove is an incident to the power to appoint. In such a case the appointee holds at the pleasure of the appointing power, although it attempts to fix a definite term; and no formalities, such as the preferring of charges or the granting of a hearing to the incumbent, are necessary to the lawful exercise of the authority of removal.” (Italics ours.) It is clear from the headnote and the language of the opinion that that decision adjudicated the rights of a holder of a public “office,” the tenure of which was not specifically prescribed by law, but the duties of which were. There Gamble, the plaintiff in the quo warranto proceedings, was a duly appointed and qualified public officer, who had taken an official oath and had given bond with security for the faithful performance of his duties, and who, after his removal from office, brought proceedings against his successor in office, for the purpose of regaining possession of the office. There was in Gamble’s appointment to office no element of contract, as in the instant case. We. find in the opinion in that case no language which would extend the doctrine there laid down (as applicable to a “public officer”) to cover a contract of employment between the board of education of a town and a teacher employed by that board under a definite contract for a fixed period of time.

While a public-school teacher is a public “employee,” we do not think he or she could be considered a public “officer” within the meaning of the ruling in the Gamble case. As was said by Chief Justice Marshall, in United States v. Maurice, 2 Brock. 102, 26 Fed. Cas. 1211 (adopted in United States v. Schlierholz, 137 Fed. 616, 632), “Although an office is an ‘employment,’ it does not follow that every employment is an ‘office.’ A man may certainly be employed under a contract, express or implied, to do an act or to perform a service without becoming an officer.” And in the Schlierholz case it'was said: “An ‘office’ is defined to be an employment on behalf of the government in any station of public trust not merely transient, occasional, or incidental. It is a special trust or charge created by competent authority. The officer is distinguished from the employee in the greater importance, dignity, and independence of his position, in being required to take an official oath, and perhaps to give an official bond, in liability of being called to account as a public offender for misfeasance or nonfeasance in office, and usually, though not necessarily, in the tenure of his position.” “The distinction is plainly taken between a person acting as a ‘servant’ or ‘employee’ who does not discharge independent duties but acts by the direction of others, and an ‘officer’ empowered to act in the discharge of a duty or legal authority in public life.” (Italics ours.) Padden v. City of New York, 92 N. Y. Supp. 926, 928 (45 Misc. 517), and other authorities cited in 4 Words & Phrases (2d series), 699, 700. “Not every person in the service and pay of a municipal corporation is an officer. The distinction between an office and an employment is well recognized. . . A janitor or a night watchman in a public building, a superintendent of public schools exercising no • power except what is derived through the school board, a visiting physician at a public hospital, a fireman, and a filing clerk of the public records, are not officers.” (Italics ours.) 19 R. C. L. 912, § 209; Baltimore v. Lyman, 92 Md. 591 (48 Atl. 145, 84 Am. St. R. 524, 52 L. R. A. 406). See also, in this connection, 29 Cyc. 1366-C, 1367; Throop v. Langdon, 40 Mich. 673. If a “superintendent of schools, exercising no power except what is derived through the school board,” is not an “officer,” a fortiori, a mere teacher, under such a superintendent, is not. “A public office is the right, authority, and duty, created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is vested with some portion of the sovereign functions of the government, 'to he’ exercised by him for the benefit of the public.” Mechem on Offices and Officers, § 1, and authorities there cited. The warrant to exercise suqh powers or functions “is conferred, not by a contract, but by the law. It finds its source and limitation in some act or expression of governmental power.” (Italics ours.) Wyman’s Administrative Law, Public Officers, § 44, p. 143, and authorities there cited.

In distinguishing between an “office” and an “employment,” the fact that the powers in question are created and conferred by law is an important- criterion. For though an employment may be created by law, it is not necessarily so, but is often, if not usually, the creature of contract. A public office, on the other hand, is never conferred by contract. As was said by Chief Justice Marshall in the Maurice case, supra: “I do not think that the mere direction that a thing shall be done, without prescribing the mode of doing it, can be fairly construed into the establishment of an office for that purpose, if the object can be effected without one.”. And, therefore, where the authority in question was conferred by a contract, it must be regarded as an “employment” and not as a public office. Hall v. Wisconsin, 103 U. S. 5 (26 L. ed. 302); United States v. Hartwell, 6 Wall. 385, (18 L. ed. 830); Shelby v. Alcorn, 36 Miss. 273 (72 Am. D. 169); People v. Nostrand, 46 N. Y. 381. See, also, in this connection, State ex rel. Mayor &c. of Savannah v. Dews, R. M. Charl. 397, wherein it is held that laws creating a public office are not contracts with the incumbent, within the purview of the constitutional inhibition against the impairment of contracts. It follows, therefore, that where the employment is contractual, such employment is not and can not be an “office.” There is no element of a contract in the holding of a public office. The holder is under no obligation to discharge his duties a single day. Tie may' resign at any time, and no power of the government can prevent him; nor does he enter into any agreement that he shall receive any particular compensation for the time he shall hold office. Mechem on Public Officers, 295, § 463. In Daily v. Freeholders of Essex, 58 N. J. L. 319 (33 Atl. 739), the Supreme Court of New Jersey held: “It is clear from the provisions of this, section of the act that the prosecutor, a janitor of the court-house, was protected from removal 'unless for cause and upon notice and a hearing. There exists no justification for the suggestion that he held a public office. He was holding a position. He was no more a public officer by virtue of his appointment as janitor than is the janitor of an insurance building an officer of the insurance company that occupies it. This is too clear, indeed, for further discussion.” (Italics ours.)

Tn some jurisdictions it has been held, and in some it is a matter of statute, that a teacher who has been employed for a definite term can be dismissed only at the end of his term of employment; and if before the expiration of such-term, only .for just and sufficient cause. 35 Cyc. 1088, note 82. “Where a teacher is wrongfully removed or dismissed, and he holds himself in readiness to teach at all times before his contract expires, and is unable to obtain other employment, he is entitled to recover the agreed compensation for the remainder of the term contracted for.” 35 Cyc. 1100 C; School Dist. No. 3 v. Hale, 15 Colo. 367 (25 Pac. 308); Park v. DesMoines etc., 65 Iowa, 209 (21 N. W. 567); TJnderwood v. Prince George County School Commissioners, 103 Md. 181 (63 Atl. 221); Steinson v. New York Board of Education, 49 App. Div. 143 (63 N. Y. Supp. 128); affirmed, 165 N. Y. 431 (59 N. E. 300); McPherson v. Usborne School Sec. 7 (Canada), 1 Ont. L. R. 261; 43 Cent. Dig., title “Schools and School Districts,” § 310. “A teacher can not as a rule be removed or discharged except on charges preferred, and after trial; and if one is unlawfully removed, he is entitled to recover his salary ion the time after such removal, less any sum he may have earned, as a substitute during such time.” 28 Cyc. 580 e; Bogert v. New York Board of Education, 44 Misc. 10 (89 N. Y. Supp. 737), affirmed, 106 App. Div. 56 (94 N. Y. Supp. 180).

It has been held that under a charter giying a board of education power to employ teachers, the position of a teacher is that of an employee, resting on the contract of employment, and not that of an officer of the board. 28 Cyc. 580 e; Steinson v. N. Y. Board of Education, supra. See also 1 Dillon on Municipal Corporations, 736, § 425.

It will be seen from the foregoing that the great weight of authority in other States, and in the text-books, is that á teacher is a mere “employee” and not an “officer;” and that where a board of education has made a contract with a teacher for a fixed period of time, the teacher can be discharged, before the contract period has expired, only for cause. While this point seems never to have been squarely passed upon in this State, the ruling of the courts of our sister States is persuasive authority for us to hold likewise. Moreover this holding is based upon justice and sound public policy. Furthermore, that a public^fechool teacher who has been employed for a definite period of time is entitled to- have notice, and to be dismissed for cause only, seems to be the policy and the understanding of our State Board of Education. The act of 1911 (Acts 1911, p. 94, Park’s Ann. Code, § 1565 c), creating that board, requires, among other things, that the board shall “provide rules and regulations for the supervision of all schools in the State.” Among the rules promulgated by the board, through the State superintendent of schools, and of which this court will take judicial cognizance, is the following, dated January 8, 1916 (Georgia School Laws and Decisions, 83 c. 11, note 13). “Without fixed charges, it is not according to the letter or the spirit of the Georgia law for a teacher to be summarily discharged, at the'whim of a board, without trial, after being elected for a specified term, unless such provision is stated in the contract.” We take it that the clause in the act creating the State board which reads “that the board of education shall provide rules and regulations for the supervision of all schools in the State” (italics ours) refers, of course, to public schools only; and possibly only to State or county schools, and to such municipal schools as receive appropriations, or an apportionment of funds, from or through the State. It appears, however, from the 45th Annual Deport of the Department of Education to the General’ Assembly of Georgia, published in 1917 (p. 312), that the public schools of the Town of Doerun, Georgia, do receive such an'annual apportionment of funds from the State.

While we realize that this rule of the State Board of Education. has not the force of a statute, we think it is good persuasive authority. As was said by Mr. Justice Cobb in Temple Baptist Church v. Georgia Terminal Co., 128 Ga. 680 (58 S. E. 161) : “This court, and all other courts, will recognize the practice of co-ordinate departments of government, and allow the- construction placed by the officers in such departments upon statutes, and even the constitution, to be operative where there is room for construction.”, This court has held to the same effect in Griner v. Baggs, 4 Ga. App. 232, 235 (61 S. E. 147). See also 15 R. C. L. 1110, § 40, note 20, and authorities cited.

The case of Auburn Academy v. Strong, Hopk. (N. Y.) 278 (35 Cyc. 817F), cited and relied upon most strongly by counsel for plaintiff in error, decides merely that trustees of a school, empowered by statute to appoint and remove teachers at pleasure, have no power to make a contract with a teacher limiting their right to remove him at pleasure. That question is quite different from the one here adjudicated. In the instant ease, under the clause in section 5 of the act creating the public-school system of Doerun, which reads, “and to do any and all things promotive of the best educational interests of said town, not in conflict with the provisions of this act or the laws of Georgia,” we think, by reasonable implication at least, the board of education is authorized to enter into a contract with a teacher for the full scholastic year, such as the one set up in the petition, since it would doubtless be difficult to secure competent and experienced teachers for the schools of Doerun if they knew they were liable to be discharged at any time, without cause, at the whim or pleasure of the school board, after the scholastic year had begun, when they would probably be unable to secure employment in other schools for that year. It seems clear to us that it would be “for the best educational interests of the Town of Doerun” for its board of education to have authority to make such contracts, and, in our opinion, such contracts do not conflict with the provisions of the act cited, or any of the laws of this State.

It follows that the petition set forth a cause of'action, and that the court did not err in overruling the general demurrer.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.


source: Caselaw Access Project

author: Broyles, P. J.

license: Public Domain

text:
    9404.
    Johnson Lumber Company v. Weems.
    Decided March 14, 1918.
    Complaint; from city court of LaG-range—Judge Moon. September term, 1917.

      M. U. Mooty, for plaintiff.

      E. A. Jones, Hatton Lovejoy, for defendant.
   Broyles, P. J.

1. The suit was for the purchase-price of building materials alleged to have been bought by the defendant on an open account. The plaintiff’s proof showed that the materials were sold, not to the defendant, but to her contractor, arid that after the sale the defendant made an oral promise to pay for them. Under such circumstances the court did not err in excluding, on motion of the defendant, the evidence relating to her promise to pay for the materials, on the ground that such evidence was at variance with and not authorized by the allegations of the petition.

2. The plaintiff’s evidence did not sustain the material allegations of the petition, and the court did not err in awarding a nonsuit.

3. The rulings in the preceding notes being controlling in the case, it is unnecessary to consider the assignments of error in the exceptions pendente lite filed by the defendant.

Judgment affirmed.

Bloodworth, J., concurs. Harwell, J., disqualified.


author: Wade, C. J.

text:
    8938.
    ROUNTREE v. BROWN.
    1. The allegations were sufficient to show that the plaintiff was entitled to foreclose a lien as a laborer.
    2. Exception to refusal of nonsuit is not considered if it ,be alleged, by way of motion for new trial, that the verdict is not supported by the evidence, and if exceptions be taken to the overruling of that motion.
    3. It is not error to refuse to direct a verdict.
    4. The question as to bar Ijy limitation need not be passed upon, as it does not appear to have been raised in the court below.
    5. There was evidence to support the verdict.
    Decided March 15, 1918.

      Lien, foreclosure; from city court of Swainsboro—Judge Kirkland. April 24, 1917.

      Williams & Bradley, for plaintiff in error.

      T. N. Brown, contra.
   Wade, C. J.

“An affidavit to foreclose a laborer’s lien, which alleged merely that the deponent was employed 'to labor as a clerk in defendant’s store,’ etc., was insufficient, and was properly dismissed on demurrer.' One who is employed merely to labor as clerk in a store is not such a laborer as'is contemplated by § [3334] of the Code [1910], giving a lien to a laborer on the property of his employer. Something must be averred and shown other than that the party seeking the lien was a clerk [italics ours]. 'Laborer,’ as used in' the statute, means what was generally known as a laborer at the time of the passage of the act, and clerks, agents, cashiers of banks, and like employees, whose employment is associated with mental labor and skill, were not considered laborers, and were not included in the statute as such.” Hinton v. Goode, 73 Ga. 233 (1). See also Howell v. Atkinson, 3 Ga. App. 58 (59 S. E. 316); Oliver v. Macon Hardware Co., 98 Ga. 249 (25 S. E. 403, 58 Am. St. R. 300). Something other than that the party seeking the lien was a mere clerk was averred and proved in this case, notwithstanding the deponent in his original affidavit classified himself as “a clerk or'salesman” in a general mercantile business, since by amendment it was alleged .that he “sold general merchandise, hauled freight, had cotton ginned, and hauled seed-cotton and cottonseed, hauled cotton from fields, opened freight, put up goods, swept the floors, sprinkled the floors and dusted the floor and goods, made deliveries to customers outside of the store, toted wood and built fires, put up machinery by fastening together the parts,” etc. This amendment clearly averred facts sufficient to show that the party seeking the lien was not merely a clerk in ..a mercantile business, and the court therefore properly overruled the defendant’s demurrer which sought to dismiss the affidavit as amended, for the reason that deponent did not affirmatively allege therein that he was such a laborer as is contemplated by the Civil Code (1910), § 3334, giving a lien to a laborer on the property of his employer. See Tuck v. Moss Mfg. Co., 127 Ga. 729 (56 S. E. 1001).

The refusal of the court to award a nonsuit will not be considered, when there is also an assignment of error' upon the overruling of a motion for a novV trial, in which a verdict for the plaintiff is complained of as not supported by the evidence. See Collins v. Strickland, 21 Ga. App. 542 (94 S. E. 1035), and numerous eases there cited.

Under repeated adjudications, a refusal of the trial judge to direct a verdict is never error. '

In the brief of counsel for the plaintiff in error it is contended that the provisions of section 3366, par. 2, of the Civil Code (1910) preclude a recovery of the amount claimed, because the proceeding to foreclose the lien was not commenced within a' year from, the time the indebtedness became due. On the other hand it is contended that, in view of the evidence as to an account by the defendant against the plaintiff for goods furnished to the plaintiff from defendant’s store, ‘the rule as to mutual running accounts applied and prevented the bar of the statute from attaching. “In mutual running accounts, where there has been no accounting or liquidation of the indebtedness, or other like act, by which a new point is established from which the statute could begin to run, none of the accounts would be barred until the'last item charged is barred.” Youmans v. Moore, 11 Ga. App. 66 (74 S. E. 710). See also Madden v. Blain, 66 Ga. 52; Gunn v. Gunn, 17 Ga. 568 (58 Am. R. 447); Walker v. Mercer, 41 Ga. 44; Park’s Ann. Code, § 4363, and citations. However, it does not appear from the record that the contention as to the bar of the statute was made in the court below by plea or otherwise; and therefore it need not be passed upon here. Parker v. Irvin, 47 Ga. 405; Small v. Cohen, 102 Ga. 253 (3) (29 S. E. 430). And see Smith v. Central Ry. Co., 146 Ga. 59 (90 S. E. 474).

There being evidence to support the verdict, which'has the approval of the trial court, it can not now be set aside.

Judgment affirmed.

Jenlcins and Luhe, JJ., concur.


text:
    8970.
    HEATH v. SHACKELFORD BROTHERS.
   Wade, C. J.

'Hone of the grounds of the motion for a new trial being argued in the brief of counsel for the plaintiif in error, they will be treated as abandoned. The general statement in the brief, that the plaintiff in error contends “that it was error not to grant a new trial on each and every ground of the original and amended motion for a new trial,” is not sufficient to change this well-established rule of practice. Pelham Phosphate Co. v. Daniels, 21 Ga. App. 549 (94 S. E. 846), and the numerous cases there cited.

Decided March 15, 1918.

Complaint; from Wilcox superior court—Judge Crum. May-19, 1917.

M. B. Gannon, Max E. Land, for plaintiff in error.

Ilal Lawson, contra.

Judgment affirmed.

Jenhins and Luhe, JJ., concur.


text:
    9049.
    MALOOF v. GEORGE. ABRAHAM v. GEORGE.
    9050.
    1. Payment made to a third person by the request or with the consent of the creditor is a good defense to an action for debt. 30 Ene. Law & Proe. 1183; Burst v. Whitly, 47 Ga. 366. The plea of payment in the instant case is admitted, in the brief for the plaintiffs, to be sufficient in law, and there was ample evidence to support it.
    2., The contention of the plaintiffs that the defendant can not claim credit for money paid out by him for the, suppression of a criminal prosecution ' is without .merit, in view of the direct and positive testimony that they directed him to pay the money into court to satisfy a fine imposed against their brother, and that this instruction was in fact ' obeyed; and the jury was therefore authorized so to find.
    3. The judge of the superior court did not err in overruling the certiorari.
    Decided March 15, 1918.
    Certiorari; from Fulton superior court—Judge Pendleton. June 1, 1917.

      Paul S. Etheridge, A. PL. Davis, for .plaintiffs. •

      Austin, Boylcin & Talbert, Hughes Roberts, for defendant.
   Wade, C. J.

These two cases were tried together in the municipal court of Atlanta; and the evidence and questions of law being the same in both cases, they are considered and determined as one. The testimony adduced at the trial shows substantially that in December, 1915, two factions of the Syrian colony in Atlanta, Georgia, engaged in a free-for-all fight or near-riot, resulting in several indictments for assault with intent to murder. Two of the principal participants in the conflict were A. F. Maloof and H. Abraham, the latter receiving a severe knife wound, while the former was indicted for assault with intent to murder, as a result of the part he played in the affray. Mike George was a non-combatant or neutral, since he took no part in the melee; but by reason of the fact that he was a leader, so to speak, of the colony, the sister and sister-in-law of Maloof approached him and urged that he assume the difficult role of pacificator, and deposited with him the sum of $400 to be used in the interest of their brother, George giving them his promissory notes for the amount each deposited with him; whereupon he reluctantly interested himself in an effort to bring about a reconciliation between the belligerent clans. This money and these notes are the basis of this litigation. The efforts of George as peacemaker were successful, since he obtained the consent of the solicitor-general to accept a plea of guilty from Maloof, with an agreement that the cases against the. other combatants be nol pros’ed. Maloof was fined $500; whereupon his sister and sister-in-law instructed George to apply the $400 which they had deposited with him, and for which the notes sued upon were given, to the payment of their brother’s fine, which instruction George obeyed, paying the money into the court. Several months later suits were brought on the notes; and the jury returned verdicts in favor of the defendant George, which were sustained on certiorari. The headnotes sufficiently dispose of the exceptions.

Judgments affirmed.

Jenkins and Luke, JJ., concur.


author: Jenkins, J.

text:
    9054.
    WILSON v. BUSH.
    1. While an illiterate person is not bound by the terms of an instrument which he ignorantly signed under an erroneous belief as to its character and contents, .where he was induced to do so by reason of the misrepresentations of the opposite party, whose good faith he had no reasonable ground to suspect (Grimsley v. ■ Singletary, 133 Ga. 56, 65 S. E. 92, 134 Am. St. R. 196), still, where such a person, who is able to contract, enters into an accounting with another, and voluntarily signs a promissory note in settlement, the true purport and terms of which he fully understands, he, like other persons, is ordinarily bound thereby, and will not, in the absence of fraud or mistake, be heard to set up, as a defense to an action on the note, the mere fact that, under the accounting wherein it was given in settlement, he failed to receive certain credits to, which he was entitled, and that certain elements of indebtedness included therein were unjust.
    2. In our rules of pleading there is nothing that would prevent the plaintiff in a suit on a note from amending an erroneous statement in the petition by increasing the amount of the claim made on the note, where the amount of the demand as amended is still within the amount called for by tlie note sued on,, as shown by the attached copy thereof.
    3. A note given for a stated sum as principal, to bear interest after maturity, and providing for the payment of ten per cent, as attorney’s fees “on amount of said debt,” authorizes a recovery of such fees on the amount of both tho principal and the interest of the obligation. Everett v. Ingram, 142 Ga. 145 (S2 S. E. 562).
    Decided March 15, 1918.
    Complaint; from Miller superior court—Judge Worrill. June 30, 1917.

      W. I. Geer, for plaintiff in error. Billie B. Bush, contra.
   Jenkins, J.

The trial judge sustained a demurrer to the plea by which the defendant sought to go behind the settlement .deliberately made between the parties to the suit, and closed up by the execution of the obligation sued on. This the defendant could not do, without setting up fraud or mistake; and in our opinion the plea fails to show either. It merely undertakes to show that he was entitled to certain payments not allowed in the settlement, and that some of the charges included therein were unjust. It does not show that in the settlement the payee of the note employed any deceptive means or deceitful practice by which the defendant was mislead; it does not appear that any artifice was resorted to, or that any emergency existed whereby* the maker of the note was'drawn into making the settlement, so as to deprive him of a full and fair opportunity of informing himself as to the elements of the transactions entering into and forming the basis of the note, before signing it. Averring that the note does not represent the amount which on a true and correct accounting would have been arrived at,- the defendant relies upon the fact that the plaintiff, in whom he reposed great confidence and with whom-he had dealt for a long number of years, promised to revise the instrument and correct any error which it might subsequently develop existed therein. In the settlement made, the defendant dealt with the plaintiff as the opposite party to the transaction. No relationship of trust arises by reason of the fact that he had so dealt with him for a long number of years, and that the defendant believed in his integrity, nor in the fact that he was a second blood cousin to the defendant. Crawford v. Crawford, 134 Ga. 114 (67 S. E. 673, 28 L. R. A. (N. S.) 353, 19 Ann. Cas. 932). And where one deliberately signs a promissory note in a stated sum, believing the amount named in the obligation to be erroneous, but relies upon the promise of the 'other party to the contract that it would be revised so as to correct 'errors, the maker, even though illiterate, will not1 be heard to contradict the written instrument by setting up such parol understanding in opposition •thereto. The terms of the writing can not .be defeated upon the ground of mistake made at the time the instrument was executed, when it thus appears that it was not even the intention of the signer that the settlement should be accurate and final, but under, an oral agreement the terms of the instrument were to be varied and revised according to the true state of facts as might thereafter appear. Dyar v. Walton, 79 Ga. 466 (7 S. E. 220).

Under the rules of pleading obtaining in this State, all suits in the superior court shall be by petition,- which shall plainly, fully, and distinctly set forth the ground of complaint and the demand. Civil Code (1910), § 5538. Another section of the code provides that Where a written obligation to pay constitutes the basis of the cause of action, such writing shall be incorporated in or attached to the petition. Civil Code (1910), § 5541. A general rule of pleading in suits of -this sort is laid down in 8 C. J. 863, as follows: “The amount claimed to be due from the adverse party must appear by direct averment, or by implication, in the body of the pleading, o'r in the prayer or demand for judgment, and with reasonable certainty. This is also .true where a short form of complaint is used, setting out a copy of the in-, strument.” This rule would not, howeveT, seem to obtain under the decisions of this jurisdiction, where it appears to be true that if suit is brought on- a note, a copy of which is attached, but the petition itself fails to state the amount claimed to be due on the obligation, the purport and intent of the suit should nevertheless be taken to set up as its demand the full amount .indicated by the obligation, and even if the failure of the petition to set forth within itself the'"amount actually sued for could be taken as a defect, still such a lack would be curable by an amendment setting forth in the petition the amount actually claimed. Carter v. Penn, 79 Ga. 747 (4 S. E. 896); McClendon v. Hernando Co., 100 Ga. 219 (28 S. E. 152). The precise question before us is, therefore, whether the general rule which prohibits a recovery in an amount larger than is claimed bv the declaration (Hunnicutt v. Perot, 100 Ga. 312, 27 S. E. 787) would obtain where, as in this case, the amount of the demand is by amendment increased so as to conform to that indicated by the note, a copy of which is attached as forming the basis of the suit. A Variety of reasons could suggest'themselves why a plaintiff might in fact see proper to bring suit for a lesser amount than the sum called for by the instrument itself; in addition to the matter of payment, it sometimes happens that the consideration of a note is based upon advances intended to be but not actually thereafter made, or it might happen that a plaintiff had, subsequently to the signing of a note, ascertained error in its execution,, or in the terms of a previous settlcmeijit under which the note was given, whereby he would desire to limit his demand'to an amount less than the one called for by the contract for payment. ■

If, therefore, the suit as originally filed plainly asserts as a matter of fact the amount actually claimed to be due on the obligation,' is an amendment setting up a greater demand on the same obligation permissible? "Unless the effect of such an amendment would be to add a new and distinct cause of action, there ' is nothing, under our rules of pleading, which would prevent it being made, since our code provides (Civil Code of 1910, § 5682): “A petition showing a plaintiff and a defendant, and setting out sufficient to indicate and specify some particular fact or transaction as a cause of action, is enough to amend by.-” It is surprisingly difficult, however, to present specific authority for such a procedure, either under the rules as laid down by the text-book writers -or by reason of any holding made by the courts of this or other jurisdictions. In Huger v. Cunningham, 126 Ga. 684 (4) (56 S. E. 64), it was held that “An allegation in a petition, that under the facts pleaded the plaintiff is entitled to recover a certain amount, is not an estoppel in judicio which precludes an amendment that under the same facts the plaintiff is entitled to a larger recovery.” And in the opinion the court goes on to say that the'original “allegations concerning this matter did not amount to an assertion of any fact, but stated merely a conclusion deducible from the facts alleged.” In the present ease, however, it would not seem that it could be properly said that the amount stated as the sum due on the note sued on follows as a conclusion from any facts, set forth by the petition; but the averment thus made is really of itself a statement of fact, and not a conclusion drawn from statements otherwise made. It appears, from a note attached to the certificate of the trial judge, that in allowing the amendment his purpose was “to make the note and the description of the note correspond.” But it seems clear that the amount of the demand named by the petition does no.t in any way purport to be a description of the amount called for by the note. It merely alleges that the defendant “is indebted to petitioner in the principal sum of three thousand forty-six and 89/100 dollars, besides interest, . . on a note dated 'October 15th, 1915, and due' October 1st, 1916, a copy of which is hereto attached and marked exhibit ‘A.’” That is, he claims $3,046.89 on a note given for $3,946.89. If the averment could be interpreted to mean that the suit was for the amount of the note given in a named sum, a copy of which was attached, then even without deciding the point now before us, there could be no possible objection 'to permitting a palpable error to be thus corrected. Thus, the question gets back to the one we have stated; that is, where a petition, through error or otherwise, plainly asserts as a matter of fact the amount claimed to be due upon an obligation written in a larger sum, can an amendment be permitted, changing the amount of the alleged demand bo a greater sum, but still within the amount called* for by the' instrument itself ?

We see no reason why such an amendment is not permissible, since the purpose of the amendment is not to enable the plaintiff to recover upon another and different obligation than the one originally sued on, but it is made solely for the purpose of correcting an imperfect statement of his demand as originally made, under the.same contract. Our Supreme Court has held that a suit.on a note might be amended so as to make claim for the attorney’s fees as provided for by the instrument (Wingate v. Atlanta National Bank, 95 Ga. 1, 22 S. E. 37; Baxley Banking Co. v. Carter, 112 Ga. 529, 37 S. E. 728); and that a claim for interest in like manner might be supplied (Morrison v. Morrison, 102 Ga. 170, 29 S. E. 125). The principle on which these decisions are based is that since the note declared on contained these provisions, an amendment praying for such a recovery does not constitute a new cause of action. The note is the “fact or transaction”- set out as, the basis of the cause of action, and is enough to amend by. See also Roberts v. Leak, 108 Ga. 806 (33 S. E. 995). In the case of Drake v. Found Treasure Min. Co., 53 Fed. 474, it was held that “Amendments which change the date, or amount, or time of payment of a note, or add or strike out names of parties, are admissible for the purpose of correcting ap erroneous statement or imperfect description of the note described in the original complaint, if the identity of the note is preserved, so as to show that the amended complaint is for the same cause of action.” It does not even appear in that case that a copy of the note was attached, but the ruling is based upon thb broad ground that since the identity of the note is not altered by the amendment, the Cause of action remains the same. In 4 Standard Enc. Proc. 258 (12), the rule is stated as follows: “The declaration upon a bill or note should by allegation succinctly and distinctly set out the amount claimed, and in setting out the amount of a note it should be set out truly or the variance may be fatal, although generally such variance can be cured by amendment, there being no new cause of action.” We therefore do not -think that there was any error upon the part of the court in permitting the plaintiff to correct the error in his pleadings, by stating the true amount of his demand upon the same cause of action. The defendant, who was represented on the trial, claimed no surprise, and did not ask for a continuance on such ground. While the request to amend was by oral motion only, the presiding judge entered the following written order: “On motion of counsel for plaintiff, the first ground of petition is allowed to be amended, so as to read for the principal sum of $3,946.89, as shown by the note attached to and made a part of the petition. In open court, April 23d, 1917. William C. Worrill, J. S. C. P. C.” This, we think,' constituting as it does a part of the record of the case, meets the requirements of law just as completely as if the motion to amend had been in writing and the judge had simply passed his order of allowance.

Judgment affirmed.

Wade, Q. J., and Luhe, J., concur.


author: Luke, J.

text:
    9063.
    Mimbs et al. v. Stephens Hardware Company.
   Luke, J.

A note payable to Manning was, after its maturity, transferred by him to the plaintiff. To a suit upon it the makers pleaded that it was without consideration, and was given at Manning’s request that they lend it to him to be used by him “to borrow money upon,” be stating to them that at maturity he would return it to them without liability on their part. The note matured on November 15, 1915, and (as appeared from a written transfer thereon) was transferred to the plaintiff on September 25, 1917. Held, that the court erred in striking the plea on motion.

Decided March 15, 1918.

Complaint; from city court of Dublin—Judge Flynt. June 14, 1917. . ' .

B. Bari Gamp, for plaintiffs in error, cited.

Civil Code (1910), §§ 4222, 4241, 4243, 4287-8, 5790; Johnson County Bank v. Wooten, 118 Ga. 927; Hawkins v. Collier, 101 Ga. 145; Lacey v. Hutchinson, 5 Ga. App. 865.

J. B. Green, contra, cited:

Farrar v. Bank of New York, 90 Ga. 331; Mayer v. Thomas, 97 Ga. 772 (2).

Judgment reversed.

Wade, O. J., and Jenlcins, J , concur.


text:
    9064.
    HORTON-HUGHES FURNITURE COMPANY v. BROAD STREET HOTEL COMPANY.
    The affidavit to the petition' for certiorari eould not properly be treated as the affidavit of Horton-Hughes Furniture Company, which was applying for the writ, or as the affidavit of its agent or attorney, the affiant being described therein as “of” a company bearing a different name, although the company applying for the writ was a partnership of which he was a member.
    Although it has been held that where the statements of fact in a petition for certiorari are verified by the answer to the writ, it is too late to dismiss the certiorari on the ground that the statements thus verified .are not sufficiently verified, such an answer can nbt supply the place ‘ of the averment which the statute requires to be made by affidavit of the party applying for the certiorari, his agent or attorney, that “the petition for certiorari is not filed in the case for the purpose of delay only.”
    Decided March 15, 1918.
    Certiorari; from Floyd superior court—Judge Wright. May 29, 1917.
    Certiorari to review a judgment of a justice’s court was sued out by Horton-Hughes Furniture Company, a partnership, of which W. D. Horton was a member. The affidavit to the petition was by him and began as follows: "I, W. D. Horton, of Horton-Salmon Furniture Company, do solemnly swear that the petition for certiorari is not filed in this ease for the purpose of delay only, and I verily believe I have a good cause for certiorari,” etc. The justice of the peace answered that he adopted.“the record as set out in the said petition”'as his answer to the writ. On the call of the case in the superior court the’ defendant in certiorari moved to dismiss the certiorari, on the ground that the affidavit to the petition was defective, the movant contending that the affidavit should have been made by W. D. Iiorton of Horton-Hughes Furniture Company, instead of Horton-Salmon Furniture Company. The court sustained the motion and dismissed the certiorari as to Horton-Hughes Furniture Company, as a partnership, and sustained it as to W. D. Horton individually; and the Horton-Hughes Furniture Company excepted to the dismissal.

      John G. Davis, for. plaintiff. Denny & Wright, for'defendant.
   Wade, C. J.

The Civil Code (1910), § 5184 (Acts of 1857, p. 104), provides that no writ of certiorari shall be granted or issued, except to the court of ordinary, unless the party applying for the same, his agent, or attorney, shall make and file with his petition an affidavit verifying the statements of fact in the petition, and also alleging that “the petition for certiorari is not filed in (the case for the purpose of delay only.”

In the case of Willims v. Mangum, 119 Ga. 628 (46 S. E. 35), it was held, that “Where the judge of the superior court sanctions a petition for certiorari which is not properly verified, and in his answer to the writ the justice of the peace fully supports and corroborates the averments of the petition in all material particulars, it is too late to dismiss the certiorari on the ground that the averments of the petition are not sufficiently verified.” See also Taylor v. State, 118 Ga. 52 (44 S. E. 834); Bass v. Masters, 5 Ga. App. 288 (63 S. E. 24); Epperson v. Kitchens, 2 Ga. App. 322 (58 S. E. 501). In the opinion in Willims V. Mangum, supra, it was said that “The failure to verify! the petition is a good reason for the judge to refuse to sanction it (Paulk v. Hawkins, 106 Ga. 206 [32 S. E. 122]; but after the petition has been sanctioned, and the answer of the magistrate filed, it is too late to dismiss the certiorari for the defect in the affidavit, if the answer supports the allegations of the petition).” Nevertheless, in discussing the statutory requirement (supra) that the affidavit shall set forth that the petition is not filed for the purpose of delay only, and reviewing the case of Taylor v. Gay, 20 Ga. 77, the Supreme Court held in Velvin v. Austin, 109 Ga. 200, 203 (34 S. E. 335): “Even, if the answer of the judge whose decision is sought to be reviewed by the certiorari would cure a defect in that part of the‘affidavit which is intended to verify the averments of the petition, it could not, in any event, have the effect of curing a defect arising in the fact that the applicant had failed to swear that the petition was not filed for the purpose of delay only.” It appears from the record on file in the case of Wiüims v. Mangum, supra, that the affidavit in that case contained the statement that the petition for certiorari was not filed for delay only, although it failed to verify the statements of facts in the petition.

The answer of the magistrate in this case, though verifying the statements of fact in the petition, could not establish or determine that the petition was not filed for the purpose of delay only, and, in the absence of an affidavit to that effect, the certiorari would be subject to dismissal, as held in the Velvin case, supra, as to any plaintiff in certiorari who failed to make such an affidavit. “When two or more joint defendants against whom a judgment has been rendered apply for a writ of certiorari, and only one of them verifies the petition as prescribed in . . the Civil Code, he alone should be treated as a plaintiff in certiorari.” Velvin v. Austin, supra.

The petition for certiorari appears to have been brought by Horton-Hughes Furniture Company, and was verified by the affidavit of one W. D. Horton, which recites that “I, W. D. Horton, of Horton-Salmon' Furniture Company, do solemnly swear that' the petition for certiorari is not filed in this ease for the purpose of delay only,” etc. - The judge on motion dismissed the certiorari as to Horton-Hughes Furniture Company, “as a partnership,” and sustained it as to W. D. Horton individually. Hnder the foregoing rulings the dismissal was not error.

If there be any conflict between the decision in Velvin v. Austin, supra, and what is said in Taylor v. State, supra, and Willims v. Mangum, supra, this court must follow the older decision, which has not been disaffirmed or criticised by the Supreme Court.

Judgment affirmed.

Jenkins and Luke, JJ., concur.


text:
    9077.
    GASKINS v. GRAY.
    The verdict is supported by some evidence, and this court can not set it aside on the ground that a preponderance of the evidence is against it.
    Decided March 15, 1918.
    Complaint; irom city court of Nashville—Judge Christian. June 16, 1917.
    J. D. Lovett, for plaintiff in error. W. D. Buie, contra.
   Wade, C. J.

Predicating his suit upon the law of contribution (Civil Code of 1910, § 3561) and determination of suretyship after judgment (§ 3557), the plaintiff gave the requisite statutory notice, and proceeded to have a determination of the issue raised by his petition and the defendant’s answer, as to whether or not his legal status towards the defendant was one of cosurety or principal; and the jury having decided this issue in favor of the-plaintiff, it does not rest within the power of this court arbitrarily to set aside a verdict supported by some evidence, even if it appeared, as contended by the plaintiff in error, that the “preponderance” of the testimony was against the verdict. It was for the jury alone to determine in whose favor the evidence preponderated, and it is enough if their verdict be supported by some evidence.

Judgment affirmed.

Jenkins and Luke, JJ., concur.


text:
    9097.
    Seaman v. Sweat.
   Wade, C. J.

The gravamen of the plaintiff’s petition is substantially that the defendant, being desirous of forming a corporation, induced the plaintiff to subscribe for a share of stock in the embryo corporation, under the following agreement: that if the plaintiff would subscribe for said share of stock, the defendant “would personally pledge himself and guarantee to this plaintiff that he would not have to pay for or keep said stock, as he would take and pay for the same himself if petitioner did not want it, and the defendant could not fin'd a purchaser for it;” that “with this assurance and guarantee, made by said defendant in parol [italics ours], he being directly and personally interested in the promotion of said Farmers Warehouse Company, and being financially interested in the same, petitioner, relying solely upon said promise of defendant to pay and take said one share of stock himself, or to secure some one else to do so, subscribed for the same in order to enable the said J. L. Sweat ["the defendant] to save himself from the embarrassment of having pledged one share of stock for this petitioner. Petitioner avers that he did not want said stock, and would not have subscribed for the same had not defendant made the promise and statements alleged, and that it was solely on account of said promises and assurances of defendant that he subscribed for the same.” Eeld, that the petition was subject to demurrer, on the ground that the contract rested in parol; and therefore the court did not err in dismissing the suit. See Civil Code (1910), § 3222 (7); Hightower v. Ansley, 126 Ga. 8 (54 S. E. 939, 7 Ann. Cas. 927); Morse v. Douglas, 112 App. Div. 798 (99 N. Y. Supp. 392); Cook on Corporations (7th ed.), § 339; Weatherly v. Cotter, 142 Ga. 457 (83 S. E. 104). Judgment affirmed.

Decided March 15, 1918.

Action for breach of contract; from city court of Waycross— Judge McDonald. June 16, 1917.

Parker & Parker, for plaintiff.

Wilson & Benneit, for defendant.

Jenkins and Luke, JJ., eoneur.


author: Wade, C. J..

text:
    9133.
    Scruggs v. Morel.
    Decided March 15, 1918.
    Appeal; from Effingham superior court—Judge Sheppard. July 9, 1917.

      Don. E. Clark, for plaintiff.

      Gignilliat & Gignilliat, for defendant.
   Wade, C. J..

1. The title to the property not being vested in the decedent at the time of his death, it could not be set aside as a year’s support for his widow and minor children.

2. There was no reversible error in admitting the evidence objected to; nor is there any merit in the remaining special grounds of the motion for a new trial. Judgment affirmed.

Jenkins and Luke, JJ., eoneur.


text:
    9208.
    Nations v. Hall.
    Decided March 15, 1918.
   Luke, J.

The petition for certiorari alleged facts which, perhaps, raised meritoriously the ^question as to the jurisdiction of the court over the parties litigant; but from the answer of the justice of the peace it appears that the case was tried by him under an agreement, the answer being as follows: “Replying specifically to .the allegations in said petition, respondent says: the said case was docketed by Squire G. D. Bandy. At the May term, 1917, the ease was turned over ,to this respondent by agreement of all parties, to be tried by him, and respondent had nothing to do with the case before said May term;-” etc. The answer was untraversed. It was not error to overrule the certiorari.

Judgment affirmed.

Wade, C. J., and Jenkins, J., eoneur.

Certiorari; from Gordon superior court—Judge Tarver. August 27, 1917.

George A. Coffee, A. L. Henson, for plaintiff in error.


text:
    9212.
    Kenner v. Connally, sheriff, for use, etc.
    Decided March 15, 1918.
    Complaint; from Murray superior court—Judge Tarver. September 8, 1917.

      Maddox, McCamy & Shumate, F. K. McCutchen, for plaintiff in error. W. F. Mann, C. N. King, contra.
   Wade, C. J.

1. Under the provisions of sections 6054 and. 6071 of the Civil Code of 1910, the verdict directed in this case was demanded by the evidence adduced at the trial.

2. There is no merit in the various special grounds of the motion for a new trial, assigning error upon the rejection of certain'proffered testimony.

3. The judgment refusing the motion for a new trial is affirmed, with 10 per cent, damages against the plaintiff in error.

Judgment affirmed.

Jenkins and Luke, JJ., concur.


text:
    9262.
    Stacer, administratrix, v. Ehrlich.
   Luke, J.

To a suit upon a promissory note, owed by her intestate (Mrs. McLendon), the administratrix pleaded: “That the said Joe Ehrlich received from her as administratrix two bales. of cotton which was raised on the places belonging to Mrs. Moselle C. McLendon, late of said county, deceased, said Ehrlich knowing that said cotton was rent cotton for rent of year he received same, to wit, for year 1916; that said two bales of cotton were received by the said Ehrlich and should be credited on said indebtedness due on this note, to wit: one bale weighing four hundred seventy-eight pounds, at 18 cents per pound, making a total of eighty-six and 04/100 dollars; and one bale weighing five hundred pounds, at 18 cents per pound, making a total amount paid on said note by Mrs. Mary E. Stacer, adm’x, as aforesaid, a total sum of one hundred seventy six and 04/Í00 dollars, said payments being made on dates unknown to this defendant, said cotton being delivered to the said Ehrlich by one James Stephens, a tenant on the defendant’s place, and, therefore, this defendant is unable to set out the time and date of, and the place of said payment, as accurately as required by law; that said cotton was delivered to the said Ehrlich during the latter part of'1916, and in the town of Swainsboro by the said James Stephens.” Upon demurrer the court struck this plea. Held, that the plea did not show that the cotton was delivered with direction that it be credited on the note, or that it was received as a credit on the note; nor does the plea set forth, with that definiteness required by law, the defense of payment. The court therefore did not err in sustaining the demurrer and in striking the plea.

Decided March 15, 1918.

Complaint; from city court of Swainsboro—Judge Kirkland. August 29, 1917.

F. H. Saffold, for plaintiff in error. T. N. Brown, eontra.

Judgment affirmed.

Wade, O. J., and Jenhins, J., concur.


text:
    9272.
    Daniel v. Daniel.
    Decided March 15, 1918.
    Distraint; from city court of Carrollton—Judge Beall. September 12, 1917.

      Willis Smith, J. L. Smith, for plaintiff..

      Buford F. Boykin, Leon Hood, for defendant.
   Luke, J.

W. R. Daniel sued out a distress warrant against J. A. Daniel. The evidence disclosed that they wore joint owners and tenants in common of the property alleged to have been rented. The evidence did not show that the relation of landlord and tenant existed, and the trial court granted a nonsuit. Held,: Whatever may have been the remedy of W. R. Daniel under the Civil Code (1910), § 3724, a distress warrant was not the proper remedy; and it was not error for the court to grant a nonsuit and dismiss the distress warrant.

Jtidgmeni affirmed.

Wade, G. J., and Jenhins, J., concur.


text:
    9277.
    Hendricks v. Torrence.
    Decided March 15, 1918.
    Complaint; from city court of Nashville—Judge Christian. September 11, 1917.

      Hendricks, Mills & Hendricks, for plaintiff in error.

      W. R. Smith, contra.
   Wade, C. J.

The contract which formed the basis of the suit was plain and unambiguous, and capable only of the construction given it by the court. There is therefore no merit in the various special grounds of the motion for a new trial, and the verdict returned was demanded. The statutory damages of ten per cent., for bringing up the case for delay, are hereby awarded against the plaintiff in error.

Judgment affirmed.

Jenhins and Luhe, JJ., concur.


author: XjJJKE, J.

text:
    9433.
    Longley v. Johnson, receiver.
    Decided March 15, 1918.
    Complaint; from Whitfield superior court—Judge Tarver. July 28, 1917.

      Maddox, McCamy & Shumate, for plaintiff in error.

      G. N. King, W. E. Mann, contra.
   XjJJKE, J.

1. A parol notice or request to the creditor, by a surety upon a promissory note, to bring suit, will not operate as a compliance with the statute (Civil Code of 1910, § 3546), which authorizes a surety, at any time after the debt is due, to give, notice in writing to the creditor to' proceed to collect the debt out of the principal, or of itself have the effect to discharge the surety. See Johnson v. Longley, 142 Ga. 814 (83 S. E. 952).

(a) If, however, the surety is assured by the holder of the note that suit will be brought to the next term of the court, and because of such

' assurance he foregoes means of indemnity and protection, and such suit is not brought, he will be discharged to the extent of the resulting loss. \

2. The defendant having admitted a prima facie-case, and, the evidence in his behalf not having the legal effect of sustaining a defense to the note sued on, the court did not err in directing a verdict for the plaintiff.

3. The assignments of error as to the admissibility of evidence are without merit. See Polhill v. Postal Telegraph Co., 16 Ga. App. 601 (3) (85 S. E. 936).

Judgment' affirmed.

Wade, O. J., and JenJdns, J., eoneur.


text:
    9436.
    McDonald v. Hardee.
    Decided March 15, 1918.
    Trover; from. Liberty superior court—Judge Sheppard. November 17, 1917.

      J. R. Thomas, for plaintiff in error. W. 0. Hodges, contra.
   Luke, J.

1. “Where cotton is delivered by the owner to another to be ginned for a specific price, this is a bailment for hire. Therefore, where . the cotton, is lost by the bailee, the onus is upon him to show due care and diligence in protecting and keeping it.” Concord Variety Works v. Beckham, 112 Ga. 242 (37 S. E. 392).

2. This case is here upo,n exception - to the overruling of a motion for a new trial, based' on the general grounds only. The evidence authorized, the verdict, which has the approval of the trial .judge, and it was not error to overrule the motion for a new trial.

Judgment affirmed.

Wade, O. J., and JenJdns, J., eoneur.


author: Bloodwortii, J.

text:
    8980.
    Louisville & Nashville Railroad Company v. Mayes.
    Decided March 15, 1918.
    Action for damages; from Warren superior court—Judge Walker. June 6, 1917.

      Samuel II. Sibley, for plaintiff in error.

      L. D. McGregor, John T. West, contra.
   Bloodwortii, J.

While we are reluctant to interfere with a verdict approved by the presiding judge, yet in this ease the evidence as it conies to us does not show any negligence on the part of the railroad company, and the judgment of the court in overruling the motion for a new trial is Reversed.

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


author: Bloodworth, J.

text:
    9406.
    POSEY v. THE STATE.
    “From tlie_ use of a deadly weapon in a manner calculated to injure, the law will presume an intention to injure; or from the use of it with an intention to kill, 'in a manner calculated to accomplish the intention, the law will presume that, had the killing taken place, the homicide would have been murder. But this is as far as the mere legal presumption as to malice or intent will go, on trials for assault with intent to murder. That an effect not produced, and which if produced would have constituted a different offense from that actually committed, was intended, is surely for determination by the jury as a matter of fact. The law, without the aid of the jury, can presume the malicious motive, or the intention so far as realized in the act, but not an intention beyond what was so realized.”
    (a) “To constitute the offense of assault with intent to murder, there must be a specific intent to kill. This intent is not necessarily or conclusively shown by the use of a weapon likely to produce death. The jury should have been given the discretion, under proper instruction from the court, to convict of a lesser offense included in the higher felony charged, if they believed that the evidence failed to show a specific intent to kill. The failure so to instruct the jury was error.”
    Decided March 15, 1918.
    Indictment for assault with intent to murder; from Jackson superior court—Judge Cobb. November 17, 1917.

      Cooley & Jachson, for plaintiff in error.

      W. 0. Bean, solicitor-general, contra.
   Bloodworth, J.

As we view this case, the only question that it is necessary to determine is whether the judge erred in eliminating from the consideration of the jury the question of their discretion “to find a verdict in said ucase for the offense of assault and battery.” The evidence shows that three men were traveling in a buggy, and, on a certain morning between daylight and sunrise, stopped at,the home of an old negro man named William Moore, the prosecutor in this case, who lived alone and was alone at the time of the assault. Moore testified in part- as follows: “I saw Homer Posey on the 16th day of June this year. That is him right yonder [pointing to defendant]. I saw him at my steps. He knocked me in the head with a mattock. He come up there and I heard'something at the back door, and I turned my head around and seen him standing at the steps. Mr. Tanner asked, ‘What are you doing here?’ I said ‘I am working.’ He said,,‘Who are you working for?’ I said, ‘Working for myself.’ He said, ‘I will give you until night to get away from here.’ I didn’t know what more to say, what more to say or do. I stopped to look at them and they spoke something else, and by that time I seen the mattock coming and gave.my head about that much dodge (indicating), and it dodged about half of the lick. Mr. Posey had the mattock (referring to defendant). I hadn’t done or spoken a bit more to him than I had to one of you. It was a mattock, a digging and grubbing Implement. You could kill a man with it. He only struck me one lick (showing the scar on his head to the jury.) This was in Jackson county. . . This occurred on Saturday morning between daylight and sunup. I was living by myself. Nobody in the house except me. . . When I was struck they just dropped the mattock down, I reckon,—just dropped the mattock down in the yard and drove off; never said a word to me. Mr. Posey said, ‘I won’t give you until night to leave,’ and picked up the mattock and hit me on the head. I had no fuss with him. He had the mattock in his hands. ‘ It would weigh about four pounds. I could not tell you what part of the mattock he struck me with. . . The only thing Mr. Posey said was, ‘I will not give you until night;’ that was all. That is every word I heard him speak. He had the mattock in his hand then and hit me over the head, and didn’t give me another minute.” -

Jim Tanner, one of the three men traveling in the buggy with the defendant, swore: “I was there the day William; Moore was struck. We came up there through the yard. Culpepper called the old darkey up, and he come out and Homer hit him,—hit him with an old mattock. The negro was not doing- anything. I was sitting in the buggy. Mr. Culpepper was doing the talking—Garland Culpepper. He hollered, ‘Hello I’ That is what I mean when I said he called him out. Garland told him to leave,—give him until night to get out. I heard Mr. Posey say, ‘I will not give him that long/ That was before he hit him with the mattock. The mattock was sitting up against the lot fence. . . I am the man that is indicted with Homer Posey with assault with intent to murder on William Moore. I was with Mr. Posey that night. . . I didn’t get out of the buggy. There were three of us; the other man was Garland Culpepper. He called the negro Tip.” The defendant denied stopping at the house of the old negro, and in his statement said: “That old negro knows this morning that he don’t know me,—never knowed me at the time. I didn’t know there was such a negro in the world as that negro,— never seen him before until they brought him up down there with his little plaster on about the size of a quarter on the side of his head and said I knocked him in the head with a mattock.” The above are all of the facts of the case necessary for a consideration of the question .hereinafter discussed.

'We think the judge should have allowed the jury the discretion of saying whether or not this defendant was guilty of assault and battery; for it.is a well-settled proposition in .this State that “the specific intent to kill is an essential ingredient of the offense of assault with intent to murder,” and before there can be a legal conviction for assault with intent to murder this specific intent to 'kill must be shown. In Patterson v. State, 85 Ga. 131, 133 (11 S. E. 620), Mr. Justice Blandford said:. “From the use of a deadly weapon in a manner calculated to injure, the law will presume-an intention to injure; or from the use of it with an intention to kill, in a manner calculated to accomplish the intention, the law will presume that, had the killing taken place, the homicide would have been murder. But this is as far as the mere legal presumption as to malice or intent will go, on trials for assault with intent to murder. That an effect not produced, and which if produced would have constituted a different’ offense from that actually committed, was intended, is surely for determination by the jury as .a matter of fact. The law, without the aid of1 the jury, can presume the malicious motive, or the intention so far as realized in the act, but not an intention beyond what was so realized.” In Adams v. State, 125 Ga. 11 (53 S. E. 804), headnote 2 (b) is as follows: “Upon a prosecution for assault with intent to murder, proof that the accused shot at and wounded another without legal excuse will raise a presumption of law that the shooting was maliciously done; but a specific intent to kill is never to be presumed where death does not ensue, and must be shown by circumstances authorizing the jury to infer, as matter of fact, that the accused had that intent.” In the body of the decision Justice Evans said: “But where death does not result from the use of a deadly weapon, there may be malice in giving the wound, but utter absence of an intention to kill. . . While, therefore, a presumption of malice will arise from the use óf a deadly weapon, a specific intent to kill will not be presumed where death does not ensue, and the existence of such intent is a question of fact to be passed on by the jury.”

It was perhaps because of the decisions in such eases as Kendrick v. State, 113 Ga. 759 (39 S. E. 286), Tyre v. State, 112 Ga. 224 (37 S. E. 374), and Lanier v. State, 106 Ga. 368 (32 S. E. 335), that the learned trial judge in this case did not submit to the jury the question as to assault and battery. In the Kendrich case, supra, the headnote is as follows: “When on the trial of an indictment for assault with intent to murder, alleged to have been committed by shooting with a pistol, the evidence for the State, if credible, unequivocally demanded a general verdict of guilty, and this evidence was met only by a statement of the accused which, if true, established an alibi, a verdict finding the accused guilty of the .statutory offense of unlawfully shooting at another was unwarranted; there being, under such circumstances, no evidence whatever upon which to base the same.” Following the above headnote and on the same page the report shows the following conduct of the defendant: “The evidence showed that he went, at night, to a house where his wife, who was living separate from him, was staying, broke a door and a window, threw brickbats and fired pistol-shots into the house, and, after exchanging shots with'Zena Dixon and perhaps being wounded, and as she was returning into the house from the yard or steps, he arose, said he was going to hill her [italics ours], and fired more shots 'toward her.” "In the Tyre ease, supra, the first headnote is as follows: “The law relating to the statutory offense of ishooting at another’ was not involved in a trial for assault with intent to murder, wherein it appeared that the accused, with threats to kill, wantonly, maliciously, and with the intention of executing these threats, shot directly at the-prosecutor with a pistol, which, thus used, was a weapon likely to produce death.” Note the words “with threats to kill.” The report of the case shows that “Davis then said, ‘Please don’t kill me, Mr. Tyre,’ whereupon Tyre, accosting Davis, said, ‘I am going to Tcill you’ [italics ours], and with that fired his pistol at Davis, who ran towards the house. Tyre kept shooting until he fired three times at Davis.” In the Lanier case, supra, the uncontradicted evidence, as shown by the record, is as follows:' “The person alleged to have been assaulted' was the wife of the accused. The accused seems to have become angered on account of her talking with another man at or neár a church in the county where the crime is alleged to have been committed. He made an assault upon her with a razor, cutting her three times; one of the wounds inflicted was in the neck, and came very near resulting in her death, lacking, according to the physicians' who examined the wound, only the thickness of paper in severing an artery which, if cut, would necessarily have resulted in death. The wounds were large and deep, extending several inches. There was further testimony that the defendant had been drinking some that day, but was not drunk at the time of the assault. Just prior to the assault the accused threatened the life of his wife by stating that he intended (to cut her damned head off’" (italics ours).

In each of the above cases it will be seen that while the defendant used repeatedly the weapon he had in hand, yet the jury were not left to draw inferences from the testimony alone as to the intent to kill, but in each case there was in proof a specific declaration of the defendant’s intention to kill the person assaulted. Such is not the fact in the instant case. While the record shows an unprovoked assault, it shows only one lick was struck, and the character of that wound can not be definitely determined from the evidence. The defendant was not so seriously injured as to prevent him from walking a considerable distance soon after the occurrence. The prosecutor had just been told by one of the three men that he “would give kim until night to get away,” and the defendant then said that he “would not give him -that long,” and then struck the blow and dropped the mattock and left. Under the facts in this case,, would it not be just as reasonable for the jury to conclude that for some undisclosed reason the defendant desired to frighten the prosecutor away from his home, and that the lick was used as a “persuasive argument” that he had best not wait until that night to leave. The prosecutor seemed to think that they wished him to leave, for, after testifying that Mr. Posey said, “I will not give him until night,” he adds: “and hit me over the head and didn’t give me another minute.” It seems to us that one of the conclusions the jury would be authorized to reach from the evidence was that the defendant did not intend to kill the prosecutor J and, this being true, they should have been given the opportunity to find him guilty of assault and battery. In Gallery v. State, 92 Ga. 463 (17 S. E. 863), it was said:- “ ‘Malice,’ where no killing takes place, does not necessarily include an intention to kill; it may coexist with an intention to hurt or injure and not go beyond. To intend even a slight personal injury and inflict it without excuse will involve malice.” In Hunter v. State, 10 Ga. App. 831 (74 S. E. 553), the first headnote is as follows: “The specific ihtent to. kill is an essential ingredient of the offense of ' assault with intent to murder. The existence or non-existence of this intent is a matter of fact to be determined by the jury, from the evidence, and is not the subject of any legal presumption arising merely from a part of the evidence. The 'law will charge an evil-doer with all the natural consequences of his unlawful act which the act produces, but it does not impute to him by mere presumption an intention to add a consequence to his unlawful act which was not in fact produced.”

In Fallon v. State, 5 Ga. App. 659, judge Powell said: “If death results from a defendant’s intentionally shooting'at the deceased with an ordinary pistol in a manner ordinarily likely to kill) the defendant’s intention to kill is not issuable. The law presumes that he intended to kill, and not to inflict some lesser injury. But if death does not ensue, the law does not presume that the defendant intended to'kill, though he shot with a weapon likely to produce death and in a manner ordinarily likely to produce that result;"for in cases o'f assault with intent to murder, the burden of proving that the defendant was possessed of a specific intention 'to kill is always ppon the State, unaided by any presumption of law. The pronouncements of these propositions by this court and by the Supreme Court have been so uniform and unequivocal as to place them beyond question. See Burris v. State, 2 Ga. App. 418 (58 S. E. 545); Duncan v. State, 1 Ga. App. 118 (58 S. E. 248; Napper v. State, 123 Ga. 571 (51 S. E. 592); Gallery v. State [supra]; Patterson v. State [supra]. Since, therefore, it is issuable and a question for the jury, in every case where death does not ensue, whether the defendant’s intention in shooting was to kill or to inflict a lesser injury, the evidence can not be' said to demand a'verdict of guilty of assault with intent to murder, even where no justification or mitigation appears, unless, in addition to the fact of the shooting, there be shown such other facts and circumstances as to establish beyond question and the possibility of legitimate dispute that the defendant did in fact intend to kill. In some cases the Supreme Court has held the evidence of, the defendant’s intention to kill to be so strong as to admit of no other legitimate inference, and in these cases a verdict of the statutory offense of shooting at another has been held to be without the bounds of the evidence, and therefore an illegal finding. This was so in the cases of Kendrick and Tyre, supra, in each of which cases the defendant’s lethal intent was made manifest by a statement accompanying the shooting that he did propose to kill the person he was about to shoot. If it were not for this distinction, the cases just mentioned and other similar eases would be utterly irreconcilable with the indisputable proposition that the question whether the defendant intended to kill or not is always for the jury. It is our opinion that the facts shown in the present case indicate the intention to kill very strongly, but not so strongly that we are able to say as a matter of law that the finding that this specific intention did exist was’ absolutely 'demanded of the jury; therefore we can not reverse the judgment on the ground that the verdict is contrary to the evidence in that it finds the defendant guilty of an offense indicated by no phase of the testimony.” In conclusion we appropriate the words of Judge Roan, as found in the ease of Lewis v. State, 14 Ga. App. 503 (81 S. E. 378): “To constitute the offense of assault with intent to murder, there must be a specific intent to kill. This intent is not necessarily or conclusively shown by the use of a weapon likely to produce death. The jury should have been given the discretion, under proper instruction from the court, to convict-of a lesser offense included in tlie higher felony charged, if they believed that the evidence failed to show a specific intent to kill. The failure so to instruct the jury was error. See Powell v. State, 7 Ga. App. 744 (67 S. E. 1048); Ripley v. State, 7 Ga. App. 679 (67 S. E. 834); Fallon v. State, 5 Ga. App. 659 (63 S. E. 806), and cases therein cited.”

.Owing to the fact that the case must be tried over a discussion •of the other alleged errors would be useless.

Judgment reversed.

Broyles, P. J., and Ilanvell, J., concur.


text:
    9458.
    Harrell v. The State.
    Decided April 2, 1918.
    Indictment for murder; conviction of manslaughter; from Charlton superior 'court—Judge Sunnnerall. November 3, 1917.

      James R. Thomas, for plaintiff in error.

      M. £>. Dickerson, solicitor-general, contra.
   Broyles, P. J.

1. Under tlie particular facts of tlie case, tlie court did not err in admitting in evidence the testimony of the witness Pollard as to the alleged dying declarations of the person for whose murder the defendant was being tried; tlie evidence being admitted under appropriate instructions to the jury.

2. The following charge was not error: “Where a homicide is proven to have been committed by the person charged, with an instrument which the jury finds was, in the manner in which it was used on the occasion in question, a weapon likely to produce death, the law, from the use of such a weapon in that manner, presumes malice and the intent to kill. The presumption, however, may be overcome by the proven facts and circumstances of the ease.” Flannigan v. State, 135 Ga. 221 (4), 223 (69 S. E. 171).

3. Under the evidence and the defendant’s statement at the trial the court did not err, in the absence of a timely written request, in failing to charge the law of circumstantial evidence.

4. The evidence-for the State made out a case of murder. The defendant’s statement (he introduced' no evidence) showed a justifiable homicide. Neither the evidence nor the defendant’s statement authorized instructions upon the law of voluntary manslaughter, and it was error for the court to charge upon that subject.

Judgment reversed.

Bloodworth and Harwell, JJ., concur.


author: Harwell, J.

text:
    9464.
    Massart v. The State.
    Decided April 2, 1918.
    Accusation of unlawful possession of liquor; from city court of Savannah—Judge Rourke. November 17, 1917.

      Robert L. Golding, for plaintiff in error.

      Walter 0. Eartridge, solicitor-general, contra.
   Harwell, J.

The charge against the defendant was that he “did unlawfully have, control, and possess spirituous liquors.” The witness for the State testified that he found numerous quantities and varieties of spirituous liquors in defendant’s house. The defendant introduced no evidence, and in his statement admitted that he had spirituous liquors in his possession and control, and said, “I, am no frequent violator of this law.” The verdict of guilty was authorized, and the trial judge properly overruled the motion for a new trial.

Judgment affirmed.

Broyles, P. J., and Bloodioorth, J., concur.


text:
    9465.
    Sulter v. The State.
    Decided April 2, 1918.
    Accusation of misdemeanor; from city court of Savannah— Judge Rourke. November 17, 1917.

      Robert L. Golding, for plaintiff in error.

      Walter G. Eartridge, solicitor-general, contra.
   Broyles, P. J.

1. The grounds of the amendment to the motion for a new trial, not being specifically argued in the brief of counsel for the plaintiff in error, are deemed abandoned. The general statement in the brief, that “the recitals of fact and statement of error in the motion and amended motion for a new trial clearly state the issues in the case and the same is respectfully submitted to the court,” is not sufficient to change the rule. Youmans v. Moore, 11 Ga. App. 66 (74 S. E. 710); Muse v. Hall, 18 Ga. App. 651 (90 S. E. 222); James v. Boyett, 19 Ga. App. 157 (91 S. E. 219).

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

Judgment affirmed.

Bloodioorth and Harwell, JJ., concur.


text:
    9467.
    PINKNEY v. THE STATE.
    The indictment was not subject to be abated on the ground that the solicitor-general was disqualified by interest in the ease, it appearing that, after signing as solicitor-general, he signed the indictment as prosecutor.
    Decided April 2, 1918.

      Indictment for unlawful sale of liquor; from Bryan superior court—Judge Sheppard. December 1, 1917.

      J. IlarLridge Smith, for plaintiff in error.
    IF. F. Slater, solicitor-general, contra.
   Bloodworth, J.

The indictment in this case was based upon the act of the legislature of Georgia approved November 17, 1915 (Ga. L. Ex. Sess. 1915, p. 77), and charged the accused with selling a quantity of alcoholic, spirituous, and malt liquors. It was signed: “W. E. Slater, Solicitdr-General. W. E. Slater, Prosecutor.” A special plea in abatement was as follows: “That it appears from said indictment, that W. E. Slater the solicitor-general of said court is the solicitor-general who drew and signed said indictment as found against defendant by the grand jury of Bryan county on the 8th day of May, 1917, and who consulted and advised the grand jury in finding the same, and that said W. E. Slater, solicitor-general, is also the prosecutor whose name is signed as such prosecutor to said indictment, as W. E. Slater, individually, and said solicitor-general, having a pecuniary interest in the outcome of said prosecution and being the prosecutor in said case, was and is disqualified as solicitor-general in said case, by reason of his interest in said case; wherefore said indictment should abate and be quashed.” This plea was overruled, the order thereon being as follows: “The foregoing plea coming on to be heard, after considering the same and in the light of section 18, pages 86 and 87 of the prohibition laws of 191.5, said plea be and is hereby overruled.” Exceptions were taken to this ruling. There was also a motion for a new trial, on the general grounds.

Section 805 of the Penal Code (1910) is as follows: “When a solicitor is absent or indisposed, or disqualified from interest or' relationship to engage in a prosecution, the presiding judge must appoint a competent attorney of the circuit to act in his place, or he, may command the services of the solicitor of any other circuit accessible, or he may make a requisition on the Governor for the attorney-general, as the emergency in his discretion may require.” See 'Civil Code, § 4929. It is contended that in view of this provision, the judge erred in overruling the. plea in abatement. Whether the solicitor-general was disqualified depends on the construction of the words, “disqualified from interest,” in the section quoted, construed in connection with section 18 of the act of 1915, supra, which is as follows: “Be it further enacted . . that any solicitor-general or other prosecuting attorney in the county whose duty it is to prosecute criminal cases on behalf of the State shall not be prohibited from commencing prosecution on his own affidavit against any party violating any provision of this statute or any other law of the State of Georgia for the suppression of the evils of intemperance; and it shall be the duty of every such solicitor-general, upon receiving 'information giving him probable cause to believe that there has been a violation of any statute upon the subject named, to proceed to lay the matter before the grand jury, or to institute a criminal prosecution against said party by affidavit before a court or judge of competent jurisdiction, if he is willing and able to make such affidavit for the institution of a criminal prosecution, or, if he is not, he must superintend the preparation of the papers and the institution of the prosecution, if any citizen is willing to make an affidavit for the institution of a criminal prosecution against any party for such violation, provided the solicitor is of the opinion upon the facts at hand that there is reasonable ground to believe that a conviction ought to be had. And sheriffs are charged with the duty of being on the alert for violations of any of such statutes and with co-operating with the solicitors and prosecuting attorneys in bringing violators to justice.”

Counsel for plaintiff in error cite and rely on Baker v. State, 97 Ga. 452 (25 S. E. 321), and Nichols v. State, 17 Ga. App. 593, 604 (87 S. E. 817), and the cases cited in the latter case. In the Baker case, supra, the indictment was for criminal libel, and the publication which was the basis of the allegation in the indictment charged the solicitor-general with attempting to buy votes, and the record shows that he appeared before the grand jury in the dual character of prosecutor and State’s counsel. In discussing the case Mr. Justice Lumpkin said: “We shall undertake no discussion of the proposition that it is improper for the solicitor-general to appear before the grand jury in a case which he himself prosecutes personally. It is, of course, his right as a citizen to be the prosecutor in any criminal. case; but as he is the official counselor of the grand jury, he could not with propriety appear before that body and give advice in a case in which he was personally concerned. In such a case, a solicitor pro tern, should be appointed before the indictment is laid before and acted upon by the grand jury.” It will be noted that Justice Lumpkin said that “it is improper for the solicitor-general to appear before the grand,jury, in a ease which he himself prosecutes personally,” and that “he could not with propriety appear before that body and give advice in a case in which he was personally concerned.” (Italics ours.) It will thus be seen that the opinion in the Baker ease is based upon the fact that the solicitor-general had a personal interest in the matter, and as prosecutor'he was acting in his personal capacity. The Nichols case, supra, was one in which the solicitor-general in his private capacity as attorney at law was counsel for the plaintiff in a suit against a railroad company, and his fee was dependent upon his client’s recovery of damages; and it was held that the solicitor-general was “disqualified by interest from advising with the grand jury as to the finding of a true bill for perjury against a witness for alleged false testimony given by the witness in favor of the railroad company in that damage suit, where that cause, at the time of the-finding of the indictment, is still pending in the courts.” In that case Judge Broyles said: “In the instant case the undisputed averments in the plea in abate-’ ment show that while Knight, the solicitor-general’s client in the damage suit, was named as the nominal prosecutor, the solicitor-general himself was substantially and to all practical intents and purposes the real prosecutor in the case, and that he, as well as his client, Knight, was pecuniarily interested in it, and he was 'therefore disqualified from advising the grand jury when they were considering the finding of a true bill against the defendant.”

The case of Hicks v. Brantley, 102 Ga. 271 (29 S. E. 459), referred to and quoted from in the Nichols case, supra, was not a criminal case, but a suit for malicious prosecution, and the gist of the decision is that section 4958 of the Civil Code (1910), which provides that “Clients shall not be relieved from their liability to damages and penalties imposed by law, on the ground that they acted under the advice of their counsel, but are entitled to redress from them for unskilled advice,” is not applicable to advice given by the s¿licitor-general relative to a criminal case in which he gives advice as the prosecuting officer. However, some of the language used in that case and quoted in the. Nichols case is quite apropos- to the instant case. It was there said: “A solicitor-general or prosecuting officer for a particular circuit has only the State for a client. He can not be employed by a private person to prosecute'a case, nor to give advice. His is a public duty. He represents the entire public. . . He is attorney and agent of the government in whatever concerns his office. . . The solicitor-general draws the bill of indictment, examines the witnesses, "not with a view to the interest of any client, but alone to subserve public justice.”

In the instant case the solicitor-general, when lie signed the accusation as prosecutor, was not acting in his personal or individual character, or for his personal or individual interest, but in his character as an 'officer of the law specially charged by statute to perform this particular duty. He was not employed by any private person to prosecute, and his acts in connection with the instant case were “not with a view to the interest of any client, but alone to subserve public justice.” In each of the cases'from other States, quoted from in the Nichols case, supra, the prosecuting attorney had a personal interest in the case, or had been employed or engaged therein in his individual capacity as attorney.

It can not be successfully urged that the solicitor-general was “disqualified from interest” because he would participate in the division of the fine if one should be imposed upon conviction and be paid. To so hold would be to disqualify the prosecuting attorney in practically every case prosecuted; for under our State law his compensation comes from the fines and forfeitures realized from cases prosecuted by him. We are therefore convinced that the solicitor-general who appeared as prosecutor in the instant case was not disqualified, and that the court did not err in striking the plea in abatement.

The evidence is sufficient to support the verdict.

Judgment affirmed.

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


text:
    9468.
    Foster v. The State.
   Harwell, J.

1. The matter of allowing a plea to be withdrawn after' sentence is imposed being discretionary with the trial judge, he properly refused, under the facts of the instant case, to set aside the judgment imposing sentence, and to. allow the plea to be withdrawn. Griffin v. State, 12 Ga. App. 615 (4), 620 (77 S. E. 1080); Bearden v. State, 13 Ga. App. 264 (79 S. E. 79).

Decided April 2, 1918.

Certiorari; from Fulton, superior court—Judge Pendleton. November 1, 1917.

O. T. Foster was charged, in the criminal court, of Atlanta, with possessing spirituous and intoxicating liquors. A plea of guilty was entered, and the judge sentenced him to pay a fine of $1,000, or in lieu thereof to serve twelve months on the public works of Fulton county. After senténce was passed, the defendant made a motion to withdraw “what was taken as a plea of guilty,” and to vacate and set aside the judgment imposing the sentence, on the ground that he did not intend to plead guilty, and that when he came before the court and admitted having liquor in his car, he thought he was there to consummate a settlement of the cases pending against him in that court, by which he thought he was to be allowed to pay $100 in settlement of both cases; and on the further ground that he was not legally arraignéd, and that he was led to believe that he would be dealt with leniently, and this was the cause of his admitting that the liquor was in his car. The judge of the criminal court denied the motion, and the defendant carried the case by certiorari to the superior court. The trial judge’s answer to the certiorari showed that the defendant stated, on September 1$, 1917, that he wished to plead guilty; that- the court had him to wait until the next day so that the court could look into the case, and on the following day he voluntarily pleaded guilty after being properly arraigned and after being fully informed of the charge against him; that the court had not promised him or any one else to be lenient if the plea of guilty was entered; that the court knew nothing whatever of any agreement as to settling the cases against him or being lenient, as set out in the petition for certiorari; and that the sentence was imposed after the court'investigated the case.

2. The defendant in'his motion to vacate did not set up that the judge, the solicitor, or any other court official misled him or indu'ced him to plead guilty, or made any promise in regard thereto. The answer of the trial judge to the writ of certiorari, which was not traversed, showed that the plea of .guilty was legally entered1 and sentence was legally imposed; and the superior court did not err in overruling md dismissing the certiorari. Jackson v. State, 99 Ga. 209 (25 S. E. 177).

Judgment affirmed.

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

■The judge of the superior court overruled and dismissed the certiorari, and the defendant excepted.

R. R. Jackson, E. F. Childress, Eugene Dickey, for plaintiff in error. John A. Boykin, solicitor-general, Lowry Arnold, solicitor, E. A. Stephens, contra.


text:
    9470.
    Morrison v. The State.
    Decided April 2, 1918.
    Indictment for seduction; from Fulton' superior court—Judge 1-Iill.

      R. R. Shropshire, for plaintiff in error.

      John A. Boykin, solicitor-general, E. A. Stephens, contra.
   Bloodwortii, J.

The motion for a new trial in this ease contained only the general grounds. There was ample evidence to support the verdict.

Judgment affirmed.

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


text:
    9476.
    Young v. The State.
    Decided April 2, 1918.
   Broyles, P. J.

1. Under the faóts of the case the court did not err in admitting in evidence ' the alleged confession.

2. Tlie instruction complained of, that “As a general rule, where the husband and wife live together, whatever is found at the place where they live is presumed to be that of the husband, but this is only true as a. general rule,” does not aptly or correctly express the law upon the subject in question. In this State the husband is recognized by law as the head of his family, and, where he and his wife reside together, the legal presumption is always, and not génerally,* tliat the house and all the household effects belong to the husband as the head of the family. Broome v. Davis, 87 Ga. 584 (13 S. E. 749); Smith v. Berman, 8 Ga. App. 262 (68 S. E. 1014). This presumption, however, like all presumptions, may be rebutted. Smith v. Berman, supra. The error in the charge, however, does not require a new trial in this case, since there was evidence that the defendant, who was charged with manufacturing intoxicating liquors, made a direct confession that she had been making the same; and if this confession was true (and the jury found that it was), it was immaterial whether the house and the household effects, including the liquor itself, belonged to her or to her husband.

3. The evidence authorized the verdict and the court did not err in refusing to grant a new trial.

Judgment affirmed.

Bloodworth and Harwell, JJ., concur.

Indictment for manufacturing intoxicating liquor; from Camden superior court—Judge Highsmith. December 8, 1917.

' James T. Vocelle, for plaintiff in error.

Alvin V. Sellers, solicitor-general, contra.