text:
    16484.
    Scott v. Life & Casualty Insurance Company.
    Decided October 19, 1925.
   Bell, J.

1. Where a policy of insurance provided that no suit should be brought thereon “until sixty days after the claim thereunder has become due and proof thereof has been duly made” and where, after the claim had become due and proof thereof had been duly submitted, the insurer made an unconditional declaration of non-liability and an absolute refusal to pay, it was not necessary for the insured to postpone action on the policy until the expiration of such period. Such conduct by the insurer amounted to a waiver of the stipulation as to the time within which it should not be sued. Continental Insurance Co. v. Wickham, 110 Ga. 129 (2) (35 S. E. 287).

2. The company’s “superintendent and general manager” was presumably the alter ego or authorized representative of the company in making such refusal of payment and denial of liability. Raleigh & Gaston R. Co. v. Pullman Co., 122 Ga. 700 (4) (50 S. E. 1008) ; Corporation of the Royal Exchange Assurance v. Franklin, 158 Ga. 644 (3 5) (124 S. E. 172).

3. This being a suit on a policy of health insurance, the onus was not upon the insured in the first instance to make proof of her compliance with the condition of the policy that the insurer would have the right at any time to have the insured examined by a physician of its own selection; but if this provision of the policy was breached by the insured, this would be a matter of defense, to be proved by the defendant, unless it affirmatively appeared from the evidence introduced by the insured as plaintiff. The plaintiff testified: “A white doctor by the name of Dr. Dellinger came over to my home during the time I was sick and wanted to examine me, and I refused to permit him to examine me.” This being all the evidence in the record in regard to the plaintiff’s refusal to be examined, and it not appearing that the physician referred to had been selected by the insurer to make the examination or 'was the company’s representative in such matter, and the burden being on the defendant as to that issue, it did not appear that the provision of the policy as to such right of examination had been violated. Moody v. Amazon Ins. Co., 52 Ohio St. 12 (38 N. E. 1011, 26 L. R. A. 313, 49 Am. St. Rep. 699) ; Lowenherz v. Weil, 33 Ga. App. 760 (3) (127 S. E. 883).

4. Applying the foregoing rulings to the evidence, the court erred in awarding a nonsuit.

Judgment reversed.

Jenkins, P. J., and Stephens, J., concur.

Appeal; from Floyd, superior court—Judge Wright. April 27, 1925.

Porter & Mebane, for plaintiff.

Maddox, Matthews & Owens, for defendant.


source: Caselaw Access Project

author: Bell, J.

license: Public Domain

text:
    16492.
    Bridges v. Melton.
    Decided October 19, 1925.
    Affidavit of illegality; from city court of Dawson—Judge Edwards. April 14, 1925.

      W. PL. Gurr, J. H. Fletcher, for plaintiff in error.

      B. B, Jones, contra.
   Bell, J.

1. Where an affidavit of illegality to the foreclosure of a mortgage on personalty was not accompanied either by a replevy bond or by an affidavit in forma pauperis as prescribed by the Civil Code, § 3301, the affidavit so interposed was a nullity. Brantley v. Baker, 75 Ga. 676 (1); Shannon v. Vincent, 76 Ga. 837; Glass v. Austin, 28 Ga. App. 311 (111 S. E. 84); Dawson v. Planters Bank, 31 Ga. App. 530 (121 S. E. 242).

2. Rule 29 of the superior courts, as contained in the Civil Code (1910), § 6288, providing that no second affidavit of illegality shall be received for causes which existed and were known, or in the exercise of reasonable diligence might have been known, at the filing of the first, has no application where the first affidavit' of illegality was void. Since in the present case the so-ealled “first” affidavit was fatally defective because of the failure of the affiant to give bond or make affidavit as to his inability to do so, as required by statute, and was for that reason voluntarily dismissed by the defendant in fi. fa., it was not to be counted, and one subsequently filed was not to be classed as a second affidavit, under the rule of the court just stated. Compare Rogers v. Hoskins, 15 Ga. 270 (2); Crowley v. Freeman, 9 Ga. App. 1 (1) (70 S. E. 349) ; Jordan v. Jenkins, 17 Ga. App. 58 (2 c) (86 S. E. 278). The rule might be otherwise if the parties had acted on the theory that the so-called first affidavit was valid and facts had arisen whereby the defendant should be estopped from asserting that it was void.

3. Applying the above rulings the court erred in dismissing the affidavit of illegality last filed.

Judgment reversed.

Jenkins, P. J., and Stephens, J., concur.


text:
    16521.
    TOWN OF CLEVELAND v. KIMSEY.
    1. The decision of the Supreme Court in Lee County v. Smithville, 154 Ga. 550 (115 S. E. 107), to the effect that the State highway department, in conjunction with the county authorities, may construct a “State-aid road” through a municipality without its consent and even against its will, can have no application so as to preclude a liability .against the municipality ior damage done to private property by a change in a grade of one of its streets which the municipality knowingly permitted to be made where such street is not part of the highway being constructed or repaired but is entirely disconnected therefrom and is graded merely for the purpose of obtaining dirt with which to widen another street or road which is occupied as a part of the highway.
    2. The municipal authorities in such a case having power to prevent such change in the grade of the street may be held liable for damages to private property resulting therefrom where they knowingly permit the work to be done.
    3. The judge of the city court erred in awarding a nonsuit, and the judge of the superior court properly sustained the certiorari to that judgment.
    Decided October 19, 1925.
    Certiorari; from White superior court—Judge J. B. Jones. April 15, 1925.

      T. F. Underwood, C. H. Edwards, B. P. Gaillard Jr., for plaintiff in error.

      Henderson & Allison, E. H. Kenyon, contra.
   Bell, J.

Mrs. C. C. Kimsey brought a suit in the city court of Cleveland against the Town of Cleveland to recover damages alleged to have been done to her property located within the bounds of the municipality, by a change alleged to have been made by the municipality in the grade of one of its streets adjacent to the property. At the close of the plaintiff’s evidence upon the trial the court awarded a nonsuit. The plaintiff’s certiorari was sustained by the superior court, and the defendant • municipality excepted. Counsel for the plaintiff in error, apparently conceding that the case was otherwise made out, have-urged in this court that the nonsuit was proper, and that the grant of the certiorari was therefore error, solely because it appeared from the plaintiff’s evidence that the alleged damage was done by the State highway department, or a contractor under its authority, in the construction of a “State-aid-road” as a part of the system of highways contemplated by the act of August 18, 1919 (Ga. L. 1919, p. 242), reorganizing the State highway department. They contend that under the decision of the Supreme Court in Lee County v. Smithville, 154 Ga. 550 (115 S. E. 107), the municipality can not be held liable for damage which has been done in the construction of such a road through the municipality by or under the authority of the State highway department. According to the decision in that ease the highway department in conjunction with the county commissioners is empowered to build a “State-aid-road” as a part of the system of highways provided for by the above-mentioned act, through a municipality, without its consent and even against its will. It is perhaps true that in such a case the municipality would not be liable for damage done to private property by the construction of such road, even though it involved a change in the grade of a street occupied and used by the highway department as a part of the road. -Whether this be true or not, the municipality could probably be held liable if the work, instead of being done without its consent or against its will, was executed with its concurrence and under circumstances which would render it responsible as a joint tort-feasor. If the municipality could not be held liable where damage resulted to private property in a case like that of Lee County v. Smithville, supra, the property owner might possibly still have a remedy under the provisions of paragraph 5 of section 2 .of article 5 of the act referred to, or under section 4 of the amendment to this act approved August 27, 1925 (Ga. L. 1925, p. 208); but, in the view which'we take of the ease before us, it does not involve or require a decision of any of the questions to which we have just referred. It appears from the evidence that the street here in question was not a part of the State road which was being constructed or improved through the Town of Cleveland, but was located in another part of the town. The plaintiff testified: that “The highway people . . were cutting down Jackson street in front of my house and using the dirt to widen the highway through the town. . . The'town authorities and councilmen were there practically every day watching the work go on.” William M. Armistead testified: “The town authorities wanted the highway widened down here below the courthouse,. and were grading down that street, and used the dirt to widen the highway there.” The inference was therefore authorized that the highway contractor changed the grade of Jackson street, not in improving or reconstructing it as a part of the State road, but merely for the purpose of obtaining dirt with which to widen the road or highway in some- other part of the town. If the particular' street which was thus regraded was not occupied by the State highway department for the purpose of making it a part of the State road, it remained under the control of the municipal authorities, who would have had the power to .prevent the use of the street in the manner and for the purpose shown. The fact that the State highway department was constructing a State highway through the bounds of a municipality would not give that body the control of all of the other streets therein. The assumption of the control of a street through a municipality by the' highway department being an exception to the general rule that the streets are under the control of the municipal authorities, it would seem that where the municipality is sued by an individual for damage to his property by a change in the grade of a street, the burden would be upon the defendant to show that its control of the street had been lost to the highway department, when such fact is claimed as a defense. This fact certainly did not affirmatively and conclusively appear from the plaintiff’s evidence in the present case. It was shown that the municipal authorities had knowledge of what was being done, and we think that certain inferences were deducible from the evidence to which the following ruling by this court, in the case of -City of Atlanta v. Williams, 15 Ga. App. 654 (2) (84 S. E. 139), would have been applicable: “If a municipal corporation, to which has been delegated the control of all public highways within its municipal limits, knowingly permits the working or grading of any of its streets by county authorities or others, and as a result of this work (which the municipality is empowered to prevent) the private property of a citizen is injured, he is not confined to his remedy against the actual tortfeasor, but may hold the municipal corporation liable for the damage consequent upon and resulting from the tort of the real wrongdoer, who will be held to have acted as the agent of the municipality.” See also City of Atlanta v. Thurman, 19 Ga. App. 531 (1) (91 S. E. 887). The judge of the city court having erred in awarding the nonsuit, the judge of the superior court properly sustained the certiorari complaining of that judgment.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.


author: Bloodworth, J.

text:
    15637.
    HILL v. FIRST NATIONAL BANK OF REYNOLDS.
    Where, during vacation, the attorney for the movant in a motion for a new trial prepares a written order for the judge’s signature, setting the motion for a new trial for a hearing at a certain time and place in vacation, and at the appointed time and place the attorneys for both parties appear, and the respondent moves to dismiss the motion for a new trial, and the movant in the motion for new trial resists the motion to dismiss, on grounds other than that the court is without jurisdiction, and the judge sustains the motion to dismiss, the judgment of dismissal will not be void as having been rendered without jurisdiction.
    Decided November 10, 1925.
    Motion to set aside judgment; from Taylor superior court— Judge Munro. March 4, 1924.
    Application for certiorari was denied by the Supreme Court.

      Jere M. Moore, ~W. D. Crawford, C. B. Marshall, for plaintiff' in error.

      Homer Beeland, Jule Felton, contra.
   Bloodworth, J.

The foregoing headnote is a copy of the headnote in an opinion of the Supreme Court in answer to questions certified to it by this .court. For the full opinion of the Supreme Court, including the certified questions, see 160 Ga. 883 (129 S. E. 285). Under the ruling of the Supreme Court the judge of the superior court had jurisdiction, on March 4, 1922, to dismiss the motion for a new trial. The motion having been dismissed, and this judgment not having been excepted to, it became the law of the case, and the judge did not err in his order of November 10, 1923, in which the then-pending motion for a new trial was “overruled and denied and dismissed.”

Judgment affirmed.

Broyles, C. J., and Luke, J., concur.


author: Luke, J.

text:
    16564.
    Central of Georgia Railway Co. v. Radford.
    Decided November 10, 1925.
    Complaint; from city court of Metter—Judge Lanier. May 11, 1925.
   Luke, J.

The defendant having admitted that he owed the plaintiff $15.67, the judgment directing a verdict for the defendant was error.

Judgment reversed.

Broyles, O. J., and Bloodworth, J., concur.

Kirkland & Kirkland, for plaintiff.

G. W. Turner, for defendant.


text:
    16637.
    BOLTON et al v. UNION BANKING CO.
    1. Certain incomplete portions of the record, while not sufficiently controlling or material to the main issue to warrant a dismissal of the writ of error, are too incomplete to be considered by this court.
    2. The plaintiffs failed to make out the case alleged, and the court properly granted a nonsuit.
    Decided November 10, 1925.
    Rehearing denied December 15, 1925.
    Complaint; from Walton superior court—Judge Fortson. May 19, 1925.

      J. H. Felker, for plaintiffs in error.

      Roberts & Kelly, contra.
   Luke, J.

M. W. Bolton and J. W. Bolton brought suit against the Union Banking Company for interest paid the defendant, alleging that the defendant had charged usurious interest on certain notes, and that the penalty therefor was the forfeiture of the entire interest. The defendant in its answer denied all material allegations of the petition, alleged that it had brought a suit to set aside a fraudulent transfer of property from M. W. Bolton to J. W. Bolton, made to defeat the payment of the said notes, and that, in consideration of the company’s- dismissing the said suit, J. W. Bolton assumed and paid the debt of M. W. Bolton for which the company was suing the plaintiffs, and that the question of usury in the instant case was adjudicated in suits pending before the filing of the instant suit. By amendment to its answer the company pleaded further that the allegations of the petition had been adjudicated, as shown by certain matters set out in the said amendment.

The bill of exceptions recites that “counsel for plaintiffs in the trial court moved that the plea or answer be stricken on the ground that the same was'not filed in time, being filed on June 26, 1924, after the adjournment of the court,” and movant assigns error on the refusal of the court to grant this motion. This assignment of error is eliminated by the trial judge in refusing to certify to the truth thereof, and stating in a note to his certificate that the court had not adjourned.

The record contains a demurrer to the answer, and reference thereto is made in the bill of exceptions, but the record does not disclose the court’s ruling on this demurrer, and it is not specified as material to a clear understanding of the errors complained of; nor is it material, in view of the court’s ultimate ruling on the case as a whole. Movants assign error on the allowance of the amendment to defendant’s answer setting up the plea of res judicata. The state of the record pertaining to this amendment and the ruling thereon is so incomplete that it can not be considered by this court.

The evidence of the plaintiffs and the record disclose that M. W. and J. W. Bolton brought suit against the banking company to recover interest because of alleged usury charged by the bank on certain notes; that the banking company had certain notes against M.. W. Bolton; that M. W. Bolton sold his land to his brother, J. W. Bolton; that the banking company filed a suit on the notes, and also a suit against both plaintiffs, to set aside the deed and sale of said land as a fraudulent transaction, made to defeat the payment of the notes given by M. W. Bolton to the defendant company; that J. W. Bolton agreed to pay off the said notes, and gave his own notes and a deed to the land to secure the same, and that the defendant company then transferred to him the M. W. Bolton notes. While both plaintiffs sued on account of usurious interest alleged to have been paid, the evidence fails to show that M. W. Bolton actually paid the defendant any interest at all on these notes; and it does show that J. W. Bolton had the notes in question transferred to him by the defendant company. J. W. Bolton testified that he did not know who wrote the transfer on the back of the notes, but stated: “I remember Mr. Spivey signed it;” Mr. Spivey being the cashier of the Union Banking Company, defendant. “It was admitted by counsel and stated by the court that this debt was paid by the sale of this land under a deed of J. W. Bolton.” Upon the conclusion of the plaintiffs’ testimony the court granted a nonsuit, to which ruling they excepted.

The plaintiffs failed to make out a case as alleged, and the court properly granted a nonsuit.

Judgment affirmed.

Broyles, G. J., and Bloodworth, J., concur.


author: Broyles, C. J.

text:
    16638.
    SIMPSON v. THE STATE.
    The motion to arrest the judgment, on the ground that the penalty named in it was not fixed by the verdict, the penalty being written under and not above the foreman’s signature to the verdict, was properly overruled.
    Decided November 10, 1925.
    Conviction of making liquor; from Cobb superior court—Judge Blair. June 1, 1925.

      J. B. Mozley, H. B. Moss, for plaintiff in error.

      John 8. Wood, solicitor-general, contra.
   Broyles, C. J.

The indictment contained two counts, the first charging the accused with manufacturing whisky, and the- second with possessing apparatus used for the distilling of intoxicating liquors. The jury returned the following verdict: “We, the jury, find the defendant guilty of the first account

Homer Hicks, Foreman

and fix his penalty from 2 years.to 4 years.” The court thereupon entered up judgment and sentence requiring the defendant to serve from two to four years in the penitentiary. During the same term of court the defendant made a motion in arrest of judgment, upon the ground that the verdict did not fix the penalty, as the writing fixing the penalty was written below and after the signature of the foreman of the jury, and, therefore, could not legally be considered as part of the verdict. This motion was overruled. Held: No error. See, in this connection, Browning v. State, 31 Ga. App. 150 (6) (120 S. E. 649).

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    16640.
    Adams & Co. v. Wessel, Duval & Co.
    Decided November 10, 1925.
   Broyles, C. J.

1. The bill of exceptions containing no assignment of error either upon the exceptions pendente lite or upon the judgment complained of therein, the exceptions pendente lite, under repeated rulings of the Supreme Court and of this court, can not be considered.

2. The verdict was authorized by the evidence, and none of the grounds of the amendment to the motion for a new trial shows cause for a reversal of the judgment.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

Breach of contract; from Wilkes superior court—Judge Perry-man. May 22, 1925.

Norman & Norman, for plaintiffs in error.

W. A. Slaton, contra.


text:
    16641.
    Bryant v. Georgia Railway & Power Company.
    Decided November 10, 1925.
    Action for damages; from city-court of Atlanta—Judge Reid. June 5, 1925.
    Certiorari was granted by the Supreme Court.
    From the evidence it appeared that the plaintiff’s husband was killed by a street-car when he jumped in its way to avoid being struck by an automobile.

      W. E. Arnaud, J. K. Jordan, for plaintiff.

      Colquitt & Conyers, Sidney Smith, for defendant.
   Luke, J.

Nellie M. Bryant brought her suit against Georgia Railway & Power Company, seeking to recover damages for the homicide of her husband. At the conclusion of the evidence a nonsuit was awarded. Meld: Under no view of the evidence was the plaintiff’s petition sustained. The court properly granted the nonsuit. See Briscoe v. Southern Ry. Co., 103 Ga. 224 (28 S. E. 638) ; Schroeder v. Ga. Ry. & Electric Co., 142 Ga. 173 (82 S. E. 553), and cases cited.

Judgment affirmed.

Broyles, O. J., and Bloodworth, J., concur.


text:
    16643.
    Martin v. Murphy.
    Decided November 10, 1925.
   Broyles, C. J.

1. This ease was tried in the municipal court of Atlanta, and the certiorari was applied for more than thirty days after the rendition of the judgment complained of, but within thirty days of the overruling of the oral motion for a new trial. Therefore, under repeated rulings of this court, only the exceptions to the judgment refusing a new trial could be considered upon the hearing of the certiorari.

2. The petition for certiorari sets forth the grounds of the motion for a new trial, and it does not appear that the judge of the superior court abused his discretion in the first grant of a new trial.

Judgment affirmed.

Lulce and Bloodworth, JJ., concur.

Certiorari; from Fulton superior court—Judge E. D. Thomas. June 2, 1925.

H. A. Allen, for plaintiff.

R. B. Lambert, for defendant.


author: Bloodwobth, J.

text:
    16645.
    Cox v. The State.
    Decided November 10, 1925.
    Conviction of possessing liquor; from city court of Springfield —Judge Shearouse. June 8, 1925.

      II. P. Gobb, for plaintiff in error.

      J. W. Usher, solicitor, contra.
   Bloodwobth, J.

The evidence authorized the conviction of the accused, and the court did not err in overruling the motion for a new trial which contained the general grounds only.

Judgment affirmed.

Broyles, O. J., and Luke, J., concur.


text:
    16646.
    JONES v. DeKALB SUPPLY COMPANY.
    The nonsuit was proper, since the evidence failed to sustain the case laid in the petition.
    Decided November 10, 1925.
    Action for damages; from city court of Decatur—Judge Daley. May 18, 1925.

      B. P. Gambrell, Bryan & MiddlebrooTcs, for plaintiff.

      J. B. Berman, Sidney Smith, for defendant.
   Luke, J.

Mabel Jones sued DeKalb Supply Company for the homicide of her son, alleging, in substance, that on one of the streets of the city of Atlanta he was riding a motorcycle, and that a motor-truck, owned by DeKalb Supply Company and driven by its agent, Cliff Smith, collided with her son, knocking him violently to the street pavement, and that the collision caused injuries that resulted in his death; that the truck was being illegally and negligently driven by the defendant’s agent, was being run on the wrong side of the street, and was being driven in violation of the city ordinances, which marked out the side of the street on which the truck should have been driven and the rate of speed at which it could be legally driven. After the conclusion of the evidence the court granted a nonsuit. A nonsuit was proper. The evidence did not sustain the case as laid by the plaintiff.

Judgment affirmed.

Broyles, C. J., and Bloodworth, J., concur.


text:
    16647.
    ZURICH GENERAL ACCIDENT & LIABILITY INSURANCE CO. v. ELLINGTON et al.

    Under the evidence the injury received in replacing the belts at the ginnery, from which they had been borrowed for use in the sawmill of the lumber company, arose “out of and in the course of” the injured person’s employment with that company, and were covered by compensation insurance carried on the operations of the company in the conduct of its sawmill.
    The court did not err in affirming the judgment and award of the industrial commission.
    Decided November 10, 1925.
    Appeal; from Wilkinson superior court—Judge Park. May 30, 1925.

      Brock, Sparks & Bussell, for plaintiff in error.

      George H. Carswell, J. Fleming Bloodworth, contra.
   Broyles, C. J.

This was a claim arising under the workmen’s compensation act (Ga. L. 1920, p. 167). The only question to be decided by this court (as conceded by counsel for both parties) is as to whether or not the injury to Ellington (the employee in question) arose “in the course of,” and “out of,” his employment with the Daughtry-Calton Lumber Company. As regards this issue the facts (as found by the member of the industrial commission hearing the claim, and as sustained by the full commission) were briefly as follows.

At the time of his injury Ellington was an employee of the Daughtry-Calton Lumber Company, at Allentown, Ga. The lumber company was owned and operated by Mr. Daughtry, who also owned and operated, a ginnery near by. The operations of the lumber company were covered by compensation insurance, while the operations of the gin, as it had less than ten operatives, were not so covered. It was the custom for the lumber company to borrow belts from the gin, used in operating the lumber company, and to return them to the gin and replace them upon it. Ellington was employed by the lumber company, and had never worked for the ginnery. He was carried on the payroll of the lumber company, and was protected by the compensation insurance thereon, the insurance being upon a sawmill and a planing mill operated by the lumber company. Two belts had been borrowed from the gin for the sawmill, and Ellington was instructed by his employer to return them to the gin. He took them to the gin, and, while attempting to replace them, his fingers were caught in the belts and the injury was inflicted. ' Mr. Daughtry testified that he instructed Ellington to take the belts back to the gin to get it in shape for the ginning season. Ellington testified that there was nothing to do to get it in shape for the ginning season except to put the belts back where they had been taken from. When belts were borrowed by the lumber company from the gin it was the distinct understanding that they should be replaced by the lumber company exactly where they had been taken from the gin.

In our opinion the abpve-stated evidence clearly shows that Ellington’s injury arose “out of,” and “in the course of,” his employment with the lumber company, and the judge of the superior court did not err in affirming the judgment and award of the industrial commission. See, in this connection, New Amsterdam Casualty Company v. Sumrell, 30 Ga. App. 682 (90 S. E. 480).

Judgment affirmed.

Luke, J., concurs. Bloodworth, J., disqualified.


text:
    16648.
    Miller v. The State.
   Broyles, C. J.

1. “Where one accused of homicide, in his statement to the jury, admits the shooting of the deceased, but claims justification, the ease is not one depending wholly iipon circumstantial evidence, and the failure of the court .to charge upon that subject is not cause for reversal.” Duren v. State, 158 Ga. 735 (3) (124 S. E. 343), and citations.

2. Under the facts of the case it was not error to instruct the jury upon the law of voluntary manslaughter.

3. It was not error for the court to charge the jury sections 70, 71, and 73 of the Penal Code; nor was section 73 charged in such a way as was likely to confuse, in the minds of the jury, its provisions with those of sections 70 and 71; for the court clearly instructed them that the provisions of section 73 were applicable in cases of mutual combat. See, in this connection, Franklin v. State, 146 Ga. 40 (90 S. E. 480), and citations.

Decided November 10, 1925.

Manslaughter; from Laurens superior court—Judge Camp. June 6, 1925.

Hightower & New, for plaintiff in error.

Fred Kea, solicitor-general, contra.

4. The verdict was authorized by the evidence, and the refusal to grant a new trial was not error.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    16649.
    Sutton v. The State.
    Decided November 10, 1925.
    Simple larceny; from Laurens superior court—Judge Camp. June 15, 1925.'
   Luke, J.

1. The defendant was convicted of simple larceny. He was found in possession of certain property proven to have been stolen. Under proper instructions from the court and a sufficiency of evidence to warrant the finding, the jury concluded that he did not satisfactorily explain his possession of the stolen property. This court will not disturb the verdict.

2. There was no error in the court’s refusal to continue the case because of an absent witness. Two other witnesses for the defendant testified to the same state of facts to which the absent witness, according to the contention of the defendant, would have testified had she been present.

3. Upon a poll of the jury one juror said the verdict “was not freely and voluntarily made, but I agreed to it after awhile.” Upon further and thorough questioning the juror stated that no force or coercion was used on him to procure his agreement to the verdict, and that he did agree and consent to the verdict. This is no cause for a new trial. “If a juror agrees to a verdict, that in law is sufficient. If verdicts are to be set aside because some of the jurors agree to them reluctantly, very few verdicts in important cases would be allowed to stand. The law does not enquire as to the degree of reluctance or willingness with which a juror’s mind assents to the verdict. Its only enquiry is, does he agree to it? If he does, that is sufficient.”. Parker v. State, 81 Ga. 334 (5) (6 S. E. 601). In the case under consideration the juror was given an opportunity to state, and the court an opportunity to know, the reason why the juror did not freely and voluntarily agree to the verdict, and what was meant by the statement in question. This fact is what distinguishes it from the case of Ponder v. State, 11 Ga. App. 60 (74 S. E. 715), cited by plaintiff in error.

4. It suffices to say that there is no merit in the other special grounds of ■the motion for a new trial.

Judgment affirmed.

Broyles, G. J., and Bloodworth, J., concur.

Hightower & New, for plaintiff in error.

Fred Kea, solicitor-general, contra.


author: Ltjke, J.

text:
    16652.
    Blackwelder v. Moody.
    Decided November 10, 1925.
    Lien foreclosure; from city court of Carrollton—Judge Hood. June 13, 1935.

      Samuel J. Boykin, Boykin & Boykin, for plaintiff in error.

      Smith & Millican, contra.
   Ltjke, J.

This being a proceeding to foreclose a half-cropper’s laborer’s lien, and it not appearing, either from the affidavit of foreclosure or from the evidence of plaintiff, who was the only witness sworn, that the defendant was bound, under his contract, to furnish the plaintiff with supplies, the following charge of the court was error: “On the question of advances, I charge you that where a contract of this kind is entered into, and the landlord undertakes and agrees to furnish the cropper supplies sufficient to aid him in making and gathering a crop, he would be bound to furnish such necessary supplies, if you find that they were necessary and that they were reasonable supplies,” . . and that if the landlord did so fail to furnish such supplies, the half-cropper would be relieved from his contract. This charge was not authorized either by the pleading or the evidence, and was harmful error. Commercial Bank v. Dasher, 24 Ga. App. 736 (102 S. E. 177), and citations. See also Harvey v. Lewis, 19 Ga. App. 655 (91 S. E. 1052).

Judgment reversed.

Broyles, C. J., and Bloodworth, J., concur.


text:
    16653.
    FIDELITY AND DEPOSIT COMPANY OF MARYLAND v. NORWOOD, ordinary, for use, etc., et al.

    The allegations in the petition do not show such a separable cause of controversy between the plaintiff and the surety on the guardian’s bond as would entitle the surety to remove the ease to the United States district court. ’
    Decided November 10, 1925.
    Petition to remove cause; from Ben Hill superior court—Judge Crum. June 1, 1935.

      Jay & Garden, Underwood, Pomeroy & Haas, for plaintiff in error.

      A. J. & J. G. McDonald, contra.
   Bloodworth, J.

“ J. I. Norwood, as ordinary of Berrien county, Georgia, suing for the use of Robert Russell Branch in his individual capacity, and as next friend of Felix W. Branch,” brought suit against W. D. Branch as “guardian of the person and property of Robert Russell Branch and Felix W. Branch,” and the Fidelity and Deposit Company of Maryland as surety on the bond given by the guardian. The petition alleges that Robert Russell Branch has “arrived at the age of twenty-one years, and has demanded from him [the guardian] the money and estate in his hands belonging to him and the other ward;” that “the said William D. Branch has failed to account for or pay over the same to the said Robert Russell Branch or anyone for him,” and “that by reason of the foregoing facts the said William D. Branch and the said Fidelity and Deposit Company of Maryland are indebted to your petitioner for the use of Robert Russell Branch in his individual capacity and as next friend of Felix W. Branch in the principal sum of $9,994.94,” together with interest. The prayers of the petition are: “ (a) that process issue requiring the said William D. Branch, individually and as guardian, and the Fidelity and Deposit Company of Maryland, to be and appear at the next term of this court; (6) that an accounting be had with said' guardian; (c) that petition [petitioner?] have judgment for the use of Robert Russell Branch, individually and as next friend of Felix W. Branch, for principal, interest, and cost of this suit.” The surety company filed a motion to remove the case to the district court of the United States upon, the grounds of diversity of citizenship and separable controversy as to the surety company, a nonresident defendant. What happened in the further progress of the trial is thus stated in an order of the presiding judge: “There was presented to me at Cordele, in Crisp county, Georgia, in vacation, a petition by the defendant Fidelity and Deposit Company of Maryland, for the removal of the said case to the United States district court for the southern district of Georgia, Albany division, accompanied with bond as provided by law. When this petition was so presented, I approved the bond and passed an order on the petition, as is shown thereon. Not having the record before me at this time, I can not state the exact language of said order or its very provisions. My recollection is that in effect it was an order granting such removal, but subject to be revoked at the then approaching term of the Ben Hill superior court, which would open so soon as the time fixed by law for its regular session should arrive, and I be present at the court-house in Fitzgerald, Ga., opening regularly said court. Upon the opening of the said term of said court counsel for the plaintiff presented me a written motion asking that the order so previously granted be revoked. An order was passed setting the same down for a hearing, which, by consent of counsel for both sides, was' continued from time to time to suit their convenience. At and during the adjourned term of the said Ben Hill superior court, held and beginning on the 25th day of May, 1925 (the same being an adjourned term of the regular April term, 1925, of said court), counsel for both sides were heard on the said motion to vacate, and, after argument, the ease was submitted to the court for determination at my convenience, with briefs to be submitted by both sides. Briefs for both sides having been received, after consideration of the case as made by the plaintiff’s petition and the petition for removal, it is ordered, considered, and adjudged by the court that the order of the court passed on the said defendant’s petition for removal be, and the same is, hereby vacated and set aside, and it is the judgment of the court that the plaintiff’s petition does not make such a separate cause or controversy between himself and the petitioning defendant as that it is entitled to have said case removed for trial or cognizance in the Federal court, and that such petition for removal, although accompanied with a proper bond, should be denied.” We agree with the conclusion reached by the trial judge. See Civil Code (1910), §§ 3054, 3055, 5128; Paulk v. Ensign-Oskamp Co., 123 Ga. 467 (2) (51 S. E. 344); Guarantee Trust & Banking Co. v. Dickson, 148 Ga. 311 (96 S. E. 561); Burress v. Montgomery, 148 Ga. 548 (97 S. E. 538); Griffin v. Collins, 122 Ga. 102 (7), 110 (7) (49 S. E. 827).

Judgment affirmed.

Broyles, C. J., and Luke, J., concur.


text:
    16655.
    Boyer, administrator, v. Moore.
    Decided November 10, 1925.
   Broyles, C. J.

The court did not err in dismissing the. certiorari. See Reese v. Miller, 33 Ga. App. 442 (1, 2) (126 S. E. 904).

Judgment affirmed.

Luke and Bloodworth, J.J., concur.

Certiorari; from Bibb superior court—Judge Malcolm D. Jones. May 25, 1925.

J. D. Hughes, for plaintiff in error.

Jones, Park & Johnston, contra.


text:
    16656.
    Douglas v. Minchew.
    Decided November 10, 1925.
    Complaint; from Bacon superior court—Judge Beed. May 23, 1925.

      I. J. Bussell, for plaintiff in error.

      E. H. Williams, contra.
   Luke, J.

The evidence in this ease authorized the verdict. The grounds of the motion for a new trial based upon newly discovered evidence have been considered, and in our opinion do not require a reversal of the judgment overruling the motion for a new trial.

Judgment affirmed.

Broyles, O. J., cmd Bloodworth, J., concur.


author: Broyles, O. J.

text:
    16659.
    Fox v. Newington Motor Company.
    Decided November 10, 1925.
    Complaint; from city court of Springfield—Judge Shearouse. May 11, 1925.

      Hugh B. Tarver, Clarence T. Guyton, for plaintiff in error.

      J. H. Howard, contra.
   Broyles, O. J.

The sole assignment of error in the bill of exceptions is upon the judgment striking the defendant’s plea. Under repeated rulings of the Supreme Court and of this court such a judgment is not a final judgment, and a bill of exceptions thereto will not lie.

Writ of error dismissed.

Luke and Bloodworth, JJ., concur.


text:
    16660.
    POPE v. JENNINGS et al.

    The petition and the exhibit thereto show that the rent contract sued on was an individual undertaking of L. O. Eortson, and the court properly dismissed the petition as to the partnership and A. H. Jennings.
    Decided November 10, 1925.

      Complaint; from Bibb superiqr court—Judge Malcolm D. Jones. June 26, 1925.
    Application for certiorari was denied by the Supreme Court.

      W. A. Slaton, Wallace Miller, for plaintiff.

      A. E. S. Weaver, Edil, Grice & Bloch, for defendants.
   Luke, J.

M. P. Pope brought suit against A. H. Jennings and L. 0. Fortson “as a partnership formerly doing business under the partnership name of L. 0. Fortson,” and prayed judgment against the partnership and the said individual members thereof. The petition alleges, that the partnership was formed about the 15th of August, 1919, and that “the said partnership, on or about the 4th day of June, 1920, entered into a written contract with petitioner for the erection and equipment of a building” in which to conduct the partnership business, and “under the terms of said contract the said partnership agreed with your petitioner to rent said building when completed and ready for occupancy;” and that the partnership and the individual members thereof are now indebted to petitioner for rent of said building, for which judgment is asked. The rent contract is attached to the petition as an exhibit. In an amendment to the petition the plaintiff alleges, “that at the time the contract referred to in the preceding paragraph ,was entered into and executed between petitioner and the defendant partnership, petitioner had no knowledge of the existence of said partnership of A. H. Jennings and L. 0. Fortson, doing business as L. 0. Fortson, nor of the fact that A. H. Jennings was a member of said partnership.” Upon the allowance of this amendment Jennings moved to dismiss the petition as to the partnership and as to Jennings individually. The court granted the motion, stating in the order “that no cause of action is set forth against said partnership or against said defendant A. H. Jennings.” To this order and judgment the plaintiff excepted.

The rent contract is signed by “L. 0. Fortson (L. S.).” No reference is made either in the signature to the contract or in the contents of the contract to any partnership or to the defendant Jennings. On the contrary, the contract specifically states that it is made “by and between M. P. Pope of said State and county, party of the first part, and L. 0. Fortson, of said State and county, party of the second part;” and all reference to the party of the second part in the contract is with the personal pronouns “he,” “him,” “his,” and “himself.” Moreover, the petition shows that such sum as was paid on the rent of the building was paid “by the said L. 0. Fortson individually.” The petition and the exhibit show that the rent contract sued on was an individual undertaking of L. 0. Fortson, and the court properly dismissed the petition as to the partnership and A. H. Jennings.

“If a contract be made with one in his individual right, and on his own security, such person is alone liable on that contract, although a partnership existed that [received] the entire benefit of the contract of which such contracting party was a member.” Floyd v. Wallace, 31 Ga. 688 (5). Properly characterized, the action in the present case was founded upon the contract, a copy of which was attached to the petition; and the contract, rightly construed, was that of a member of the alleged partnership, and not of the partnership itself. “An action is not’ maintainable against a partnership upon the individual contract of a member thereof, although he therein binds himself to pay to the other party to such contract a specified proportion of the net profits of the partnership during a stated period.” Wood v. Martin, 115 Ga. 147 (41 S. E. 490). The case last cited is identical in principle with the one under consideration. In that case Martin sued Wood and Edwards, alleging that they did business as a partnership under the name and style of B. H. Edwards. Wood demurred to the petition, on the ground that it set forth no cause of action against him, but showed on its face that, it was a suit against Edwards on his individual contract; and on appeal the Supreme Court so held. The contract was signed by “B. II. Edwards (L. S.),” and it began by reciting that the contract was made between Martin and Edwards. All reference in the body of the contract was to Edwards individually, except one reference to “the business of the firm of said Edwards;” and in regard to this reference the court said: “The use of the word ‘firm,’ in this connection and in this isolated instance, we do not think is sufficient to indicate that this is not the contract of Edwards individually, but is the contract of some undisclosed firm in which he was a partner. It would be very singular, indeed, if a written instrument of the length of the one under consideration, setting forth a contract between a lender and a borrower of money, were intended by the parties thereto to be a contract between the lender on the one side and a partnership upon the other, and yet neither the name of the firm borrowing the money, nor the names of the partners therein, should be disclosed, and the whole undertaking on the part of the borrower should be made in the name of a single individual, without the slightest indication of the existence of a partnership, except in a single clause, the only apparent purpose of which is to fix the standard by which the rate of interest to be paid upon the loan shall be determined. It is true that the contract was signed by ‘B. H. Edwards,’ which the plaintiff alleges was the name of a partnership, but there is nothing in this signature to indicate that it was the contract of a partnership. . . If Bryan H. Edwards borrowed the money on his own credit only, it did not become a partnership debt merely because the money may have been borrowed and used by him for partnership purposes; and being a suit upon his individual contract, the action thereon was not maintainable against a partnership of which he was a member, although he may have therein bound himself to pay to the other party to such contract a specified proportion of the net profits of the partnership during a stated period.” If that contract, containing a reference to a “firm,” was held to be an individual contract of Edwards, then, a fortiori, the contract under consideration, which contains no reference or intimation as to a firm, is an individual contract. Moreover, the petition alleges that the contract was made with a partnership, whereas the amendment to the petition alleges that the plaintiff did not know that a partnership existed at the time he made the contract; and the rent contract attached as an exhibit to the petition shows that it was not with a partnership, but with an individual; thereby tending to support the allegations of the amendment rather than the petition. This being true, the petition would be construed most strongly against the pleader.

The record does not show that Eortson signed the rent contract as agent for any one; but even if this were true, an undisclosed principal would not be liable, since the contract was under seal. Lenney v. Finley, 118 Ga. 718 (45 S. E. 593).

Judgment affirmed.

Broyles, O. J., and Bloodworth, J., concur.


text:
    16661.
    Williams, for use, etc. v. Yarbrough.
    Decided November 10, 1925.
    Trover; from city court of Floyd county—-Judge Bale. June 9,1925.

      Tillou Von Nunes, Harris & Harris, for plaintiif.

      F. W. Copeland, for defendant.
   Bloodworth, J.

1. Where a bill of sale of personal property was executed by two persons, it is not necessary to make both of them parties to a bail-trover action brought by the person to whom the property was conveyed, where the petition alleges that one of them is in possession of the property and refuses to deliver it to the plaintiif. Beasley v. Central of Georgia Railway Co., 29 Ga. App. 584 (2) (116 S. E. 227), and citations.

2. Where a petition in bail-trover alleges that the defendant is in possession of certain household goods “to which your petitioner claims title by reason -of a certain bill of sale, a copy of which is hereto attached, made a part of the petition, and marked Exhibit A,” and the bill of sale recites that “the said property is now at our home at 680 South Moreland Ave., Atlanta, Ga.,” and the description of the property in the bill of sale and in the petition are identical, under the rulings in Beaty v. Sears, 132 Ga. 516 (1, 1 a) (64 S. E. 321), Gamble v. Shingler, 22 Ga. App. 608 (2) (96 S. E. 705), 609 (2), Redd v. Lathem, 28 Ga. App. 64 (110 S. E. 322), and Adkins v. Salmon, 32 Ga. App. 459 (123 S. E. 730), the description of the property is sufficient; and under McCord v. Hill, 10 Ga. App. 254 (1) (73 S. E. 559), the value of the articles is sufficiently stated, to meet a demurrer which alleges that the petition “is wholly insufficient as to description,” and “it is not alleged in the said paragraph where said property is located, nor is any value of any item given.”

3. Grounds 3, 4, and 5 of the demurrer are based upon a failure of the licensee to comply with the provisions of section 14 of the act approved August 17, 1920, being “an act to .regulate the business of making loans in sums of $300.00 or less” (Ga. L. 1920, p. 215), in that the ■ licensee did not deliver to the borrower, at the time the loan was made, a statement “showing in clear and distinct terms the amount and rate of the loan, name and address of the person making the loan as required by said act.” These grounds of the demurrer are without merit, as the act makes no provision for any penalty for a violation of section 14 thereof. The court erred in sustaining the demurrer to the petition.

Judgment reversed.

Broyles, C. J., and Luke, J., concur.


author: Bboyles, O. J.

text:
    16662.
    Eason v. Joy Floral Company.
    Decided November 10, 1925.
    Action for damages; from city court of Atlanta—Judge Reid. June 6, 1925.
    Application for certiorari was made to the Supreme Court.

      Hewlett & Dennis, Harwell, Fairman & Barrett, for plaintiff.

      Jones, Fvins, Moore & Powers, for defendant.
   Bboyles, O. J.

1. Where a servant, while not engaged in the performance of his master’s business, and during a time when he is free to engage in his own pursuits, uses his master’s automobile for his own purposes (although he does so with the knowledge and consent of his master), and, while so using it, negligently injures another by its operation, the master is not liable for the injuries. Fielder v. Davison, 139 Ga. 509 (5) (77 S. E. 618); Dougherty v. Woodward, 21 Ga. App. 427 (1) (94 S. E. 636).

2. Under the above-stated ruling and the particular facts of the instant case, the court properly directed a verdict for the defendant. While it is true that there were some slight conflicts in the evidence, none of them was on a material issue, and the evidence as a whole demanded the verdict directed. “The mere fact that there are conflicts in the testimony does not render the direction of a verdict in favor of a party erroneous, when it appears that the conflicts are immaterial, and that, giving to the opposite party the benefit of the most favorable view of the evidence as a whole and of all legitimate inferences therefrom, the verdict against him is demanded.” Sanders Mfg. Co. v. Dollar, 110 Ga. 559 (2) (35 S. E. 777); Skinner v. Braswell, 126 Ga. 761 (2) (55 S. E. 914); Shedd v. Standard Sewing Machine Co., 21 Ga. App. 373 (2) (94 S. E. 646) ; Hamlin v. Lupo, 24 Ga. App. 408 (2) (101 S. E. 5).

3. The above-stated rulings are not affected by the fact that the evidence for the plaintiff raised a presumption against the defendant, and that the witnesses for' the defendant (whose testimony rebutted the presumption) were sought to be impeached by proof of contradictory statements and of conflicts in their testimony, since the impeaching evidence went wholly to immaterial issues and would not have authorized a finding that the witnesses had been discredited. See, in this connection, Georgia Southern & Fla. Ry. Co. v. Thompson, 111 Ga. 731 (36 S. E. 945).

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


author: Bloodwokth, J.

text:
    16664.
    TRULUCK v. CAROLINA PORTLAND CEMENT COMPANY.
    “Where an agency is concealed, a party dealing with the agent may set up any defense against the principal which he might have against the agent, and where one of two innocent persons must suffer by the act of a third person, he who puts it in the power of the third person to inflict the injury must bear the loss.” Savannah Trust Go. v. National Bank of Savannah, 16 Ga. App. 706 (3) (86 S. E. 49).
    Decided November 10, 1925.
    Certiorari; from Fulton superior court—Judge E. D. Thomas. June 15, 1925.
    In the municipal court of Atlanta F. W. Truluck brought suit against the Carolina Portland Cement Company for $422.83, the value of certain lumber which had been shipped to that company by Loris' Lumber Company. The defendant filed a plea denying liability, and further alleged, that “all its transactions in connection with the purchase of said lumber were with the said Loris Lumber Company; that it did not purchase said lumber or any other lumber from petitioner, and that it did not agree or promise to pay petitioner for said lumber, nor was petitioner in any wise known to defendant in the purchase of said lumber as herein above set out, and' that if said Loris Lumber Company was acting for plaintiff, said agency was concealed, and defendant had no knowledge that it was dealing with said Loris Lumber Company as agent of plaintiff,” and that “said Loris Lumber Company is in-' debted to defendant in a sum greatly in excess of the amount due by defendant for said lumber, to wit, in the sum of $1086.23, and that it has paid said Loris Lumber Company for said lumber by crediting the amount due thereon on said indebtedness.” The case was tried on the following agreed statement of facts: “ On April 25, 1923, defendant ordered from the Loris Lumber Company Incorporated, of Loris, South Carolina, two cars of % x 4 No. 2 common sap gum lumber/ to be shipped to defendant at Portsmouth, Virginia. [Copy of the original order was attached.] Said Loris Lumber Company Incorporated accepted said order, and, on May 5, 1923, in compliance therewith, shipped said lumber to defendant at Portsmouth, Virginia, in three cars; that said lumber reached its destination after the invoice below set out was received by defendant, and subsequently was used by defendant, and that the agreed value thereof is $422.83; that at the time said lumber was shipped said Loris Lumber Company Incorporated was, and still is, indebted to defendant in the sum of $1086.23, and defendant has credited the amount due above, $422.83, on this amount; that said Loris Lumber Company Incorporated filled said order with lumber- belonging to plaintiff with the agreement that it would ship the same to defendant for his account. Said Loris Company Incorporated sent to defendant at its offices in Atlanta, Ga., an invoice dated May 5, 1923, covering said lumber, which invoice was received by defendant on May 10, 1923 [a'copy of the invoice was attached] ; that on May 9, 1923, said Loris Lumber Company drew a draft on defendant for the sum of $416.00, payable to plaintiff, which draft was not honored by the defendant [draft attached]; that plaintiff had no contract with defendant for the sale of said lumber, and defendant did not know plaintiff in the transaction until it received the notation of the invoice set out above, and the draft set out above.”
    A judgment was rendered for the plaintiff for the full amount asked for in the petition. The defendant obtained a writ of certiorari, and upon a hearing of the certiorari the judge of the superior court passed an order in part as follows: “The within certiorari coming on to be heard, it is considered, ordered, and adjudged that the same be and is sustained, and final judgment is rendered for the plaintiff in certiorari.” To this order the plaintiff excepted.

      King, Spalding, MacDougald & Sibley, Estes Doremus, for plaintiff.

      William G. Grant, for defendant.
   Bloodwokth, J.

(After stating the foregoing facts.) The principal question for determination is whether it was before or after the contract between Loris Lumber Company and Carolina-Portland Cement Company, the defendant, for the sale of the lumber had been entered into and performed, that it was disclosed that the lumber company was acting as agent for Truluck, the plaintiff. If the principal, Truluck, was concealed until after the contract between the lumber company and the cement company had been executed and the rights of the parties thereto had become fixed, then there can be no doubt as to the right of the defendant to set up his claim against Loris Lumber Company. The order for the lumber, a copy of which was made a part of the statement of facts, provided that.the lumber was to be shipped “f. o. b. mill” at Loris, South Carolina, and expressly stipulated, “If order can not be filled as given, do not make any changes without first advising us and securing our permission for change in writing. If the order as given is not in conformity with your understanding, return at once writing fully.” Thus it will be seen that the offer was made to and could be accepted by the Loris Lumber Company only, and all that was necessary to complete the contract was the delivery by the lumber company of the lumber ordered to the common carrier at its mill in South Carolina. The appellate courts of this State have uniformly held that where the place of shipment is specified, “in the absence of an agreement to the contrary, delivery of freight to a common carrier is regarded as delivery to the consignee.” McCook v. Halliburton-Myers Co., 14 Ga. App. 381 (1) (80 S. E. 863); McCullough v. Armstrong, 118 Ga. 424 (2) (118 S. E. 424); Falvey v. Richmond, 87 Ga. 100 (2), 101 (2) (13 S. E. 261), and citations. Under the rulings in the foregoing cases the lumber was delivered to the defendant on May 5, 1923. There is no contention on the part of the plaintiff that the defendant, prior to the receipt in Atlanta on May 10 of the invoice referred to in the agreed statement of facts, had any notice whatever that the lumber company was acting as the agent of the plaintiff. Granting that the lumber company was the agent of Truluck, the Carolina Portland Cement Company pleaded, and the record showed, that it had no knowledge of the agency until after the shipment was made and title to the lumber had passed to the defendant and its rights had become fixed. This being true, the Carolina Portland Cement Company would be entitled to set off any claim that it might have against the agent, and Truluck was not entitled to a judgment against it. Civil Code (1910), § 3604; Durant Lumber Co. v. Sinclair Lumber Co., 2 Ga. App. 210 (4), 213 (4) (58 S. E. 485), and citations; Savannah Trust Co. v. National Bank of Savannah, 16 Ga. App. 724 (3) (86 S. E. 49); Bond v. McEntire, 137 Ga. 438 (73 S. E. 652) ; McConnell v. East Point Land Co., 100 Ga. 129 (2), 134 (2) (28 S. E. 80).

The judge of the superior court did not err in sustaining the certiorari and in rendering final judgment for the plaintiff.

Judgment affirmed.

Broyles, G. J., and Luke, J., concur.


author: Bboyx.es, 0. J.

text:
    16665.
    Wright v. The State.
    Decided November 10, 1925.
    Conviction of larceny of automobile; from Fulton superior court —Judge Howard. June 6, 1925.

      Clark Bay, 0. Glen Bay, W. F. Moore, for plaintiff in error.

      John A. Boykin, solicitor-general, Balph H. Pharr, contra.
   Bboyx.es, 0. J.

1. The alleged newly discovered evidence is cumulative and impeaching in its character, and is not such evidence as would likely produce a different verdict upon another trial of the case. Furthermore, the supporting affidavit, as to the residence, associates, etc., of the newly discovered witness, is defective in that it is silent as to his associates. Civil Code (1910), § 6086; Ivey v. State, 154 Ga. 63 (6) (113 S. E. 175).

2. The verdict was amply authorized by the evidence.

Judgment affirmed.

Luke and Bloodworth, JJ., eoneur.


text:
    16666.
    Ingram v. The State.
    Decided November 10, 1925.
    Assault with intent to murder; from Putnam superior court— Judge Park. June 2, 1925.

      H. Beid DeJarnette, for plaintiff in error.

      Joseph B. Duke, solicitor-general, contra.
   Luke, J.

1. Under the authority of Walker v. State, 118 Ga. 757 (2) (45 S. E. 608), the court did not err in failing to charge on the law of alibi.

2. The accused was not harmed by a charge on a lesser offense than that for which he was convicted.

3. The evidence authorized the verdict, and-is approved by the trial judge.

Judgment affirmed.

,Broyles, G. J., and Bloodioorih, J., eoneur.


text:
    16667.
    MITCHELL v. THE STATE.
    In a burglary ease, where the jury returned the verdict, “We, the jury, find the defendant guilty, and recommend him to the mercy of the court,” under the indeterminate-sentence law the verdict was not in proper form, and it was error for the judge to receive it and fix the minimum and maximum term of punishment. He should have sent the jury back to .their room with the instruction that they fix the minimum and the maximum penalty.
    Decided November 10, 1925.

      Burglary; from Douglas superior court—Judge Irwin. June 16, 1925.

      D. S. Strickland, for plaintiff in error.

      E. S. Griffith, solicitor-general, contra.
   Bloodworth, J.

Plaintiff in error was tried for burglary, and the jury returned the following verdict: “We, the jury, find the defendant guilty, and recommend him to the mercy of the court.” This verdict was received by the judge and he fixed the term of punishment at from five to ten years. A motion in arrest of judgment was filed, in which it was urged that the verdict was illegal and should not have been received, that the court, under the indeterminate-sentence law, had no power or authority to fix the penalty, but that the jury alone had this power. The motion was overruled, and the defendant excepted.

The indeterminate-sentence law (Ga. L. 1919, p. 387; Park’s Code Supp. 1922, vol. 11, § 1081-e) provides that “the jury in their verdict on the trial of all cases of felony not punishable by life imprisonment shall prescribe a minimum and maximum term.” This provision of the law is emphasized by the further provision that “in cases of pleas of guilty, then the judge shall have the right to prescribe such minimum and maximum term as he may see fit.”

The identical question before us has never been passed upon by either of the appellate courts of Georgia. The nearest approach to it is the case of Sirmans v. State, 28 Ga. App. 122 (110 S. E. 622). In that case the crime charged was the same as in this case, and the jury returned the following verdict: “We, the jury, find the defendant guilty, and recommend that he be punished as for a misdemeanor.” Thereupon the court told the jury: “Your verdict is not in proper form. It will be necessary for you to return to your room and fix the minimum and maximum penalty.” The jury complied with these instructions, and this court held that the instructions of the trial judge were proper. This amounted to a holding that it was necessary for the jury to fix a minimum and maximum sentence, and the principle there settled is controlling in this case.

We are supported in the conclusion which we have reached by the following cases from other States: In the ease of Nemo v. Commonwealth, 2 Gratt. (Va.), 558, the jury rendered an improper verdict as to punishment, and the court erroneously entered judgment thereon. In that case the appellate court said: “The verdict itself was manifestly illegal; the jury having ascertained a term of imprisonment shorter than that prescribed by law. But in rendering a judgment for a different and longer term, the court departed from the settled practice in criminal prosecutions, and assumed the peculiar province of the jury. . . The proper course would have been to have sent the jury back with proper instructions, to reconsider their verdict. . . It would be dangerous in criminal cases to authorize that to be done in one mode which the law requires to be done in another. . . The course of proceeding pointed out by the statute may be more or less convenient; but it is the only legal mode; and we have no power to carve out another.” “In criminal cases the jury must assess the punishment of the defendant, if found guilty, and the judgment of the court must follow the verdict. If the punishment assessed by the jury is not in conformity with the provisions of the statute, the court should see that the jury correct their verdict; but the court is not authorized to render judgment for any other or different punishment than that assessed by the jury.” Clark v. State, 77 Ind. 399.

In Harwell v. State, 19 Tex. App. 423, the statute in Texas required the jury to hear evidence and fix punishment in case of pleas of guilty, and the Court of Appeals of Texas held: “This provision of the statute is mandatory, and instead of being merely for the benefit of the defendant, it is more especially designed to protect the interest of the State by preventing aggravated cases of crime being compromised by the assessment of the minimum punishment fixed by law. Failure to comply with this provision of the statute in cases to which it applies is fundamental error.” In Josef v. State, 33 Tex. Cr. App. 251, the court held that “the statute is mandatory, and its disregard fundamental error.” The opinion concludes with: “The legislature has so ordered, and the court should enforce the law.” In the case of Nelson v. State, 46 Ala. 186, the first headnote is as follows: “A party who is prosecuted for an assault with intent to murder, by indictment, in the circuit court, and who confesses himself guilty of an assault and battery with a pistol must have The amount of the fine . . fixed and determined by a jury/ The fine can not be fixed by the court in such a ease.” And in the opinion (p. 188) the court said: “The judgment in this case was without warrant of law. In prosecutions by indictment the jury alone can ‘fix and determine the amount of the fine/ except when an offense may be punished, in addition to a fine, by imprisonment or hard labor for the county. Here the charge was for an offense punishable by imprisonment in the penitentiary without fine, and the conviction was for an offense punishable by fine, . . and the punishment could not be fixed by the court but only by a jury. Then, the fixing of the fine by the court, without the intervention of a jury, was erroneous. In such a case as this a jury should determine the fine.” “The jury must assess the punishment, and the judgment must be according to the verdict. The verdict itself was defective in not assessing a penalty of the sort, and the jury .should have been on that account sent back for further deliberation, that they might have corrected it.” Wilson v. State, 28 Ind. 394.

The court erred in overruling the motion in arrest of judgment.

Judgment reversed.

Broyles, O. J., and Lulce, J., concur.


author: Bkoxles, C. J. Luke, J.

text:
    16669.
    Hendricks et al. v. The State.
   Bkoxles, C. J.

1. This was’ a proceeding for a contempt of court, and the trial judge did not err in overruling the demurrer to the information. The superior courts of this State, under the constitution, have the power to define and punish contempts, and the facts set forth in the information were sufficient to constitute a contempt within the power of the court to define and punish. Under the facts of the case as set forth in the information, the information was not demurrable because it failed to state that the witnesses (alleged to have been spirited away from the jurisdiction of the court by the defendants) had been subpoenaed to appear before the trial court. It appeared that they had been subpoenaed before the grand jury in a rape case and had testified before that body, and had been instructed orally by the sheriff to appear the next day at the trial court, and that among these witnesses were the alleged victim in the rape case and her father. See Withers v. State, 25 Ga. App. 521 (103 S. E. 736), and citations.

2. It does not appear that the alleged activity of the trial judge in assisting the sheriff to locate the missing witnesses, and his other conduct as detailed in the record, legally disqualified him from presiding in the contempt case. The statutory grounds of the disqualification of a judge are set forth in section 4642 of the Civil Code of 1910, and are exhaustive of the subject. It follows that bias or prejudice on the part of a judge is no ground for his disqualification. Luke v. Batts, 11 Ga. App. 783 (3) (76 S. E. 165), and citation; Long v. State, 25 Ga. App. 22 (1) (102 S. E. 359), and citations; Hennon v. State, 33 Ga. App. 600 (1) (127 S. E. 473).

Decided November 10, 1925.

Contempt; from Berrien superior court—Judge Knight. April 16, 1925.

T. Q. Connell, J. H. Hull, R. A. Hendricks, H. K. Wilcox, for plaintiffs in error.

H. G. Morgan, solicitor-general, contra.

3. The evidence amply authorized the defendants’ conviction.

Judgment affirmed.

Bloodworth, J., honours. Luhe, J., dissents.

Luke, J.

I do not agree that the evidence authorized the conviction of the defendants.


text:
    16668.
    Hendricks v. The State.
    Decided November 10, 1925.
    Contempt; from Berrien superior court—Judge Knight. April 16, May 30, 1925.

      T. Q. Connell, Jeff S. Story, W. R. Smith, H. K. Wilcox, for plaintiff in error.

      H. C. Morgan, solicitor-general, contra.
   Broyles, O. J.

1. This was a proceeding for contempt of court, and the trial judge did not err in overruling the demurrer to the information. See Hendricks v. State, ante, 508.

2. It is not made to appear that the judge erred in denying the motion to declare himself disqualified to preside upon the trial of the case. Hendricks v. State, supra.

3. The evidence was not sufficient to authorize the defendant’s conviction, and the court erred in finding him guilty and imposing sentence.

Judgment reversed.

Luhe and Bloodworth, JJ., concur.


text:
    16672.
    MULL et al. v. STATE OF GEORGIA.
    The question as to the credibility of witnesses is settled by the finding of the jury, which the trial judge has approved; and this court can not hold that the verdict was not authorized by the evidence.
    Decided November 10, 1925.
    Confiscation; from city court of Floyd county—Judge Bale. June 26, 1925.

      This was a proceeding against T. H. Mull, to condemn an automobile used to transport intoxicating liquor. The defendant filed an answer in which he admitted that at the time of the seizure of the automobile by the officer he was in possession of the car, but alleged that it was the property of his wife, Mrs. T. H. Mull, and denied that when the car was seized it was “being used to transport and convey alcoholic and intoxicating liquors contrary to law.” Mrs. Mull intervened and alleged that the automobile belonged to her, and if it was being used in transporting liquor in violation of the law, the person “so using said property was not the agent or employee of this intervenor, and that such persons were not acting for or as agent of intervenor, and that if said automobile was being so used in the transporting or storage of intoxicating liquors in violation of the law, such was expressly against the wishes and desires of intervenor and done without the knowledge or consent or assent of intervenor.” On the trial of the case the evidence for the State showed that T. II. Mull bought the car which it-was sought to condemn, that he was driving it, and had just alighted therefrom when the officer seized' him as he was in the act of taking a gallon of liquor out of the car, and that in the car at the time there were twenty-seven gallons of corn whisky. It was also shown that Mr. Mull frequently drove the car, that his wife rarely ever did, and that Mrs. Mull had reported her husband as a bootlegger and asked that he be caught. Mrs. Mull swore that the car belonged to her, that she traded another car to her husband for this one, and that she “had no knowledge and gave no direction or consent for the use of the car in connection with whisky,” that she had nothing to do with it, and it was against her will.
    The jury found against the intervention of Mrs. Mull. She made a motion for a new trial, which was overruled, and she excepted.

      Porter & Mebane, for plaintiffs in error.

      Alec Harris, solicitor, contra.
   Bloodwokth, J.

(After stating the foregoing facts.) The motion for a new trial contains the general grounds only. The evidence raised an issue of fact. It is the exclusive province of the jury, under all the attendant circumstances and conditions, to determine whether a witness has or has not spoken the truth. The jury are of the vicinage, they observe the witnesses while testifying, and they have the best opportunity for applying the legal test as to the credibility of the witnesses. In all cases the bona fieles of a transaction is to be determined by the jury. “The power of the jury to settle every issue of fact is paramount and exclusive, and interference with that prerogative of the jury is a' violation of the constitution, which imperils the liberty of every citizen.” Alexander v. State, 1 Ga. App. 291 (57 S. E. 996). Applications for new trial on the ground that the verdict is contrary to the evidence are addressed to a sound legal discretion, to be exercised by the trial judge. When this discretion has been exercised and the motion for a new trial overruled, this court will not interfere, if there is any evidence which would justify the jury in reaching the conclusion' set forth in the verdict. Since it is the sole province of the jury to pass upon the facts of the case and the credibility of the witnesses, we can not say that they were not authorized to arrive at the conclusion set forth in their verdict.

Judgment affirmed.

Broyles, G. J., and Luke, J., concur.


text:
    16674.
    Hardy v. Lansdell.
    Decided November 10, 1925.
    Complaint; from Columbia superior court—Judge A. L. Franklin. June 17, 1925.

      W. D. Lanier, for plaintiff in error.

      W. H. Fleming, contra.
   Bloodworth, J.

There is no merit in any of the special grounds of the motion for a new trial; there is abundant evidence to support the verdict, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Luke, J., concur.


text:
    16675.
    Bennett, superintendent, etc., v. Smiley.
    Decided November 10, 1925.
   Luke, J.

The writ of error in this case is dismissed for the reason that it appears from the record that no final judgment has been rendered in the ease, and no error is assigned upon such a judgment.

Writ of error dismissed.

Broyles, O. J., and Bloodworth, J., concur.

Trover; from city court of Ludowici—Ben A. Way, judge pro hac vice. May 13, 1935.

W. G. Hodges, for plaintiff in error.

Edwin A. Cohen, contra.


text:
    16700.
    Dunson & Brothers Co. v. Towns et al.

    Decided November 10, 1925.
    Complaint; from city court of LaGrange—Judge Tuggle. June 3, 1935.

      M. U. Mooty, for plaintiff.

      Lovejoy & Mayer, for defendant.
   Broyles, O. J.

Under the evidence adduced by the plaintiff, the court properly granted a nonsuit as to the defendant A. 0. Towns.

Judgment affirmed.

Lulce and Bloodworth, JJ., ooneur.


text:
    16705.
    Raulerson v. The State.
    Decided November 10, 1925.
    Conviction of shooting at another; from Tattnall superior court —Judge Sheppard. June 33, 1935.

      P. M. Anderson, for plaintiff in error.

      J. Saxton Daniel, solicitor-general, contra.
   Broyles, O. J.

The verdict was authorized by the evidence, and none of the special grounds of the motion for a new trial shows cause for a reversal of the judgment below.

Judgment affirmed.

Lulce and Bloodworth, JJ., concur.


author: Broyles, 0. J.

text:
    16710.
    Gardner v. The State.
   Broyles, 0. J.

1. Where, by oversight, inadvertence, or otherwise, the defendant is put on trial upon an indictment which charges that he assaulted one Oharlie Johnson, with the intent to murder him, and during the trial it develops that the person so assaulted was Robert Johnson, and where, on motion of counsel for the defendant, a verdict is directed for the defendant, such acquittal can not be pleaded in defense to another indictment, charging the same defendant with assaulting with intent to kill one Robert Johnson. This is true although it was the intention in the first instance to indiet and prosecute the defendant for assaulting Robert Johnson, and both indictments related to the same transaction. Moody v. State, 1 Ga. App. 772 (1), 774 (58 S. E. 262); Gully v. State, 116 Ga. 527 (42 S. E. 790), and citations.

Decided November 10, 1925.

Indictment for assault with intent to murder; from Fulton superior court—Judge W. L. Hodges presiding. July 22, 1925.

Charles F. Wells, John F. Echols, for plaintiff in error.

John A. Boylcin, solicitor-general, Ralph Ii. Pharr, contra.

2. The special grounds of the motion for a new trial, complaining of the admission of certain evidence, show no reversible error.

3. The general grounds of the motion for a new trial are not argued or referred to in the brief of counsel for the plaintiff in error, and there- . fore are treated as abandoned.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    16724.
    Smiley v. The State.
    Decided November 10, 1925.
    Indictment for kidnapping; from Lowndes superior court— Judge W. E. Thomas. July 18, 1925.

      M. Price, W. M. Smiley, T. G. Connell, E. K. Wilcox, for plaintiff in error.

      G. E. Hay, solicitor-general, J. B. Edwards, contra.
   Broyles, C. J.

1. Upon a trial for kidnapping, under an indictment drawn under section 110 of the Penal Code of 1910, the fact that the accused was ignorant of the girl’s age, and that he believed, in good faith, and had good grounds to believe, that she was more than eighteen years of age, is no defense to the indictment. See Gravett v. State, 74 Ga. 191 (1 a); 1 Brill’s Cyclopedia of Criminal Law, § 352, and numerous cases cited.

(a) Under this ruling the refusal of the court to give the requested charge set forth in the motion for a new trial was not error.

2. Conceding (but not deciding) that the admission of the evidence complained of in the motion for a new trial was error, another trial of the case is not required, since, under-the other evidence adduced and the defendant’s statement to the jury, the verdict was demanded.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    16732.
    Hill v. The State.
    Decided November 10, 1925.
    Conviction of making liquor; from Haralson superior court-judge Irwin. June 24, 1925.

      M. J. Head, Smith & Watson, for plaintiff in error.

      E. S. Griffith, solicitor-general, contra.
   Broyles, C. J.

Upon the trial of this case and while the solicitor-general

was making the concluding argument to the jury he used the following words: “I had no idea that they would put the character of such a man as Luther Hill [the accused] in evidence. If I had, I would have had twenty men here to prove his character by.” Counsel for the defendant promptly moved for a mistrial, on the grounds that the statement was unauthorized by the evidence and was highly prejudicial to the accused. The court denied the motion, and failed to rebuke the solicitor-general or to instruct the jury not to consider the statement, and the statement was not withdrawn by the solicitor-general. Held: The refusal to declare a mistrial was reversible error, and the court therefore erred in overruling the motion for a new trial.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


text:
    16755.
    Durden v. The State.
    Decided November 10, 1925.
    Accusation of selling liquor; from city court of Metter—Judge Cowart presiding. July 24, 1925.
   Broyles, C. J.

1. The alleged newly discovered evidence is largely cumulative and impeaching in its character, and it is apparent that much of it must have been known to the defendant before his trial. Moreover, the supporting affidavit (required by section 6086 of the Civil Code of 1910) as to the residence, associates, means of knowledge, character, and credibility of the newly discovered witnesses, is absolutely silent as to their associates. The judge, therefore, did not abuse his discretion in refusing the grant of a new trial on this ground. Ivey v. State, 154 Ga. 63 (6) (113 S. E. 175).

2. The ground of the motion for a new trial, based upon the alleged fact that “the State’s witnesses led him [the defendant] to believe that they were not going to testify against him, and that movant relying upon their statements naturally thought that the case would be nolle prosequied upon the call,” is without merit.

3. The evidence authorized the verdict. It was the privilege of the jury to believe the testimony of the two witnesses introduced by the State, in preference to that of the numerous other witnesses whose testimony, if believed by the jury would have successfully impeached the witnesses for the State. Cook v. State, 13 Ga. App. 308 (3) (79 S. E. 87).

Judgment affirmed.

Luke and Blood/worth, JJ., concur.

Kirlcland & Kirlcland, for plaintiff in error.

L. G. Anderson, solicitor, contra.


text:
    16759.
    Fielding v. The State.
    Decided November 10, 1925.
    Conviction of possessing liquor; from Thomas superior court— Judge W. E. Thomas. July 29, 1925.

      James L. Dowling, for plaintiff in error.

      Clifford E. Hay, solicitor-general, contra. .
   Broyles, O. J.

The motion for a new trial contained the usual general grounds only; the verdict was authorized by the evidence, and the refusal to grant a new trial was not error.

Judgment affirmed.

Luke and Bloodioorth, JJ., concur.


text:
    16776.
    Hurst v. The State.
    Decided November 10, 1925.
    Conviction of manslaughter; from Screven superior court— Judge Strange. August 14, 1925.

      H. A. Boykin, for plaintiff in error. -

      John G. Hollingsworth, solicitor-general, contra.
   Broyles, 0. J.

1. Under the evidence adduced, and the defendant’s statement to the jury, the court properly charged the law of voluntary manslaughter.

2. The verdict was authorized by the evidence, and the refusal to grant a new trial was not error.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    16779.
    Norman v. The State.
    Decided November 10, 1925.
    Conviction of larceny of hogs; from Colquitt superior court-judge Persons presiding. August 13, 1925.
   Broyles, O. J.

The motion for a new trial contained the usual general grounds only; the evidence authorized the verdict, and the refusal to grant a new trial was not error.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

James L. Dowling, for plaintiff in error.

Clifford E. Hay, soliciior-general, contra.


text:
    16785.
    Brevoid v. The State.
    Decided November 10, 1925.
    Conviction of possessing intoxicating liquor; from city court of Thomasville—Judge MacIntyre. August 9, 1925.

      D. Boy Hay, for plaintiff in error.

      J. Baird Edwards, solicitor, contra.
   Broyles, C. J.

It affirmatively appearing from tlie bill of exceptions and the record that the bill of exceptions was presented to the judge more than twenty days after the date of the judgment complained of (the overruling of the motion for a new trial), the bill of exceptions must be dismissed.

Writ of error dismissed.

Luke and Bloodworth, JJ., concur.


text:
    16788.
    Butler v. The State.
    Decided November 10, 1925.
    Conviction of carrying pistol unlawfully; from Randolph superior court—Judge Yeomans. August 1, 1925.

      C. 17. Worrill, J. 17. Quincey, T. N. Henson, for plaintiff in error. .

      B. T. Castellow, solicitor-general, B. B. Arnold, E. G. Hill, contra.
   Broyles, O. J.

1. The admission of the evidence of the arresting officer, that he “noticed a bulky something in his [the defendant’s] pocket, and . . went in his pocket and got his pistol,” was not error. Smith v. State, 17 Ga. App. 693.

2. The excerpts from the charge of the court, complained of, when considered in connection with the entire charge and the facts of the case, show no reversible error.

3. The verdict was authorized by the evidence.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    16792.
    Sloan v. The State.
    Decided November 10, 1925.
    Rehearing denied December 15, 1925.
    Conviction of possessing intoxicating liquor; from Whitfield superior court—Judge Tarver. August 22, 1925.

      Maddox, Maddox & Mitchell, A. L. Henson, for plaintiff in error.

      G. G. Pittman, solicitor-general, contra.
   Broyles, C. J.

1. Where the judge, during the trial of a misdemeanor ease, and while the evidence was being submitted, in the presence of and without objection from, the defendant and his counsel, allowed the jury to disperse for the night, and where, upon the convening of the court the next morning, counsel for the defendant moved for a mistrial, based upon the dispersal of the jury without the consent of the defendant, the denial of the motion was not error, there being no evidence of any attempt to influence the jury, or of any improper conduct upon their part. Bowdoin v. State, 113 Ga. 1150 (1) (39 S. E. 478), and citations.

2. Ground 2 of the amendment to the motion for a new trial, complaining of the denial of a motion for a mistrial based upon alleged improper remarks of the solicitor-general in the . concluding argument to the jury, is not complete and understandable within itself. Movant insists that the remarks were not authorized by the evidence, while the solicitor-general in his brief contends that they were so authorized. To determine this question this court would necessarily be obliged to refer to the brief of the evidence. .This ground, therefore, under repeated rulings of the Supreme Court and of this court, can not be considered.

3. The evidence amply authorized the verdict, and, under all the facts of the base, the admission of the evidence complained of in ground 3 of the amendment to the motion for a new trial does not require another hearing of the ease. The refusal to grant a new trial was not error.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    16804.
    Cowart v. The State.
   Broyles, C. J.

1. The legal and pertinent portions of the various requests to charge were sufficiently covered by the charge given.

2. The several excerpts from the charge of the court, complained of in the motion for a new trial, when considered in the light of the charge as a whole and the facts of the ease, show no reversible error.

3. ' The admission of the testimony complained of in ground 15 of the amendment to the motion' for a new trial was not error for any reason assigned.

4. The failure of the court to instruct the jury that in case they should convict the defendant of mayhem, they would have the right to recommend that he be punished as for a misdemeanor was not error. Penal Code (1910), § 1062.

Decided November 10, 1925.

' Conviction of mayhem; from Miller superior court—Judge Yeomans. August 1, 1925.

W. I. & P. Z. Geer, for plaintiff in error.

B. T. Castellón), solicitor-general, B. B. Arnold, E. G..EUI, contra.

5. The verdict was amply authorized by the evidence, and the refusal to grant a new trial was not error.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


author: Duke, J.

text:
    16703.
    Boyd v. The State.
    Decided November 11, 1925.
    Conviction of making liquor; from Tattnall superior court—. Judge Sheppard.. June 29, 1925.

      S. T. Brewton, C. L. Cowart, for plaintiff in error.

      J. Saxton Daniel, solicitor-general, contra.
   Duke, J.

The evidence amply authorized the conviction, if indeed it did not- demand it. The sole assignment of error being that the verdict is without evidence to support it, the court' properly overruled the motion for a new trial.

Judgment affirmed.

Broyles, G. J., and Bloodworth, J., concur.


text:
    16704.
    Edwards v. The State.
    Decided November 11, 1925.
    Conviction of vagrancy; from city court of Savannah—Judge Bourke. July 11, 1925.
    F. E. Bedgood, for plaintiff in error.

      Walter C. Eartridge, solicitor-general, contra.
   Bloodworth, J.

There is no merit in any of the special grounds of the motion for a new trial; the evidence is ample to support thé finding of the jury, and the motion for a new trial was properly overruled.

Judgment affirmed.

Broyles, O. J., and Luke, J., concur.


text:
    16706.
    Kelley v. City of Macon.
    Decided November 11, 1925.
    Certiorari; from Bibb superior court—Judge Malcolm D. Jones. July 14, 1925.

      Wallace Miller, for plaintiff in error.

      Harry 8. Strozier, Grady Gillon, contra.
   Luke, J.

Upon the authority, of Scott v. City of Camilla, 7 Ga. App. 689 (67 S. E. 846), the court did not err in dismissing the certiorari, for the reason that the requirements of the statute as to the conditions of the bond were not complied with.

Judgment affirmed.

Broyles, C. J., and Bloodworth, J., concur.


text:
    16711.
    Greer v. The State.
    Decided November 11, 1925.
    Conviction of possessing intoxicating liquor; from city court of Macon—Judge Jordan. June 29, 1925.

      Earl W. Butler, for plaintiff in error.

      Boy W. Moore, solicitor, contra.
   Luke, J.

The conviction in this case is authorized by the evidence and' has the approval of the trial judge. The special assignments of error, are wholly without merit, and the court properly overruled the motion for a new trial.

Judgment affirmed.

Broyles, C. J., and Bloodworth, J., concur.


text:
    16712.
    JACKSON v. THE STATE.
    Before an alleiged affidavit can become the basis of a legal proceeding it ■ must appear that an oath was actually - administered to the affiant, or that something was done by the affiant signifying that he consciously took upon himself the obligation of an oath.
    Decided November 11, 1925.
    Bastardy; from city court of Thomasville—Judge MacIntyre. June 11, 1925.

      Titus & Delete, for plaintiff in error.

      J. Baird Edwards, solicitor, contra.
   Bloodworth, J.

Before an alleged affidavit can become the basis of a legal proceeding it must appear that an oath was actually administered to the affiant or that something' was done by the affiant “signifying that he consciously takes upon himself the obligation of an oath.” Britt v. Davis, 130 Ga. 77 (60 S. E. 180). The affiant swore: “I was not sworn by the justice of the peace, and I did not swear to the affidavit in the warrant which you hand me, against Joe Jackson. The paper was written by the justice of the peace, and he handed it to me and I signed it. I did not swear that the defendant committed the act on the 25th day of January, 1925. I was not asked to hold up my hand, and I did not make any affidavit, and I was not sworn. I did not sign any paper or affidavit except the affidavit for the warrant which you hand me. I did not make any other paper or swear to any other affidavit charging that Joe Jackson was the father of my baby. The warrant is the only paper that I have signed. I did not read the affidavit for the warrant. It was just written out by the justice of the peace and handed to me, and I signed it, and 'this is all that was done. Mrs. Wilson did most of the talking. The justice of the peace did not put me under oath and ask me who was the father of my child. I was not put under oath at all.” The justice of the peace testified: “I wrote the affidavit and she signed it for the warrant. That is the only affidavit she made. I did not put her under oath and ask her who the father of the child was. My usual custom is, when I issue a warrant, that if I think the person understands the warrant I don’t swear them to it; just have them sign it. At other times I make them hold up the hand and ask them if they swear to the contents of the affidavit. I can not say what was done in this particular case. Maggie Smith never made any affidavit before me under oath or any statement under oath upon which this warrant issued, other than the affidavit for the warrant, which was done under circumstances as already stated by me. I did not send for her. She came into my office with the persons named. The warrant for Joe Jackson is the only paper I ever issued against him at her instance on my own motion. I usually swear people to affidavits for warrants, but don’t always do it. It depends upon who they are and whether or not I think they understand the matter. I did not have her hold up her hand and administer any oath to her. I asked her if she was swearing to the contents of that affidavit. *She said, ‘Yes.’ If I did anything about it I asked her if the contents of that paper were true. That is my usual way of doing, but I don’t know whether I did in this case.” It is true that the justice of the peace swore that he asked her “if she was swearing to the contents of that affidavit,” and she said, “Yes,” but this was'but a conclusion of affiant. Moreover, it does not appear when the justice of the peace signed the jurat to the affidavit. So far as the record shows, “the officer did no present and concurring act with the affiant which showed that both understood an oath was being administered.” McCain v. Bonner, 133 Ga. 847 (51 S. E. 38).

Under the evidence we are constrained to hold that the alleged affidavit, the basis of this prosecution, was never sworn to and is void. Such an affidavit can not be made the basis of a criminal prosecution. Scroggins v. State, 55 Ga. 380 (1), 383 (1); Britt v. Davis, supra; Bertha Mineral Co. v. Buie, 37 Ga. App. 660 (1) (109 S. E. 539). As this affidavit was void, the entire proceedings were nugatory.'

Judgment reversed.

Broyles, C. J., dissents. Luke, J., concurs.


text:
    16718.
    Dorminey v. The State.
    Decided November 11, 1925.
    Conviction of carrying pistol unlawfully; from Berrien superior court—Judge Knight. June 10, 1935.

      William Story, Jeff. S. Story, Elsie H. Griner, for plaintiff in error.

      H. C. Morgan, solicitor-general, contra.
   Luke, J.

The defendant was convicted on the first count of an indictment which charged him with carrying a pistol “not in an open manner and fully exposed to view.” There was ample evidence to support the verdict, and no error of law is shown by any of the special grounds of the motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Bloodworth, J., concur.


text:
    16725.
    Head v. The State.
   Luke, J.

This case is here for review upon the general grounds of the motion for a new trial alone. The evidence demanded the conviction. It necessarily follows that the court did not commit error in overruling the motion for a new trial.

Decided November 11, 1925.

Conviction of possessing liquor; from city court of Blackshear— Judge Mitchell. July 6, 1925.

'Eldon L. Bowen, for plaintiff in error.

8. Thomas Memory, solicitor, contra.

Judgment affirmed.

Broyles, G. J., and Bloodworth, J., concur.


text:
    16737.
    Estroff v. Gillis.
    Decided November 11, 1925.
    Complaint; from city court of Soperton—Judge W. C. Hodges presiding. June 25, 1925.

      Saffold & Sharpe, Enoch J. Giles, for plaintiff in error.

      D. R. Jackson, N. L. Gillis Jr., contra.
   Luke, J.

This is the third appearance of this ease in this court. See 31 Ga. App. 501 (129 S. E. 339), and 33 Ga. App. 354 (126 S. E. 304). In the motion for a new trial error is assigned on rulings as to the admission of evidence, and on the charge of the court, and on the ground that one of the jurors was related to the plaintiff. Upon a' careful examination of the record we find no error requiring a reversal of the judgment overruling the motion for a new trial. ' The case was fairly and legally tried.

Judgment affirmed.

Broyles, G. J., and Bloodworth, J., concur.


text:
    16750.
    Wright v. The State.
    Decided November 11, 1925.
    Rehearing denied December 15, 1925.
    Conviction of attempt to commit arson; from Fulton superior court—Judge Humphries. July 15,'1925..

      George F. Fielding, for plaintiff in error.

      John A. Boykin, solicitor-general, Ralph H. Pharr, contra.
   Luke, J.

Clara Wright was indicted for the offense of arson, and convicted of an attempt to commit that offense. The evidence, though circumstantial, clearly excluded every reasonable hypothesis other than, that of her guilt. The special assignments of error are wholly without merit. The court properly overruled the motion for a new trial.

Judgment affirmed.

Broyles, G. J., and Bloodworth, J., concur.


text:
    16754.
    BRYANT v. THE STATE.
    A conviction of vagrancy under section 449 of the Penal Code (1910) is unauthorized where there is no proof that the accused was able to work.
    The evidence was not sufficient to warrant the verdict, and the trial judge erred in refusing to grant a new trial.
    Decided November 11, 1925.
    Conviction of vagrancy; from- city court of LaGrange—Judge Tuggle. July 4, 1925.

      Harry M. Breed, for plaintiff in error.

      L. L. Meadors, solicitor, contra.
   Bloodwobth, J.

The accusation alleges that the accused did “unlawfully lead an idle, immoral and profligate life, she, the said Eula Bryant, having no property to support her, being able to work but not working, and in that she did wander and stroll about in idleness, she being able to work and having no property to support •her.” Though the accusation contained but one count, it charged a violation of both the first and second paragraphs of section 449 of the Penal Code of 1910. In each of these an essential element of the offense is that the person accused shall be able to work. Without proof that the defendant is able to work a case is not made out. Such proof is as necessary as to show under the first paragraph of the section above named that the accused “wanders and strolls about in idleness,” or under the second that the accused “leads an idle, immoral or profligate life.” In Daniel v. State, 110 Ga. 915 (36 S. E. 293), Chief Justice Simmons said (p. 916): “The statute was enacted to prevent men, able to work, from idling and wandering about the community and becoming drones or thieves or charges upon the public. If a man is able to work but is idle and has no means of support, there is a great temptation to steal in order to relieve his hunger and supply his bodily necessities. It is to keep him from this temptation that the law commands him to work for his own support.” In Elders v. State, 17 Ga. App. 742 (88 S. E. 414), the headnote is as follows: “A verdict finding one guilty of vagrancy is unsupported when there is no proof that the accused was able to work, and where it is not shown that he did not have means ample for his support.”

The evidence is not sufficient to support the verdict, and the judgment must be

Reversed.

Broyles, C. J., and Lulce, J., concur.