author: B'loodworth, J.

text:
    18349.
    MOBLEY v. CITY OF MONROE et al.

    The petition as amended, by which it was sought to recover for the death of an eleven-year-old boy from contact with an electric wire on a water-tower which he was climbing, alleged to be a nuisance attractive to children, set out no cause of action, and the demurrers thereto were properly sustained.
    Electricity, 20 O. J. p. 378, n. 88.
    Negligence, 29 Cyc. p. 568, n. 96.
    Decided November 16, 1927.
    Action for damages; from Walton superior court—Judge Eortson. June 8, 1927.
    Mrs. Elizabeth Mobley sued Monroe Cotton Mills and the City of Monroe for damages because of the death of her eleven-year-old son, Roy Mobley, alleging that he met his death in the following way: About dusk, of May 22, 1926, Roy Mobley and three other children were playing in Hotel Street in the City of Monroe, Georgia, around and about a water-tank which had been erected by Monroe. Cotton Mills. In the course of their play one of the children climbed up the tank, and, after he had safely returned to the ground, Roy Mobley undertook to climb the southeast leg of the tank. After he had climbed up about twenty feet he turned to come down, and, as he turned, he happened to reach out his . left arm, and his hand or. arm came in contact with a live electric wire which was owned by the City of Monroe, and which was at a distance of two feet from this leg of the tank. As a result of coming in contact with the live wire he was precipitated to the ground, his skull was fractured, and he died immediately. The petition alleges, that this particular leg of the tank was situated in Hotel Street; that its location in that street constituted a public nuisance in so far as the traveling public was concerned; that the City of Monroe acquiesced in the continuance of this nuisance by failing to abate the same; that at the time the said tank was erected, and when measured at a point twenty feet from the ground, the leg of the tank at that point was within a distance of two feet from the live electric-light wire, which, at the time of the accident, was not insulated or protected in any way; that the water-tank and the electric-light wire in close proximity thereto were a nuisance which was attractive to children who passed along or played in Hotel Street; that no fence or enclosure was made around the tank, and the electric wire overhead was within a hand’s reach of any child that climbed as high as twenty feet up the southeast leg of the tank; that said Cotton Mills, its officers and agents, well knew from human experience the well-known habits of children to gather and play, as well as to climb objects accessible and alluring to them, even if danger were involved; that Roy Mobley, on account of his youth and tender years, naturally did not have the mental capacity, the discretion, or the experience to realize the danger that awaited him when he reached out his arm and came in contact with the live wire; that' on account of his youth he was not chargeable with negligence, and neither was the ■ plaintiff chargeable with negligence for his unfortunate death, and that the acts of negligence on the part of the defendants concurred in causing the death of her son. The plaintiff also alleged that the cotton mill “was guilty of the grossest negligence and lack of care and caution for the lives of children passing by the water-tower or gathering there, when they allowed this nuisance to continue as it did without any railing or fence around the tower and allowed the tower to stand in such dangerous proximity to the electric wire overhead;” and that “the City of Monroe, its officers and agents, were grossly negligent just the same as the cotton mills were, and further negligent and grossly so for the reason that the city took no action to abate and remove said tower as a nuisance.” She alleged- also that her son “rendered useful and valuable service in doing odd jobs about the house and home of plaintiff; that he did manual labor such as a boy of his age could do, and the earnings realized from the manual labor, outside the work around the home, were considerable and for the benefit and help of the family, including the mother, the plaintiff. These earnings from his labor in the field and elsewhere amounted at least to $100 a year for the last two years or more of his life.” The defendants filed separate demurrers, both general and special, and when the plaintiff amended her petition, the defendants not only renewed the original demurrers to the petition as amended, but also filed additional grounds of demurrer. The demurrers were sustained.

      Joseph H. Fellcer, Henry G. Tuclc, for plaintiff.

      A. M. Kelly, McDaniel & Neely, Harry L. Greene, for defendants.
   B'loodworth, J.

(After stating the foregoing facts.) The petition as amended set out no cause of action against either defendant, and the court properly sustained the demurrers and dismissed the petition. City of Rome v. Cheney, 114 Ga. 194 (39 S. E. 933, 55 L. E. A. 221); Etheredge v. Central of Ga. Ry. Co., 122 Ga. 853 (50 S. E. 1003); Brown v. Panola Light and Power Co., 137 Ga. 352; Atlantic Coast Line R. Co. v. Corbett, 150 Ga. 747, 749 (105 S. E. 358), and cit.; Seaboard Air-Line Ry. Co. v. Young, 20 Ga. App. 291 (93 S. E. 29), and cit.; Macon, Dublin & Savannah R. Co. v. Jordan, 34 Ga. App. 350, 352 (129 S. E. 443), and cit.

Judgment affirmed.

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


source: Caselaw Access Project

author: Beoyx.es, C. J.

license: Public Domain

text:
    18350.
    Scottish Union & National Insurance Co. v. Fortesque.
    Appeal and Error, 4 C. J. p. 650, n. 37.
    Fire Insurance, 26 C. J. p. 489, n. 59; p. 509, n. 52; p. 563, n. 67; p. 566, n. 81, 82.
   Beoyx.es, C. J.

1. The amendment to the petition was properly allowed, and the petition as so amended was not subject to any ground of the demurrer interposed, and the court did not err in so ruling.

2. Ground 4 of the motion for a new trial complains of the admission in evidence of certain testimony for the plaintiff, over the timely and appropriate objections of the defendant. Among the objections urged were that the testimony was not authorized by any allegations in the petition, that it sought to vary the terms of the written contract declared upon, without any allegation of fraud, accident, or mistake, and that it tended to establish a special and different contract from the one declared on. Under the facts of the case these objections should have been sustained and the testimony excluded. See, in this connection, Central Railroad Co. v. Cooper, 95 Ga. 406 (22 S. E. 549); Conyers v. Yorkshire Ins. Co., 30 Ga. App. 6 (117 S. E. 102); 26 C. J. 510, § 719. Eor the same reason the court erred in admitting the documentary evidence set forth in ground 5 of the motion for a new trial.

3. It follows from the above-stated ruling that the court erred also in charging the jury as set forth in grounds 8 to 13 inclusive.

4. The charge of the court xipon the forms of the several verdicts that could be returned was to some extent confusing, and did not clearly and plainly instruct the jury upon the questions of damages and attorney’s fees.

5. Under all the facts of the case and the law pertinent thereto, the remaining special grounds of the motion for a new trial show no error.

6. As another trial must be had because of the errors heretofore pointed out, tlie question of the sufficiency of the evidence to support the verdict is not passed upon.

Decided November 16, 1927.

Cpmplaint on fire-insurance policy; from Richmond superior court—Judge A. L. Franklin. May 31, 1927.

1. Fire destroyed on March 15, 1926, a dwelling house and other' buildings insured against fire under a policy containing the provision that “this entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void if the building herein described, whether intended for occupancy by owner or tenant, be or become vacant or unoccupied and so remain for ten days.” The policy contains also the usual provision that it is accepted subject to the stipulations and conditions set out therein or endorsed thereon, and that no representative of the company shall have power to waive any provision of the policy except such as may be the subject of agreement endorsed thereon, etc. Attached to the policy was a thirty-days “vacancy permit,” which expired March 3, 1926, and which stated that it was understood and agreed between the company and the assured that the building should be under the supervision of a competent person living on the premises during the time of non-occupancy. The original poliejdiolder’s interest in the policy was assigned in 1925 to Mrs. Fortescue (or Fortesque) as purchaser of the insured property, she having bought the property at administrator’s sale. In her suit on the policy the foregoing facts appear from the petition, and the following facts, among others, are alleged: She resided in Virginia at the times mentioned above, and the administrator of the original policyholder’s estate, from whom she bought the property and to whom she paid the unearned part of the premium on the policy, delivered the policy, without her knowledge or consent, to the insurance company’s agents who had issued it, advising them of these facts, and they, without her knowledge, issued the written transfer of the policy to her, and, at a time unknown to her, executed and attached to the policy the vacancy permit mentioned above, and retained the policy subject to the call of the administrator. It is alleged that payment of the loss was refused on the sole ground that the insured buildings were vacant at the time of the fire; and it is alleged that if they were vacant, the insurance company knew it at the time of the vacancy and the plaintiff did not know it; that, the company having negligently failed in its duty to deliver the policy, the plaintiff did not know of its terms and conditions, and no one acting for her had such knowledge; and that, by retaining the premium paid and failing to deliver the policy, the company waived the provisions known as the vacancy clause and is estopped from setting up that clause as a ground for refusing to pay. Bad faith in refusing to pay was alleged, and the statutory damages and attorney’s fees were sued for.

Judgment reversed.

Luke and Bloodworth, JJ., concur.

The defendant demurred to the petition generally, and demurred specially to the allegation that the fire occurred “while said policy was in full force and effect,” it being contended that this is a mere conclusion unsupported by properly pleaded facts. The other ground of the demurrer was directed to the allegation that “if” the buildings were vacant, etc.; and the demurrant prayed that the plaintiff be required to amend and allege plainly whether the insured property was vacant when burned, and, if so, how long. The plaintiff amended as follows: “Plaintiff denies the contention of the defendant that said premises were vacant, and calls for strict proof thereof by it.” The amendment was allowed by the court over the objection that it was indefinite and uncertain and did not constitute an affirmative allegation. The demurrer was overruled. ' ,

2. The testimony referred to in paragraph 2 of the decision was that of Paul T. Chance, who had previously testified that, as attorney representing solely the administrator of the estate of the original policyholder, and not Mrs. Fortescue, he procured the policy out of the administrator’s files and took it to the office of the defendant’s agents who had issued it. The testimony objected to was as follows: “There was a lady in the office and I told her the property was vacant, that it was a farm out there in the country, which the policy showed, and there would be no chance at that season of the year to rent the property, and to do whatever was proper and necessary in the way of putting endorsements or permits on the policy as would protect the interest of Mrs. Fortescue against the forfeiture of the policy. I would like to say that there was a definite agreement and understanding that the endorsement on that policy would be made that would protect the interest of Mrs. Fortescue. The understanding and definite agreement that I had with that young lady, who told me she was the one, or said that she was there to do that kind of work for the agent, was that she would make such endorsement on that policy as would, under the exigencies of the case, protect this lady against any. forfeiture of the policy by reason of the vacancy clause.” The parts of the charge of the court which are dealt with in paragraph 3 of the decision relate to the agreement mentioned in this testimony.

Spalding, MaoBougald & Sibley, Hull, Barrett & Willingham, for plaintiff in error.

Hammond & Kennedy, Paul T. Glumce, contra.


author: Bloodworth, J.

text:
    18352.
    SISK v. SISK et al.

    1. “An assignment of error complaining of the admission of documentary evidence over objection urged at the time it was admitted, should set forth literally or in substance the evidence objected to, or identify it as an exhibit attached to and made a part of the bill of exceptions. If it fails to do either the assignment of error will not present any question for consideration.”
    2. “Each special ground of a motion for a new trial must be complete and understandable within itself, without reference to any other part of the record. This court is not required to look beyond the ground itself to learn the facts or to ascertain error.”
    3. The court committed no error when the return of the appraisers who set aside the year’s support was allowed to go to the jury.
    4. The charge of the court is not subject to any of the attacks, either for omission or commission, made upon it.
    5. The evidence supports the verdict.
    Appeal and Error, 3 O. J. p. 1357, n. 48; p. 1370, n. 32, 33, 34.; 4 O. J. p. 864, n. 33, 34; -p. 982, n. 45.
    Executors and Administrators, 24 C. J. p. 263, n. 25, 31 New.
    New Trial, 29 Oye. p. 942, n. 95; p. 944, n. 98, 1.
    Decided November 16, 1927.
    Appeal; from Gordon superior court—Judge Pittman. May 30, 1927.

      Henson & Barnett, for plaintiff.

      Maddox, Matthews & Owens, J. G. B. Brwin, for defendants.
   Bloodworth, J.

The widow of J. W. Sisk filed an application for a jrear’s support. Appraisers were appointed and made their return. To this she filed a caveat. Upon a hearing of the issue the ordinary found in favor of the return, and she appealed to the superior court. The trial there resulted in a verdict in favor of the return of the appraisers. Mrs. Sisk then filed a motion for a new trial, and, upon this being overruled, she excepted.

The first ground of the amendment to the motion for a new trial alleges that the court erred in admitting “a copy of the income-tax return of J. W. Sisk for the years 1923 and 1924,” oyer the objection that “the original returns would be the competent evidence.” The first headnote in this case announces a well-settled rule of practice. See Jones v. Sikes, 35 Ga. App. 469 (134 S. E. 113), and cases cited; Roddenberry Hdwe. Co. v. Merritt, 17 Ga. App. 425 (2) (87 S. E. 681). The principle announced in the cases cited above disposes of this ground of the motion. Moreover, the introduction of this evidence could not have been harmful to plaintiff in error, because, without objection, two witnesses testified as to what the income of the deceased was for the years 1923 and 1924.

The second special ground of the motion alleges error because a witness was allowed to testify as to offers “for that property.” What property was referred to ? From this ground of the motion it is impossible to tell. Repeatedly this court and the Supreme Court have held that “each special ground of a motion for a new trial must be complete and understandable within itself, without reference to any other part of the record. This court is not required to look beyond the ground itself to learn the facts or to ascertain error.” Russ v. State, 35 Ga. App. 476 (133 S. E. 748), and cit. Under the principle-here announced, this ground of the motion presents nothing for consideration of this court. Moreover, “value, whether actual or as regulated by the market, is largely a matter of individual estimate or opinion, and liberality should be allowed in the introduction of testimony to prove value.” Morrow Transfer Co. v. Robinson, 8 Ga. App. 409 (69 S. E. 317). In addition, this evidence was not of such materiality as to require a new trial of the case. It related to the evidence of only one witness, and to only one piece of property, about the value of which several witnesses testified, and this property was but a small part of an estate appraised at over $59,000.

The third special ground of the motion alleges that the court erred in allowing “the report of the appraisers appointed by the court of ordinary and the judgment of the court of ordinary thereon” to go to the jury, over the objection that the trial in the superior court was a de novo investigation. It is clear that the court did not err in admitting in evidence the return of the appraisers. Robson v. Harris, 83 Ga. 153, 154 (7 S. E. 936); Young v. Anderson, 19 Ga. App. 551 (91 S. E. 900). Even should we concede that the judgment of the court of ordinary, if offered in evidence independent of the return of the appraisers, would have been inadmissible, the fact that they were offered in evidence together and the objection was to the two would not be a legal reason why the return should not be admitted. Joiner v. State, 39 Ga. App. 363 (115 S. E. 378), and cit. In Gray v. Ray, 19 Ga. App. 510 (2) (91 S. E. 901), this court held: “The report of the appraisers, which in this case had the approval of the ordinary, was prima facie correct, and the burden was upon the objector to overcome this presumption by evidence.”

In the light of the testimony- and in view of the verdict rendered, there is nothing in either of the grounds of the motion for a new trial which alleges error in the charge, or in any of those based on the refusal to charge, that requires another hearing of the case. Indeed, the charge was favorable to the plaintiff in error.

The evidence supports the verdict. Under the evidence the amount awarded the widow is ample for her support and maintenance. Her neighbors and friends thought so, the ordinary agreed with them, and so did the jury, and the judge approved the finding of the jury, and this court will not interfere with the verdict.

Judgment affirmed.

Broyles, G. J., and Imhe, J., concur.


text:
    18361.
    CRAY v. THE STATE.
    Because of the relationship of jurors to the prosecutor, as shown by the affidavits presented in support of the motion for a new trial, the trial judge should have granted a new trial.
    Criminal Law, 16 C. J. p. 1153, n. 24; p. 1156, n. 53; p. 12-26, n. 12. Juries, 35 C. J. p. 317, n. 92; p. 320, n. 24.

      The provision of the code (Civil Code of 1910, § 6086) that “if the newly discovered evidence is that of witnesses, affidavits as to their residence, associates, means of knowledge, character, and credibility must be adduced,” does not apply where the purpose of the newly discovered evidence is to show disqualification of a juror as in this case; that section of the code refers to witnesses whose evidence is to be used on the merits of the case if a new trial is had.
    Decided November 16, 1927.
    Shooting at another-; from Coffee superior court—Judge Reed. June 21, 1927.

      Ghost am & Henson, for plaintiff in error.

      A. B. Spence, solicitor-general, contra.
   Bloodworth, J.

1. “A juror in a criminal' case who is

related, by blood or marriage, within the ninth degree -to the prosecutor, ascertained according to the rules of the civil law, is a disqualified juror;, and such disqualification of a juror, unknown to the defendant or his counsel until after verdict, or which could not have been ascertained by either of them before verdict by the exercise of due diligence, is cause for a new trial. Crawley v. State, 151 Ga. 818 (108 S. E. 238, 18 A. L. R. 368); Merritt V. State, 152 Ga. 203 (110 S. E. 160).” O’Berry v. State, 153 Ga. 644 (113 S. E. 2).

2. Citing authority to support ■ his contention, counsel for the State insists that the judgment in this case should be affirmed, because there are no- affidavits supporting, the witnesses who swore to the relationship of the prosecutor to the jurors. In Davis v. State, 150 Ga. 19 (102 S. E. 445), it was held: “The word ‘witnesses/ as employed in the last paragraph of § 6086 of the Civil Code (1910), refers to witnesses whose evidence is to be used on the merits of a case if a new trial is had. But where a new trial is asked or granted on account of newly discovered evidence showing relationship within the prohibited degrees of a juror who sat in the case, and the prosecutor, the fact of relationship does not have to be proved on the second trial, and therefore the provisions of the above section of the code as to ‘supporting affidavits’ do not apply.” Under this ruling, “supporting affidavits” are not necessary in such cases as the instant one; and the ruling to the contrary in Tyre v. State, 35 Ga. App. 579 (134 S. E. 178), must yield to the ruling in the Davis case, supra.

Judgment reversed.

Broyles, G. J., and Buhe, J., concur.


author: Broyles, C. J.

text:
    18367.
    Miller v. The State.
    Criminal Law, 16 C. J. p. 764, n. 54; p. 1179, n. 67. Intoxicating Liquors, 33 C. J. p. 758, n. 80, 87.
    Decided November 16, 1927.
    Indictment for making liquor; from Carroll superior court— • Judge Maddox presiding. July 4, 1927.
    Ben Miller was convicted of attempting to make intoxicating liquor. The sheriff testified: “I went to the home of Ben Miller. . . On his 'premises we found two barrels of beer, about 50 gallons each, . . about 250 yards from his home, and we found about 75 yards from there a still furnace and flake-stand . . in the pasture of Ben Miller; about 125 yards from his-barn a still of about 50-gallon capacity. The still we found was not in the furnace; it was in some brush; . . looked like whisky had been made in it. . . The beer we found was hardly ripe for making whisky; I judge it would have been ready to run in two or three days. We found the flake-stand on the branch below where the gully run in where the beer was at, . . near the beer. . . There was travel back and forth across the field, man’s tracks running from this defendant’s house to where we found the beer. . . Ben was plowing that day. Where I saw the tracks the field was in cultivation; it hadn’t been plowed right recently. . . I can’t say who made those tracks. Ben’s wife and children lived with him. . . His daughter was living there. Mr. Burns owns that place, has possession of it, and Ben lives with him. . . In the pasture we found a still, . . an old wooden box with a-tin bottom in it. . . There was no mud in it at the time I got it; there was water in it; it looked like it had been some time since it was used, a long time. . . Found two barrels of beer in the gully, where the field runs right down to the edge of the gully. They cultivated all around it. There was brush over the beer; no thicket around there; it was an open place. That beer had been put up some time. . . That was hot weather. . . A number of people live around in that vicinity there; in the east side Mr. Borders was about the closest. The flake-stand is a box which they use to put the worm in; . . we found no worm in there. We didn’t find anything there except this box; I don’t know what that was made for; it could have been used for a pig trough. . . Ben Miller said he cultivated the field right down to where we found this beer. . . We found the cap hid back up under some pine tojis nearer the home of Ben Miller; . . the cap is what you put over the still; and we found the bumper keg. These articles were in the same gully the beer was, going east, in the direction of the defendant’s home; . . as much in the direction of Borders’ as it was Ben’s. This furnace was . . an old furnace, . . not in use at that time.” Another witness testified that the furnace looked as if it might • have been used two or three weeks before. * It was testified that a path led from the old still furnace to the defendant’s house. There was evidence that at a previous time, when the defendant was living in another locality, barrels of beer were found on the premises. The defendant introduced witnesses whose testimony contradicted parts of the State’s evidence. It was testified that another man lived and worked on the same place on which the defendant lived. The defendant, in his statement at the trial, said, that, until the sheriff found the still, he did not know anything about it; and that when the beer was found at the place where he formerly lived, he had just returned the night before from Atlanta, where he had been at work, and that he knew nothing about it.
   Broyles, C. J.

The evidence tending to connect the accused with the offense charged was wholly circumstantial, and was not sufficient to exclude every other reasonable hypothesis than that of his guilt. It follows that the refusal to grant a new trial was error.

Judgment reversed.

Luke and Bloodtoorih, JJ., concur.

Smith & Taylor, for plaintiff in error.

W. Y. Ailcinson, solicitor-general, contra.


author: Per Coriam. Luke, J.,

text:
    18368.
    INGRAM v. THE STATE.
    Criminal Law, 16 C. J. p. 120, n. 93; p. 121, n. 96; 17 C. J. p. 348, n. 85.
    Intoxicating Liquors, 33 C. J. p. 761, n. 53.
   Per Coriam.

All persons who aid and abet another in the commission of a misdemeanor are guilty as principals. The undisputed evidence in this case demands a finding that the defendant knew that the whisky was in the car which he was driving, and that he aided and abetted Right in transporting and in possessing it. As the verdict was demanded by the evidence, the alleged errors in the charge are immaterial. ,,

Decided November 16, 1927.

Possessing intoxicating liquor; from city court of Jesup—Judge J. R. Thomas. June 18, 1927.

M. Price, W. D. Turner, for plaintiff in error.

Raymond Pierce, solicitor, contra.

Judgment affirmed. Broyles, O. J., and Bloodworth, J., coneur.

Luhe, J., dissents.

Luke, J.,

dissenting. The finding of whisky in a car driven by the defendant, under the circumstances shown by the evidence, did not authorize the verdict finding him guilty of having whisky in his possession. No witness swore that the defendant possessed or controlled the whisky; the undisputed evidence showed that the car belonged to one Eight, who was in the car when the whisky was found; and the preponderance of the evidence showed that Eight possessed and controlled the whisky. While there was direct evidence as to finding the whisky, the evidence as to the defendant’s possessing and controlling it was circumstantial, and did not'exclude every reasonable hypothesis, save that of the guilt of the accused. The court therefore, in my opinion, erred in overruling the motion for a new trial. See Toney v. State, 30 Ga. App. 61 (116 S. E. 550); Murray v. State, 36 Ga. App. 90 (136 S. E. 92); Young v. State, 35 Ga. App. 193 (132 S. E. 453).


text:
    18369.
    Spell v. The State.
    Criminal Law, 16 C. J. p. 1218, n. 46, 47. Intoxicating Liquors, 33 C. J. p. 761, n. 53.
    Decided November 16, 1927.
    Possessing intoxicating liquor; from city court of Alma—Judge Tuten. March 1, 1927.

      Homer L. Causey, for plaintiff in error.

      H. L. Williams, solicitor, contra.
   Bloodworth, J.

The motion for a new trial is based on the general grounds only. We can not say that there is no evidence to support the verdict; and the judgment is

Affirmed.

Broyles, O. J., and Luhe, J., concur.


author: Broyles, O. J.

text:
    18377.
    Tyre v. The State.
    Criminal Law, 16 0. J. p. 1149, n. 91.
    Homicide, 30 C. J. p. 316, n. 68; p. 417, n. 88.
    Decided November 16, 1927.
    Manslaughter; from Wayne superior court—Judge J. H. Thomas. July 2, 1927.
    Application for certiorari was made to the Supreme Court.

      W. B. Turner, M. Price, for plaintiff in error.

      W. B. Gills, solicitor-general, J. B. Thomas & Son, contra.
   Broyles, O. J.

1. Under the principle of the ruling in Eidson v. State, 21 Ga. App. 244, the alleged error in the charge of the court, complained of in ground 1 of the amendment to the motion for a new trial, does not require a new trial.

2. Under the facts of the ease the failure of the court to instruct the jury upon the law of involuntary manslaughter was not error.

3. The verdict was amply authorized by the evidence.

Judgment affirmed.

Luke and Bloockvorih, JJ., concur.


author: . Bloodworth, J.

text:
    18383.
    EVERSON v. THE STATE.
    The verdict is not without evidence to support it.
    Criminal Law, 16 C. J. p. 1119, n. 34; 17 C. J. p. 248, n. 3; p. 252, n. 16; p. 271, n. 41.
    Larceny, 36 C. J. p. 899, n. 34.
    Decided November 16, 1927.
    Larceny of hogs; from Worth superior court—Judge Eve. June 27, 1-927.

      B. B. Williamson, for plaintiff in error.

      B. S. Boy, solicitor-general, contra.
   . Bloodworth, J.

The verdict has the approval of the trial judge, and we can not say that there is no evidence to support it. In Rogers v. State, 101 Ga. 561 (28 S. E. 978), Justice Cobb said: “Applications for new trials on the ground that the verdict of the jury is contrary to evidence are addressed to a sound legal discretion to be exercised by the trial judges. When this discretion has been exercised .and the motion for a new trial overruled, this court will not interfere when there is any evidence which would justify the jury in reaching the conclusion which is set forth in the verdict. While in many cases we would probably not have rendered the verdict returned, and, if we were authorized to pass upon the case as on appeal,' wnuld render here a different judgment, still under the established practice of this court as required by the law of the State, we can not overrule a trial judge, who, fresh from the atmosphere of the trial, sends to us a record in which he endorses the finding of the jury which tried the case in his presence. This is true even in cases where the evidence might be described as weak, unsatisfactory, and doubtful. The wisdom and discretion of the trial judge is sufficient for us to endorse his judgment in cases of this character.”

Judgment affirmed.

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


author: Brotles, C. J.

text:
    18389.
    Deen v. The State.
    Bastards, 7 O. J. p. 995, n. 58. Criminal Law, 16 C. J. p. 1221, n. 19, 20.
    Decided November 16, 1927.
    Bastardy; from city court of Alma—Judge Tuten. January 31, 1927.
    I. J. Bussell, for plaintiff in error.

      G. A. Williams, solicitor, contra.
   Brotles, C. J.

1. Where a ground of a motion for a new trial is predicated upon alleged newly discovered evidence, the failure of the movant to obtain that evidence before the trial does» not furnish ground for a new trial, where the affidavits of the movant and his counsel merely recite “in general terms that they, did not know of such evidence before the trial of the ease, and could not, by the exercise of ordinary diligence, have discovered it, without any reason being- shown why it could not have been discovered.” Roy v. State, 140 Ga. 223 (2) (78 S. E. 846); Taylor v. State, 132 Ga. 235 (3), 237 (63 S. E. 1116). Under the above-stated ruling and the facts of the instant case the court did not err in overruling the grounds of the amendment to the motion for a new trial.

2. The verdict was amply authorized by the evidence.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    18391.
    White v. The State.
    Criminal Law, 16 C. J. p. 1217, n. 45; p. 1218, n. 46, 47.
    Intoxicating Liquors, 33 C. J. p. 761, n. 53.
    Decided November 16, 1927.
    Possessing intoxicating liquor; from city court of Alma—Judge Tuten. January 31, 1927.
    J. J. Bussell, for plaintiff in error.

      C. A. Williams, solicitor, contra.
   Bloodworth, J.

-There are no special grounds of the motion for a new trial, and the evidence supports the finding of the jury.-

Judgment affirmed.

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


text:
    18395.
    Underwood v. The State.
    Criminal Law, 16 C. J. p. 1180, n. 74.
    Intoxicating Liquors, 33 C. J. p. 758, n. 80.
    Decided November 16, 1927.
    Making intoxicating liquor; from Sumter superior court—Judge Littlejohn. June 27, 1927.

      W. T. Lane, Zach Childers, for'plaintiff in error.

      Jule Felton, solicitor-general, contra.
   Broyles, C. J.

The verdict was amply authorized, if not demanded, hy the evidence, and no error of law upon the trial is complained of. The court properly refused to grant a new trial.

Judgment affirmed.

Luke and Blood/worth, JJ., concur.


author: Bloodwobtii, J.

text:
    18409.
    Aspinwall v. The State.
    Criminal Law, 16 C. J. p. 1180, n. 74.
    Intoxicating Liquors, 33 C. J. p/758, n. 80.
    Decided November 16, 1927.
    Making intoxicating liquor; from Wayne superior court—Judge J. H. Thomas. July 16, 1927.

      Tara A. Majeite, for plaintiff in error.

      W. B. Cibbs, solicitor-general, contra.
   Bloodwobtii, J.

There is no merit in either of the special grounds of the motion for a new trial. The evidence abundantly supports the verdict, and the motion for a new trial was properly overruled.

Judgment ajjh'med.

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


text:
    18410.
    Bryant v. The State.
    Homicide, 30 O. J. p. 316, n. 68; p. 368, n. 12, 19; p. 406, n. 17; p. 408, n. 30.
    Decided November 16, 1927.
    Manslaughter; from Appling superior court—Judge Strange presiding. June 23, 1927.
    Application for certiorari was made to the Supreme Court.

      J. B. Moore, J. P. Highsmilh, for plaintiff in error.

      W. B. Gibbs, solicilor-general, contra.
   Broyles, C. J.

1. Under the facts of the case as disclosed by the record, the instructions of the court upon the law of voluntary manslaughter and conspiracy were' authorized, and were not erroneous for any reason assigned.

2. The theory that the accused shot and killed the deceased in defense of his (the accused’s) son was raised solely by the statement of the accused to the jury, and, in the absence of a timely and appropriate written request, the failure of the court to instruct the jury that if they found that the deceased was killed by the defendant in defense of his son the killing would be justifiable was not error.

3. The other grounds of the amendment to the motion for a new trial show no cause for a reversal of the judgment below.

4. The verdict was amply authorized by the evidence.

Judgment affirmed.

Luke and Blood-worth, JJ., concur.


text:
    18419.
    Eason v. The State.
    Assault and Battery, 5 C. J. p. 788, n. 2.
    Criminal Law, 16 C. J. p. 1122, n. 65, 70.
    Decided November 16, 1927.
    Assault and battery; from city court of Blackshear—Judge Bowen. July 16, 1927.

      A. J. Tuten, Homer L. Causey, for plaintiff in error.

      8. Thomas Memory, solicitor, contra.
   Bloodworth, J.

There is nothing in the motion for a new trial that requires a retrial of the case. Granting that there were irregularities in the proceedings, they were not of such a character as to demand a reversal of the judgment, especially as the evidence demanded the verdict.

Judgment affirmed.

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


text:
    18426.
    Rogers v. The State.
    Arson, 5 C. J. p. 580, n. 16.
    Criminal Law, 16 C. J. p. 1217, n. 45; p. 1218, n. 46, 47.,
    Decided November 16, 1927.
    Arson; from Hall superior court—Judge I. H. Sutton. July 21, 1927.

      W. N. Oliver, for plaintiff in error.

      Robert McMillan, solicitor-general, contra.
   Broyles, C. J.

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

Judgment affirmed.

LuJce and Bloodworlh, JJ., concur.


text:
    18428.
    Welch v. The State.
    Criminal Law, 16 C. J. p. 1045, n. 39; p. 1061, n. 61; p. 1066, n. 89; 17 C. J. p. 256, n. 62; p. 271, n. 41.
    Weapons, 40 Cyc. p. 861, n. 82.
    Decided November 16, 1927.
    Carrying pistol unlawfully; from city court of Newnan—Judge Stallings. August 8, 1927.

      S. E. Dyer, for plaintiff in error.

      Stanford Arnold, solicitor, contra.
   Bloodworth, J.

1. The court did not err in refusing to charge the jury as requested by counsel for the defendant. The request was not in writing and was not adjusted to the facts, ndr did it contain a correct jiroposition of law.

2. There is some evidence to support the verdict; .and “whenever there is any evidence, however slight, to support a verdict which has been approved by the trial judge, this court is absolutely without authority to control the judgment of the trial court.” Bradham v. State, 21 Ga. App. 510 (94 S. E. 618).

Judgment affirmed.

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


text:
    18433.
    Thomas v. The State.
    Criminal Law, 16 C. J. p. 1122, n. 70.
    Drunkards, 19 O. J. p. 802, n. 17.
   Broyles, C. J.

The verdict was amply authorized by the evidence, and the single ground of the amendment to the motion for a new trial was without merit. The refusal to grant a new trial was not error.

Decided November 16, 1927.

Drunkenness on highway; from Fannin superior court—Judge Pomeroy presiding. July 2, 1927.

John T. Dorsey, John G. Bell, for plaintiff in error.

George D. Anderson, solicitor-general, contra.

Judgment affirmed,.

Luke and Bloodioorth, JJ., concur.


author: Bloodworti-i, J.

text:
    18448.
    CLARK v. THE STATE.
    In view of the charge of the court as to corroboration of the testimony of an accomplice, the omission of a part of the requested instruction on that subject was not error.
    Independently of the evidence of the accomplice, who testified as to the making of whisky by the accused, there were corroborating circumstances which tended to connect the accused with the act charged; and the sufficiency of the corroboration was a matter entirely for determination by the jury.
    Criminal Law, 16 C. J. p. 928, n. 81; p. 1049, n. 82; p. 1063, n. 85; p. 1067, n. 97.
    Intoxicating Liquors, 33 C. J. p. 758, n. 80; p. 777, n. 58; p. 786, n. 48.
    Decided November 16, 1927.
    Making intoxicating liquor; from Walker superior court—Judge Maddox. August 13, 1927.

      M. B. Kubanhs, for plaintiff in error.

      J. F. Kelly, solicitor-general, M. Neil Andrews, contra.
   Bloodworti-i, J.

1. The motion for a new trial alleges that the court erred in refusing a written request to charge as follows; “Before the jury would be authorized to convict on the testimony of ,an accomplice, the proven facts or circumstances in evidence relied on to corroborate the testimony of the accomplice must of itself, independently of the testimony of the accomplice, tend directly to connect the defendant with the particular criminal act charged and for which he is on trial. It is not sufficient merely to connect him with the accomplice; the evidence, to be sufficient to corroborate the accomplice, must tend directly and independently -[to] connect the defendant with the crime.”' The court gave all of the requested charge except that portion which begins with the words, “It is not sufficient.” When the entire charge is considered, it will be seen that the failure to give the omitted portion of the requested charge was not error.

2. The accomplice swore positively that he and the defendant and a third person, about the date named in the indictment, were engaged in making whisky. There were some corroborating circumstances, independent of the evidence of the accomplice, which tended to connect the accused with the guilty act, and the sufficiency of the corroboration was a matter entirely for determination by the jury; and this court will not disturb the judgment of the trial judge overruling the motion for a new trial.

Judgment affirmed.

Broyles, G. J., and Lulce, J., concur.


text:
    18449.
    Strickland v. The State.
    Criminal Law, 16 C. J. p. 1178, n. 63; 17 C. J. p. 203, n. 85, 87.
    Drunkards, 19 C. J. p. 797, n. 31, 32; p. 798, n. 33; p. 802, n. 17.
    Decided November 16, 1927.
    Drunkenness at public assembly; from city court of Cairo— Judge J. Q. Smith. August 22, 1927.

      M. L. Ledford, G. A. Worthy, for plaintiff in error.

      Jeff A. Pope, solicitor, contra.
   Broyles, O. J.

1. The accused was convicted*of being in an intoxicated condition “at a certain place of public gathering and assembly, to wit, the filling-station and store of Gleve Thomas in Calvary, Georgia.” Under the evidence adduced the jury were not authorized to find that the filling-station and store in question was a place of public gathering or assembly within the meaning of the statute. It follows that the defendant’s conviction was unauthorized, and the court erred in refusing the grant of a new trial. »

2. The above-stated ruling being controlling in the case, the other assignments of error are not passed upon.

Judgment reversed.

Luke cmd Blood-worth, JJ., coneur.


text:
    18451.
    LAND et al. v. THE STATE.
    1. The excerpts from the charge of which complaint is made in grounds 1 and 2 of the amendment to the motion for a new trial contain each a statement that could well have been left out of the instructions, but neither of these statements, when considered in connection with the remainder of the charge, is of such materiality as would likely influence the jury to render a verdict different from that which they would have returned had these statements not have occurred in the charge.

      Burglary, 9 C. J. p. 1075, n. 13. Criminal Law, 16 C.'J. p. 981, n. 95, 96; p. 985, n. 48; p. 1056, n. 20; p. 1057, n. 21; p. 1122, n. 67, 68; p. 1.149, n. 91, 92; p. 1150, n. 93, 97; p. 1221, n. 25; p. 1222, n. 28.

      2. The court did not err in instructing the jury as follows: “The State insists that, after the commission of the alleged crime, the defendants, or some of them, fled, and that this is a circumstance indicating guilt. I charge you that flight, if shown, imexplained to the reasonable satisfaction of the jury, is a circumstance for their consideration in determining the question of the guilt or innocence of the defendants.'’ This is a correct abstract proposition of law, and if counsel for the defendants wished a concrete application of the principle to any one of the defendants who had not fled, he should have asked it by a proper written request. However, the jury, as practical, commonsense men, would not have applied these instructions to those who had not fled.
    3. After having correctly charged on the weight to be given to the evidence as to the good character of the defendants, the court did not err in adding, “However, if you should believe the accused guilty from the evidence beyond a reasonable doubt, it would be your duty to convict, notwithstanding evidence of good character.” Jeffers v. Stale, 145 Ga. 74 (2) (88 S. E. 571) ; Sathcoek v. State, 88 Ga. 91 (11) (13 S. E. 959); Thornlon v. Slate, 107 Ga. 683 (4) (33 S. E. 673).
    4. The 5th ground of the amendment to the motion for a new trial is not unqualifiedly approved by the trial judge, and this court can not consider it.
    5. This court can not say there is no evidence to support the verdict.
    Decided November 16, 1927.
    Burglary; from Catoosa superior court—Judge Pittman. August 22, 1927. ' ■

      W. E. Mann, W. Gordon Mann, for plaintiffs in error.

      John 0. Mitchell, solicitor-general, contra.
   Bloodworth, J.

We will discuss the 4th headnote only. The fifth special ground of the motion for a new trial alleges error “because the court erred in allowing the jury trying these movants to disperse and separate during the dinner hour and progress of the trial without the consent of the movants or their attorney, Gordon Mann, who was the sole attorney representing them at the trial, and which was not known to movants or their attorney until after the rendition of the verdict in this case.” In a note by the judge as to this ground he says: “Movants and their attorney, Gordon Mann, were present when the jury dispersed; they made no objection thereto, either at the time or at any time thereafter, during which the jury-was excused in their hearing and in thei: presence.” Grounds of a motion for a new trial must be unqualifiedly approved as true by the trial judge. Goolsby v. State, 35 Ga. App. 167 (2-a) (132 S. E. 245); Mitchell v. State, 152 Ga. 375 (3) (109 S. E. 357); Jordan v. State, 153 Ga. 167 (2) (111 S. E. 417). In McLean v. Mann, 148 Ga. 114 (95 S. E. 985), Mr. Justice George said: “If the judge approved the ground of the amendment without more this is a sufficient approval; but an express approval with certain added qualifications is not an unqualified approval of a ground as true.” Several cases are cited to support this proposition. See also Collier v. Moore, 31 Ga. App. 227 (a), 229 (120 S. E. 441), and citations. In referring to approvals such as are referred to in the foregoing decisions, in the case of Mims v. Mims, 151 Ga. 330 (6) (106 S. E. 279), the Supreme Court says: “This character of entry does not fall within section 3 of the act of August 21, 1911 (Acts 1911, p. 149). Here there was not a mere failure to approve the grounds of the .motion, as provided for in the act of 1911, but an entry which amounted to a disapproval of them as set out in the motion for a new trial.” Landrum, v. Landrum, 145 Ga. 307 (2-b) (89 S. E. 201). Where there is a conflict between the allegations in a ground of a motion for a new trial and a statement made by the judge in approving this ground “the qualifying certificate of the judge settles .the dispute as to what really occurred and from his statement results a disapproval of, that ground of the motion.” Coart v. State, 156 Ga. 536 (4-a) (119 S. E. 723); Brice v. State, 117 Ga. 466 (1).

binder the foregoing rulings the note of the judge attached to this ground of the motion for a new trial does not amount to an unqualified approval of this ground as true, and this court can not consider it.

It appearing from the record that plaintiffs in error Carl Stephenson and Glenn Stephenson escaped from the custody of the proper officers on September 20, 1927, after the bill of exceptions in this case was certified by the trial judge; and it further appearing that this court on October 3, 1927, issued a rule nisi returnable November 14, 1927, allowing these defendants until said date to surrender and furnish evidence thereof by filing the same in the office of the clerk of this court; and it further appearing that said plaintiffs in error did not within the time limit fixed by the order of this court on October 3, 1927, surrender themselves to the proper officers, so as to be subject to the jurisdiction of this court, and furnish evidence thereof by filing the same in the clerk’s office; and it further appearing that no evidence of their surrender or recapture has been furnished to this court, it is therefore considered, ordered, and adjudged that the writ of error, so far as it relates to Carl Stephenson and Glenn Stephenson, be dismissed, and the judgment of the court below as to them stands affirmed.

The record, so far as it relates to Frank Stephenson and Ed Land, shows no cause for a reversal, and the judge of the trial court as to them is

Affirmed.

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


text:
    18452.
    Dwight v. City of Dalton.
    Criminal Law, 16 C. J. p. 1361, n. 95, 96; p. 1364, n. 38; 17 C. J. p. 190, n. 8 New; p. 193, n. 78.
    Motor Yehieles, 42 C. J. p. 1314, n. 5.
    Decided November 16, 1927.
    Petition for certiorari; from Whitfield superior court—judge Pittman. August 4, 1927.

      William B. & Gordon Mann, for plaintiff in error.

      Oliver B. Hardin, contra.
   Broyles, C. J.

1. The motion to dismiss the bill of exceptions is denied. The failure of counsel for the plaintiff in error to comply with the rules of this court as to the service of briefs upon counsel for the defendant in error is not ground for a dismissal of the writ of error.

2. The accused was convicted in the recorder’s court of Dalton of violating a certain ordinance of the city. We can not say that his conviction was unauthorized by any evidence. The punishment prescribed by the ordinance was a fine of not more than fifty dollars or a sentence of not more than twenty days upon the streets. The recorder imposed a fine of twenty-five dollars and costs, and, as part of Ms sentence, forbade the accused to drive an automobile wMle the recorder held his office or for the balance of the year. It is obvious that the latter . part of the sentence (the part in italics) was unauthorized and illegal. The judge of the superior court erred in refusing to sanction the petition for certiorari.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


author: Bloodwoeth, J.

text:
    18456.
    Kent v. The State.
    Criminal Law, 16 C. J. p. 1217, n. 45; p. 1218, n. 46, 47.
    Intoxicating Liquors, 33 C. J. p. 761, n. 53.
    Decided November 16, 1927.
    Possessing intoxicating liquor; from city court of Millen—Judge Woodrum. July 26, 1927.

      Jaénes A. Dixon, for plaintiff in error.

      3. G. Weathers, solicitor, contra.
   Bloodwoeth, J.

The evidence is sufficient to support the verdict; and the motion for a new trial, based on the general grounds only, was properly overruled.

Judgment affirmed.

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


text:
    18460.
    Irvin v. The State.
    Criminal Law, 16 C. J. p. 1217, n. 45; p. 1218, n. 46, 47.
    Intoxicating Liquors, 33 C. J. p. 758, n. 80.
    Decided November 16, 1927.
    Making intoxicating liquor; from Marion superior court—Judge McLaughlin. July 30, 1927.

      W. B. Short, W. D. Crawford, for plaintiff in error.

      W. B. Flournoy, solicitor-general, contra.
   Broyles, C. 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 Bloodworth, JJ., concur.


text:
    18467.
    Stewart et al. v. The State.
    Affidavits, 2 C. J. p. 355, n. 19.
    Criminal Law, 16 C. J. p. 580, n. 6; p. 931, n. 5; p. 958, n. 21; p. 965, n. 47 New; 17 C. J. p. 69, n. 38; p. 70, n. 43; p. 89, n. 63; p. 317, n. 10.
    Larceny, 36 C. J. p. 932, n. 84.
    Perjury, 30 Cyc. p. 1405, n. 32.
    Witnesses, 40 Cyc. p. 2443, n. 46; p. 2555, n. 42; p. 2649, n. 71.
   Bloodworth, J.

1. Eor no reason assigned is the evidence to which objection was made in the first special ground of the motion for a new trial inadmissible. Moreover, this evidence is not of such materiality as to require a reversal of the judgment. Clare v. Drexler, 152 Ga. 420 (4) (110 S. E. 176).

2. Certain evidence was allowed to go to the jury to which the only objection then urged (and no other can be considered by this court: Phillips v. State, 102 Ga. 594, 27 S. E. 699; Milliken v. State, 34 Ga. App. 596, 597, 130 S. E. 347, and eit.), was that “the witness could not testify to the best of his- knowledge and belief.” “To swear that one. believes a thing to be true is equivalent to swearing that it is true, and perjury may be assigned on such affidavit.” Herring v. State, 119 Ga. 709, 717 (46 S. E. 876); Davis v. State, 7 Ga. App. 680 (4), 685 (67 S. E. 839). Where a statute which provides for the making®1 of an affidavit requires the facts to be positively stated, an affidavit based upon knowledge and belief can not be received. Such affidavits are those required in garnishment cases, cases of ne exeat, illegality, non est factum, and attachment. There is no such law or rule of practice applicable to the evidence of a witness testifying on the stand.

3. Error is alleged in that certain evidence relative to a settlement of the prosecution was allowed to go to the jury. The only objection urged at the trial to this evidence was that it “was illegal, irrelevant, and prejudicial to the defendant.” These objections are too general to present anything for consideration by this^court. Hayes v. State, 36 Ga. App. 668(e), 669 (137 S. E. 860). Where, in a motion for a new trial, certain reasons are urged why evidence should not have been admitted, and it does not appear that these objections were urged at the trial and passed upon by the judge, no question is raised for determination by this court. Butts v. State, 118 Ga. 750 (45 S. E. 593); Duke v. Ayers, 163 Ga. 444 (1), 452 and cit.

4. “Until the adverse party attacks the credibility of a witness, either for bad character or because of contradictory statements, the party calling him can not introduce evidence' in support of his character for veracity.” Anderson v. Southern Ry. Co., 107 Ga. 500 (33 S. E. 644). The principle here announced disposes of the 4th ground of the amendment to the motion for a new trial.

5. A witness who had testified to the good character of one of the defendants was asked on cross-examination, “What do you think about a man’s character that would help kill another man’s hog, and help cover up the blood, and then help carry the hog to a negro’s house, and butcher the hog in the negro house, and receive for his services a shoulder of meat? What do you think about a man’s character who would do a thing like that?” Over the objection of counsel for the defendant, the witness was allowed to answer the question, and said: “Well, if he were to do what you outlined, I would say he was dishonest.” There was some evidence to support the statements incorporated in the foregoing question, and therefore the answer was properly allowed in evidence. Moreover, the only objection to this evidence urged at the trial was that it was “irrelevant and prejudicial to the defendants.” See paragraph 3 above.

6. In charging the jury On the statement of the defendant the judge 'told the jury that “they may believe it in preference to the sworn testimony in the case, and acquit the defendant if they believe it to be the truth of the case.” It is insisted that the words, “if they believe it to be the truth of the ease,” constituted an expression of opinion by the court against the defendant. There is no merit in this contention.

Decided November 16, 1927.

Larceny of hogs; from Laurens superior court—Judge Camp. September 3, 1927.

E. L. Stephens, T. E. Hightower, for plaintiff in error.

Fred Kea, solicitor-general, contra.

7. The court did not err either in leaving to the jury to decide whether the evidence showed a conspirácy, or in leaving to them to determine whether a confession had been made; and neither the charge on conspiracy nor the charge on confessions was subject to the criticism urged against it.

8. In charging on the good character of the defendant, it was not error for the judge to tell the jury that “in criminal cases the defendant is allowed, if he sees fit, to offer evidence as to his general good character.”

9. The motion for a new trial complains that the judge failed to charge certain contentions of the defendant. In Faison v. State, 13 Ga. App. 180 (79 S. E. 39), it' was held: “While it is the duty of a judge in the trial of a criminal case to state the contentions of both the State and the defendant, still, in the absence of a request for more definite instructions, a statement by the court that the grand jury has returned an indictment against the defendant, charging him with the offense of murder, and to this the defendant has filed a plea of not guilty, which makes the issue for them to try, sufficiently presents the issue.” The principle announced in this ruling was followed in ’Wilensky v. State, 15 Ga. App. 360 (2) (83 S. E. 276); Quinn v. State, 22 Ga. App. 632 (7), 635 (97 S. E. 84); Parks v. State, 24 Ga. App. 243 (100 S. E. 724). The ruling in these cases disposes of this ground of the motion for a new trial adversely to the contention of plaintiff in error. See also Williams v. State, 120 Ga. 870 (48 S. E. 368); Southern Cotton Oil Co. v. Thomas, 155 Ga. 99 (4) (117 S. E. 456). Counsel for plaintiff in error insisted that the judge erred in not giving in charge the contention of the defendant that the hog alleged to have been stolen was taken under a fair claim of right. Had the’ defendant who first made this contention “stood by his guns,” the judge might have given in charge to the jury this principle, but the defendant “changed front,” and, according to the evidence, “confessed everything,” admitted that he had killed the hog of the prosecutor, gave a portion of the meat found in his house to the prosecutor, and offered to settle the case. Under such evidence the judge was not called upon to charge the contention that the hog was taken under a fair claim of right.

10. There is evidence to support the verdict.

Judgment affvrmed.

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


author: Stephens, J.

text:
    17126.
    Engle v. Finch.
    Death, 17 C. J. p. 1314, n. 74.
    Motor Vehicles, 42 C. J. p. 1177, n. 94; p. 1226, n. 82, 87 New; p. 1284, n. 48.
    'Witnesses, 40 Cyc. p. 2762, n. 5.
   Stephens, J.

1. As held by the Supreme Court in answer to a certified question in this case (165 Ga. 131, 139 S. E. 868), “a wife, when suing for the homicide of her husband, under section 4425 of the Civil Code (1910), can not recover, in addition to a sum representing the full value of the husband’s life, a sum for punitive and exemplary damages, as provided in section 4503 of the Civil Code (1910), although the evidence authorizes an inference that the homicide of the husband was proximately caused by the wilful or wanton act of the defendant.” In a suit by the wife to recover for the homicide of her husband, where the evidence authorized the inference that the husband was killed as a result of the wilful and wanton conduct of the defendant, it was error for the trial judge to charge that if the jury believed that the conduct of the defendant in causing the injury which resulted in the husband’s death was gross negligence or wilful, reckless or wanton, the jury would be authorized to add to the sum ascertained as the value of the life of the husband a sum as exemplary or punitive damages for the purpose of deterring the wrong-doer from repeating the trespass or wrong.

2. In a suit for damages for the homicide of the plaintiff’s husband, where it is alleged that the deceased, when traveling as a passenger in an automobile, came to his death as a result of its being wrecked by the negligence of the defendant, who was the driver, in running into two poles on the side of the highway while operating the automobile at a rate of speed in excess of thirty miles an hour, and where the evidence authorizes the inference that the automobile was proceeding along the highway toward a bridge at a rate of speed in excess of ten miles an hour, and that when it was wrecked it was about three hundred and six feet from the bridge, a charge of the court that if the defendant was operating the automobile at a rate of speed in excess of ten miles an hour as he approached a bridge, this would constitute negligence per se but not necessarily gross negligence, was applicable to the issues presented by the evidence, and was not error.

3. Where an automobile is wrecked by the negligence of the driver, and another person riding therein at the time is killed as a result of such negligence, but where the person killed had no control over the movements of the driver in operating the automobile, the driver’s negligence is not imputable to him. Fuller v. Mills, 36 Ga. App. 357 (136 S. E. 807).

4. A witness may testify as to his estimate of the speed at which an automobile was traveling upon a particular occasion, although he may have testified that at the time when the automobile was making that speed he made no estimate of it. Such evidence is not rendered inadmissible by the fact that the witness had just previously testified that he could not say how fast the automobile was running, as he did not see it until after it liad crashed into the poles. That these two statements may be conflicting does not render either inadmissible, but this fact may be considered by the jury as going to the credit of the witness, and the jury may give to the testimony of the witness such weight as they see fit.' Besides, the witness may, from hearing the noise which the automobile made while in motion and from hearing the impact when it collided with the poles and from observing its condition after it had been wrecked, form an estimate of the speed at which the automobile was traveling, although the witness did not see the automobile. A witness is presumed to speak from his knowledge, in the absence of anything to the contrary.

Decided November 17, 1927.

Damages; from city court of Atlanta—Judge Reid. November 21, 1925.

Brcmch & Howard, for plaintiff in error.

Alston, Alston, Foster & Moise, contra.

5. Testimony by a witness that several days after the wreck of the automobile he estimated how fast it was traveling and judged that it was traveling at a certain speed, as above indicated, was not inadmissible upon the ground that the attention of the witness was not attracted to the automobile until it crashed into the poles.

Judgment reversed.

Jenlcms, P. J., cmd Bell, J., concur.


text:
    17907.
    Butler v. Georgia Agricultural Credit Corporation et al.

    Appeal and Error, 4 O. J. p. 1129, n. 58. Continuance, 13 C. J. p. 140, n. 41; p. 144, n. 93 New. New Trial, 29 Cyc. p. 762, n. 10.
    Decided November 17, 1927.
   Stephens, J.

1. Upon the hearing of a motion for a continuance based both upon the absence of a party and the absence of his counsel, whore it nowhere appears that counsel can not safely go to trial without the presence of the absent party, or that the party seeking the continuance expects his counsel’s services at the next term of court, the showing is incomplete and presents no cause for a continuance. Civil Code (1910), §§ 5717, 5718.

2. The dismissal of a plea can not be a ground for a motion for a new trial. Tompkins v. American Land Co., 139 Ga. 377 (2) (77 S. E. 623).

3. The only assignment of error in the bill of exceptions being to the overruling of the defendant’s motion for a new trial, and the only grounds of the motion for a new trial being exceptions to the overruling of the defendant’s motion for a continuance and to the dismissal of the defendant’s plea, the judgment overruling the motion for a new trial is, under the above rulings, affirmed.

Judgment affirmed.

Jenkins, P. J., and Bell, J., concur.

Complaint; from city court of Dublin—L. L. Porter, judge pro hae vice. January 8, 1927.

William B. Kent, for plaintiff in error.

J. B. Green, A. N. Silas, contra.


text:
    17946.
    Osborn, administratrix, v. Cleveland Hardware Company.
    Appeal and Error, 4 C. J. p. 305, n. 26; p. 570, n. 91.
    Decided November 17, 1927.
    Garnishment; from city court of Hall county—Judge Sloan. January 1, 1927.

      W. N. Oliver, for plaintiff in error. A. G. Wheeler, contra.
   Stephens, J.

1. Where an affidavit appears upon its face to have been executed on January 31, 1927, after the certification of a bill of exceptions on January 14, 1927, and the affidavit recites indefinitely that after the certification of the bill of exceptions the deponent delivered a copy of it to a named attorney (who, it appears from the record, was counsel for the opposite party in the trial court), and that that attorney signed an acknowledgment of service and a waiver of further notice or service, and where there is nothing in the affidavit to indicate the dates of these transactions, except that they occurred between the date of the certification of the bill of exceptions and the date of the execution of the affidavit, the affidavit is insufficient to show that service of the bill of exceptions was perfected within ten days after the date of its certification, as required under section 6160 of the Civil Code (1910).

2. Where such affidavit constitutes the only evidence of service of the bill of exceptions, and where counsel for the defendant in error does not waive or acknowledge service of the bill of exceptions, or consent for the case to be heard in this court, the motion of counsel for the defendant in error, to dismiss the bill of exceptions for want of service, must be sustained. .

Writ of error dismissed.

Jenkins, P. J., and Bell, J., concur.


author: Jenkins, P. J.

text:
    18029.
    Tisinger v. Ellerbee.
    Boundaries, 9 C. J. p. 251, n. 79 New.
   Jenkins, P. J.

1. While, under the provisions of section 3818 et seq. of the Civil Code of 1910, it is the duty of processioners, upon proper application, to “appoint a day when a majority of them, with the county surveyor, will trace and mark the said lines,” when there is no county surveyor the processioners may, under the provisions of section 603 of the Oivil Code of 1910, specially engage any competent person, a citizen of the county, to perforin his duties, provided such person is first sworn to “do the same skillfully, faithfully, and impartially, to the best of his knowledge; or, in default of such person, the county surveyor of an adjoining county may officiate.”

Decided November 17, 1927.

Processioning; from Upson superior court—Judge Searcy. February 15, 1927.

W. M. Dallas, for plaintiff. J. B. Davis, ior defendant.

2. In the inátant case, it appearing that the person appointed to perform the duties of the county surveyor (there being no county surveyor) was specially required to do so by the processioners, and that before entering upon the performance of such duties he took the oatli provided by the code section last quoted, it was error to dismiss the return of the processioners upon the ground that it was void because the duties of surveyor were performed by that person.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    18035.
    Gibson v. Motor Finance Company.
    Appeal and Error, 3 C. J. p. 552, n. 35 New.
    Decided November 17, 1927.
    Foreclosure, etc.; from Jackson superior court—Judge Stark. March 5, 1927. '

      G. W. Westmoreland, for plaintiff in error. Boyd Sloan, contra.
   Jenkins, P. J.

The judgment of the court below, directing the sale of certain personalty levied upon under foreclosure proceedings unless the defendant execute a condemnation money bond therefor, is not such a final .judgment as may be reviewed by writ of error. Jones v. Martens-Turner Co., 106 Ga. 267 (32 S. E. 137) ; Luke v. Gilley, 18 Ga. App. 327 (89 S. E. 343). Accordingly, the motion to dismiss the writ of error must prevail.

Writ of error dismissed.

Stephens and Bell, JJ., concur.


text:
    18045.
    Legg, trustee, et al. v. Spratlin.
    Garnishment, 28 G. J. p. 254, n. 46; p. 261, n. 16.
   Jenkins, P. J.

1. “The service of a summons of garnishment shall in all cases operate as a lien on all the garnishee’s indebtedness at the date of the service and also on all future indebtedness accruing up to the date of the answer, and such lien shall not be defeated by any payments by the garnishee or overdrafts by the defendant or other arrangements between the defendant and the garnishee.” Civil Code (1910), § 5273. Thus, after the garnishment lien has attached by the service of the summons, the garnishee will not be permitted to divest the lien in favor of the plaintiff by entering upon any sort of contract with the defendant whereby it is sought to divert the obligation from the defendant to another. This ruling is not in conflict with the holdings made in those cases where the garnishee had, prior to the service of the summons of garnishment, already liquidated his indebtedness to the defendant by executing and delivering to him a negotiable promise to pay, and which was either transferred to a bona fide holder for' value prior to its maturity, or else became legally transferred to another subsequent to its maturity, but before' the service of the summons of garnishment; in either ease the garnishee being protected. Burton v. Wynne, 55 Ga. 616.

Decided November 17, 1927.

Garnishment; from Lincoln superior court—Judge-Perryman. March 3, 1927.

Burnside ■& McWhorter, for plaintiffs.

Norman & Norman, for defendant.

2. In the instant case, it appearing, without dispute, from the testimony of the garnishee, that his indebtedness to the defendant accrued after the service of the summons of garnishment and before the filing of the answer thereto, and that such indebtedness was, after the service of the summons, liquidated by the execution of a negotiable promissory note to the defendant, the garnishee is not protected by payment made to the holder of such note, even, though the latter became such bona fide and before maturity. Accordingly, the court erred in directing a verdict for the garnishee, and in thereafter overruling the .plaintiff’s motion for a new trial.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    18057.
    Hamilton v. Chitwood et al.

    Executions, 23 O. J. p. 549, n. 82, 87, 91.
    Process, 32 Cyc. p. 517, n. 28.
   Jenkins, P. J.

1. An affidavit of illegality denying service raises no issue where there exists an untraversed return of service, since such an unimpeached return is conclusive upon that question. Webb v. Armowr Fertilizer Works, 21 Ga. App. 409 (94 S. E. 610); Cochran v. Whitworth, 21 Ga. App. 406 (94 S. E. 609), and eit.; Rawlings v. Brown, 15 Ga. App. 162 (82 S. E. 803). Although a traverse to a return of service is a proceeding distinct and independent from an affidavit of illegality based upon a lack of service, it is nevertheless permissible to include the former with the latter, provided the traverse be filed at the first term after notice of the return of service (Wilkes v. Branch, 18 Ga. App. 780 (90 S. E. 722) ; Turpie v. Cox, 18 Ga. App. 424 (89 S. E. 492); Sanford v. Bates, 99 Ga. 145 (25 S. E. 35); Civil Code (1910), § 5566), and provided further that the officer entering the return is made a party. O’Bryan v. Calhoun, 68 Ga. 215.

Decided November 17, 1927.

Affidavit of illegality of execution; from Whitfield superior court—Judge Tarver. January 31, 1927.

William E. & W. Gordon Mann, for plaintiff in error.

J. A. McFarland, contra.

2. While the judgment of a court having no jurisdiction of the person against whom it is rendered may be void (Civil Code of 1910, § 5964; McKnight v. Wilson, 158 Ga. 153, 161, 122 S. E. 702), where the court has jurisdiction of the subject-matter and the defendant has been served, he can not -attack the judgment by affidavit of illegality. Hartsfield v. Morris, 89 Ga. 254 (15 S. E. 363); McKnight v. Wilson, supra; . Sanford v. Bates, supra.

3. In the instant case, although the affidavit of illegality may have denied the truth of the entry of service made by the sheriff, since the officer was not made a party to the illegality proceeding embodying such a traverse, and since the only traverse to which the officer was made a party was not hied with the proper officer of court, or lodged with such officer for the purpose of remaining on file, at the first term after notice of such entry, or at any time prior to the trial of the affidavit of illegality, the court did not err in directing a verdict against the affidavit of illegality.

Judgment affvrmed.

Stephens and Bell, JJ., concur.


text:
    18067.
    Owen v. Federal Land Bank of Columbia.
    Executions, 23 C. J. p. 548, n. 74; p. 553, n. 80.
    Decided November 17, 1927.
   Jenkins, P. J.

“If the defendant has not been served, and does not appear, he may take advantage of the defect by affidavit of illegality; but if he has had his day in court, he can not go behind the judgment by an affidavit of illegality.” Civil Code (1910), § 5311. Patterson v. Georgia Gravel Co., 151 Ga. 813 (108 S. E. 237).

The affidavit of illegality in the instant case being based solely upon the ground that one of the jurors rendering the verdict upon which the judgment attacked is based was disqualified by reason of interest, and it not being alleged that the defendant had not been- served, or that he had not had “his day in court,” it was not error to dismiss the affidavit of illegality, on demurrer.

Judgment affirmed.

Stephens and Bell, JJ., concur.

Affidavit of illegality of execution; from Gordon superior court —Judge Tarver. February 5, 1927.

■/. M. Lang, for plaintiff in error. A. L. Henson, contra.


text:
    18401.
    Adams v. Drinkard, administratrix.
    Appeal and Error, 4 C. J. p. 305, n. 28; p. 570, n. 91.
    Decided November 17, 1927.
    Trover; from Fulton superior court—Judge Humphries. May' 31, 1927.

      J. A. McDuff, for plaintiff in error. IF. L. Armistead, contra.
   Stephens, J.

1. An affidavit made upon the bill of exceptions by counsel for • the plaintiff in error that “Due and legal service was agreed upon by counsel in the within bill of exceptions, then after same was mailed with copy to LaGrange, Ga., attorney for defendant in error returned papers on July 12, 1927,” is, where the bill of exceptions was certified to on June 28, 1927, insufficient to show that service of the bill of exceptions was perfected by delivery of a copy of the bill of exceptions to opposing counsel within ten days from the date of its certification, or that service was acknowledged within that period, as required under-section 6160 of the Civil Code (1910).

2. Where such affidavit constitutes the only evidence of service, or of acknowledgment of service, of the bill of exceptions, and where counsel for the defendant in error does not waive service of the bill of exceptions, or does not consent for the case to be heard in this court, the motion of counsel for the defendant in error to dismiss the bill of exceptions for want of service must be sustained.

Writ of error dismissed.

Jenkins, P. J., and Bell, J., concur.


author: Per Cubiam. Bell, J.,

text:
    17894.
    LANE v. BRADFIELD.
    Attachment, 6 C. J. p. 204, n. 58; p. 221, n. 32; p. 222, n. 36; p. 233, n. 95, 96.
    Executions, 23 C. J. p. 335, n. 55.
    Notice, 29 Cyc. p. 1118, n. 47.
   Per Cubiam.

1. It is well settled by the decisions both of this court and of the Supreme Court that “some overt act of constructive seizure is essential to the validity of the levy of an attachment upon real estate.” Groover v. Melton, 2 Ga. App. 269 (58 S. E. 488), and eit. See also United Provisions Corp. v. Board of Missions, 33 Ga. App. 9 (124 S. E. 820). It is true that a vested remainder in realty is subject to levy under a common law execution (Shipp v. Gibbs, 88 Ga. 184, 14 S. E. 196; Perkins v. Farmers Bank of Doerun, 156 Ga. 841, 120 S. E. 528); and assuming, without deciding, that it may also be subject to attachment if capable of such a seizure as to affect the remainderman with notice, yet since the life-tenant is in possession, and the possession, use, and enjoyment of the property by the remainderman is postponed until the death of the life-tenant, no act of the levying officer in seizing and taking possession of the property can amount to notice to the remainderman. New England Mortgage Co. v. Watson, 99 Ga. 733 (3) (27 S. E. 160); Baker v. Aultman, 107 Ga. 339 (33 S. E. 423, 73 Am. St. R. 132). It follows that an entry of levy upon an attachment reciting such a seizure and taking possession should not be treated as a valid seizure as against a remainder-man.

Decided November 18, 1927.

Attachment; from city court of LaGrange—Judge Tuggle. January 5, 1927.

On July 22, 1926, J. L. Bradfield procured an attachment against J. L. 'Lane on the ground of non-residence, returnable to the September term, 1926, of the city court of LaGrange, and the sheriff made the following return; “I have this day levied the within attachment upon one seventh remainder interest in the following described property [description of property]. Said remainder interest in said land levied on under said attachment in favor of J. L. Bradfield against J. L. Lane as the property of J. L. Lane by going upon the land, by seizing and talcing possession of the same and serving • written notice personally upon the life tenant in possession Mrs. M. J. Lane and mailing notice by registered mail to the defendant J. L. Lane, . . receiving a return receipt card dated July 26, 1926, which is hereby attached, and further mails a notice on October 29, 1926, and returned receipt card Nov. 1, 1926, which is hereto attached.” The first receipt card referred to in the above entry and attached to the same was dated July 26, 1926, and signed “J. L. Lane by G. Dewey.” The second receipt was signed by the defendant Lane in person, but was dated on November 1, 1926, and appears to have been in response to a like notice mailed to the defendant by E. T. Moon, plaintiffs attorney, and not by the sheriff.

2. Irrespective of whether written notice to the remainderman or other person as his agent could supply the deficiency in such seizure and the entry thereof, it is. not enough to show that a letter containing the notice was sent to the defendant remainderman by the levying officer by registered mail and was receipted for by a third person purporting to act for the defendant but whose authority to do so does not appear (Wilber Stock Food Co. v. Wesley, 14 Ga. App. 179, 80 S. E. 677); and a second like notice sent by the attorney for the plaintiff and receipted for by the defendant in person, subsequently to the return term of the attachment, would also be ineffectual as affording legal notice of the attachment. The notice must be at least official (Baker v. Auliman, supra), and must be made prior to the return term of the levy. Albright-Pryor Co. v. Pacific Selling Co., 126 Ga. 498 (6) (55 S. E. 251, 115 Am. St. R. 108).

3. Nor is the life-tenant in possession the agent of the remainderman for the purpose of receiving written notice of the levy of the attachment. Pool v. Morris, 29 Ga. 374 (74 Am. D. 68).

4. It follows that the court erred in overruling the defendant’s motion to dismiss the attachment.

Judgment reversed.

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

The defendant made a special appearance and moved to dismiss the attachment upon grounds as follows: “That although the return of the sheriff of Troup county purports to show a levy of said attachment upon an undivided one seventh remainder interest in certain property described in said levy, that as a matter of fact and as a matter of law, there has been no legal seizure of any property belonging to the defendant in attachment, J. L. Lane, within the jurisdiction of this court, and that as a matter of law, the acts of the sheriff in purporting to levy said attachment as set out in his return do not constitute a legal seizure of said remainder interest, and there being no property belonging to the deféndant legally seized in this proceeding, this court has no jurisdiction, and said attachment should be dismissed.” The court overruled the motion to dismiss, and the defendant excepted.

Lovejoy & Mayer, for plaintiff in error.

E. T. Moon, B. IF. Marlin, contra.

Bell, J.,

dissenting. I can not concur in the conclusion reached in the first division, nor in the judgment of reversal. An undivided interest in a vested remainder in realty is subject to levy under a common-law execution, and since the code provides that an attachment against a debtor may be levied upon any property of the defendant, real or personal, to be found in the State, such remainder interest in realty is also subject to attachment. Civil Code (1910), §§ 5060, 5061, 5075, 5078. The real crux of the case under consideration is whether a vested remainder in realty is capable of such a seizure as to affect the remainder-man with notice. While the remainder in question was such that the defendant’s use and enjoyment of the property was postponed until the death of a life-tenant, who in the meantime held and was entitled to hold possession, and while the life-tenant may not be treated as the tenant or agent of the remainderman, still the presumption is that a person will so overlook his own property and will keep himself so informed with regard thereto as to become apprised of a seizure of the character appearing in this case, notwithstanding he is not in possession and his right of possession may not accrue until the happening of some future evént. McCrory v. Hall, 104 Ga. 666, 668 (30 S. E. 881), citing Smith v. Brown, 96 Ga. 274 (23 S. E. 849). Thus, such a seizure, even as to the defendant remainderman, will sufficiently meet the rule that “some overt act of constructive seizure by the levying officer is essential to the validity of the levy of an attachment upon real estate.” Groover v. Melton, 2 Ga. App. 269 (supra); Miller v. Swilley, 24 Ga. App. 278 (100 S. E. 641); United Prov. Corp. v. Board of Missions, 33 Ga. App. 9 (supra); 6 C. J. 204, and cit.

I do not dissent from the conclusions stated in the second and third divisions, but think that written notice to the defendant or other person could not affect the matter and that questions in reference to such notice are irrelevant. Guernsey v. Beeves, 58 Ga. 290 (1);. Tillman v. Fontaine, 98 Ga. 672 (27 S. E. 149); Tuells v. Torras, 113 Ga. 691 (4) (39 S. E. 455); Civil Code (1910), § 6026. I am of the opinion that the defendant’s remainder interest was subject to attachment and that the record shows a valid execution of the writ. I therefore think the judgment should be affirmed.


author: Bell, J.

text:
    18024.
    EQUITABLE LIFE ASSURANCE SOCIETY et al. v. PATTILLO.
    A promissory note was secured by a deed to land, and the note and the deed both included a stipulation for the payment by the maker of 10 per cent, of the entire debt as attorney’s fees in the event of the
    Judgments, 34 O. J. p. 511, n. 46.
    Mortgages, 41 O. J. p. 415, n. 63; p. 654, n. 29, 38; p. 929, n. 97; p. 1020, n. 88.

      maker’s default in paying the same, and the deed contained also a power of sale authorizing the payee in ease of such sale to collect the proceeds and retain the expenses of the sale and the amount of the indebtedness, including such attorney’s fees. The payee, after giving the statutory notice in regard to attorney’s fees, brought suit on the note to recover such fees in addition to principal and interest. The maker failed to pay the note on or before the return, day or to file any defense. At the appearance term the cqse was marked in default, and at the trial term a judgment was rendered in favor of the payee for the amount sued for, including the attorney’s fees. Between the date of the entry of default and tlie date of the final judgment, the payee, after advertising the land in accordance with the contract, exposed the same for sale and sold it for a sum exceeding the aggregate of the expenses of sale and the amount of the judgment thereafter rendered. Meld: In an accounting had between the payee and the maker subsequently to the judgment, the payee was authorized to retain the attorney’s fees and costs which it had recovered, in addition to the principal and interest, and the expenses of the sale of the property; and where the payee, after retaining these items, paid over to the maker the balance of the proceeds,of the sale, the maker could not then maintain a suit to recover of the payee and its attorneys such attorney’s fees and costs. The court in such a suit by the maker erred in striking the answer of the defendant, which set up the facts hereinbefore detailed, and in directing a verdict in favor of the plaintiff.
    Decided November 18, 1927.
    Complaint; from Floyd superior court—Judge Maddox. January 24, 1927.

      Lvnton A. Beam, Lama/r Gamp, for plaintiffs in,error.

      W. H. JBnnis, contra.
   Bell, J.

C. F. Pattillo became indebted by promissory note to the Equitable Life Assurance Society, and, as security thereto, executed a deed to land. The note and the deed each included a stipulation by the maker for the payment of 10 per cent, of the whole debt as attorney’s fees in the event of the maker’s default in paying the debt at maturity, and the deed contained also a power of sale, authorizing the payee, in case of such default, to sell the land at public outcry after four weeks advertisement, and, out of the proceeds to retain the expenses of the sale and the amount of the indebtedness, including such ■ attorney’s fees, the maker to receive any surplus that might be left. The debt being mature, the payee gave notice of its intention to bring suit to the October term, 1925, of the superior court of Floyd county and of its intention to claim the attorney’s fees in addition to the principal and interest as provided in the note. This notice was given in compliance with the terms of section 4252 of the Civil Code (1910). The return day of the October term was September 22. The maker failed to pay the debt or to answer the suit, and the case was marked in default on December 5, 1925, during the October term. At the succeeding April term, 1926, the payee took judgment for the principal, interest, and attorney’s fees. In the meantime, having advertised the property as required by the contract, the payee, on December 12 (after the return day and after the entry of default), exposed the property for sale and sold it for an.amount exceeding the aggregate sum of the judgment obtained in the following April. The payee made no accounting to the maker until after the procuring of this judgment. In the accounting then made it retained not only the principal and interest on its debt but also the attorney’s fees included in the judgment, with the costs of suit. Thereafter the maker brought suit against the payee and its attorneys for the recovery of the amount so retained. To this suit the .defendants, in the sixth paragraphs of their separate but identical answers, pleaded the facts herein-before detailed. These paragraphs were stricken for insufficiency, on a demurrer filed thereto by the plaintiff, and the defendants excepted pendente lite. The trial resulted in a directed verdict in favor of the then plaintiff for the amount in controversy, representing the sum which the payee in the original note had retained as above stated. Whereupon the defendants excepted, and the case is here for review.

The execution of a deed to.land as security to a promissory note places no legal 'duty on the creditor to proceed first against the security, even though the deed contains a power of sale. The obligation of the debtor to respond in person is the same as if no security had been given, and upon default in payment the creditor may elect to sue the debtor on the note, without exercising the power of sale, or he may do either. Also he may pursue both remedies concurrently until the debt is satisfied. Ga. Mills Co. v. Clarke, 112 Ga. 253 (2) (37 S. E. 414); Clark v. Havard, 122 Ga. 273 (50 S. E. 108); Civil Code (1910), § 5522; 21 B. C. L. 685. So in this case the sale under the power did not amount to an abandonment of the suit nor render fraudulent the judgment therein subsequently obtained. The maker having failed to pay the debt on or before the return day, the claim for attorney’s fees became vested and fixed and would not have been avoided even by a subsequent payment by tbe maker. Mt. Vernon Bank v. Gibbs, 1 Ga. App. 662 (3) (58 S. E. 269); Valdosta R. Co. v. Citizens Bank of Valdosta, 14 Ga. App. 329 (6) (80 S. E. 913). His liability therefor had attached as a part of the principal obligation, and the payee had the right to retain the same out of the proceeds of the sale, in the absence of some act amounting to a waiver; and where the suit which had thus passed the return day and had been marked in default was subsequently prosecuted to a judgment, which included the attorney’s fees, the payee, in then accounting with the maker, was liable to him only for the difference by which the proceeds of the sale exceeded the amount of the legitimate expenses of the sale and the amount of the judgment including the attorney’s fees and costs therein. It follows that the maker’s suit thereafter instituted to recover such attorney’s fees and costs was subject to the defense which the payee and its attorneys as defendants interposed as above stated. Eor the foregoing reasons, the court erred in striking such defense. McCall v. Herring, 116 Ga. 235, 239 (42 S. E. 468); Hamilton v. Rogers, 126 Ga. 27 (3-a) (54 S. E. 926); Evans v. Atlantic National Bank, 147 Ga. 621 (2) (95 S. E. 219); Royal v. Edinburgh Mortgage Co., 143 Ga. 347 (85 S. E. 190); Laurens Cotton Co. v. American Trust Co., 20 Ga. App. 348 (2) (93 S. E. 43); Guarantee Trust Co. v. American National Bank, 15 Ga. App. 778 (2-6) (84 S. E. 222).

Furthermore, the judgment in favor of the payee in the first suit' adjudicated its right to the attorney’s fees and the costs of that shit, and this judgment continues of force and is not subject to collateral attack.

Judgment reversed.

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