author: Belt., J.

text:
    17646.
    Weil v. Schoenberg.
    Appeal and Error, 4 C. J. p. 836, n. 77.
    Continuances, 13 C. J. p. 176, n. 71, 72, 74, 76.
    Judgments, 34 C. J. p. 1120, n. 75 New; p. 1130, n. 82; p. 1131, n. 90; p. 1132, n. 4.
    New Trial, 29 Cye. p. 862, n. 25; p. 1013, n. 57.
   Belt., J.

1. Where a suit is brought in this State on a judgment of a court of another State, it is no defense to show merely that, because of certain facts existing at and before the rendition of such judgment, the defendant was not liable. In such a suit, the defendant can not avail himself of any defense which he could and should have made in the original case. This is to assume, without deciding, that the facts relied on by the defendant in the court below would have constituted a valid defense if duly pleaded in the action which culminated in the judgment sued on. Hope v. First National Bank, 142 Ga. 310 (4) (82 S. E. 929); Spann v. Edwards, 139 Ga. 715 (2) (77 S. E. 1128); Heakes v. Heakes, 157 Ga. 863 (122 S. E. 377); 34 C. J. 1130-33, §§ 1604-9.

2. Where, in such suit, the petition sot forth a copy of the judgment, together with a certain certificate thereto by the clerk of the court in which it was rendered, which certificate alone was not a sufficient authentication, there was no just basis for a “plea of surprise” in the fact that the copy of the judgment as introduced in evidence, unlike that attached to the petition, was verified by additional certificates, conforming to the act of Congress with reference to the exemplification of judicial proceedings of other States. Especially is this true where the attorney for the defendant in thus seeking a continuance of the case showed only that, in the state of the pleadings, he did not anticipate that such additional and proper certificates would be forthcoming, and that, in view of their introduction, he desired to obtain a record of the entire proceedings in which such judgment was rendered, it not appearing in this statement nor otherwise that the defendant had or would ever have any defense to submit in the cause. Hyer v. Holmes & Co., 12 Ga. App. 837 (6) (79 S. E. 58).

Decided April 16, 1927.

Action on foreign judgment; from city court of Savannah — Judge Rourke. July 24, 1926.

A. R. Fawcett, John R. Fawcett, for plaintiff in error.

N. J. Norman, contra.

3. Applying the above rulings, the court committed no error during the trial, the verdict as directed was demanded, and the defendant’s motion for a new trial was properly overruled.

Judgment affirmed.

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


source: Caselaw Access Project

author: Jenkins, P. J.

license: Public Domain

text:
    17647.
    Christian v. Wood Brothers et al.

    Decided April 16, 1927.
    Frauds, Statute of, 27 O. J. p. 154, n. 59; p. 310, n. 4.
    Principal and Surety, 32 Cyc. p. 23, n. 71.
   Jenkins, P. J.

“Where a storekeeper lets A have goods, on the verbal promise of B that he will see that the debt is paid, and the storekeeper charges the account to both A and B, and, upon the failure of both to pay the account, files suit against both, the contract, so far as B is concerned, must be construed as merely one of suretyship and not an original undertaking; and B’s promise to pay, not having been made in writing, is void and not binding upon him.” McAfee v. Benson, 21 Ga. App. 309 (94 S. E. 328); Reynolds v. Simpson, 74 Ga. 454; Few v. Hilsman, 18 Ga. App. 207 (89 S. E. 79); Cordray v. James, 19 Ga. App. 156 (91 S. E. 239); Trapnell v. Bird, 21 Ga. App. 21 (2) (93 S. E. 498); Cooper v. Cochran Cotton Mills, 30 Ga. App. 343, 344 (118 S. E. 68); Casteel v. Allgood-Frey-Shaw Co., 31 Ga. App. 107 (119 S. E. 456); Nevil v. Trapnell-Mikell Co., 31 Ga. App. 207 (120 S. E. 430); Easterling v. Bell, 29 Ga. App. 465 (116 S. E. 50); Cruse v. Foster, 76 Ga. 723 (b). It appearing in the instant case, by the account sued on and introduced in evidence, that the goods were charged to both the party receiving them and the plaintiff in error, and that both parties were sued thereon, under the principle announced by the foregoing authorities the promise of the plaintiff in error, not being in writing, was not enforceable, under the defendant’s plea, and the verdict rendered against her must be set aside.

Judgment reversed.

Stephens and Bell, JJ., concur.

Complaint; from Rockdale superior court — Judge Hutcheson. July 17, 1926.

J. R. Irwin, for plaintiff in error.

J. H. McCalla, C. R. Vaughn, contra.


author: Bell, J.

text:
    17649.
    London Guarantee & Accident Co. et al. v. Cox.
    Decided April 16, 1927.
    Appeal; from Fulton superior court — Judge E. D. Thomas. August 9, 1926.

      Bryan & Middlebroolcs, for plaintiffs in error.

      Hendrix & Buchanan, contra.
    Workmen’s Compensation Acts — C. J. p. 126, n. 75 New.
   Bell, J.

In this case, which arose under the workmen’s compensation law, and in which the plaintiffs in error excepted to a judgment of the superior court affirming an award of compensation for an alleged hernia, the questions presented by the record are controlled adversely to the plaintiffs in error by the decision of this court in London Guarantee & Accident Co. v. Shockley, 31 Ga. App. 762 (122 S. E. 99). See also, Bell v. Hayes-Ionia Co., 192 Mich. 90 (158 N. W. 179).

Judgment affirmed.

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


text:
    17653.
    Young v. Alford.
    Liens, 37 C. J. p. 323, n. 38, 40 New; p. 342', n. 62.
   Jenkins, P. J.

Under the provisions of section 3356 of the Civil Code (1910), proprietors of sawmills have the same lien as is provided in section 3354 for work done on material furnished by others. Section 3354 provides as follows: “All mechanics of every sort, for work done and material furnished in manufacturing or repairing personal property, shall have a special lien on the same, which may be asserted by retention of such property, or the mechanic may surrender such personal property and give credit, when the same shall be enforced in accordance with the provisions of section 3366 of this Code, and shall be superior to all liens but liens for taxes and such other liens as the mechanic may have had actual notice of before the work was done or material furnished. When they surrender possession of the property to the debtor, such mechanics shall record their claim of lien, within ten days after such work is done and material furnished, in the office of the clerk of the superior court of the county where the owner of such property resides.”

2. A sawmill man may thus assert his lien for work done on material furnished by another in either one of the methods above stated, and whether the lien be asserted by retention of the property, or by surrender of possession and record of his lien,' he can proceed to enforce the lien by foreclosure proceedings under the provisions of section 3306 of the Civil Code of 1910. Fitzgerald Trust Co. v. Burkhart, 12 Ga. App. 222, 224 (77 S. E. 7); Daniel v. Blackwell, 30 Ga. App. 786, 787 (119 S. E. 447). See also, in this connection, Burley v. Epps, 69 Ga. 611, 613. To hold that the right of foreclosure under section 3366 was not available where the lien had been asserted by retention of the property rather than by its surrender and the recording of the lien would result in the loss of all right to enforce the lien in cases where the property had been retained for more than ten days after the completion of the work done, whereas the comprehensive provisions of section 3366 provide for the foreclosure of all liens, other than mortgages, on personal property when not otherwise provided for.

Decided April 16, 1927.

■ Lien foreclosure; from Floyd superior court — Barry Wright, judge pro hac vice. July 12, 1926.

Porter & Mebane, for plaintiff.

M. B. Eubanks, Denny & Wright, for defendant.

It was, therefore, erroneous to grant a nonsuit on the theory that the lien which had been asserted by retention of the property could not be enforced without having first been legally recorded.

Judgment reversed.

Stephens and Bell, JJ., eoneur.


author: Bell, J. Jenkins, P. J.,

text:
    17672.
    FAIRVIEW CEMETERY CO. v. WOOD et al.

    1. Where a person “as trustee for a corporation in process of charter, to be known as Fairview Cemetery Company,” applied to the Board of Commissioners of Roads and Revenue of Fulton county, Georgia, “for a permit for himself as trustee for the benefit of said corporation, when chartered, to establish a cemetery for the burial of colored people in Fulton county, Georgia, more than 4 miles from the center of the city of Atlanta,” upon certain described property situated outside the limits of any incorporated town or city, and such Board of Commissioners of Roads and Revenues, acting under the provisions of the act of the General Assembly of this State, approved August 9,1910 (Ga. L. 1910, 130; Park’s Code, §§ 1676nn-1676qq), granted the permission as applied for, and where such proposed corporation on being thereafter organized acquired the property referred to, it was not essential to its use and enjoyment of the permission to establish such cemetery that the person by whom such permission was obtained should make an assignment of the same to the corporation.
    Cemeteries, 11 C. J. p. 52, n. 35 New; p. 53, n. 42 New; p. 56, n. 15 New; p. 57, n. 24.
    Constitutional Law, 12 C. J. p. 839, n. 71; p. 911, n. 53; p. 912, n. 57.
    Nuisances, 29 Cyc. p, 1222, n. 42, 43; p. 1247, n. 48.

      2. Where, under the provisions of the act of 1910, referred to above, the proper county authorities granted permission for the establishment of a cemetery located as prescribed in the statute, and where the person to whom the permission was granted or one succeeding thereto had, on the faith thereof, expended large sums of money in purchasing property to be used as such cemetery and in improving the same for such use, and had incurred other expenses and liabilities in the expectation of using and enjoying the permission so granted, a resolution thereafter adopted by such county authorities, for the purpose of rescinding their previous action in making the grant, was void and of no effect, whore its adoption was without a hearing and without any sort of notice to the person to be adversely affected, where also there was nothing to show that any of the conditions of such permission had been violated.
    3. The remedy provided by section 5329 of the Civil Code (1910) et seq. is available for the abatement only of an existing nuisance, as distinguished from what may, but has not yet, become a nuisance.

      4. There was no basis for declaring the cemetery to be a nuisance, in any of the evidence with respect to obtaining or the failure to obtain burial permits. Nor was there any other evidence to support the verdict and judgment in favor of complainants. The superior court erred in refusing the certiorari.
    Decided April 16, 1927.
    Certiorari; from Fulton superior court — Judge Hutcheson presiding. September 6, 1926.

      Colquitt & Conyers, Paul S. Etheridge, H. A. Etheridge, for plaintiffs in error.

      Key, McClelland & McClelland, contra.
   Bell, J.

This case is virtually controlled by the decision of the Supreme Court in Hallman v. Atlanta Child’s Home, 161 Ga. 247 (130 S. E. 814). The subject-matter is the same and two of the three complainants here were among the intervening plaintiffs there. The beginning of this case followed closely upon the ending of that case, being predicated upon the same facts, with others in the meantime occurring. We make reference to the facts shown in connection with the Supreme Court’s decision without repeating them. The litigation is about the establishment of a cemetery, to be known as Lincoln Memorial Park. The permission for the establishment of the same was issued to Hallman “as trustee for a corporation in process of charter, to be known as Fairview Cemetery Company, for a permit for himself as trustee for the benefit of said corporation when chartered to establish a cemetery for burial of colored people in Fulton county, Georgia, more than four miles from the center of the city of Atlanta,” upon land described. After Fairview Cemetery Company was chartered and organized, it acquired from Hallman the property referred to. There was no effort by Hallman to make any express transfer or assignment to the company of the permission to establish the cemetery, which had been granted to him by the county authorities. The decision in the Hallman case, supra, was rendered by the Supreme Court on November 13, 1925. On December 2, 1925,, the Board of Commissioners of Roads and Revenues of Fulton county adopted a resolution purporting to revoke and rescind the' permission which it had previously granted to Hallman. Meanwhile the cemetery company spent large sums of money in the purchase of the location for the cemetery and in improving the grounds and incurred other expenses and liabilities on the faith of the original permit which it was intending to exercise, and which it undertook to exercise upon the final determination of the Hallman case. Such revocation of the permit was without notice to Hallman or to the cemetery company, or to any one to be, adversely affected thereby. The first burial in the proposed cemetery occurred on December 10, 1925. As many as ten interments were made during the month. Thereafter, during the same month, the present case was instituted. It was commenced by an application to justices of the peace of the district in which the cemetery is located, praying for the abatement of the cemetery as a nuisance, the procedure adopted being that provided for by the Civil Code (1910), § 5329 et seq. After a verdict and judgment in favor of the complainants to the effect that the cemetery should be abated, the cemetery company carried the case, by certiorari, to the superior court. The certiorari was overruled and the company excepted.

In our view of the case certain assignments of err'or, contained in the petition for certiorari and insisted upon by counsel for the plaintiff in error in their brief, may be passed over without decision. A number of them appear not to have been verified by the magistrates and we doubt if this defect was cured by the agreement of counsel recited in an order of the superior court appearing in the record. At any rate, the rulings'which we think must be made on the merits will sufficiently dispose of the case.

The first question for determination is whether the permission which the county authorities granted to Hallman, as trustee, could be exercised and enjoyed by the Fairview Cemetery Company under the facts stated. The point is made by counsel for the defendants in error that this permit was granted to Hallman and not to the cemetery company and that, even if it might be used by one other than Hallman, it could not be used in the absence of some transfer or assignment by him, none having been made. It appears from the record that the Board of Roads and Revenue of Fulton county, at a session held on December 26, 1924, “granted a petition filed by T. A. Hallman, as trustee for a corporation in process of charter, to be known as Fairview Cemetery Company, for a permit for himself as trustee for the benefit of said corporation, when chartered, to establish a cemetery for burial of colored people in Fulton county, Georgia, more than four miles from the center of the city of Atlanta,” upon certain described property. This is recited in the order of December 2, 1925, passed for the purpose of revoking and rescinding the previous grant of the application. The original order is not shown in the record. We think it clear from the language just quoted that the permit which was granted to Hallman was intended for the benefit of the corporation, and that it could be enjoyed by the corporation, when chartered and organized, as fully as though it had been issued to it directly. This is, to our minds, the plain meaning of the language used, and accordingly we hold that when the Fairview Cemetery Company became duly chartered and organized as a corporation and acquired the property described in the permit, it was entitled to proceed to act under the permit granted to Hallman as trustee, without further authority from the Board of Commissioners and without any express transfer or assignment of the permit by Hallman.

The next question for consideration is whether the Board of Commissioners had authority to pass the order of December 2, 1925, revoking and rescinding their action of December 26, 1924, granting the permit to Hallman as trustee as above stated. The board, in granting such permission, was acting under the authority of the act of 1910 (Ga. L., 1910, 130; Park’s Code, § 1676nn-1676qq), as to which statute the Supreme Court, in the Hallman case, said, “It does not empower the commissioners to revoke the power once granted.” This, however, was merely to say that the act contained no provisions for revocation, and was not to hold that the permit once granted was irrevocable. It may be that the permit could be revoked under the general law if facts subsequently occurring should require such action, although this question does not arise for decision under the present record. Counsel for the defendants in error advance the argument that the permit was granted in the exercise of the State’s police power and this is the strongest point that eaU be made in favor of its revocability. The police power of the State can not be surrendered and the governing authorities can not be estopped to perform the necessary and proper functions enjoined thereby. However, assuming, without deciding, that the legislature, in passing the act of 1910, intended that the authority therein conferred on the Board of Commissioners' should be exercised under the State’s police power, it is nevertheless the rule “that an arbitrary and capricious exercise of such power would be an abuse of such discretion,” in conflict with provisions of the State and Federal constitutions. Dobbins v. Los Angeles, 195 U. S. 223 (25 Sup. Ct. 18, 49 L. ed. 169); Blackman Health Resort v. Atlanta, 151 Ga. 507 (5) (107 S. E. 525, 17 A. L. R. 516). In the present record it appears that the Fairview Cemetery Company, on becoming chartered and organized, expended large sums of money for the purpose of acquiring the property upon which the proposed cemetery was to be located, and in improving the same for such irse, and also made other contracts and incurred other obligations on the faith of the permit which had been granted by the county authorities for the establishment of such cemetery, and on the expectation of using and enjoying such permit. At the time of the revocation thereof, no burial had been made in the cemetery. So far as appears, none of the terms or conditions, either express or implied, of the permit as granted had been violated. The revocation of the permit was without notice t.o Hallman, the cemetery company, or other person to be affected thereby. The Supreme Court, in the Hallman case, held in effect that this particular cemetery was not a nuisance per se; and ruled that an injunction against the establishment of the same was contrary to law and equity, in view of the permit that had been granted therefor by the board of commissioners. The facts bearing upon the question whether the cemetery was a nuisance, as they appeared in that case, were unchanged when the board, on December 2, 1925, undertook to revoke the permit previously granted. If, in the meantime, the cernetery had not become a nuisance, the board acted without the scope of its authority where, on the faith of the permit, and before the revocation, the party to whom it was granted, or one rightfully succeeding thereto, had made investments and had otherwise expended money on the faith and expectation of exercising and enjoying the privilege theretofore granted. Such is this case, — not to mention the want of notice and hearing, the resolution of December 2, 1925, having been passed without a hearing and without any notice to the person or persons to be adversely affected thereby. The giving of such notice and hearing, however, would hardly have helped the matter under the facts appearing; although there may be instances of a public danger so grave and at the same time so immediate as to justify the omission to give notice and hearing before taking action against the same under the police power. State v. Del Rio Turnpike Co., 131 Tenn. 600 (175 S. W. 1143); Phillips v. Lewis, 3 Shannon’s cases (Tenn.), 230; Lakeview v. Rose Hill Cemetery, 70 Ill. 191 (22 Am. R. 71); Villa Park v. Wanderer’s Rest Cemetery, 316 Ill. 226 (147 N. E. 104). If we are. correct in this statement of general principles, the county authorities could not properly have revoked the permit even if notice and hearing had been given, but we need not go that far in our ruling, since it is a fact that the board’s action was without any notice or hearing whatsoever. The ruling which we actually make upon this point is as stated in the headnote.

From what has been said above, our subsequent consideration of the case must proceed upon the theory that the original permit to establish the cemetery as granted on December 26, 1924, continued of .force, unaffected by the attempted revocation of December 2, 1925. We have seen that nothing had occurred to render the cemetery a nuisance on or prior to the last named date. The question next to be determined will depend upon whether any such occurred between that date and the filing of the application with the justices for the abatement, in the latter part of December, 1925. The mere grant of the permit to establish the cemetery would not preclude its abatement if it was so conducted as to become a nuisance in fact. The act of 1910 provides that a cemetery established without such permit shall be subject to abatement as a nuisance and that it may be abated as such also where there has been a violation of the conditions or regulations prescribed by the Board of Commissioners in making the grant. These provisions, however, were evidently not intended to be exhaustive of the facts and circumstances under which a cemetery may be adjudged to be a nuisance. Coming now to a consideration of the evidence introduced for the purpose of showing that the cemetery was so maintained as to become a nuisance in fact, there was some evidence to the effect that water might seep from some of the graves in this cemetery into a certain branch from which some of the complainants obtained water for use in the •household, and from which some of their stock were watered. We. will quote from the record all the evidence relating to this issue. A. G-. Allen, one of the complainants, testified as follows:

° “The cemetery property where they are burying now drains on my property, all the way across it. Mrs. McDaniel’s property joins mine. It drains toward her also. I get water from that stream that runs through my property. I don’t think Mrs. McDaniel gets her water there. I get drinking water from that stream. I get water for my live stock and chickens. All the drainage runs into it. It goes right through my place. This branch runs within about 225 feet of where burials have taken place. A part of the cemetery property drains in the other direction. That stream runs all the year. It is not surface water. It comes from the spring. I have not been to the head of the spring, but from hearsay, I would say it is about a half mile from where these burials take place. The branch that runs from the spring passes within about 225 feet of the cemetery property, where the burials now take place.” Mrs. Minnie L. McDaniel testified: “I have six acres, more or less, that borders on the cemetery tract. There is a stream of water that runs through my place. It comes out from Mr. 'Wood and Mr. Baird. It comes from towards Mr. Wood and goes right on by. The cemetery property comes right up to that branch. It may be two or three hundred feet from where they are now burying, but when they come right to my-place and commence burying, it will be right in my spring where I use water. If they put them right next to the branch, it will be right on me, and I use drinking water and water for my horse and cow, and everything. I have to drink water out of that branch. My well went dry. My spring runs into the branch. . . Yes, sir, I am on the north side of the branch across the stream from where the cemetery is. My spring is on the north side of the branch, but I have to drink water out of that branch. Yes, sir, I am on the opposite side of the main stream from the cemetery. My house is on the same side as the spring.”

Dr. W. H. Henderson testified: “I am a practicing physician, and practice in Center Hill section a good deal. I am not familiar with where the cemetery is located, but I know about where it is. I know Mrs. McDaniel.' As to what effect a cemetery bordering close on a stream within 100 or 200 feet of a stream out of which people and cattle drink, it is owing to the lay of the land. If the strata of rock or clay is dipping toward the spring, the seepage from the graves is likely to get to the spring. In this country we have a lot of. limestone and there are crevices and in the clay there are crevices, and the water naturally forms a small stream as it flows into the ground, and it is likely to carry anything that gets in to the spring into the stream. The seepage from the ground is what makes the spring. Where the graves are within 100 or 200 feet it is probable that infection will get into the water. The fact that the water runs through the ground and in that direction shows that the cleavage must be that way, and the water follows the cleavage. Naturally water in the ground seeps or circulates as blood in the veins does in the body. It possibly might affect the health of the people who use that stream. I don’t know anything about the formation and structure of the soil there.- I don’t know in what direction the strata runs. I don’t suppose anybody else does. My opinion is just a general opinion as to what might happen in a general case.”

Dr. E. L. Awtrey testified: “I am a practicing physician and occasionally get a call out here at Center Hill.” Question: “Doctor, I will ask you whether burials within one hundred or two hundred feet of a live spring or branch out of which people and cattle use water, and that this is not a surface stream, it runs all the year around, I will get you to state whether or not it is probable that infection will come from burials made that close to a vigorous running stream.” The witness proceeded: “The feeding of the spring is due to the seepage through the earth. It collects in the grass and leaves and substrata and gradually seeps into the earth, and it is a fact that we have a great deal of limestone in this section, and there might be crevices and it might get into larger passages. Frequently in digging in wells, I have had one dug, there would be a large stream, half as large as your arm, that would pour into the well and the well-digger would hardly have time to get out of the way, and if it directly connected with the graves and half decomposed bodies and piled into a hole after the usual form of embalming and disinfecting, and put into a casket, it would contaminate the earth and I wouldn’t drink water out of it under any circumstances. Bodies that have been disinterred and piled into a hole might contaminate the water in the ground. I believe it would and I wouldn’t allow any cattle or animal on my place to drink the water. I don’t know anything about the formation there. I have not studied it. I don’t know whether the drainage from the cemetery is toward the spring or not. I do not know that the underground or percolating waters from this cemetery go in the direction of that branch or that spring.”

P. E. "Wood testified: “I am son of Judge Wood. I am familiar with the lay of the land where the cemetery is. You take on the north side, it is a kind of steep hill. It is on a decline. You might say the grave is 100 feet higher than the stream, and when it rains the water seeps into the ground and runs out to a wet water stream. I know there is a wet bank ten feet deep and a wet weather spring will run for two or three days, and if it comes two or three days of rain it seeps all the time. That is on the north side, and on the’south side there is a stream that joins this stream that runs on the north side and there is a living spring in 200 feet of where they buried the last body, and that runs in 400 feet from where that living stream runs into the main stream, and it collects on five acres and the water drains into this wet weather spring. In dry weather you have a live stream all the time. That' is not the spring that Mrs. McDaniel testified about. It is beyond the one she testified about. The spring is in Mr. Hood’s land, and comes down 300 feet to Mrs. McDaniel and leaves her land and goes through Mr. Allen’s land. It runs in the spring on Simpson street and joins Mr. Allen’s stream half a mile below. One third of the cemetery drains toward the spring, that comes into Mr. Allen’s place, and two thirds drain toward the south into the stream that joins Mr. Allen’s stream. The cemetery company owns this last stream. Yes, sir, I know about the underground formation. I have been down in it 50 feet on the cemetery property about the middle of the property where they are burying.’ I went down into a well to get a rooster that had jumped in. No, sir, I didn’t dig the well, but I saw the rocks laced together. They pitch toward the Alligator [Allegheny] mountains. The strata runs a little bit north and up. It runs a little northeast and pitches toward the north. It is a gray rock, you might call it soft granite. It is not hard granite. Between the rocks lies yellow fine dirt and rock. If you go down 10 feet it is red dirt. The next is yellow clay, and white and sandy until you get to hard sand. Below that a little piece I have been down 10 or 15 feet, it is a kind of white clay. It will-wash out quickly. On top of the hill is where the red clay is. It' changes as it goes toward the branch. The dirt gets whiter down there.”

It will be noted that the branch in which it is claimed the water is or will be contaminated was not closer than 225 feet to the nearest grave, while the testimony of-each of the physicians was on the hypothesis that the graves were situated within 100 to 200 feet of the branch. We’think the evidence is too vague, uncertain, and conjectural to show any actual present contamination of the water, the evidence upon this question establishing nothing more than a mere possibility of such condition. In Harper v. Nashville, 136 Ga. 141 (70 S. E. 1102), quoted in the Hallman case, the Supreme Court said: “Unless the soil of the land used as a cemetery and that of the contiguous owners is such as to cause a drainage which will produce a contamination of the waters, thereby putting in jeopardy the health or the lives of the owners of the contiguous lands and the health of their families, or unless the air would be contaminated, courts of equity will not interfere by the grant of injunctive relief to prevent the establishment and location of the cemetery.” There is nothing in the instant record to show that the health or lives of any of the citizens, or of their families or stock, are at the present time in danger from the cemetery in question, and the evidence as to possible seepage and drainage and as to what, in certain contingencies, may occur as a result thereof could hardly be said to show that the cemetery would probably become a nuisance in the future; but whether this is true or not, the provisions of section 5329 et seq. of the Civil Code (1910), having reference to the abatement of nuisances by freeholders in a trial before justices of the peace, were not intended to afford a remedy against that which is not an ¡actually existing nuisance, as distinguished from that which may or probably will become such. The language of .section 5329 seems to admit of no other construction. See, in this connection, Blackman Health Resort v. Atlanta, supra; Sutton v. Findlay Cemetery Asso., 270 Ill. 11 (110 N. E. 315, L. R. A. 1916B, 1135; Village of Villa Park v. Wanderer’s Rest Cemetery Co., supra. Injunction might issue even when there is.no case for abatement, the latter remedy requiring proof of a present nuisance whereas the former might be available on reasonable probability that a nuisance will com,e into existence unless prohibited.

The only other facts shown and relied on by the complainants for the purpose of establishing the contention that the cemetery had become a nuisance were in relation to burial permits. The first three burials which occurred on December 10, 1925, were of bodies disinterred from another cemetery in Fulton county, known as Casey cemetery. Lincoln Memorial Park was, of course, situated outside the incorporated limits of any town or city because the act of 1910 has reference only to cemeteries so situated. Casey cemetery was also situated outside any incorporated town or city. Whether they were both located in the same militia district does not appear. Besides the three disinterred, seven other bodies were buried in the cemetery involved in this case prior to the commencement of the suit for abatement. According to the evidence, permits were obtained for all ten of these burials from an official referred to as “L. Thornton, local registrar,- Atlanta, Georgia.” The complainants offered evidence to show the appointment by the State Board of Health of “T. E. Lockhart, as health officer outside the city of Atlanta for all the districts of Fulton county.” It is contended by counsel for complainants that, since the cemetery was situated outside the limits of the city of Atlanta, the burial permits should have been issued by the last named health officer, and that the burial of the bodies without permits issued by him rendered the cemetery a nuisance. The vital statistics act, approved August 7, 1914 (Ga. L., 1914, p. 157, Park’s Code, §§ 1676m-1676mm) is cited in support of this contention. A careful reading of that act shows that the proper person to issue a burial permit is the registrar of the city or militia district, as the case may be, in which the person died or the body was found. So far as appears, the deaths of all the persons buried in Lincoln Memorial Park occurred in the city of Atlanta. Nothing' was shown to the contrary. It therefore can not be said that the permits were not issued by the proper official. There are some statutes having reference to the disinterring of bodies from cemeteries. See Park’s Penal Code, §§ 408-410; Ga. L., 1916, p. 77, sec. 1, rules 1 and 4. But we have found no law making it penal for bodies to be disinterred from a cemetery under such circumstances as were shown in this case, in which the disinterments appeared to have been done by and with the consent of relatives entitled to control the burial and disposition of the bodies. We have been unable to find any law requiring permits for such disinterments. We can not say that permits therefor should have been obtained either from the health officer of Fulton county or from the local registrar of the city of Atlanta, although it appears in the evidence that the last named officer issued permits for the disinterring and removal of the bodies from Casey cemetery. The vital statistics law, referred to above, was not intended to cover such a case. This is clearly apparent when we reflect upon the purposes of that statute.

The permit granted to establish Lincoln Memorial Park as a cemetery was upon the condition, among others, that “All burials shall be made in a sanitary manner and according to rules and regulations of the Health Department of the county of Fulton and State of Georgia.” We suppose the health regulations here referred to are those which may be promulgated under the Ellis health law (Ga. L., 1914, 124, Park’s Code, § 1669a et seq.). No evidence was introduced to show what regulations had been adopted by the Fulton county board of health, nor- therefore that any such regulations had been violated. The vital-statistics act is not a regulation by the board of health of Fulton county, even if it could be considered at all as a health measure. But see Smith v. State, 160 Ga. 857 (129 S. E. 542).

Moreover, unless an irregularity in the matter of obtaining disinterment or burial permits was a violation of one of the rules and regulations of the board of health of Fulton county, expressly subject to which the permit to establish this cemetery was granted, the failure to obtain proper permits would not, without more, render the cemetery' a nuisance, even though such failure amounted to a violation of the vital statistics act or some other act prescribing such permits but not declaring- that the cemetery should become a nuisance in case proper burial permits were not obtained. There is no provision for such latter penalty in the vital statistics law. There was no basis for declaring the cemetery to be a nuisance in any of the evidence with respect to the obtaining or the failure to obtain burial permits. Nor was there any other evidence to support the verdict and judgment. The superior court erred in refusing the certiorari.

Judgment reversed..

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

Jenkins, P. J.,

concurring specially. I concur in all that is said by my associates, except their reasoning as to the lack of all possible force and probative value of the evidence set forth and discussed in the third division of the opinion. While I agree that the evidence offered to show the existence of a present, continuing nuisance is somewhat vague and uncertain in character, I would be loath to hold that it fails, absolutely and as a matter of law, to support the finding, except for the fact that the jury had before them the record of the illegal revocation of the permit by the commissioners, which may have constituted the real basis of their finding.


text:
    17673.
    ÆTNA LIFE INSURANCE COMPANY v. BARBER.
    Where compensation for permanent total disability becomes payable under the terms of a policy twelve months after proof is received by the insurance company that the insured has become wholly and permanently disabled, and will for life be unable to perform any work, or conduct any business for compensation or profit, assuming, but not deciding, under the authority of Penn Mutual Life Insurance Go. v. Milton, 160 Oa. 168, 172 (127 S. E. 140), that a'total disability continuing for a period of twelve months after the furnishing of such proof is, within the meaning of the policy, a permanent and total disability, the insured, nevertheless, is not entitled to recover under the terms of the policy, where it appears from the petition that the total disability did not in fact continue for a period of twelve months from the date on which such proof was submitted. See also Penn Mutual Life Insurance Go. v. Milton, 33 6a. App. 634 (127 S. E. 798). Accordingly, the general demurrer to the petition should have been sustained.
    Decided April 16, 1927.
    Health Insurance, 29 C, J. p. 281, n. 39.

      Complaint on life-insurance policy; from city court of Amerieits —Judge Harper. September 2/ 1926.

      Bryan & Middlebrooks, for plaintiff in error.

      W. W. Dykes, contra.
   Jenkins, P. J.

Frank Barber brought suit against the /Etna Life Insurance Company for disability benefits alleged to be due under a policy of insurance issued by the defendant and containing the following provisions: “Twelve months after proof is received by the company that from causes originating after the delivery of this policy the insured has become wholly, continuously and permanently disabled, and will for life be unable to perform any work or conduct any business for compensation or profit, then in lieu of all other values, benefits or privileges herein provided, without further payment of premium, all premiums previously due having been paid, the company will pay in full settlement of this policy upon request duly executed by the life beneficiary and assignee, if any, one-twentieth of the sum insured and dividend additions, if any, and will pay the same amount annually thereafter until twenty such payments in all have been made; or will pay the amount of annuity shown by the following table of annuities for the age of the insured at the last "birthday preceding the receipt of such proof and the same amount annually thereafter during the lifetime of the insured, provided that at every such annuity payment satisfactory proof is furnished that the insured is then living. Any indebtedness to the company on account of this policy will ■reduce the amount of either of said annual payments in the same proportion that said indebtedness bears to three-fourths of the sum insured and dividend additions if any. . . The company will extend the privileges and benefits for permanent total disability above described to cover the irrecoverable loss of the entire sight of both eyes, or the total and permanent loss by removal or disease of the use of both hands or of both feet or of such loss of one hand and one foot all from causes originating after the delivery of this policy and before default in the payment of the premium. Any benefit for disability within the meaning of this policy is conditioned upon the company being permitted to examine the insured when desired within one year after the receipt of the proof, and such benefit will not be included in the paid-up policy herein provided to be issued on default in payment of premium.” The petition alleges that the plaintiff on the 25th, 26th, or 27th day of September, 1919, suffered a stroke of paralysis which rendered him permanently, wholly, and continuously unable to do any work for compensation or profit for the succeeding twenty-four months, and that “after about twenty-four months following his affliction as aforesaid, he has sufficiently regained the use of one hand and both feet as to enable him to move around and earn something, though he has since that time been able to earn only about one half or one third of what he was earning previous to that date, that is, he can now earn and is earning only fifty to seventy-five dollars per month.” It is further alleged that on December 3, 1920, during the disability which began September 27, 1919, the plaintiff furnished to the defendant proof of such disability; that about January 28, 1921, the defendant declined to pay him anything on account of his disability, and that subsequent demands for payment were made prior to the filing of the suit. The defendant filed a general and special demurrer to the petition, and now excepts to the order overruling the demurrer.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    17683.
    SPALDING CONSTRUCTION COMPANY v. SIMON.
    The petition set forth a canse of action, and the special demurrers, where not met by amendment, were properly overruled.
    Decided April 16, 1927.
    Breach of contract; from city court of Savannah — Judge Freeman. September 7, 1926.
    Simon sued Spalding Construction Company for $10,937.88, alleging by his petition as amended that the defendant had agreed to sell him a certain tract of land with improvements to be erected thereon by the defendant according to certain plans and specifications, at a price of $15,000. The petition as amended alleges, that under the terms of the written agreement the plaintiff was to pay to the defendant $2,000 in cash, and give three notes aggregating the principal sum of $13,000, it being provided by the agreement that after the erection of the improvements the defendant was to obtain a loan of $8,000 on the premises, to be applied as payment on the purchase-money notes given by the plaintiff to the defendant, after which the property was to be conveyed by the defendant to the plaintiff. The plaintiff alleges that he gave to the defendant two notes, one for $4,850 and the other for $4,000, aggregating the principal sum of $8,850, and that he paid to or for the defendant on the purchase-price the sum of $6,113.26 in cash, and by amendment sets up the items paid to remove laborers’ and materialmen’s liens .on the improvements, the construction of which was contemplated by the agreement, it being alleged that a copy of the plans and specifications is not attached to the petition for the reason that they are in the possession of the defendant and beyond the control of the plaintiff. It is alleged that the notes referred to were traded off by the defendant prior to maturity, and that judgment has been obtained thereon against the plaintiff, and that he is now liable for the amount thereof, with interest, costs, and attorney’s fees. It is also alleged that the defendant procured a loan of $8,150 on the premises, which sum, with interest, still constitutes an outstanding lien on the property, but that instead of applying the proceeds of the loan to the ex-tinguishment of the notes, as provided for by the contract, the defendant appropriated the same to his own use. The suit is for the difference between the contract price of $15,000 and the cost of the premises under the procedure adopted by the defendant. The petition as amended shows that prior to the date of the contract, May 6, 1920, the improvements contemplated by the agreement consisted of two bungalows, and that on May 6, 1920, “it was decided by all parties that they would abandon this agreement and all matters relating to the two bungalows,” and would construct, in lieu thereof, an apartment building, as set out by the contract attached to the petition as exhibit A. There is also attached to the petition, as exhibit B, a letter from defendant to plaintiff, dated May 6, 1920, designated a supplemental agreement, which is accepted by the plaintiff and provides:. “It is understood and agreed that all prior agreements entered into by the parties, as evidenced by agreement of even date herewith, are cancelled. The apartment building agreed to be constructed by the new plan is to be finished according to the original specifications, with the addition of storm sheathing, which is to be placed on all outside walls. The apartment to be delivered ready for occupancy on or before September 15th, subject to conditions and delays unavoidable and beyond the control of the contractor.”

      Building and Construction Contracts, 9 C. J. p. 706, n. 85; p. 811, n. 20; p. 866, n. 18; p. 867, n. 32 New.
    Damages, 17 C. J. p. 710, n. 1; p. 727, n. 2; p. 859, n. 65, 66.

      The defendant filed general and special demurrers, contending, (1) that, while the petition indicates that the plaintiff has paid $6,113.26, and that the property has become liable for the loan placed thereon in the sum of $8,150, the petition fails to indicate that the plaintiff has paid off the judgments obtained against him on the notes given by him to the defendant, which, under the agreement, were to be extinguished by the proceeds of the loan on. the premises; (2) that in the absence of the plans and specifications, attached to the petition, the plaintiff can not be allowed credit for payments made to various persons for work done and materials furnished and made necessary for the completion of the building in compliance with such plans and specifications; and (3) that the exhibits attached to the petition show that the contract sued on, and attached as exhibit’ A, was cancelled' by the subsequent agreement, designated a supplemental agreement, and attached as exhibit B.

      Mclntire, Walsh & Bernstein, for plaintiff in error.

      Oliver & Oliver, contra.
   Jenkins, P. J.

(After stating the foregoing facts.)

1. “Damages are given as compensation for the injury sustained.” Civil Code (1910), § 4390. Where no agreement fixing the amount of damages in case of the breach of a contract is embraced in the contract itself, the damages-accruing to either party by reason of a breach are such as will compensate him for the injury sustained. While we have been unable to ascertain from the petition how the precise amount sued for has been arrived at, under the allegations of the petition the plaintiff would be entitled to recover the difference between the contract price and the actual cost to him of the premises contracted for by the agreement. This would not include interest on such deferred payments, represented by the lien on the premises, as were contemplated by the agreement, but would include each and every element of damage directly occasioned by the alleged breach of the defendant’s agreement.

2. The plaintiff, having alleged a compliance with the terms of his own obligation, is entitled to recover the amount of the judgments obtained against him upon obligations remaining of force on account of the alleged breach of the defendant’s duty-according to the terms of the agreement. Thomas v. Richards, 124 Ga. 942 (53 S. E. 400); Tucker v. Murphey, 114 Ga. 662, 663 (40 S. E. 836).

3. The petition having alleged that the plans and specifications were not attached thereto by reason of the fact that they were beyond the control of the plaintiff and in the possession of the defendant, it was not demurrable on account of their not being set forth.

4. The third ground of demurrer is without merit, since the only reasonable construction of the statement contained in exhibit B, providing “it is understood and agreed that all prior agreements entered into by the parties, as evidenced by agreement of even date herewith, are cancelled,” is that it refers to the previous agreement with reference to the construction of the bungalows, and does not mean that the parties were left without any agreement.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    17684.
    SPALDING CONSTRUCTION COMPANY v. STERNBERG.
    Under the rulings in Spalding Construction Co. v. Simon, ante, 723, the petition stated a cause of action, and the court did not err in overruling the general demurrer. The special demurrer is dealt with in the opinion.
    Decided April 16, 1927.
    Breach of contract; from city court of Savannah — Judge Freeman. September 7, 1926.
    Sternberg sued Spalding Construction Company for $7,213.83, alleging by his petition as amended that the defendant had agreed to sell to the plaintiff a certain tract of land with improvements to be erected thereon by the defendant according to plans and specifications attached to the petition, at the price of $7,150. The petition as amended alleges that under the terms of the written agreement .the plaintiff was to pay $2,000 in cash and execute two notes, one for $4,500 and the other for $650, the note for $4,500 to bo retired from a loan to be placed upon the property at seven per cent, interest, payable quarterly. It is alleged that plaintiff paid the $2,000 in cash as provided by the agreement, and executed the notes mentioned, and paid out the further sum of $744.10 to complete the work undertaken by the defendant according to the contract. It is alleged that the notes referred to were traded off by the defendant prior to maturity'-, and that judgment has been obtained thereon against the plaintiff, and that he is now liable for the amount thereof with interest, costs, and attorney’s fees. It is also alleged that the defendant procured a loan of $4,500 on the premises, which sum, with interest, constitutes an outstanding lien against the property, but that instead of applying the proceeds of the loan to the plaintiff’s note for $4,500, as provided by the contract, the defendant appropriated the same to his own use. The suit is for the difference between the contract price of $7,150 and the cost of the premises under the procedure adopted by the defendant. The contract attached to the petition as exhibit A provides in part as follows: “Upon the delivery of the notes herein provided said parties agree to execute the usual contract adopted by said party of the first part with reference to the sales and building contracts of this character, and upon the full performance of the agreements contained in said contract and the payment of the sums provided for therein, said party of the first part will execute and deliver to said party of the second part a warranty deed to the above-described property.”

      Building and Construction Contracts, 9 C. J. p. 811, n. 20; p. 866, n. 18.
    Damages, 17 C. J. p. 859, n. 65, 66.

      The defendant demurred generally and specially, special grounds of the demurrer being, (1) that no copy of the contract provided for in the quoted provision of the contract attached to the petition is annexed to the petition, and (2) that while the petition indicates that the plaintiff has paid $2,744.10, and that the property has become liable for the loan placed thereon in the sum of $4,500, the petition fails to allege that the plaintiff has paid off the judgments obtained against him on the notes set out, one of which was to be extinguished by the proceeds of the loan on the premises; and (3) that no itemized statement of the sums alleged to have been expended by the plaintiff in completing the building according to the contract was annexed to the petition. The plaintiff amended by setting forth an itemized account of the expenditures claimed, and by attaching a second copy of the contract attached to the original petition as exhibit A, which is alleged to be an agreement for title, and by attaching a copy of the plans and specifications for the building identified in the original contract. It does not appear, from the allegations of the petition, that any contract other than the agreement attached to the petition as exhibit A was ever executed between'the parties.
    Mclniire, Walsh & Bernstein, for plaintiff in error.

      Olwer & Oliver, contra.
   Jenkins, P. J.

(After stating the foregoing facts.)

Under the rulings this day made in Spalding Construction Co. v. Simon, 36 Ga. App. 723, the petition as amended set forth a cause of action, and the court did not err in overruling the general demurrer. While the defendant would be liable for the damages resulting from its misapplication of the proceeds of the loan placed upon the property, and from its failure to complete the building according to the terms of the contract, it is not liable for the amount of the judgment rendered against the plaintiff on the note for $650, which, under the terms of the contract, the plaintiff himself was to discharge. Accordingly, the 6th ground of the demurrer should have been sustained. The remaining grounds of the demurrer are without merit. While the contract sued on contains a provision for the subsequent execution of a sale and building contract upon the plaintiff's delivery to the defendant of the notes provided for by the agreement sued on, and provides for the delivery of a warranty deed by the defendant to the plaintiff upon his complying with the sale and building contract, yet since it appears from the petition that the sale and building contract sued on is complete in all respects itself, and constitutes, of and within itself,, a full and complete sale and building contract, including plans and specifications for the building which was to be constructed, and is the contract under which the parties operated and under which both continued to operate, the petition must be understood to mean that no such additional superfluous agreement covering the same ground as the contract sued on had been executed, or was intended to be executed. Consequently, the petition was not demurrable for its failure to set forth any such additional agreement.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    17697.
    HULSEY v. FORRESTER.
    1. “A plaintiff may pursue any number of consistent concurrent remedies against different persons until lie obtains a satisfaction from some of them.” Civil Code (1910), § 5522; McLendon v. Finch, 2 Ga. App. 421, 423 (58 S. E. 690) ; Board of Education v. Day, 128 Ga. 156 (57 S. B. 359. In the instant case the right of the defendant to set off damages growing out of the plaintiff’s alleged conversion of property pledged as collateral security was not barred by the defendant’s previous suit against the warehouseman for an alleged breach of the contract of storage in permitting the removal of the property, there having been no final disposition of the latter suit, and satisfaction not having been obtained from the warehouseman. The concurrent remedies thus pursued are not inconsistent, since the suit against the warehouseman did not amount to a ratification of the plaintiff’s alleged conversion of the property, but was based upon the cause of action arising by reason of the breach of the warehouseman’s contract of storage in permitting such conversion.
    2. The defendant is entitled to set up as a defense all claims against the - plaintiff of a similar nature with the plaintiff’s demand. Civil Code (1910), § 5521; Hecht v. Snook & Austin Furniture Co., 114 Ga. 921, 923 (41 S. E. 74). As a general rule, a tort can not be set up in defense against a suit on a contract. Strickland v. Bank of Cartersville, 141 Ga. 565, 566, 575 (81 S. E. 886). In construing the nature of the defendant’s counter-claim, “while, as a general rule, allegations of fact are to be construed most strongly against the pleader, yet, in the absence of special demurrer, where the facts alleged in a petition are such as would be proper and adequate to support one form of action, but inadequate, although appropriate, to another form of action, and where the petition is ambiguous to the extent that the pleader’s intention is not clearly manifest as to which form of action is relied upon, the courts in such a case, in endeavoring to ascertain the plaintiff’s intention, will prima facie presume that his purpose was to serve his best interest, and will construe the pleadings so as to uphold and not to defeat the action.” Stoddard v. Campbell, 27 Ga. App. 363 (3) (108 S. E. 311). Under such a rule of construction the answer of the defendant must be construed as a counter-claim for damages on account of the plaintiff’s breach of his contract.
    3. “Where there has been an actual conversion of the pledged property, the defendant pledgor, in a suit against him by the pledgee for the balance of the debt, is entitled to recoup the difference between the amount for which the pledgee sold the property in violation of the express or implied contract of pledge and the actual value of the property on the date of sale.” Southern Exchange Bank v. Langston, 33 Ga. App. 477, 478 (1 a) (127 S. E. 230) ; Campbell v. Redioine, 22 Ga. App. 455 (3) (96 S. E. 347). See especially Bennett v. Tucker, 32 Ga. App. 288 (123 S. E. 165, 167), and cit. In the instant case, it appearing that the jury returned a verdict not for the actual value of the property on the date of its conversion, but for its highest proven subsequent value, the verdict in the amount rendered was unauthorized by the evidence and was contrary to the charge of the judge, who instructed the jury that the defendant “would have a right to a judgment for the value of the property at the time of the conversion.”

      Abatement and Revival, 1 O. J. p. 75, n. 17; p. 78, n. 47; p. 79, n. 59.
    Actions, 1 C. J. p. 1015, n. 37; p. 1120, n. 49, 50; p. 1121, n. 51.
    Appeal and Error, 4 C. J. p. 649, n. 36; p. 650, n. 55.
    New Trial, 29 Oye. p. 818, n. 30; p. 819, n. 31; p. 820, n. 35.
    Pledges, 31 Cye. p. 869, n. 79, 81.
    Pleading, 31 Oye. p. 78, n. 95; p. 79, n. 4.
    Recoupment, Set Off and Counterclaim, 37 Cyc. p. 652, n. 69; p. 707, n. 84.

      4. There was evidence from which the jury could have found that a partnership existed between the plaintiff and the person who removed the cotton from the warehouse. The instructions of the court on that theory, complained of as being unauthorized by the evidence, are not dealt with, for the reason that such questions are not likely to arise on a subsequent trial.
    Decided April 16, 1927.
    Complaint; from city court of Gainesville — Judge Sloan. September 10, 1926.

      A. C. Wheeler, for plaintiff.

      Pearce Matthews, W. N. Oliver, for defendant.
   Jenkins, P. J.

Hulsey sued Forrester on a promissory note, claiming a balance due, including interest and attorney’s fees, of $311.27. Forrester admitted a prima facie case, pleading that on May 1, 1922, he signed the note sued on for $700, due thirty days after date, and that he paid thereon in cash the sum of $525 on January 14, 1924. By his plea it is alleged that at the time the note was given he deposited with the plaintiff, as collateral security, warehouse receipts for eleven bales of cotton, and that the plaintiff, acting through his partner, Sams, did on May 11, 1922, convert to his own use three of these bales of cotton, which would have been worth 35-% cents per pound at the time he sold the remaining eight bales, on November 26/ 1923. He pleads such conversion by way of recoupment, and asks judgment for the difference between the amount due on the note and the alleged value of the converted cotton. There was evidence from which the jury could have found that Sams, by whom the cotton was shipped from the warehouse, was the partner of the plaintiff in the cotton purchasing business, and the evidence is undisputed that the plaintiff received the proceeds from the sale of the three bales. At the time the cotton in dispute was removed from the warehouse and shipped by Sams it was worth nineteen cents per pound. It appears, from the evidence, that on January 29, 1924, prior to the filing of this suit, the defendant filed suit against the warehouse company for a breach of its contract in failing to deliver the cotton to the defendant, which suit is still pending.

The jury returned a verdict in favor of the defendant for $177.40, and, the plaintiff’s motion for a new trial being overruled, he excepted.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    17699.
    STATE MUTUAL LIFE INSURANCE CO. v. JACOBS.
    Under the Civil Code (1910), § 5662, where a suit is brought upon a promissory note obligating the maker to pay a certain per cent, of the principal and interest as attorney’s fees, and where the petition contains allegations showing that the plaintiff gave to the defendant the notice contemplated by section 4252, and where no defense has been filed within the time provided by law, the averment with reference to the giving of notice will be deemed to have been admitted, and no other proof thereof will be necessary to authorize a recovery of such fees. In such a case, if a jury be empaneled, the judge is authorized to direct a verdict in favor of the plaintiff for the attorney’s fees, without proof. The court having properly directed a verdict for the plaintiff, which included a recovery of attorney’s fees, it was error thereafter to amend the judgment entered on the verdict by striking therefrom the recovery as to such fees.
    Bills and Notes, 8 C. J. p. 1099, n. 33; p. 1100, n. 43.
    Judgments, 34 O, J. p. 243, n. 55,
    Decided April 16, 1927.
    Complaint; from city court of Carrollton — Judge Hood. Sep- ' tember 17, 1926.

      Boykin & Boykin, for plaintiff.
   Bell, J.

This case is here upon exceptions by the plaintiff to an order of the court striking all attorney’s fees from the judgment as originally rendered in the plaintiff’s favor. The suit was predicated on two promissory notes, aggregating $1,750, and an account for an item of $20.50 paid by the plaintiff on an insurance policy for the benefit of the defendant. The notes contained a promise by the maker to pay 10 per cent, for attorney’s fees in case of suit or collection by attorney. The petition alleged that the defendant was indebted for such fees, and averred the giving of the notice contemplated by the Civil Code (1910), § 4252, a copy of the notice being attached to the petition. The defendant having failed to answer, the case was at the return term marked in default. At the trial term, the court, without requiring the introduction of evidence, and in the absense of evidence, directed a verdict in favor of the plaintiff for 'principal, interest, and attorney’s fees as sued for. Judgment was duly entered accordingly. The court subsequently amended the judgment by striking the recovery of attorney’s fees, and the plaintiff excepted.

The order amending the judgment shows that it was rendered because there was no proof of the allegation of the petition in reference to the notice to the defendant of the plaintiff’s intention to sue for attorney’s fees. It seems that the able judge of the court below was induced to pass this order by the interpretation placed by him upon the decision of this court in Turner v. Bank of Maysville, 13 Ga. App. 547 (... S. E. ...). Some of the language of that decision may not be entirely clear, and may perhaps be susceptible of such a construction as would justify the order complained of. However, in Valdosta &c. R. Co. v. Citizens Bank, 14 Ga. App. 329 (80 S. E. 319), it was said that the ruling in the Turner case “is not to be construed as a holding that affirmative proof of the fact that written notice of the suit was given is necessary when the fact of notice is not denied.”

The act creating the city court of Carrollton (Ga. L., 1897, 438) provides that civil cases shall stand for trial at the second term, as in the superior court, and that “all laws and rules of court in regard to appearance and pleading, and all proceedings had in the superior courts shall apply to and govern said city court in all its proceedings, unless otherwise provided in this act”; also that the mode of commencing suits and of filing defenses, and all matters pertaining to pleading and practice in the superior courts shall obtain in such city court “if not in conflict with this act.” The act further provides that “the judge of said city court shall have power and authority to hear and determine all civil cases in said city court, and render judgments therein, without a jury; provided, that either party shall be entitled to a trial by a jury upon entering a demand therefor in writing on or before the call of the appearance docket at the appearance term, when by law he is entitled to a jury trial.” No demand was made for a jury trial in the present case, but this did not render it mandatory upon the judge to determine the case without a jury. “The notes sued upon were unconditional contracts in so far as they stipulated for the payment of principal and interest, and were conditional in so far as the promise to pay attorney’s fees was concerned, the condition being supplied by the statute which makes the giving of written notice of the intention to bring suit a condition precedent to the recovery of attorney’s fees. Civil Code (1910), § 4252. The code provides that in all cases, except actions for unliquidated damages and suits on unconditional contracts in writing, where no defense has been filed by the party sued, the plaintiff shall be permitted to take a verdict as if each and every item and paragraph were proved by testimony. Civil Code (1910), § 5662. The stipulation for attorney’s fees being conditional, the judge could not, even though no defense was filed, enter up a judgment as upon an unconditional contract in writing. It has been expressly held, however, by this court that where no defense is filed, the judge may direct a verdict for attorney’s fees, without further proof than the admission implied from the failure to deny the giving of the notice required by law.” Valdosta &c. R. Co. v. Citizens Bank, supra.

Since no jury trial’ was demanded, the judge might have disposed of the case as by a finding and judgment in favor of the plaintiff without the intervention of a jury, and could have done so without requiring the introduction of evidence, the case being in default. But, irrespective of the power of the judge to have disposed of the case in this manner, there was no error in directing a verdict under the facts appearing. If the authority of the judge of the city court of Carrollton to render judgment without a verdict of a jury, were limited to suits on unconditional contracts in writing, where no issuable defense is filed under oath or-affirmation, this would “not mean that even in those eases where the verdict of a jury is necessary, the court may not direct it where it is demanded by the law and facts” (Pape v. Woolford Realty Co., 35 Ga. App. 284 (6), 134 S. E. 174), as in cases falling under the provisions of the Civil Code (1910), § 5662. See further, in this connection, Ivey v. Payne, 8 Ga. App. 760 (70 S. E. 140); Anderson v. King, 19 Ga. App. 471 (91 S. E. 788); Pierce v. Jones, 36 Ga. App. 561.

It follows from what has been said that, except to the extent of $2.05, illegally recovered on • the item oi $20.50 for which the plaintiff sued on account, the trial court erred in amending the judgment by striking plaintiff’s recovery of attorney’s fees.

Judgment reversed.

Jenlcins, P. J., and Stephens, concur.


text:
    17704.
    FOSTER et al. v. WOOD, ordinary, for use, etc.
    The code provisions which prohibit an ordinary from acting as guardian of a minor do not prevent an ordinary from recovering in behalf of a minor money'derived from benefit insurance where the act of 1918 (Ga. L., 1918, p. 198) authorizes an ordinary to receive and collect such money.
    The petition in this case, by which the ordinary, in behalf of a minor, sought to recover from the principal and the surety on a temporary administrator’s bond a sum alleged to have been set apart as a year’s support, derived from benefit insurance on the life of the minor’s deceased father, was subject to the demurrer on the ground that the petition failed to show a certificate of the ordinary that no legally qualified guardian had been appointed for the minor and that the minor’s estate from all sources did not exceed $500, and on the ground that no action could be maintained on the bond except by a permanent administrator alleging a failure by the temporary administrator to pay over to him the assets of the estate.
    Executors and Administrators, 24 O. J. p. 1082, n. 40; p. 1084, n. 69.
    Guardian and Ward, 28 C. .T. p. 1082, n. 75; p. 1247, n. 21; p. 1263, n. 66.
    Decided April 16, 1927.
    Complaint on bond; from Baker superior court — Judge Custer. July 19, 1926.

      W. I. Geer, for plaintiff in error.
   Jenkins, P. J.

This was a suit by the ordinary of Baker county against the principal and the surety on a temporary administrator’s bond, to recover for a minor $150 alleged to have been set apart as a year’s support and derived from a policy of benefit insurance on the life of the deceased father of the minor. The action was maintained under the act approved August 20, 1918 (Ga. L. 1918, p. 198 et seq.). The condition of the bond sued on (a copy of which was attached to the petition) was: “Now if the above Alex Foster shall carefully collect and preserve from waste or loss all the goods and chattels and effects of the said Owen Perry, deceased, and shall make, or cause to be made, a true and perfect inventory of all such estate, and, the same being so preserved, do surrender up such estate and effects, with the inventory aforesaid, unto the legal and proper administrator, on or by the first Monday in July next, or so soon thereafter as the ordinary shall direct, with all his other actings and doings therein, then this obligation to be void; otherwise to remain in full force and law." The defendants demurred to the petition, contending, (1) that the plaintiff ordinary was prohibited by code section 4786 and related sections from acting as guardian of a minor residing in the county of which he is ordinary; (2) that the petition failed to show a certificate of the ordinary that no legally qualified guardian had been appointed for the minor, and that the estate of the minor fropi all sources did not exceed the sum of $500, and (3) that no action could be maintained on the bond except by a permanent administrator alleging a failure by the temporary administrator to' pay over to him the assets of the estate. The demurrer was overruled, and on the trial of the case a verdict was directed for the plaintiff in the sum of $125. A motion for a new trial having been overruled, the defendants excepted, and also preserved their exceptions made pendente lite to the overruling of the demurrer.

The first of the stated grounds of demurrer is without merit, since the act of 1918 purports to repeal all inconsistent provisions of law. The remaining grounds of demurrer were good, and the failure of the court to sustain them rendered nugatory all further action taken in the case. No decision is made upon the question whether a suit other than upon the bond could have been maintained against the temporary administrator if the petition had shown a certificate from the ordinary that no legally qualified guardian had been appointed for the minor, and that the estate of the minor, from all sources, did not exceed the sum of $500.

Judgment reversed.

Stephens and Bell, JJ., concur.


author: Bloodworth, J.

text:
    17851.
    PRUITT v. THE STATE.
    1. “There being nothing in the evidence or in the defendant’s statement to dispute the fact that the alleged crime was committed, and his defense resting solely upon the contention that he did not participate in the offense, the court, in charging the jury, did not violate the provisions of the code (Penal Code, § 1058; Civil Code, § 4863) in assum-, ing that a crime had been committed.”
    2. There is evidence to support the verdict.
    Criminal Law, 16 C. J. p. 928, n. 79; p. 950, n. 3; p. 1180, n. 74.
    Decided April 12, 1927.
    Rehearing denied May 11, 1927.
    Larceny of automobile; from Bibb superior court — Judge Mathews. November 27, 1926.

      Wallace & Wallace, for plaintiff in error.

      Charles H. Garrett, solicitor-general, contra.
   Bloodworth, J.

The only special ground of the motion for a new trial is as follows: “Because upon the trial of said case the court erred in charging the jury as follows: 'Now, in this case, was the defendant Philpot involved in the enterprise of stealing this automobile, and has he testified. against the defendant who is charged with the larceny of the same automobile; if so, then the rule as to accomplices and the weight to be given their testimony in the case would be governed by the rule which I have given you. If Philpot was an accomplice with stealing the automobile with whoever stole it, then his testimony that this defendant was implicated in stealing the automobile would be subject to that rule, and you would not be authorized to convict this defendant on his testimony, because the law says the testimony of an accomplice is insufficient.’ ” This part of the charge is alleged to be error on the following grounds: “ (a) That the court tells the jury therein that said automobile was stolen. (&) That therein the court intimates and expresses an opinion that said automobile had been stolen, (c) Because the court intimates an opinion that there was an enterprise involving the stealing of said automobile. (d) Because the court expressed an opinion that the evidence of Philpot showed that the defendant Pruitt was implicated in stealing said automobile.”

In his instructions to the jury the judge properly left to them the determination of the question whether certain of the codefendants were accomplices. Hargrove v. State, 125 Ga. 270 (54 S. E. 164); Hays v. State, 9 Ga. App. 829 (72 S. E. 285). There is evidence which would authorize the jury to find that Holt, one of the defendants, was not an accomplice (Springer v. State, 102 Ga. 447 (1, 2), 451, 30 S. E. 971), and upon this theory his evidence, together with that of the other witnesses, left no issue as to whether or not the automobile alleged to have been stolen was in fact stolen, or that Philpot was “ involved in the enterprise of stealing this automobile.” “Where a particular act is established by uncontradicted evidence, it is not error for the judge to assume or intimate that the fact has been proved. Shields v. Ga. Ry. & El. Co., 1 Ga. App. 172 (57 S. E. 980); Fitzgerald Oil Co. v. Farmers Supply Co., 3 Ga. App. 217 (59 S. E. 713).” Dexter Banking Co. v. McCook, 7 Ga. App. 436 (67 S. E. 113). See Flowers v. Faughnan, 31 Ga. App. 364 (2) (120 S. E. 670); Jones v. Wall, 22 Ga. App. 513 (2) (96 S. E. 344). The 3d headnote in Thomas v. State, 27 Ga. App. 38 (107 S. E. 418), is as follows: “The section of the code which prohibits the trial judge from expressing or intimating his opinion as to what has or has not been proved refers to the expression or intimation of an opinion touching some fact at issue involved in the case, and not to something that is conceded by both parties.’ ” See cases cited in the opinion, on page 40 (3). In Callahan v. State, 14 Ga. App. 442 (2) (81 S. E. 380), this court held: “There being nothing in the evidence or in the defendant’s statement to dispute the fact that the alleged crime was committed, and his defense resting solely upon the contention that he did not participate in the offense, the court, in charging the jury, did not violate the provisions of the code (Penal Code, § 1058, Civil Code, § 4863) in assuming that a crime had been committed.” As in that case, so in this one, there is “nothing in the 'evidence or in the defendant’s statement to dispute the fact that the alleged crime was committed.” In Davis v. State, 34 Ga. App. 35 (3) (100 S. E. 50), Presiding Judge Broyles said: “ Complaint is made of the following charge: "All of those questions are for you to determine, but if the explanation made is consistent with the hypothesis of innocence, or with innocence, if you believe it to be true, why you wouldn’t be authorized to find a verdict of guilty on the fact that he was found in the recent possession of the property shown to have been stolen.’ Hnder the facts of the case, conceding that the judge in his charge assumed that the cow (the subject-matter of the larceny charged) had been stolen, a new trial is not required, since this fact was established by the undisputed evidence, and not denied, but virtually treated as true, by the defendant in his statement to the jury. The undisputed evidence showed that the prosecutor’s cow had been stolen by some one, and that shortly thereafter it was found in the possession of the defendant, and there was nothing in the defendant’s statement to dispute this evidence; but his defense rested solely upon the contention that he did not participate in the theft, but had bought the cow not knowing that it was stolen property. Under these circumstances the provisions of the so-called ‘dumb act’ (Penal Code, § 1058; Civil Code, § 4863) were not violated by the judge in assuming that the property had been stolen by some one before it came into the defendant’s possession. Marshall v. Morris, 16 Ga. 368; Springfield v. State, 125 Ga. 281 (54 S. E. 172); Robinson v. State, 129 Ga. 336 (58 S. E. 842); Ga., Fla. & Ala. Ry. Co. v. Jernigan, 128 Ga. 501 (57 S. E. 791); Jones v. State, 130 Ga. 274 (60 S. E. 840); Taylor v. State, 135 Ga. 622 (8) (70 S. E. 237); Callahan v. State, 14 Ga. App. 442 (2) (81 S. E. 380); Wilson v. State, 15 Ga. App. 632 (5) (84 S. E. 81); Sistrunk v. State, 18 Ga. App. 42 (5) (88 S. E. 796); Gallaher v. State, 22 Ga. App. 640 (97 S. E. 97).” See also Miller v. State, 151 Ga. 711 (7). In the light of the facts, the principles announced in the foregoing decisions, and the entire instructions given the jury, there is in the excerpt from the charge nothing that requires a reversal of the judgment.

There is evidence to support the verdict, which has the approval of the judge who tried the case, and the motion for a new trial was properly overruled.

Judgment affirmed.

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


author: Broyles, O. J.

text:
    17860.
    Booker et al. v. Booker.
    Adverse Possession, 2 O. J. p. 141, n. 68.
    Boundaries, 9 C. J. p. 244, n. 2; p. 245, n. 9; p. 247, n. 27; p. 252, n. 9.
    New Trial, 29 Cyc. p. 818, n. 30; p. 820, n. 35.
   Broyles, O. J.

1. “Acquiescence for seven years, by acts or declarations of adjoining landowners, shall establish a dividing line.” Civil Code (1910), § 3821. The line so established is binding on the grantees of the coterminous proprietors. Osteen v. Wynn, 131 Ga. 209 (4) (62 S. E. 37, 127 Am. St. R. 212).

Decided April 12, 1927.

Rehearing denied May 12, 1927.

Processioning; from Lincoln superior court — Judge Perryman. November 10, 1926.

Application for certiorari was made to the Supreme Court.

Burnside & McWhorter, for plaintiffs in error.

Clement E. Sutton, contra.

2. “Where actual possession has been had, under a claim of right, for more than seven years, such claim shall be respected, and the lines so marked as not to interfere with such possession.” Civil Code (1910), § 3822; Camp v. Cochrane, 71 Ga. 865 (2).

3. Under the above-stated rulings and the facts of the instant case, the finding of the jury that the line marked by the processioners was the true dividing line between the adjoining landowners in question was contrary to law and the evidence, and the refusal of the court to grant a new trial was error.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


text:
    17885.
    Spradley v. The State.
    Decided April 12, 1927.
    Rehearing denied May 11, 192.7.
    Certiorari; from Richmond superior court — Judge A. L. Franklin. December 17, 1926.

      J. Richard Bowden, for plaintiff in error.
    W. Inman Curry, solicitor, George Mains, solicitor-general, contra.
    Criminal Law, 17 C. J. p. 252, n. 16.
   Bloodworth, J.

Only the general grounds of the motion for a new trial are insisted upon; there is some evidence to support the verdict; the judge of the city court did not err in overruling the motion for a new trial, and the judge of the superior court properly overruled the certiorari. Judgment affirmed.

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


author: Broyles, C. J.

text:
    17904.
    Gunter v. The State.
    Decided April 12, 1927.
    Rehearing denied May 12, 1927.
    Criminal Law, 17 C. J. p. 252, n. J6,
   Broyles, C. J.

The verdict was authorized by the evidence, and the amendment to the motion for a new trial failed to show reversible error.

Making intoxicating liquor; from Lincoln superior court — Judge Perryman. December 16, 1926.

Hugh H. Combs, for plaintiff in error.

M. L. Felts, solicitor-general, contra.


author: .Luke, J.

text:
    17918.
    JENKINS v. THE STATE.
    1. Under the testimony offered, and the facts appearing of record, there was no abuse of discretion in refusing a continuance.
    2. The other assignments of error being without merit, and the evidence authorizing the conviction, it was not error to refuse a new trial.
    Criminal Law, 16 O. J. p. 470, n.. 31; p. 505, n. 23; 17 O. J. p. 233, n. 83; p. 235, n. 91; p. 252, n. 16.
    Decided April 12, 1927.
    Rehearing denied May 11, 1927.
    Assault with intent to murder; from Wilkes superior court-judge Perryman. December 17, 1926.
    Application for certiorari was made to the Supreme Court.

      F. H. Colley, Hugh E. Combs, for plaintiff in error.

      M. L. Felts, solicitor-general, contra.
   .Luke, J.

The defendant, who was convicted of assault with intent to murder, excepted to the overruling of his motion for a continuance. The motion for a continuance was based on the absence of a witness, and, as the trial judge states in a note, “the evidence did not definitely show the residence of this witness.” The record in this regard shows the following testimony of the defendant: “Q. Do you know whether or not he [the absent witness] lives in Georgia? A. No, sir. Q. You don’t know where this negro lives ? A. No, sir. Q. You have not seen him since last August? A. No, sir. Q. You have not tried to see him anywhere except on the public square in Washington? A. No, sir.” The father of the defendant testified, that he did not know whether the absent witness was in Georgia; that he had not seen him since back in August, and that the absent witness had said that “he was going with Mr. Eubanks’s planer. He said he was going to Toombsboro.” In view of the above evidence showing that it was uncertain whether or not the absent witness was in the State or could be procured at the next term of the court, and of the solicitor’s statement, as appears in the exceptions pendente lite, to the effect that “the testimony of this [absent] witness is here in the record, what he testified on the former trial of this case; they have the testimony offered in their behalf before,” and of the fact, as appears of record, that the case had already been continued three times' that year at the instance of the defendant, the trial judge did not abuse his discretion in overruling the motion for a continuance.

It suffices to say that the other assignments of error are without merit, and that the evidence adduced on the trial authorized this (the second) conviction of the defendant.

Judgment affirmed.

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


author: Broyles, C. J. Broyles, C. J.

text:
    17931.
    RIVENBARK v. THE STATE.
    Criminal Law, 16 O. J. p. 849, n. 23; p. 1049, n. 82; p. 1050, n. 84; p. 1219, n. 67, 71; 17 O. J. p. 88, n. 48 New, 56 New; p. 89, n. 65 New; p. 244, n. 63, 66.
    Homicide, 30 C. J. p. 317, n, 69,
   Broyles, C. J.

1. The excerpts from the charge of the court, excepted to, when considered in the’light of the charge as a whole and the facts of the case, show no reversible error.

2. The ground of the motion for a new trial which complains of the admission of certain documentary evidence is too defective to be considered, because. (1) it does not appear that the movant objected to the admission of the evidence, and (2) the documentary evidence is not set forth in the ground or attached as an exhibit thereto.

3. A ground of the motion for a new trial complains of tile admission in evidence, over the movant’s objection, of the following testimony of a named witness: “Mr. Reynolds was not working anywhere at the time Mr. Martin was killed; he was staying around the hotel at Allenhurst. He stayed around there a week or so, and went to Savannah to the hospital, and then was back around the hotel.” Under repeated rulings of the Supreme Court and of this court, each ground of a motion for a new trial must be complete and understandable within itself. The ground under consideration does not inform this court who “Mr. Reynolds” was, or what connection, if any, he had with the case; and this court can not determine from a consideration of the ground whether the evidence objected' to was material, or that it was prejudicial to the movant.

4. No reversible error is shown by the remaining special ground of the motion for a new trial, which complains that the court allowed the State to recall a named witness and place her “on the witness-stand in rebuttal, when the State had previously sought to elicit certain testimony from her and the same had been ruled out of evidence by the court,” and that “the court erred in overruling the objections of the defendant’s counsel to the following testimony given by the said witness in rebuttal: ‘I saw Mr. Martin on the night that he was killed; I seen him that night at Mrs. Collins’; the objection to said testimony being that it was not in rebuttal and it was irrelevant and inadmissible.”

Decided April 12, 1927.

Rehearing denied May 12, 1927.

Manslaughter; from Liberty superior court — Judge Sheppard. December 24, 1926.

Application for certiorari was made to the Supreme Court.

Shelby Myriclc, M. Price, Ben A. Way, for plaintiff in error.

J. Saxlon Daniel, solicitor-general, J. T. Grice, solicitor-general, contra.

5. The accused was charged with murder, and was convicted of voluntary manslaughter. The verdict was authorized by the evidence and by portions of the defendant’s statement to the jury. It is well settled that a jury has the right to accept a defendant’s statement altogether, or to reject it altogether, or to believe it in part, or to disbelieve it in part. Brown v. State, 10 Ga. App. 50, 54, bottom of page (72 S. E. 537); May v. State, 24 Ga. App. 379 (11), 382 (100 S. E. 797).

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

ON MOTION TOR REHEARING.

Broyles, C. J.

Counsel for the plaintiff in error in his motion for a rehearing contends that this court erred in' holding that, under the facts of the case and the entire charge, the excerpts from the charge complained of in grounds 1, 2, and 3 of the amendment to the motion for a new trial showed no reversible error.

1. The first excerpt referred to was as follows: “If the State fails to do that, [if] the State fails to make out a prima facie case, you would not be authorized to find a verdict of guilty; but when the State does prove to your satisfaction all of the material allegations in the indictment, why then the burden is shifted to the defendant, and he would be bound to make good his defense, and, in a case of this character, either to justify or mitigate the act.” One of the assignments of error upon this charge (and the only one insisted upon in the motion for a rehearing) was: “It places upon the defendant a greater burden than that provided by law, and should have been qualified by the statement, unless the circumstances of justification or mitigation arise out of the evidence produced against him/ ” In the principal ease cited by movant, Green v. State, 124 Ga. 343 (52 S. E. 431), the 4th headnote is as follows: “When on the trial of one charged with murder the accused admits the homicide but at the same time states circumstances of justification or alleviation, and the only testimony of witnesses which proves the homicide also discloses circumstances of mitigation or justification, it is error for the court to charge, without qualification, ‘When a homicide, however, is proven, the burden is on the slayer to justify or mitigate the crime or the offense.’ ” That ruling is supported by a long line of authorities, and is binding on this court. In the instant case, however, the charge now under consideration is essentially different from the charge criticised in the Green case. In that case the judge charged that, merely when the homicide was proved, the burden was on the slayer to justify or mitigate the offense, while in the instant case the judge charged that where the State proved all of the material allegations in the indictment the burden was on the slayer to justify or mitigate the offense. The words, “all of the material allegations in the indictment,” comprise not only the alleged homicide but also the allegation that the accused “unlawfully, wilfully, feloniously, and with malice aforethought did kill and murder” the deceased. It is obvious that the charge in this case is not covered by the above-stated ruling in the Green case.

2. If there were any errors in the other two excerpts from the charge referred to in the motion for a rehearing, they were cured by the additional instructions given by the court on the request of counsel for the accused.

Rehearing denied.

Luke and Bloodworth, JJ., concur.


text:
    17955.
    WILKINS v. THE STATE.
    1. In tlie light of the facts of the case and the entire charge of the court, grounds 8 and 9 of the amendment to the motion for a new trial (complaining of the refusal of the. court to give certain requested instructions to the jury), and grounds 13, 14, and 15 (complaining of certain excerpts from the charge of the court), show no error. The remaining special grounds of the motion for a new trial, and the exceptions pendente lite, are abandoned by the plaintiff in error.
    2. The verdict was authorized by the evidence.
    Decided April 12, 1927.
    Rehearing denied May 12, 1927.
    Embezzlement; from Clarke superior court — Judge Stark presiding. January 6, 1927.
    Criminal Law, 16 C. J. p. 1063, n. 85.
    Embezzlement, 20 C. J. p. 486, n. 60.

      Application for certiorari was made to the Supreme Court.

      Henry C. Tuck, Wolver M. Smith, Horace M. Holden, John B. Gamble, for plaintiff in error.

      Henry H. West, solicitor-general, contra.
   Broyles, C. J.

Only the second headnote requires elaboration. The plaintiff in error, the president of the American State Bank, of Athens, Georgia, was charged with the offense of embezzlement, and the indictment was drawn under section 186 of the Penal Code of 1910, as amended by the act of 1919 (Ga. L. 1919, p. 216, sec. 20) and now embodied in yol. 11 of Park’s Annotated Code of Georgia as section 202 (t). The gist of the offense as charged in the indictment was that the defendant, while president of the American State Bank, fraudulently took and carried away from the bank, and with the intent to injure and defraud the bank, one hundred shares of the capital stock of the Georgia National Bank, of Athens, Georgia, of the value of one hundred dollars per share, “said shares of stock having been pledged to said American State Bank as collateral security to a note signed by one James F. Shehane and payable to said bank, for the principal sum of thirty thousand dollará, and [the said defendant did] appropriate and apply said stock to his own use, to the damage and loss of said bank, all of said shares of stock having been pledged to said American State Bank as aforesaid, the said bank having a property interest in the said shares of stock.” No demurrer was interposed to the indictment.

Upon the trial the evidence disclosed the following undisputed facts: The defendant while president of the American State Bank, of Athens, Georgia, removed from the collateral box of that bank one hundred shares of the capital stock of the Georgia National Bank of the same city, and substituted for it 168 or 187 shares of stock of the Guaranty Trust Corporation, of Athens, Ga. The stock so removed from the American State Bank was owned by J. F. Shehane, and was placed by him with that bank as collateral security to obtain a loan of money from the bank. The stock, soon after its removal, was sold, and at least a portion of the proceeds so obtained was applied by the direction of the defendant to the payment of a promissory note executed by him. The defendant removed the stock from the bank without the authority or knowledge of the loan committee of the bank or of the members of its board of directors. However, it was the custom of banks generally and of the American State Bank to permit exchange or substitution of paper held as collateral security, and it was also the custom for the president of the bank to make such exchange or substitution without any specific authority from the bank’s loan committee, its board of directors, or any other of its officials.

The State contended that the substituted stock was not equal in value to the stock removed, and was so known to be by the defendant at the time of the substitution, he being also the president of the Guaranty Trust Corporation, and that he made the substitution with the intent to defraud and injure the American State Bank- and to benefit himself, and that by such substitution' he actually did injure and defraud the bank, to his own benefit. On the other hand, the defense contended that the substituted stock was equal in value to the stock removed, and that this fact clearly showed that the defendant had no.intention to injure or defraud the bank, and that it was not injured or defraudéd by the substitution.

As to these respective contentions the evidence was conflicting. While there was evidence showing that the substituted stock was equal in value to the removed stock, there were other facts and circumstances disclosed which authorized a contrary finding. The vital and controlling question in the case was whether the defendant made the stock substitution with .the intent to defraud the bank. The State, as it generally has to do in such cases, had to rely on circumstantial evidence to show such an intent; and while the evidence introduced for that purpose did not demand a finding in favor of the State upon that issue, we can not hold that it was insufficient to authorize such a finding; and, that finding and the verdict having been approved by the trial judge, and no error of law appearing, this court is without authority to interfere.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


author: Luke, J.

text:
    17960.
    Joiner v. The State.
    Decided April 12, 1927.
    Rehearing denied May 11, 1927.
    Possessing and selling intoxicating liquor; from Cook superior court — Judge Knight. January 12, 1927.

      Jeff. S. Story, for plaintiff in error.

      H. C. Morgan, solicitor-general, contra.
    Criminal Law, 16 C. J. p. 1180, n. 74.
   Luke, J.

The evidence in this case sustains the verdict; there is no reversible error in the charge of the court, for any reason assigned; and the overruling of the motion for new trial was not error.

Judgment affirmed.

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


text:
    17880.
    Randall v. The State.
    Decided April 13, 1927.
    Rehearing denied Mat 12, 1927.
    Certiorari; from Richmond superior court — Judge A. L. Franklin. December 17, 1926.
    Application for certiorari was made to the Supreme Court.

      Peebles & Bowden, for plaintiff in error.

      W. Inman Curry, solicitor, George Hains, solicitor-general, contra.
    Criminal Law, 16 C. J. p. 1180, n. 74.
   Broyles, C. J.

The verdict was amply authorized by the evidence, and none of the approved grounds of the amendment to the motion for a .new trial (grounds'5 and 7 were disapproved by the trial judge) show cause for another hearing of the case. The judge of the superior court , did not err in overruling the certiorari.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.