text:
    1190.
    CENTRAL OF GEORGIA RAILWAY CO. v. CRAPPS.
    1. Railroad companies are suable, on causes of action arising upon contracts, either in the county in which the contract is made, or in the county in which it is to be performed, at the option of the. plaintiff..
    2. A summons in a justice’s court is amendable as to any detail, so long as there is no change as to the parties or as to the transaction which is the basis of the action, provided no change in the nature of the cause is involved. Even the absence of an allegation of jurisdiction may be cured by amendment. The statement of the same cause of action in a different form does not necessarily introduce a new cause of action.
    Certiorari, from Clay superior court — Judge Worrill. April 3. 1908.
    Submitted July 15,
    Decided July 25, 1908.

      L. M. Rambo, for plaintiff in error. B. M. Turnipseed, contra.
   Russell, J.

The plaintiff in error excepts to the refusal of the judge of the superior court to sanction the certiorari. It appears from the petition, as presented to the judge, that the defendant in error brought a suit on an account, in a justice’s court of Clay county, against the Central of Georgia Eailway Company. On the first trial the plaintiff obtained a judgment, and the case was taken, by certiorari, to the superior court, where, on February 10, 1908, the petition for certiorari was sustained and a new trial was ordered. At the March term, 1908, of the justice’s court, the case again came on for trial. The defendant moved to dismiss the summons, because it was alleged in the statement of the cause of action, attached to it, that the plaintiff worked 38 days and hired 17 men in July and August, and it was not shown how many men were hired in July and how many in August, nor how many days he himself worked in July and how many in August. The motion to dismiss was also based upon the ground that it appeared, on the face of the summons, that the justice’s court of the 431st district, G. M., of Clay county was without jurisdiction to try the same; that if the petitioner had a cause of action as alleged, the same accrued in the superior court of Dougherty county. To meet these objections the plaintiff offered the following amendment :.

“Georgia, Clay county, 431 Dist., G. M. — G. P. Crapps vs. Central of Georgia Railway Co. Complaint for services rendered.

“And now comes plaintiff and amends his complaint in above-stated case, and when so amended shall read as follows:

“To any lawful constable of said* county, greeting. The defendant, Central of Georgia Railway. Company, of said district, is hereby required to be and appear at the next justice’s court to be held in and for said district, at the court-house in said county, on the 2nd day of January next, by 10 o’clock a. m., to answer the complaint of G. P. Crapps, in an action for services rendered at Albany, Ga., and contracted for at Ft. Gaines, Ga., copy of which said complaint is attached to the summons; or, in default, the court will proceed as to justice shall appertain. Herein fail not.. Given under my hand and seal, this 28th day of Nov., 1906.

“T. M. Brown, N. P. and ex. off. J. P. (L. S.)

“Copy.- — -Central of Georgia Railway Co., Dr. to G. P. Crapps,. for services rendered at Albany, Ga., and contracted for at Ft. Gaines, Ga.

“To 38 days services, $1.50 per day..................$57.00

“To 17 men hired, $1.00 each for hiring..............$17.00'

“By cash per check .........................;......$27.00

“Balance due .....................................$47.00.”'

The defendant demurred to the amended summons, and objected to the allowance of the amendment, because it set forth a new cause of action; because it attempted to show jurisdiction in the justice’s court of 431st district, G. M., of Clay county, when the original summons -as amended at the first trial showed, that the justice’s court of the 431st district of Clay county was without jurisdiction, and that if any cause of action existed, the superior court of Dougherty county had jurisdiction to try the same; and because the court could not allow an amendment of. any kind, because it was without jurisdiction to try the case. The ' justice overruled the demurrer and allowed the amended summons as an amendment. Thereafter a judgment was entered in fávor of the plaintiff, for the amount of the suit.

Two questions are raised by the record: First, whether the justice’s court of Olay county had jurisdiction of the cause of action. We consider this first, because, if the court was without jurisdiction, the judge of the superior court should have sanctioned the writ of certiorari, upon that ground, if upon no other. We think, however, that there is no merit in this exception, for clearly the justice’s court of Clay county, so far as the record shows, had jurisdiction to dispose of the case. Under the Civil Code, §2334, railroad companies may be sued, upon a contract, either in the county in which the contract is made, or in the county in which it is to be performed; and the summons set forth that this contract was made in Clay county, although it was needlessly alleged that the work was performed in Dougherty county. The fact that the suit could have been brought in Dougherty county does not militate against the right of the plaintiff, at his option, to proceed in Clay county, if he prefers so to do. Under our construction of §2334, the plaintiff in such an action against the railroad may, at his option, make an election as to the county in which he will proceed. The language of the section, so far as is material to this case, is as follows: “All railroad companies shall be sued . . on all contracts made or to be performed in the county where suit is brought.” Of course the language is not apt for the purpose of designating jurisdiction, in the way in which the words in this extract occur; but if the words used are reversed, the reading would be: suit is to be brought in the county where the contract is .made or to be performed. Or if we were to stop, in the reading of the section, with the first clause thereof, before an attempt is made to designate different causes of action, the section would read, “all 'railroad companies shall be sued in the county in which the cause of action originated.” Clearly, under the allegations of the summons, the cause of action originated in Clay county, because it was there that the contract was made which led to the alleged performance of the service and consequent indebtedness. The origin of the contract, and of the consequent cause of action, was in Clay county. However, we have already held in Brooke v. Louisville & Nashville R. Co., 3 Ga. App. 492 (60 S. E. 218), as we now hold, that one who claims a cause of action upon a contract made with, a railroad company may sue either in the county in which the contract was made, or in the county in which the contract is to be performed. The judge did not err, therefore, in holding that the justice’s court of Clay county had jurisdiction to try the ease, and, consequently, to allow any proper amendment.

We come, then, to consider whether there is any merit in the contention of plaintiff in error that the amendment should not have been allowed, because it set forth a new cause of action. We have already held, in Southern Ry. Co. v. Oliver, 1 Ga. App. 734 (58 S. E. 244), and G. S. & F. Ry. Co. v. Barfield, 1 Ga. App. 203 (58 S. E. 236), that niceties of pleading are not required in justices’ courts. There was no error in allowing the amendment in this case, because the amended summons simply amplified the allegations of the original petition and set forth more clearly the jurisdiction. The parties are the same in each case, and the transaction and the amount are the same. There could be no misunderstanding on the part of the plaintiff, as to the identity of the subject-matter of the two suits.

A petition, even in the superior court, may be amended by showing the jurisdiction. Judgment affirmed.


source: Caselaw Access Project

author: Russell, J.

license: Public Domain

text:
    1199.
    McLAMB & COMPANY v. LAMBERTSON.
    1. Parol evidence is admissible to identify the connection of a party or a circumstance with a written instrument sought to be introduced in evidence. Testimony that the witness applied for a homestead is not parol evidence as to the contents of the purported homestead.
    2. Where only personal property is set apart as a homestead under §2829 of the Civil Code, no record of the application is required in any county other than that of the applicant’s residence when he applies.
    3. The word “horse” is generic and includes mules and asses as species, but the term “mare” is not descriptive of a female of the species mule.
    4. It is error to direct a verdict, unless no verdict can be found other than that rendered.
    5. Neither an article of necessity furnished for the use of the family, nor even stock feed furnished to feed horses, which has been set apart as part of a homestead, comes Within the constitutional exceptions under . which homestead property may be subjected to sale.
    Claim, from city court of Nashville — Judge Roan presiding. April 23, 1908.

      Submitted July 15,
    Decided July 25, 1908.

      Bush & Stapleton, for plaintiffs.

      Hendricks & Christian, for defendant.
   Russell, J.

McLamb & Company foreclosed a mortgage of J. A. Lambertson, upon one dark bay mare about eight years old, and one dark bay mare mule about six years old, as the property of the mortgagor. J. A. Lambertson interposed a claim, as head of a family consisting of himself, his wife, and five children, alleging that the property levied upon was not his property, but was held in trust for his said family, because it had been set apart as a homestead by the ordinary of Worth county, under the provisions of the Civil Code, §2827. The mortgagees also filed an affidavit in aid of their foreclosure, asserting that the plaintiffs’ debt fell within one of the classes for which the homestead is bound under the constitution, and amended their mortgage foreclosure by adding an itemized statement of the articles for which the mortgage was given, and by alleging that the articles furnished were for the benefit of the homestead exemption, and in the nature of purchase money. Upon the conclusion of the testimony, the trial judge directed a verdict finding the property not subject to the mortgage. The plaintiffs in error excepted, by direct bill of exceptions, to the admission of the testimony of the witness Lambertson, and of the certified copy of the homestead, and also to the refusal of the court to direct a verdict finding the property subject, as well as to the ruling of the court directing a verdict in favor of the plaintiffs.

We shall first consider the objections to evidence which the court overruled. The plaintiffs first objected to the testimony of Lambertson, to the effect that he then had a family of six children and a wife, all living, and that he applied for a homestead in Worth county. . The objection urged was that the application for homestead was the best evidence. This objection seems to us without merit. The witness was not speaking of the contents of the homestead, but merely stating a preliminary fact, which identified him as' the party referred to in the application, which must speak for itself. The plaintiffs, by their amendment, had admitted that the claimant had taken some kind of homestead, because they alleged in their amendment that the articles they had furnished were furnished for the benefit of the homestead. This plainly appears in the affidavit of A. F. Shealy, a member of the plaintiff firm, which was filed April 23, 1908. The application directed to the ordinary and approved by him is, as insisted, the highest and best evidence as to what property, if any, was set apart as a homestead, and yet we do not think it would have been illegal for the court to permit the witness to be asked whether he ever took a homestead. When the certified copy of the original homestead was shown to the witness, lie was permitted to testify that this paper was a copy of the original paper. The objection urged was that the copy would speak for itself. If there is any merit in this objection, there is at least nothing hurtful in the ruling to which the plaintiffs in error except. The exception was that the certified copy was the best evidence. The court’s ruling did not conflict with this proposition, -and the certified copy was immediately thereafter introduced, showing that one dark bay mare eight years old, of the value of $150, and one dark bay mare six years old, of the value of $150, were included in the schedule of the property attached to the application for homestead, approved by the ordinary of Worth county, December 3, 1906, and recorded by the clerk of the superior court of Worth county, January 30, 1907. The plaintiffs objected to the certified copy upon several grounds, and the judge temporarily withheld his ruling. The claimant was then recalled, and was permitted to testify, over the plaintiffs’ objection, that the bay mare and the mule included in the mortgage are the same mare and mule that were set aside in the homestead. The objection urged to this testimony was that the claimant was seeking, by parol testimony, to vary the terms of a written instrument, — that is, to vary the terms of the homestead offered by the plaintiffs. If the objection had been confined to the mare mule, the objection, for reasons hereafter stated, would have been valid; but as the objection was only partly tenable, the court did not err in overruling it as a whole. The identity or lack of identity of an object can be shown by parol, regardless of the terms of description employed, provided the description in each case is legally identical. In such a case the written description is not affected or varied. The soundness of this rule will plainly appear when we consider that two pieces of property may be described exactly alike in two certain instruments, and may in fact be exactly alike, and yet may not be the same pieces of property. For instance, A may mortgage a walnut roller-top desk to B, describing it minutely. B, upon foreclosing his mortgage, might levy the fi. fa. on a walnut roller-top desk belonging to C, made by the same manufacturer and in every respect like the one mortgaged by A, and yet A might have bought his desk at one time from one salesman, and C his at another time from another salesman, and A and C might not be acquainted with each other, and might never have had a single dealing with each other; and their desks, though identical in physical appearance, might bear no legal relation whatever to each other. Certainty, in such a case, C should be permitted to swear that his desk was not the desk mortgaged by A to B, although the two desks might be exactly alike in every conceivable respect.

The objections to the certified copy of the homestead were: (a) That the homestead is not recorded upon the minutes of the homestead record in the clerk’s office of the superior court of Berrien county. (&) That the property levied upon is not described in the homestead, (c) That the homestead has never been supplemented by order of the court, as required by law. (d) That there is no proof showing that the property levied upon is the property set apart in the homestead. (e) The description in the homestead and the description in the mortgage show that it is quite different property; and the levy shows the same fact. We think that these objections were property overruled for the following reasons.

Where a homestead is set apart in land, or where the homestead allowed under §2827 of the Civil Code consists partly of land and partly of personal property, the homestead must .be recorded in each of the counties where any of the land is situated (Acts of 1898, pp. 52-53), but it is only when land outside of the applicant’s residence is exempted that the homestead is to be recorded in any county other than that of the applicant’s residence at the time that the homestead is allowed. As there was no property except personal property allowed under the homestead exemption in the present instance, the record in Worth county, which was made within thirty days after the approval of the ordinary, was sufficient.

The objections from 6 to / inclusive are directed to a single point. In the application for homestead the animals levied upon are described as “one dark bay mare, eight years old, value $150,” and “one dark bay mare, six years old, value $150.” In the mortgage and entry of levy the animals referred to are described as one bay mare, eight years old, named Pet, and one bay mare mule, about six years old, named Emma. The point of the plaintiffs’ objection, therefore, though presented in several different forms, is that the claim as to the bay mare mule, named Emma, can not be supported by proof that a bay mare was set apart as exempt from levy and sale. Counsel for the plaintiffs in error insist in their brief that the “homesteader” had evidently sold the dark bay mare six years old, and afterwards bought the bay mare mule, and that the latter was therefore subject to the mortgage of the plaintiffs.

It was ruled in Teal v. State, 119 Ga. 104 (45 S. E. 964), Judge Fish delivering the opinion, that “it is a matter of common knowledge and observation that among our people the word 'mare,’ when used without a word of qualification, is understood to mean a female of the horse species. We apprehend that one rarely, if ever, hears the expression 'a mare horse’ employed to describe a female of the species horse, but that the term universally uded, in this State, for this purpose is the single word 'mare.’ On the other hand, when a female of the species mule is intended, the expression used is 'a mare mule,’ and when a female of the species ass is meant, the word 'jenny’ is used.” Eor this reason, the court erred in directing a verdict finding the mare mule not subject to the fi. fa.

Another point raised by the record is the contention of the plaintiffs that the property levied upon is not exempt, because the account comes within the exceptions provided by the constitution, and within one of the classes of debts which may subject a homestead to sale. There is nothing in the evidence upon this point which would have prevented the trial judge from directing a verdict. The only executions which can bring homestead property to sale are those based upon taxes, purchase-money of the prop«rty, debts for labor done thereon, or material furnished therefor, nr for the removal of incumbrances. The contention of the plaintiffs in error was that the articles mentioned in their account were material furnished for the benefit of the homestead. We are sure, that while the shells mentioned in the account' might have aided .some member of the family in hunting and killing game, and the face powder might have contributed to their personal adornment, and the parasols might have been useful for protection, and the slippers useful for the purpose of domestic discipline as to the smaller children, and while the broom might have intimidated even the head of the family, the articles in the account were not sold or intended as material for improvement of the property set apart as the homestead. It is true there are several items of hay, oats, and ■other stock feed, but, taken as a whole, they constitute but a very small proportion of the account. The great bulk of the account is for articles of evident use and necessity to the members of the household, but the connection between their personal welfare and ■comfort and any improvement or maintenance of the articles of property set apart as a homestead is too dim and remote to be discoverable. In articles furnished for improvement of the homestead, improvements to realty alone are included.

Judgment reversed.


author: Hill, C. J.

text:
    1207.
    WINKLES v. THE STATE.
    1. To constitute the offense of “living together in a state of adultery or fornication, or of adultery and fornication,” the evidence should show habitual illicit intercourse between the man and the woman. Proof of merely one act, or occasional acts, of incontinence is not sufficient. Therefore it was error, on the trial of a man charged with the offense 'of living with a named female, in a state of adultery and fornication, to instruct the jury, in effect, that proof of the commission by the defendant of the “offense of adultery and fornication” with the named woman would authorize a conviction.
    2. The evidence in this case, strongly weighed against the defendant, is sufficient only to raise a suspicion of his guilt of the offense of “adultery and fornication,” and is wholly insufficient to support the verdict of illicit cohabitation.

      Indictment for adulteiw and fornication, from Haralson superior court — Judge Edwards. April 15, 1908.
    Argued June 30,
    Decided July 25, 1908.

      Janes & Hutchens, J. S. Edwards, for plaintiff in error.

      W. K. Fielder, solicitor-general, Griffith & Mathews, contra.
   Hill, C. J.

The plaintiff in error was convicted on an indictment for the offense of “living together in a state of adultery and fornication” with a named unmarried female, he being a married man. ITis motion for a new trial being overruled, the case came to this court.

The defendant was a married man, living on his farm with his wife and children, two miles distant from the place where the woman designated in the' indictment and in the proof lived. She lived with her mother, sister, and brother-in-law. She had never been married, but had a child, twelve or thirteen years of age. The place on which she lived was owned by the defendant, and was rented by him to the brother-in-law of the woman in the case. He frequently visited this house, and was seen in conversation with the members of the family, including the brother-in-law, and on several occasions was seen talking to this woman. These visits were generally made on Sundays, when the defendant, on his way from church, would walk with the brother-in-law and stop at the house and sit on the porch, and talk to members of the family. On one occasion he spent the night at this house; but the witness who testified to this fact also testified positively that he did not sleep in the room occupied by the woman, but did sleep in another room of the house. This witness also testified that on one occasion, while he himself was present at the house, he knew that the defendant was in a room with the woman for a short time, although he did not see them there together. No improper conduct was shown to have taken place between them, nor did the evidence show any situation indicating improper conduct, or any circumstances of suspicion between them, for two years prior to the date of the indictment. It was shown that the defendant, on several occasions, repaired the house, and specially repaired and fitted up the room in the house occupied by the woman in question. There was evidence that ,her bastard child, twelve or thirteen years of age, went by his name and was claimed and treated by him as his son. Some eight or ten years prior to the indictment, he and the woman were seen in a store at Cedartown, buying shoes (which the witness testified were shoes for females) and calico, and they rode to Cedartown in a buggy together. Some of the witnesses swore that the woman had a general reputation for immorality, and that the women of the neighborhood did not visit her. It was also shown that the witnesses who testified against the defendant had had litigation with him, and were not friendly towards him.

The defendant- introduced no evidence, denied his guilt, and defended the woman’s character. He stated, that he was interested in the property where she lived, because it belonged to him, and that he did on several occasions visit the family and go to church with them, and spend the day on returning from church, but that he had never been anywhere with this woman alone. He denied that the child of the woman was his offspring, or that he had ever claimed it as such, and stated that the testimony of the witnesses against him and her was dictated by their feeling of enmity to him, growing out of litigation which he had had with them.

We have examined the special assignments of error, and conclude that they show no material or prejudicial error, except in the following excerpt from the charge of the court: “Indirect or circumstantial evidence is that which only tends to establish the issue by proof of various facts sustaining by their consistency the hypothesis claimed. The hypothesis claimed in this case is that within two years before the finding of this bill of indictment, in this county, the defendant, S. J. Winkles, committed, with Lizzie Clinton, the offense of adultery and fornication.” The indictment in this case charged the defendant and the unmarried woman with “living together in a state of adultery and fornication.” This offense necessarily includes the act of adultery and fornication, but it is not established by a single illicit act. The code makes the offense of living together in a state of adultery and fornication a different offense from an act of adultery and fornication. Penal Code, §381. And a single or occasional act of criminal intercourse does not constitute the offense of living together or cohabitating in adultery and fornication. Cohabitation or living together in this illicit and unlawful state is essential. Many authorities hold that, under statutes substantially in the same language as section 381 of the Penal Code, it is necessary to prove that the parties lived together in the illicit relation in the same house, the object of such statutes being to prohibit the public scandal or disgrace of 'the living together of persons of opposite sexes notoriously in illicit intimacy, -which outrages public decency and has a demoralizing and debasing influence upon society. Other authorities hold that the parties need not occupy the same dwelling, if there is a continuation of the illicit intercourse for a sufficient lengtli of time to satisfy the jury that the relation or state existed. Bish. Stat. Crimes, §697; Bodiford v. State, 86 Ala. 67 (11 Am. St. R. 20, 5 So. 559); Morrill v. State, 5 Tex. App. 447. In other words, habitual illicit intercourse between a man and a woman, though living apart, will constitute the offense, but how long and to what extent such habitual illicit intercourse must be continued is not settled as a matter of law, but must in every case depend upon the special facts and be determined by the jury. We can imagine cases in which the offense of living together in a state of adultery and fornication could exist and be shown, without proof of any act of incontinence, or where proof of one act, or of an occasional act, of adulterous intercourse, in connection with other circumstances, would be sufficient to prove the offense of living together in such immoral relation; but there is. no authority which holds that one act, or even occasional acts, of adultery and fornication would be sufficient to show, without more, the offense of cohabiting or living together in violation of the penal statute. As is said by the Supreme Court in Lawson v. State, 116 Ga. 571, where the indictment charges the defendant with living in adultery with a named person it is “necessary for other facts to be proved besides an act of adultery, to warrant the conviction of the defendant.” And in McLeland v. State, 25 Ga. 477, where the defendant was indicted for living in a state of adultery and fornication, it was held that it was erroneous for the court to instruct the jury that if they believed that one or two or more acts necessary to constitute the offense charged in the bill of indictment' were proved, they should And the defendant guilty. Therefore, the “hypothesis claimed in this ease by the State” was not the commission of the offense of “adultery and fornication” between the defendant and the named female, but was something more, to wit, that the man and the woman named had “lived together in a state of adultery and fornication.”

The learned counsel for the State admits that the evidence against the plaintiff in error is “not very strong and conclusive,” but contends that “when viewed in the light of all the surrounding circumstances, as the jury viewed it, it is sufficient to sustain a conviction, and the verdict'which was approved by the trial judge ought to stand.” The evidence is entirely circumstantial, and we fully concur in the opinion of the solicitor-general that it is neither strong nor conclusive. Indeed, we are sure that it has neither sufficient strength nor conclusiveness to support the verdict. When weighed most strongly against the defendant it only raises a suspicion of his guilt of the act of adultery and fornication, and wholly fails to show any fact or circumstance tending to prove the offense of which he was convicted. This court is not illumined by any ray from “the light of all the surrounding circumstances,” from which counsel for the State justifies the verdict. If any such light existed, it does not shine forth from the brief of evidence, and must have existed solely in the surrounding circumstances. The gossip of what Charles Eeade calls the .“prurient prudes” in the neighborhood,, and the ready accusation of personal enemies, are not sufficient to meet the requirements either of law or justice. These demand evidence of guilt, exclusive of every reasonable hypothesis of innocence; and it certainly can not he said that this standard of conclusiveness is reached by the evidence in this case.

We therefore conclude that the conviction of the plaintiff in error of the offense charged in the indictment is wholly without any evidence to support it, and that the judgment refusing him a new trial was erroneous. Judgment reversed.


text:
    1214.
    SOUTHERN RAILWAY COMPANY v. GRACE.
    1. In the determination of alleged errors, on certiorari, the answer of the justice furnishes to the court the only authoritative information as to what occurred in the trial sought to he reviewed. Assignments of error, in a petition for certiorari, which are not verified by the answer of the justice, present nothing for the consideration of the superior court.
    2. As the answer to the writ of certiorari in the present case does not verify the statement in the plaintiff’s petition, that a judgment was rendered against it in the justice’s court, the judge of the superior court, in dismissing tlie petition for certiorari, did not commit any error of which the petitioner in certiorari can justly complain.
    Certiorari, from Telfair superior court — Judge Martin. April 22, 1908.
    Submitted July 16,
    Decided July 25, 1908.

      J. F. DeLacy, for plaintiff in error.

      Graham & Graham, contra.
   Russell, J.

According to the allegations of the petition for certiorari, one Grace brought suit against the Southern Eailway Company, to recover damages for the killing of a heifer and two head-of sheep, and for the burning of certain fence, which was sworn to as if it were an ordinary account; and the justice of the peace entered up judgment against the defendant, without any evidence being submitted in the case. In other words, complaint is made that the only, verification of the plaintiff’s demand was the affidavit attached to the statement of account, that the same was just, true, due, and unpaid. It is further alleged that the court rendered judgment in the case in absence of any summons, and overruled the defendant’s motion to dismiss the case upon the ground that there was no legal summons issued or served as required by law. If these complaints of the petitioner in certiorari had been sustained by the answer of the justice, or their truth had been established by traverse (if the justice denied such to be the facts), the judge of the superior court would undoubtedly have sustained the certiorari, instead of dismissing it. If the original summons is not forthcoming when the case is called for trial in the justice’s court, and if it has been lost or destroyed, it is the duty of the justice to have a copy established before proceeding with the trial. If the original is still in existence, and for any reason can not be produced at the time 'of the trial, the court should continue the ease until the original summons can be brought into court. A summons in a justice’s court supplies the place of the petition or declaration in other courts, and is indispensable to the trial. A judgment in the justice’s court is void, where no summons is issued. Gunnels v. Deavours, 54 Ga. 496; Jeffers v. Ware, 72 Ga. 135; Farkas v. Stewart, 73 Ga. 90; Peeples v. Strickland, 101 Ga. 831 (29 S. E. 22). ne reason, of the importance of a summons and of its presence at the trial is suggested by the present case. Before all else, the summons calling the defendant into court to answer the plaintiff’s demand is indispensable to give jurisdiction to the justice’s court. Should a review of a justice’s court trial be desired, it would be necessary for the summons to be transmitted by copy to a reviewing court.

In response to the writ of certiorari in the present case, the justice first answered by merely saying that he sent up copies of all the proceedings in the case. This answer was made on August 16, 1907. To this answer counsel for the petitioner in certiorari filed exceptions, specifying that the answer of the justice was defective, in that he failed to send up the original summons and other proceedings with his answer, and because he failed to answer any of the averments of the petition or to state whether these averments are true or not, because his answers contain no response from which it can be determined whether the averments of the petition are intended to be verified or denied. In these exceptions the counsel for the petitioner in certiorari recognized that the answer of the justice must at last control the reviewing court in determining what really transpired in the court in which the case was originally tried. And no principle is better settled. In the determination of alleged errors on certiorari, the answer of the justice furnishes to the court the only authoritative information as to what occurred in the trial sought to be reviewed. Assignments of error in a petition for certiorari, which are not verified by the answer of the justice, present nothing for the consideration of the superior court.

In response to these. exceptions the justice filed another answer as follows: “The case was called for trial in justice court of the 1357th district, G. M., on the 24th day of May, 1907. Counsel for the defendants called for the original papers in said case, and the constable, J. B. Marchman, stated that he forgot the papers and left them at home. Counsel then stated the case could not.be tried without the original papers. The court then called W. A. Grace, who stated that the defendants knew of said suit and had offered him a compromise, provided he would pay the costs in said case. The court then told the counsel for the defendants that if he could show that there was not due notice, then the case would be continued, but in default to do this the court would give judgment. Then counsel gave notice of certiorari, in which there was filed with the court a petition of certiorari, and the court has not the averments present, but this is the status of the ease. The court has made diligent search for the originals and can not find them, as the same are lost or misplaced. The court thinks the papers were burned by the cleaning out of the house áfter an epidemic of measles had gone through the family.” He attempted to account for the failure to send up the original paper, but he did not show that any judgment was rendered against the defendants; and therefore did not show anything which gave the petitioner in certiorari a right to complain. As the answer to the writ of certiorari in the present case does not verify the statement in the plaintiff’s petition, that the judgment was rendered against it in the justice’s court, the .judge of the superior court, in dismissing the petition for certiorari, did not commit any error of which the petitioner in certiorari could justly complain.

It did not appear from the answer of the justice what disposition, if any, was made of the case before him, or that any judgment was rendered and entered by him, so far as can be drawn from the answer. Even if his statement that he would give judgment is to be taken as meaning anything, it can be as well presumed, especially in view of the absence of any evidence in the lower court, that the judgment which he intended to enter or did enter was in favor of the defendant, as that it was in favor of the plaintiff. See Stoner v. Magins, 116 Ga. 797 (43 S. E. 45); W. & A. R. Co. v. Clark, 2 Ga. App. 346 (58 S. E. 510).

The petitioner in certiorari had excepted once. It should have excepted again and forced the magistrate to answer definitely and exactly as to what kind of judgment, if any, was entered, so as to show the judge of the superior court that there had been a final disposition of the case in the court below, — a judgment rendered for the court to 'review. Otherwise the superior court would be without jurisdiction in the premises. By reason of the fact that the petitioner did not again except to the failure of the justice to answer that a final judgment was rendered and to state what judgment was rendered, nor insist that its exception to that effect, already filed, should be answered, neither the superior court nor this court can properly undertake to pass upon the merits of the assignments of error made in the petition for certiorari; and, consequently, there was no error in dismissing the certiorari. The petitioner in certiorari seems either not to have insisted upon his exceptions at the time of the hearing, or to have overlooked the fact that no final judgment appeared from the answer, or to have considered that the answer was full enough to imply a final judgment. The fact remains, however, that no final judgment, so far as the answer shows, was ever rendered. Judgment affirmed.


text:
    1223.
    Poulos v. City of Atlanta.
    Petition for certiorari, from Fulton superior court — Judge Pendleton. April 13, 1908.
    Submitted June 30,
    Decided July 25, 1908.

      R. R. Shropshire, for plaintiff in error.
    J. L. Mayson, W. P. Hill, contra.
   Hill, C. J.

Where one seeks a writ of certiorari to review and correct a judgment of a municipal court in this State, he must file with the clerk of the municipal court, or, if there he no clerk, with the judge thereof, a hond payable to the municipality under which the court exists, to be approved by the clerk or the judge, conditioned for the personal appearance of the defendant to abide the final order, judgment, or sentence of the municipal court, or of the superior court, in the case, unless such defendant be unable from his poverty to give the bond, in which case he shall file a proper affidavit in forma pauperis. The filing of the bond or the pauper affidavit is a condition precedent to obtaining the writ, of certiorari; and the filing of the bond with the approval of the clerk or the judge, or the making of the pauper affidavit, must. affirmatively appear in the application for the writ. Neither in the petition for the-writ of certiorari nor in the hill of exceptions does it appear that either the bond or the pauper affidavit as required was filed; and the judg-, ment of the superior court denying the writ must be affirmed. Acts, 1902, p. 105; McDonald v. Ludowici, 3 Ga. App. 654 (60 S. E. 337); Johns v. Tifton, 122 Ga. 734 (50 S. E. 941).

Judgment affirmed.


text:
    1225.
    STIMPSON COMPUTING SCALE CO. v. TAYLOR.
    1. The defendant having expressly agreed, in the contract signed by him, that no agreement or warranty other than that specified in the contract shall be binding upon the plaintiff, it was not permissible for him to prove that the plaintiff’s agent made any other warranty.
    2. A buyer who, with full knowledge of the defects in an article purchased by him, gives a note for the purchase-price is presumed to waive the defects of which he has knowledge, and therefore will not be heard, in defense to £in action brought to recover upon the note, to assert facts resting in his knowledge at the time he voluntarily contracted to pay.
    3. This case is distinguished, as to its facts, from the National Scale Co. v. Eaves, 116 Ga. 511 (42 S. E. 783). In this case express warranty excludes implied warranty of suitableness and correctness of weight.
    4. Where a defendant prevents the performance of a stipulation of a contract undertaken by the plaintiff, he is estopped from setting up in his own behalf any injury which may have resulted from the non-performance of such condition.
    Certiorari, from Macon superior court — Judge Littlejohn. May 15, 1908.
    Argued July 17,
    Decided July 25, 1908.

      Jule Felton, for plaintiff. J. A. Edwards, for defendant.
   Russell, J.

The Scale Company brought a suit against Taylor in a justice’s court, in Macon county, on a series of eight notes, given in pursuance of a contract which was sued upon. A verdict was rendered for the defendant, abating the suit on the notes and awarding $15 in favor of the defendant by way of recoupment. Upon certiorari the court passed an order affirming the judgment of the justice’s court. The plaintiff asks a reversal of the judgment dismissing its petition for certiorari.

It is needless for us to consider exceptions taken to the testimony, or to determine whether, under the decisions in Carter v. Buchanan, 3 Ga. 513 (1), (2), and Clayton v. Tucker, 20 Ga. 452 (3), the testimony of the defendant would or would not ordinarily have been admissible as part of the res gestee, because in the present case not only does the contract contain a provision that “this contract covers all agreements between parties hereto, and we hereby acknowledge receipt of a copy of the same,” but it also contains an express warranty as to the accuracy of the scales. It "guarantees that the scale referred to in this contract shall be accurate in weight and computation.” The principle ruled in DeLoach v. Tutweiler, 2 Ga. App. 493 (58 S. E. 790), must be applied. The express warranty is exclusive of all warranties arising by implication. And especially must this be true where the implied warranties are waived after full opportunity for examination and discovery of defects. The terms of the contract now under consideration especially exclude all anterior agreements and stipulations. See National Scale Co. v. Eaves, 116 Ga. 513 (42 S. E. 783); Biggers v. Equitable Mfg. Co., 124 Ga. 1049 (53 S. E. 674); McCormick Harvesting Machine Co. v. Allison, 116 Ga. 445 (42 S. E. 778). In the case last cited, it is true, the stipulation sought to be proved was made after the sale of the machine, but the court treats this only as an additional reason why the evidence should have been excluded, referring to it incidentally after having already ruled that the evidence was inadmissible for a stated reason. “The defendants had expressly agreed, in the contract signed by them, that no agreement or warranty other than that specified in the contract should be binding upon the plaintiff, and, therefore, it was not permissible for them to prove that plaintiff’s agent made any other warranty.”

The scales purchased by the defendant in this case were inspected by him and delivered to him before execution of the contract and the notes. He saw their exact condition. After seeing that they did not work accurately, he signed both the note and the contract. Granting it to be true that the agent assured him that the scales, with use, would become loosened and go to weighing accurately, he was also protected by the guarantee that if the scales should get out of order at any time within two years, the plaintiff would repair them free of charge. This proposition being embodied in the contract, the purchaser would* have the right, at any time within two years, to call upon the vendor to put the scales in good condition. The purchaser, no doubt, relied upon the agreement to make the scales work accurately, which was embodied in the writing. But however this may be, a buyer who, with full knowledge of the defects in an article purchased by him, gives a note for the purchase-price is presumed to waive the defects of which he has knowledge, and, therefore, will not be heard to assert facts resting in his knowledge at the time he voluntarily contracted to pay, in defense to an action brought to recover upon these notes. Sizemore v. Woolard, 3 Ga. App. 261 (59 S. E. 833). See also Kronman v. Rousch, 3 Ga. App. 152 (59 S. E. 320).

Ledrned counsel for the defendant in error plants his "case upon the decision in National Scale Co. v. Eaves, supra, and insists that, as it appears from the uncontradicted evidence that the scale was so defective as not to be reasonably suited to the use intended, and, indeed, was absolutely worthless, the plaintiff could not recover. There is one difference between the facts in the present case and those in the Eaves case which wholly distinguishes the two cases. In the present ease thex’e is an express warranty that the scales shall be accurate in weight and computation. In the Eaves case Justice Cobb, delivering the opinion, calls attention to the fact that “there is no express warranty in the contract, other than the warranty that the plaintiff will repair any defects when not brought about in a given way. Still there is nothing in the contract which excludes the implied warranty 'of the law, nor is the transaction one of such a nature as that such a warranty would be excluded. The plaintiff, therefore, at the time of the sale, warranted that the scales were reasonably suited to the uses intended; and if this was not true by reason of any defect then existing, the plaintiff would not be entitled to recover, without regard to whether the defendants had given it any opportunity to> make the scales so suited. But the defendants could not defeat a recovery on account of a defect which arose after the sale, unless it appeared that the scales were returned to the plaintiff and it had failed or refused to repair the same within a reasonable time, or unless it appeared that the defect was of such a character that it could not have been remedied if the scales had been returned to it.”

The contract in this case provided that the scales would be put in repair at any time within two years, if they were sent to the plaintiff. There was no evidence that defendant ever attempted to avail himself of this stipulation to which he had agreed. By his contract he agreed .that he would give the plaintiff a fair opportunity to comply with its guarantee as to the perfect accuracy of the scales. By not sending the scales to be repaired, the defendant prevented the compliance of the plaintiff with this stipulation of its contract, and the case falls within the doctrine referred to in Haralson v. Speer, 1 Ga. App. 573 (58 S. E. 142), and Byck v. Weiler, 3 Ga. App. 387 (59 S. E. 1126). Where a defendant prevents the perforxnance of a stipulation of a contract undertaken by the plaintiff, he is estopped from setting up, in his own behalf, any injury which may have resulted from the nonperformance of such condition.

We think, therefore, that the judge should have sustained the certiorari and rexnanded the case for another trial, to be had in accordance with the well settled principles above referred to.

Judgment reversed.


author: Powell, J.

text:
    1228.
    LONG v. THE STATE.
    It is necessary that an indictment or accusation which purports to charge the defendant, under the act of 1903 (Acts 1903, p. 90), with fraudulently procuring advances other than money, on a contract of labor, should contain an allegation that the defendant did not return the-things so advanced, or pay for them. An accusation which charges the procuring of both goods and money, but which alleges a failure to return or repay only the money, is valid only as to the money charge; and the statements as to the goods, on a construction of the accusation, will be treated as surplusage.
    Accusation of cheating and swindling, from city court of Newton — Judge Johnson. May 25, 1908.
    Argued June 30,
    Decided July 25, 1908.

      W. I. Geer, for plaintiff in error.

      Benton Odom, solicitor, contra.
   Powell, J.

The defendant, Will Long, was prosecuted for cheating and swindling, under the act of 1903 (Acts 1903, p. 90). Omitting formal parts, the accusation charges, that “after contracting with J. T. Jackson-to make a one-hórse farm on halves, for and during the year 1908, the contract being as follows: the said J. T. Jackson to furnish land, mule, and feed the mule, and one half of all fertilizers to be used on said one-horse farm; and the -said Will Long to furnish one half of all fertilizers and do and perform all labor in the cultivation and gathering of said crop, to begin work on January 1st, 1908, and to work until December 31st, 1908, did, after making said contract with the intent to defraud the said J. T. Jackson, procure from him, the said J. T. Jackson, ten dollars in lawful money of the United States, and one and one half plugs of tobacco of the value of fifteen cents, and the said Will Long did fail to return the monej so advanced, with interest thereon, at the time said labor was to commence, or to perform said labor, without good and sufficient cause, to the loss and injury of the said J. T. Jackson, in the sum of $10.15.” There was no proof, on the trial, as to the furnishing of the ten dollars in money; there was proof that the defendant obtained the fifteen cents worth of tobacco on the contract, on the day he made it, and that, without excuse, he failed to pay for it or to work. The defendant was convicted and sentenced to a term in the chain-gang, with the alternative of a $75 fine. He excepts.

A proper decision of the case involves a construction of the accusation. It charges the procuring by the defendant of both the money and the tobacco, but charges a failure to return the money only, and not also the tobacco or the value thereof. In justice to the solicitor who drew the accusation, it should be noted that he followed almost literally in that respect the act on which the accusation is based. That act makes no reference to any failure to return or pay for any advances other than money. The act has, however, throughout all the decisions of this court and of the Supreme Court, received a very strict interpretation; indeed such a construction was found necessary to save it from serious constitutional objections. In accordance with the spirit of the rulings in the cases of Mobley v. State, 4 Ga. App. 78 (60 S. E. 803); Mason v. Terrell, 3 Ga. App. 348 (60 S. E. 4); Johnson v. State, 125 Ga. 243 (3), (54 S. E. 184); Glenn v. State, 123 Ga. 385 (51 S. E. 605), we have no hesitancy in holding that where the advances obtained consist of things other than money, it is necessary that the indictment or accusation should allege that the defendant failed to return or pay for such advances. There being no allegation in the present accusation that the 'defendant did not return or pay for the tobacco, and the allegations as to the money being good in form and substance, under a familiar rule the allegations as to the tobacco must be rejected as surplusage, and the accusation construed as being-based upon the procuring of the money alone. The record contains no proof of a fraudulent procurement of the money, and the defendant can not be legally convicted except for the particular offense properly charged in the accusation. Therefore the verdict must be set aside.

Judgment reversed.


text:
    1236.
    Heard v. The State.
   Powell, J.

An accusation of trespass, in which the defendant is charged with passing over the lands of another after being forbidden by the owner, in violation of the Penal Code, § 220, is insufficient to withstand a timely definite special demurrer, where the only description of the lands trespassed upon is “a certain field the cultivated land of [the prosecutor] at the time being held under a contract of purchase,” though previous statements in the accusation locate the land as being in the county of the prosecution. In such an accusation the description of the land should be definite. Brown v. State, 116 Ga. 562 (42 S. E. 795) ; O’Brien v. State, 109 Ga. 51 (35 S. E. 112); Johnson v. State, 90 Ga. 443 (16 S. E. 92); Wiggins v. State, 119 Ga. 216 (46 S. E. 86). The point in the case of Hardaway v. State, 1 Ga. App. 150 (58 S. E. 141), is not identical with the present one,, but is -cognate.

Accusation of trespass, from city court of Jefferson — Judge-Stark. May 8, 1908.

Argued June 30,

Decided July 25, 1908.

John B. Gamble, J. S. Ayers, for plaintiff in error.

W. H. Quarterman, solicitor, Shackelford & Shackelford, contra.

Judgment reversed.


author: Hill, C. J. Russell, J.

text:
    1237.
    YEATES v. ROBERSON, sheriff.
    1. The fifth amendment of the constitution of the United States,— “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb,” — has no application in this State in a ease where a person invokes its protection as against a second trial granted on his own motion.
    2. The defense of autrefois acquit or convict should be interposed on arraignment; and where this is not done, the defendant can not, subsequently to his conviction, set up this constitutional inhibition, by habeas, corpus proceedings, as a ground for discharge. The law does not contemplate that a writ of habeas corpus can be converted into a writ of error.
    3. Whether the act of the General Assembly of 1896 (Acts of 1896, p. 42), which provides that “in all cases decided by a full bench of six Justices the concurrence of a majority shall be essential to a judgment of reversal, and if the Justices are evenly divided, the judgment of the court below shall stand affirmed,” is in contravention of the. fourteenth amendment of the constitution of the United States, because it deprives the-citizen of the equal protection of the law, is not necessary to the determination of .the present case; and this court declines to certify the question to the Supreme Court for decision.
    4. This court has the right to grant a' supersedeas of a judgment of a lower tribunal pending a review of such judgment on writ of error to this, court, when necessary to the full exercise of its appellate jurisdiction. The facts of this case, set out in the bill of exceptions, do not warrant the grant of an order staying the execution of the judgment.
    Habeas corpus, from city court of Macon — -Judge Hodges. June 11, 1908.
    Argued June 14,
    Decided July 25, 1908.

      James S. Yeates, was indicted in the superior court of Decatur county for the crime of murder, and on his trial was convicted of voluntary manslaughter. The Supreme Court of the State granted a new trial. 127 Ga. 813 (56 S. E. 1017). On his second trial under the indictment for murder, he was convicted of that offense, with a recommendation that he be sentenced to the penitentiary for life. He again filed a motion for a new trial, which being overruled, he sued out a writ of error .to the Supreme Court of the State, and the judgment of the lower court was affirmed by operation of law, the Justices of the Supreme Court being equally divided in opinion. 129 Ga. 636 (59 S. E. 771). Subsequently he made an application to the judge of' the United States court for the southern district of Georgia for a writ of habeas corpus, for reasons therein set forth, which application was refused. To this judgment he sued out a writ of error to the Supreme Court of the United States. This last court, on May 4, 1908, affirmed the final order in the case. When the remittitur from the Supreme Court-of the United States was made the judgment of the district court on June 11, 1908, he filed an application to the judge of the city court of Macon for a writ of habeas corpus. His application for the writ was denied; and to this judgment he sued out a writ of error to this court.
    His application for the writ of habeas corpus, made to the judge of the United States district court for the southern district of Georgia, and his application to the judge of the city court of Macon set out the same reasons for the grant of the writ. These reasons are as follows: (1) That his conviction of the offense of murder on his second trial in the superior court, on the same indictment on which he had been previously convicted for the offense of voluntary manslaughter, was illegal, the offense of voluntary manslaughter being a lesser grade of homicide and included in the charge of murder; that notwithstanding he had asked for and obtained a new trial when convicted of the offense of voluntary manslaughter, he could not again be put on trial for the offense of murder, as to do so would contravene the fifth amendment of the constitution of the United States; in other words, that his conviction of the offense of voluntary manslaughter, on his first trial on the indictment for murder, acquitted him of the greater offense of murder, and that the State, after he had been granted a new trial by tbe Supreme Court, could subsequently place him on trial only for the offense of voluntary manslaughter; that his trial on the indictment for murder and his conviction of voluntary manslaughter operated as an acquittal of the offense of murder. (2) As a further ground for the grant of the writ of habeas corpus, he alleges that in the decision of his case in the Supreme Court of Georgia, the Justices of that court were equally divided in number, three being in favor of reversing the judgment, and three for affirming it, and that thereupon the judgment of the trial court stood affirmed, under the provisions of the act of the General Assembly of Georgia,, passed December 17, 1896 (Acts 1896, p. 42), which provides that “In all cases decided by a full bench of six Justices, the concurrence of the majority shall be essential to a judgment of reversal, and if the Justices are evenly divided, the judgment of the court below shall stand affirmed.” He alleges that the act “is unconstitutional and deprives him of his liberty, without due process of law and without the equal protection of the law, contrary to the fourteenth amendment of the constitution of the United States; because said act deprives the citizen of his right to have a judicial determination of his guilt by a reviewing court.” He asked that these constitutional questions be certified by this court to the Supreme Court of the State, for decision.
    When the case was called in this court for argument, the plaintiff in error made an application here for a supersedeas of the sentence of the superior court of Decatur county, until the questions herein made could be finally determined.

      John R. Cooper, for plaintiff in error.

      William Brunson, solicitor-general, W. D. Sheffield, contra.
   Hill, C. J.

(After stating the foregoing facts.)

It is admitted by learned counsel for the plaintiff in error that this court is not required to certify to the Supreme Court the question raised by the first reason assigned by him for, the writ of habeas corpus, it presenting no new question of the construction of any constitutional provision, but a question only as to the application of a constitutional provision to the facts of this ease, as determining the rights of the plaintiff in error. The fifth amendment of the constitution of the United States, — “nor shall any person be subject for the same offense to be twice put- in jeopardy of life or limb,” — has no application in a State where, by constitutional provision, it has been abrogated bjr the condition that a person may be again tried “on his or her own motion for a new trial after conviction, or in case of mistrial.” The constitution of this State provides that “No person shall be put in jeopardy of life, or liberty, more than once, for the same offense, save on his or her own motion for a new trial after conviction, or in case of mistrial.” Constitution of 1877, art. 1, sec. 1, par. 8 (Civil Code, §5705). This provision of the constitution has been construed by the Supreme Court in a ease directly in point: “The true intent and meaning of par. 8, see. 1, art. 1 of the constitution,, which declares that ‘No person shall be put in jeopardy of life, or liberty, more than once for the same offense, save on his or her own motion for a new trial after conviction, or in case of mistrial/ is that one who, after conviction upon an indictment, voluntarily seeks and obtains a new trial thereon, becomes subject to another trial generally for the offense therein charged.” Waller v. State, 104 Ga. 505 (30 S. E. 835). Waller had been indicted for the crime of murder, and on his trial had been convicted of voluntary manslaughter, and, upon his own motion, a new trial had been granted him. It was held by the Supreme Court that he could again be tried for the crime of murder. And the conviction' of Waller on the second trial, of the offense of murder, was sustained not only upon the ground that he had been granted a new trial upon his own motion, and thereby waived the constitutional guaranty against a second trial for the same offense, following the decision of the circuit court of the United States, in the case, of United States v. Harding, 1 Wallace Jr. 127, but his conviction was distinctly placed upon the provision of the State constitution itself, that former jeopardy could not be pleaded in bar of a second trial, where the first judgment had been set aside and a new trial granted on the plaintiff’s own motion. This principle is recognized as sound by the Supreme Court of the United States, in the-following language: “In our opinion the better doctrine is that which does not limit the court or jury, upon a new trial, to a consideration of the question of guilt of the lesser offense of which the accused was convicted on the first trial, but that a reversal of the judgment of conviction opens up the whole controversy and acts upon the original judgment as if it had never been. The accused by his own action has obtained a reversal of the whole judgment, and we see no reason why he should not, upon a new trial, be proceeded against as if no trial had previously taken place. . . If he chooses to appeal from it and to ask for its reversal, he thereby waives, if successful, his right to avail himself of the former acquittal of the greater offense contained in the judgment which he has himself procured to be reversed.” Trono v. United States, 199 U. S. 533 (50 L. ed. 292, 26 Sup. Ct. 121). Therefore, so far as the State of Georgia is concerned, this question is not now an open one. A different rule prevails in some of the States, which have no constitutional provision on the subject similar to the one in Georgia.

Again, the power conferred upon courts to grant writs of habeas corpus does not contemplate that this writ can be converted into a writ of error; and this seems to be the manifest purpose, in so far as the question of jeopardy is concerned, of the petition for the writ in the present case. This objection should have been made in the trial court on the second trial, by a plea of autrefois acquit; and if the plea had been overruled by the court, or if there had been a finding thereon against the defendant, the judgment could have been reviewed by the Supreme Court of Georgia. It is well settled that the defense of former jeopardy, or of former acquittal or conviction, does not entitle the prisoner to be discharged on habeas corpus. 21 Cyc. 305; Ex parte Parks, 93 U. S. 18 (23 L. ed. 787); Whitten v. Tomlinson, 160 U. S. 231 (40 L. ed. 406, 16 Sup. Ct. 297).

The act approved December 17, 1896 (Georgia Laws of 1896, p. 42), which provides that in all cases decided by a full bench of six Justices a concurrence of the majority shall be essential to a reversal, and if the Justices are evenly divided, the judgment of the court shall stand affirmed, is asserted to be unconstitutional, as it deprives plaintiff in error 'of his liberty without due process of law and without the equal protection of the law, contrary to the fourteenth amendment of the constitution of the United States, which guarantees to the citizen the right to have a judicial determination of his guilt by a reviewing court; and we are requested to certify the constitutional question, thus made, to the Supreme Court of the State for decision. The constitutional amendment creating this court' provides, that “where, in a case pending in the Court of Appeals, a question is raised as to the construction of a provision of the constitution of this State or of the United States, or as to the constitutionality of an act of the General Assembly of this State, and a decision of the question is necessary to the determination of the case, the Court of Appeals shall so certify to the Supreme Court,” etc. The attack made by the plaintiff in error is on the constitutionality of the act of the General Assembly of the State, above noted, and if, in the opinion of this court, a decision of the question thus made is necessary for the determination of the case, it would be our duty to certify such question to the Supreme Court for decision. We do not think, however, that the constitutionality of the act in question is necessary to the determination of the present ease by this court. If this act did not exist, the same result would necessarily follow an equal division of the Justices of the Supreme Court as to the questions made by writ of error to that court. The burden is on the plaintiff in error to^ show error; and where his effort in this direction results in an equal division of the Justices of the' court, he has not successfully carried this burden, and in no event can it be claimed that an equal division of the Justices of the appellate court could effect a reversal of the judgment of the lower court. Such judgment must necessarily stand affirmed in that event. Besides, the right to review by appeal did not exist at common law, and is not now a necessary element of due process of law. Even to this day in England there is no right of appeal in a criminal case; and in this country the State is not bound to provide, as a part of the administration of its criminal law, a Court of Appeals for final review. It is within the discretion of the State to allow, or not to allow, such appeal; and, in the exercise of this discretion, it may provide the terms and conditions upon which the judgment of the lower court may be reviewed, affirmed, or reversed. “An appeal from a judgment of conviction is not a matter of absolute right, independently of constitutional or statutory provisions allowing such appeal. A review by an appellate court of the final judgment in a criminal case . . was not at common law, and is not now, a necessary element of due process of law.” McKane v. Durston, 153 U. S. 684 (38 L. ed. 867, 14 Sup. Ct. 913).

This court, in our opinion, has the right to grant a supersedeas in a proper case, where the ends of justice require it and where it is necessary to carry out its’ review of the judgment, of an inferior tribunal. Civil Code, §5498, par. 3. Even without statutory authority, it is probable that this court, as a Court of Appeals, and for the correction of errors of law, would have inherently the right in extraordinary eases to issue a supersedeas for the purpose of administering justice pending the review of the judgment of an inferior tribunal. Under the facts set out in the bill of exceptions in this case, we are satisfied that neither the administration of justice nor the exigencies of the situation would justify us in granting a supersedeas. The facts as set out by the plaintiff in error lead to the conclusion that he is not entitled to have any stay of the execution of the sentence of the superior court, imposed upon him on his conviction of the offense of murder. We are persuaded that the appeal in this case, although constitutionally pretentious, is in fact frivolous, and a mere sham for the purpose of delaying the administration of the criminal law of 'this State. Technically considered, every question made in the petition for a writ of habeas corpus is res adjudieata. The plaintiff in error, according to his own statement as set out in his bill of exceptions, has had accorded to him every right guaranteed to him by the constitution and the laws of the United States and of this State, and he is now engaged in trifling with the clue administration of the laws, in an effort to delay the orderly execution of justice. Judgment affirmed.

Russell, J.

I concur in the judgment of the court and in the conclusions of law, but do not join in the criticisms of the motives of the plaintiff in error.


text:
    1253.
    HUNTER v. THE STATE.
    1. An accusation in a city court, in tlie absence of a clear contrary provision in the act creating the court, may lawfully be based upon an affidavit charging the defendant with the offense of “misdemeanor”; and, notwithstanding the general language used in the affidavit, may amplify the description of the offense with all the particularity essential to good pleading.
    2. In a prosecution for obstructing legal process in violation of § 306 of the Penal Code, the accusation is insufficient- to withstand a motion in arrest of judgment, where it fails to disclose the official character of the officer alleged to have been obstructed and the nature of the process he was attempting to serve, or to show otherwise that the officer was authorized to execute the process.
    Accusation, of resisting arrest, from city court of Blakely — Judge Jordan. June 19, 1908.
    Submitted July 14,
    Decided July 25, 1908.

      R. H. Sheffield, for plaintiff in error.

      Walter Park, solicitor, contra.
   Powell, J.

The defendant was arraigned in a city court, on an accusation which charged him with “the Offense of misdemeanor,, for that the said Eli Hunter did, on the 11th day of June, 1908, in the county aforesaid, unlawfully, knowingly, and wilfully obstruct, resist, and oppose S. V. Mann, an officer of this State, in serving and attempting to serve and execute a lawful process.” The accusation was based on an affidavit of the prosecutor, charging that the defendant had committed -the “offense .of misdemeanor.” The defendant pleaded guilty and filed a motion in arrest of judgment, the substantial grounds being, that the affidavit is fatally defective and insufficient to support an accusation; also that the accusation itself sets out no offense under the laws of tliis State.

The attack on the affidavit is not sustainable. Glass v. State, 119 Ga. 299 (46 S. E. 435); Murphy v. State, 119 Ga. 300 (46 S. E. 450); Surrels v. State, 113 Ga. 715 (39 S. E. 299); Williams v. State, 107 Ga. 693 (33 S. E. 641); Dickson v. State, 62 Ga. 583.

The attack upon the accusation itself seems to be well founded. “If all the facts which the indictment charges can be admitted and still the accused be innocent, the indictment is bad; but if, taking the facts alleged as premises, the guilt of the accused follows as a legal conclusion, the indictment is good.” Newman v. State, 63 Ga. 534. Motion in arrest of judgment can not be used as a remedy for the taking advantage of mere formal defects or mere delinquencies in the certainty and definiteness with which, the offense is alleged, but is available where the accusation or indictment contains a hiatus as to one or more essential ingredients, of the crime sought to be charged. Due authority in the officer executing or attempting to execute the process, for the obstructing of which the defendant is accused, is an element essential to a violation of section 306 of the Penal Code. If the official character of the officer and the nature of the process are disclosed, and the process is of the kind the officer is authorized to execute, this element sufficiently appears. In the present ease the prosecutor is alleged to have been an officer of this State; but the accusation is silent as to the nature of the office. Was he a constable, a justice of the peace, a fertilizer inspector, or what? The pleading fails to disclose. What process was he attempting to execute,- — a common law fi. fa., a writ of possession in ejectment, a criminal warrant, a tax execution, an attachment, a death warrant, or what? The record is silent. If he was a common constable attempting to execute a writ of possession in an ejectment case, or a justice of the peace attempting to hang a prisoner under a death warrant, or a county commissioner attempting to levy a ii. fa., or a fertilizer inspector attempting to serve an attachment (and we may suppose a hundred other cases), the allegations of the accusation would be completely supported, and yet the defendant would be innocent. The guilt of the accused does not follow as the logical legal conclusion from the facts stated in the accusation.

Judgment reversed.


text:
    492.
    JAQUES & TINSLEY COMPANY v. CARSTARPHEN WAREHOUSE COMPANY.
    This case is controlled by the answers of the Supreme Court to the questions which were certified therein by this court to that court.
    Certiorari, from Bibb superior court — Judge Felton. March 25, 1907.
    Argued October 15, 1907.
    Decided July 31, 1908.

      Charles H. Hall Jr., for plaintiff in error.

      Martin & Morcock, contra.
   Powell, J.

Hammock, a retail merchant of Macon, while indebted to Jaques & Tinsley Company in the sum of $300.98, and to the Carstarphen Warehouse Company in' the sum of $71.98, for merchandise, transferred his entire stock of goods, amounting to $71.68, to the former company, without complying with the act of August 17, 1903 (Acts 1903, p. 93), the transfer being made in part payment of the debt which Hammock owed. The Jaques & Tinsley Company immediately sold this stock of goods to a third person. Afterwards the Carstarphen Warehouse Company sued Hammock (who had in the meantime absconded) by attachment, and levied the same by serving summons of garnishment on the Jaques & Tinsley Companjr. The above facts appearing to the justice of the peace, he entered judgment against the garnishee for $71.98 principal, with interest and costs. The Jaques & Tinsley Company’ except to the overruling of the certiorari in'the superior court.

The assignments of error raised two questions. Both of these questions were certified to the Supreme Court and have been answered as follows:

“1. Where A bought from B a stock of goods in bulk, in part payment of a debt then due by B to A, without complying with the provisions of the act approved August 17, 1903 (Acts 1903, p. 92), ‘to regulate the sale of stocks of goods, wares, and merchandise in bulk/ etc., A was liable in garnishment to a creditor of R for the value of the goods, when the same was not more than the amount of the indebtedness sought to be collected from B, although A had disposed of the goods before the service of the summons-of garnishment.

“2. The act above referred to is not violative of the provision of the constitution of Georgia which declares: ‘No person shall be deprived of life, liberty, or property, except by due process of law / nor of the provision of the Federal constitution which declares: ‘No State shall make or enforce any.law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.’” See also the full opinion of the Supreme Court. Jaques & Tinsley Co. v. Carstarphen Warehouse Co., 131 Ga. 1 (62 S. E. 82).

The justice of the peace entered judgment against the garnishee for $71.98, whereas the evidence shows that the entire value of the Hammock stock of goods was $71.68. The judgment is, therefore, affirmed, with direction that the defendant in error write off from the judgment obtained in the lower court the sum of thirty cents. This is'a small amount, but the plaintiff in error claims the point. “The law allows it, and the court awards it.”

Judgment affirmed, with direction.


text:
    859.
    Carbo v. The State.
    Indictment for involuntary manslaughter, from Chatham superior court — Judge Cann. October 28, 1907.
    Argued January 13,
    Decided July 31, 1908.
    Carbo and Simpson were indicted for involuntary manslaughter in the commission of an unlawful act, by using, within the corporate limits of the City of Savannah, a certain detonating and fulminating preparation to the grand jurors more particularly unknown, contrary to an ordinance of that city making it unlawful to sell or use any detonating or fulminating preparation, or instrument made or composed wholly or in part of nitroglycerine or other detonating or fulminating substance whatever. After conviction a new trial was granted on the ground that the homicides resulted from the mere having or keeping, and not from the using of the prohibited articles. A nolle prosequi was entered, and another special presentment was returned, charging involuntary manslaughter in the commission of a lawful act without due caution and circumspection, by assembling a large quantity of explosives in the city so , negligently and improperly as probably to produce the unlawful homicide of the persons killed. The evidence showed, that the accused made torpedoes on premises at the corner of Anderson and Burroughs streets in Savannah, a thickly populated part of the city, and stored them, in large quantities, in a small wooden house or shanty on the same premises. On one occasion he had requested a woman living near to watch the house and turn away any boys or children she might see there, and answered affirmatively her suggestion that it would be dangerous if a spark or cigarette fell among the papers. On an evening in December, 1906, while Carbo and Simpson were in this house, an explosion occurred that burned them severely. They ran for relief to a house near by, where Carbo gave a key to a boy, or young man, and told him to lock up the place where the explosion occurred. In the meantime a fire alarm had been given, and firemen had come and extinguished some fire inside of the house. A little boy on the street said to one of them, “Mister, don’t go in there; the thing is full of dynamite.” This one went (after extinguishing the fire) to where Carbo and Simpson were, and asked Carbo if there were any high explosives in the house in question. He answered, “No,” and said, “For God’s sake, don’t put any water there, nor allow any one to go in there.” The fireman told him that he (fireman) had been in there and had put water in there. Carbo said no more after that; and the fireman went out and telephoned to his chief to come, as it looked dangerous. He came in about twenty minutes, and was told that the place looked bad; that he had better be careful how he went in there; that the boys said it was full of dynamite. He replied that they would have to make an investigation, and went into the house, followed by three firemen. There were some trunks and lots of rubbish. Packages were scattered over the floor, and a pile of stuff that looked like paper. The chief pulled down some of it, and was told, “You had better not do that; you don’t know what you are handling.” He said, “We have to make an investigation.” A boy came to the door, picked up something, and said it was the cause of the explosion that had taken place. He was told to put it down; and suddenly there was a flash and an explosion, followed by another or •others, that killed one of the firemen outright and so hadly burned and wounded two others that they died from the injuries so received. The force of it was such as to throw down men in the street.
   Russell, J.

1. There can be no conviction of the offense of involuntary manslaughter, either in the commission of an unlawful act, or in the commission of a lawful act without due caution and circumspection, where the homicide is directly due to an independent intervening cause in which the accused did not participate and which he could not foresee.

2. To constitute a crime there must be either the joint operation of act and intention, or criminal negligence. Criminal negligence necessarily implies, not only knowledge of probable consequences which may result from the use of a given instrumentality, but also wilful or wanton disregard of the probable effects of such instrumentality upon others likely to he affected thereby.

3. Consequently, criminal negligence is not shown as against a defendant who uses every means in his power for the safety of those whom it is alleged his negligence has affected.

4. One who has an object of danger or a dangerous instrument of any kind upon his premises owes no duty with reference to the safety of others, except as to those likely to be affected thereby. And upon his trial for crime, it must appear that the injury to those affected by such' dangerous instrument was due to such negligence on his part.

One who, with full knowledge of a danger of which he has been warned, encounters such danger himself, assumes all risks; and a resulting injury can not be made chargeable to another, where it appears that the injured person; being of sound mind and of the age of discretion, by the exercise of ordinary diligence could have avoided the injury.

6. Before one can be held criminally liable for the result of negligence, it must be shown, beyond reasonable doubt, that the result, though caused by the accused unintentionally, injuriously affected one who, but for his ignorance of the danger, might have escaped harmless. There can be no conviction .where it appears that the person injured was apprised of the danger, and unnecessarily, and over the protest of the defendant, exposed himself thereto. . Judgment reversed.

Carbo, having been found guilty, moved for a new trial on the grounds, among others, that the verdict was contrary to law and evidence. In an opinion filed by the trial judge with his order overruling the motion, the following authorities were cited: 7 Ga. 13; 31 Ga. 185; 89 Ky. 287; 2 Colo. L. Eep. 78; 103 N Y. 4-87, 57 Am. E. 766; 56 Barb. 72; 1 Johns. (N. Y.) 78, 3 Am. D. 296; 24 N. Y. Week. Dig. 828; 9 Crim. L. Mag. 155; 6 B. Mon. 174; 11 Humph. 159; 4 Mason, 505; 10 S. E. 838; 32 Am. E. 408; 19 Fed. 633; 67 Fed. 426; 67 N. W. 1020; 101 Ga. 407; 128 Ga. 561, and cit.; 45 L. E. A. 783; 3 C. & K. 123; 4 Cox C. C. 449; 116 Ga. -152; 80 Ga. 114; 2 Pa. L. J. E. 467; 114 Ga. 30; 2 Bish. New Or. L. 424, 636, 637, 756, 579, 689, 635; 1 Whart. Cr. L. §152; 9 Colo. 544, 13 Pac. 696, 4 S. W. 409; 56 N. W. 79; 3 Am. D. 299; 34 N. W. 319; Whart. Horn. §374; 70 Ala. 33; 84 N. W. 520; 72 Ga. 167; 110 Ga. 748; Meigs, 106; 21 Cyc. 766.

Twiggs, Oliver, Gazan & Oliver, for plaintiff in error.

W. W. Osborne, solicitor-general, contra.


text:
    929, 959.
    HOBBS v. CRAWFORD & MAXWELL, and vice versa.

    1. In the absence of direction by the debtor as to the application of payments made by him, a creditor may apply payments, made upon a running account covering the transactions of several years, to the oldest items, so as to avoid the bar of the statute of limitations. This right of the creditor is not defeated or necessarily affected merely by reason of the fact that the balance due at the end of each year is brought forward, as such, as the first item of the succeeding year’s account; provided the aggregate amount of the items of account actually purchased within the statutory period of four years is greater than the remainder or unpaid balance claimed to be due.
    2. A debtor may, by special demurrer, demand a complete statement of each item of an indebtedness upon which suit has been brought; failure to demur is a waiver of the right.

      Complaint, from city court of Lexington- — -Judge Davis. December 12, 1907.
    Argued February 17,
    Decided July 31, 1908.

      Joseph G. Faust, James Davison, for Hobbs.

      Howard & Shull, Tye, Peeples, Bryan & Jordan, contra.
   Russell, J.

The controlling question in this case is whether a creditor, in the absence of any direction by the debtor, has the right to apply payments, made by him, to the various items of an account running through several years, so as to avoid the bar of the statute of limitations. This question is answered by the Civil Code, §3722. The record discloses that Hobbs had, for several years, been a customer of Crawford & Maxwell, purchasing supplies from them during the years 1902, 1903, 1904, 1905 and 1906. The first item of the account sued upon and attached to the petition was “balance brought from 1904 book, $177.34., This balance, apparently, was the amount due at the end of 1904, and was entered upon the books of 1905, on February 23, 1905, together with a charge of interest on the same, $14.18. An examination of the plaintiffs’ ledger for 1904 showed that the first item for that year was a balance brought forward, January 6, 1904, from the year 1903, of $129.14; and it appears, from the testimony, that the first item of the 1903 account, dated January 6, 1903, was “to balance from old book 1902, $165.73.” The evidence in behalf of the plaintiffs sustained their contention as to the correctness of the various items of indebtedness, but the defendant insisted, and now insists, as plaintiff in error, that the account for 1902, and the debt for items bought in that year, are barred by the statute of limitations.- The defendant perhaps might have developed this fact by a timely special demurrer, but it does not appear from the pleadings or from the evidence in behalf of the plaintiff.

The contention of the defendant was, that he overpaid the account for 1905, and that the first item of the account was really merely a statement of the unpaid balance of the account of 1902 ; and that as suit was not filed until April 16, 1907, the bar of the statute attached to the account for 1902, which would have been due January 1, 1903. If the counsel for the defendant had moved, by special demurrer, to strike the first item of the plaintiffs’ account, upon the ground that he was entitled to know of what “the balance” consisted, the court might have been justified in sustaining his contention as to that item; because the defendant had the right to know the exact article or charges of which the alleged balance consisted. The defendant, however, did not demur, but, on the contrary, moved to rule out all of the testimony of the plaintiff Crawford as to the amount due the plaintiffs. Some of this testimony was legal and competent, and, as the court could not rule out all of it without ruling out that which was legal, as well as that which might be illegal, the court properly refused the motion, and the defendant lost the benefit -of the point. Considered in its last analysis, and tested by the testimony adduced in behalf of the plaintiffs, their method of keeping books was simply evidence of the fact that, in the absence of any direction on the part of the defendant, they applied payments made by him each year to the oldest items of their account against him. In the'absence of direction by the debtor the creditor has the right to apply payments made to him, where there are several items or several accounts, to such one or more of them as he may elect. The debtor first has the right of election as to the application of the payments made by him. If he does not choose to exercise this 'right, it falls to the creditor; and it appears that in this ease the evidence authorized the finding that the creditors did so apply all payments made by their debtor, the defendant.

We agree with counsel for the plaintiffs in error that it is not a question of mutual accounts. There can be no mutual accounts, as we have heretofore held in Smith v. Hembree, 3 Ga. App. 510 (60 S. E. 126), unless each party has extended credit to the other and each party has been indebted to the other for some service or article of value. In this case Crawford & Maxwell had never at any time gotten anything from Hobbs- on the faith of their credit or financial standing. They only received payment from Hobbs for what he was due to them.

Judgment affirmed, on the main bill of exceptions; cross-bill dismissed.