text:
    15257.
    WORRILL, executor, v. HIGHTOWER MULE COMPANY.
    There is nothing in the note sued on that takes it out of the rule as to the application of payments made on debts, as laid down in section 3433 of the Civil Coda of 1910.
    The court erred in granting a nonsuit.
    Decided June 10, 1924.
    Rehearing denied July 15, 1924.
    Complaint; from Upson superior court — Judge Searcy. November 31, 1933.
    Suit was brought on a note which reads as follows: “$5553,65. Thomaston, Ga. May 34th, 1930. May 34th, 1935, after date we promise to pay to the order of P. C. Parks five thousand five hundred fifty-three & 65/100 dollars, for value received, payable at Thomaston, Ga., with interest from date at the rate of 7 per cent, per annum, with all cost of collection, including ten per cent, attorney’s fees. Interest payable annually, and if not paid, note becomes due. And each of us, whether maker or endorser, hereby severally waives and renounces for himself and family any and all homestead and exemption rights he may have under or by virtue of the constitution or laws of the State of Georgia or the United States as against this note or any renewal thereof. Witness my hand and seal the day and year above written. High-tower Mule Company (L. S.) By A. B. Colquitt, Y. P. (L. S.) Witness, E. M. Lucas.” Across the face of the note was written: “Maker may pay this note any time before maturity by paying principal and accrued interest to date of payment. P. C. Parks.” On the back of the note were the following credits: “May 31, 1930, $635.00, Nov. 15, 1930, $658.75, Feb. 10, 1931, $180.00.” The petition alleges that the defendant “has failed and refused to pay the interest annually as stipulated for in said note, although repeatedly requested by the petitioner to do so; that according to the express stipulation of the note both principal and interest became due upon such default.” The defendant’s plea admits that the defendant is “indebted to plaintiff in the sum of $5,553.65 principal, but denies that any interest is due on said amount at this time, and denies that it is liable for any attorney’s fees, and it also denies that said note is now due.” The defendant further pleaded that “it was understood between all the parties at the time said note was made that nothing but the interest on said note was to be paid unless this defendant saw fit to take up all of said note before it was due, and if the interest was paid then, said note would not become due until the due date named in same; that it was optional with the defendant only as to whether it would pay the principal or any part of same before the due date named in said note, and this stipulation was incorporated in said note. Since the making of said note this defendant has sold to the plaintiff property and'paid him money aggregating the sum of $1,588.75, and this money was paid as interest on said note, and under the terms of said note the same was not due at the time plaintiff elected to declare said note due, because there was no interest due on same, as said interest had been paid and is now paid, and none will be due until May 34th, 1935, as the interest has been paid up to and beyond May 34th, 1934.”
    On the trial the note was introduced in evidence. The only wdtness offered was W. O. Parks, who testified for the plaintiff that he was vice-president of the Hightower Mule Company, and that he “did not know of the $100 payment on the note (which was made after suit was brought), but that the other credits thereon were not paid as interest, and that in all these payments nothing was said as to the payments being paid as -interest.” A nonsuit was granted, on the ground that “it appeared that there had been no default in the payment of interest due on said note, and that no part of said note was due at the time suit was filed.” To this judgment the plaintiff excepted.

      W. M. Balias, Cleveland & Goodrich, for plaintiff.

      James B. Bavis, for defendant.
   Bloodworth, J.

(After stating the foregoing facts.)

Section 3433 of the Civil Code (1910) provides that “When a payment is made upon any debt it shall be applied first to the discharge of any interest due at the time, and the balance, if any, to the reduction of the principal.” There is nothing in the note upon which suit was brought to take it out of this general rule. The 2d headnote in Linam v. Anderson, 12 Ga. App. 735 (78 S. E. 424), is as follows: “Where a note contains a condition that a failure to pay any installment of interest when due gives to the holder thereof the right, at his election, to declare the note due and payable, the acceptance of a payment on the principal of the note before the note is due does not, without ah agreement to that effect, prevent the holder from subsequently exercising the option above stated.” In the opinion in that case Chief Judge Hill (p. 737) said: “The second ground of the demurrer is that there was a change in the contract, because $500 had been paid on the principal of the note; in other words, that the payment of the $500 on the principal changed the original contract to the extent of eliminating therefrom the right to declare the principal due on a failure to pay any of the coupon notes when due. This ground of the demurrer is manifestly without merit. We fail absolutely to understand why, as a matter of law, payment of any part of a note before due, by mutual consent of the parties thereto, in any manner affects or alters the terms of the original note or the character of the contract. The only effect such payment could have would be simply to reduce the principal of the note in accordance with the payment made thereon.” In the ease under consideration the last payment'on the note prior to suit was made February 10, 1921. There was therefore due on May 24, 1921, the date when the first annual payment of interest was due, the interest that had accumulated on the remainder of the principal after applying the payments according to the provisions of the section of the code to which reference is made above, and the failure to pay this interest on May 24th, 1921, matured the note. The court erred in granting a nonsuit.

Judgment reversed.

Broyles, G. J., and Luke, <7., concur.


source: Caselaw Access Project

author: Blood worth, J.

license: Public Domain

text:
    15289.
    BASS v. SOUTHERN ENTERPRISES INCORPORATED.
    1. “In an action founded on negligence mere general averments of negligence are sufficient as against a general demurrer.” Trammell v. Columbus Railroad Co., 9 Ga. App. 98 (70 S. E. 892).
    2. Questions of diligence and of negligence address themselves peculiarly to the jury, and a court properly declines to solve them by decision on demurrer, except in plain indisputable cases. Southern Cotton Oil Co. v. Gladman, 1 6a. App. 260 (8) (58 S. E. 249). “The question of what is ordinary care and what is negligence is one exclusively for the jury, and the court should not take this question from their consideration.” Trammell v. Columbus Railroad Co., supra.
    3. The court erred in sustaining the general demurrer to the petition.
    Decided June 10, 1924.
    Action for damages; from Pulton superior court — Judge Humphries. December 27, 1923.
    Mrs. W. C. Bass sued Southern Enterprises Incorporated, alleging: that the defendant operated a moving picture theatre; that she purchased a ticket and attended the theatre for the purpose of witnessing the picture then being shown; that after witnessing the performance she left her seat, which was on a platform, five or six inches above the aisle, and, on her way out of the building, she undertook to step into the aisle, without any knowledge of the difference in elevation, and, there being no floor lights to warn her, she was precipitated to the floor of the aisle and injured; that the defendant in operating the theatre was under the duty of arranging the seats and aisles so that those desiring to leave could do so in safety, and that it was negligent in so arranging the seats that she could only leave by stepping from the-elevation on which the seat was located to the aisle; that it was the duty of the defendant to give warning of the elevation; that it was its duty to have floor lights placed around the elevation, so that persons could see the danger and protect themselves; that she did not know of this condition and had no means of knowing of it; that all these conditions were known to the defendant, and it was the duty of the defendant so to arrange the theatre as to protect her when she undertook to leave. The petition was dismissed on general demurrer, and the plaintiff excepted.

      Mayson & Johnson, for plaintiff.

      Underwood, Pomeroy & Haas, for defendant.
   Blood worth, J.

(After stating the foregoing facts.)

It is the fixed law of this State that questions of diligence and’ of negligence, and of what is ordinary care, address themselves peculiarly to the jury, and that a judge should decline to solve them except in plain, indisputable cases. It is also well settled that “in an action founded on negligence mere general averments of negligence are sufficient as against a general demurrer.” This case does not present itself to the members of this court as a plain and indisputable one. Section 4420 of the Civil Code (1910) is as follows: “Where the owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries occasioned by his failure to exercise ordinary care in keeping the premises and approaches safe.” The plaintiff was in the theatre by invitation, and for a lawful purpose, and while there was injured.. Where a person is on premises by invitation, lawlessness or wantonness on the part of the owner of the premises is not necessary to the existence of liability, but ordinary neglect from some act either of omission or of commission may render the owner liable. The petition in this case set out a cause of action, and we think the allegations of negligence therein are sufficient to carry the case to a jury; and that the léarned, careful, and painstaking judge who presided at the trial erred in sustaining the general demurrer and dismissing the petition.

Judgment reversed.

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


author: Bloodworth, J.

text:
    15292.
    Coppedge Dry Cleaning Co. v. Whittle.
    Decided June 10, 1924.
    Certiorari; from Fulton superior court — Judge Humphries. November 28, 1923.

      H. C. Holbrook, for plaintiff in error.

      Burr ess & Dillard, contra.
   Bloodworth, J.

The court properly overruled the certiorari.

Judgment affirmed.

Broyles, O. J., amd Luke, J., concur.


author: Luke, J.

text:
    15302.
    Sitton v. Turner.
    Decided June 10, 1924.
    Lien foreclosure; from city court of Floyd county — Judge Bale. December 29, 1923.
    Certiorari was granted by the Supreme Court.

      M. B. Eubanks, for plaintiff in error.

      Harris & Harris, contra.
   Luke, J.

1. Where a landlord files an affidavit to foreclose his lien for supplies furnished to liis tenant to make a crop for a certain year, and the defendant files a counter-affidavit and replevies the property levied upon, by giving a replevy bond, and where it appears affirmatively that before the foreclosure proceeding the defendant was adjudged a bankrupt, the lien is void and the principal debtor and the surety on the replevy bond are both discharged. Rountree v. Rutherford, 65 Ga. 444.

(«) The decision in the Rountree case, supra, was not overruled in the case of Alvaton Mercantile Co. v. Caldwell, 156 Ga. 317 (119 S. E. 25).

(6) Had the foreclosure proceedings been instituted more than four months before the debtor was adjudged a bankrupt, the surety on the replevy bond would not, under the decision in the Oaldxoell case, supra, have been discharged as a matter of law by the discharge of his principal.

2. Under the foregoing ruling and the agreed statement of facts in the instant case, which show affirmatively that the defendant had been adjudicated a bankrupt at the time the foreclosure proceedings were instituted, the trial judge erred in adjudging that the surety on the replevy bond was not discharged.

Judgment reversed.

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


author: Broyles, 0. J.

text:
    15388.
    PERRYMAN v. WOODS, for use, etc.
    The testimony as to a conversation in regard to a settlement of the dispute between the buyer and the seller of the mules for which the note sued upon had been given was properly admitted in behalf of the plaintiff, who alleged, and introduced testimony to show, that a settlement of the matter in issue was effected.
    It was not error to charge upon the subject of an implied warranty in the sale, there being no express warranty except as to soundness and eyesight, and there being a plea, supported by evidence, that one of the mules, which the defendant purchased for use in farming, was worthless for that purpose.
    Decided June 10, 1924.
    Complaint; from Randolph superior court — -Judge Edwards presiding. January 22, 1924.

      H. A. Wilkinson, for plaintiff in error.

      B. A. Patterson, J. E. McDonald, contra.
   Broyles, 0. J.

1. Liability on tbe purchase-money note sued upon was denied on the ground that one of the mules for which the note was given was not sound, as expressly warranted therein. The evidence being in conflict as to whether the mule was unsound at the time of the trade, and there being also evidence, introduced in support of the amended petition, that even though the mule was unsound at that time, a new and subsequent agreement was entered into and Anally consummated between the seller and the buyer, whereby their differences were settled, the court did not err in admitting in evidence, over the objection of the defendant’s counsel, a conversation between the holder of the note and the defendant in regard to adjusting or settling the dispute between the seller and the purchaser of the mule.

2. An express warranty excludes an implied warranty on the same or a closely related subject, but not an implied warranty on an entirely different subject. Consequently, in this case, the express warranty being confined to the eyesight and soundness of the mules for which the note sued upon was given, and there being a plea that one of the mules was purchased for a farm animal and was worthless as such, and the plea being supported by evidence, it was not error for the trial judge to charge the jury upon the subject of an implied warranty. Barber v. Singletary, 13 Ga. App. 171(1) (78 S. E. 1100).

3. In the light of the charge as a whole and the facts of the case, the excerpts from the charge of the court, excepted to, do not require a reversal of the judgment below for any reason assigned.

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

Judgment affirmed.

Lulce and Bloodworth, JJ., concur.


author: Broyles, C. J.

text:
    15416, 25478.
    SNYDER v. BROWN SHOE COMPANY; and vice versa.

    There was no error in the rulings on the demurrer, or in directing a verdict.
    Decided June 10, 1924.
    Complaint; from city court of Macon — -Judge Gunn. January 1, 1924.

      Strozier & Beaver, for plaintiff in error.

      Brock, Sparks & Russell, contra.
   Broyles, C. J.

Under -the facts of the case the court did not err in overruling grounds 1, 2, 3, 5, 6, 7, and 8 of the plaintiff’s demurrer to the defendant’s answer, or in sustaining the 9th ground of the demurrer and striking paragraph 9 of the answer and all the amendments thereto, or in sustaining the subsequent demurrer to the answer as finally amended and striking all of the answer except the portions specified in the order sustaining the demurrer, or in directing the verdict for the plaintiff.

Judgment affirmed on both hills of exceptions.

Luke and Blood-worth, JJ., concur.


author: Bloodwobth, J.

text:
    15423.
    Rounsaville v. Lamb.
    Decided June 10, 1924.
    Action for damages; from Floyd superior court — Judge Wright. February 4, 1924.

      Maddox, Matthews & Owens, for plaintiff in error.

      Porter & Mehane, contra.
   Bloodwobth, J.

1. When the excerpts from the charge of which complaint is made in the motion for a new trial are considered in connection with the remainder of the charge, there is no error in any of them that requires the grant of a new trial.

2. There is some evidence to support the finding of the jnry; no error of law appears to have been committed upon the trial of the case; and the verdict having been approved by the trial judge, this court is without authority to interfere.

Judgment affirmed.

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


author: Broyle's, C. J.

text:
    15430.
    BANK OF WAYNESBORO v. HERRINGTON.
    The judgment upon a demurrer cannot be the basis of a motion for a new trial.
    Exceptions to the admission of evidence over objection should show what grounds of objection were stated to the trial judge.
    The verdict was authorized by the evidence, and the court did not err in overruling the motion for a new trial.
    Decided June 10, 1924.

      Complaint; from city court of Waynesboro — Judge W. H. Davis. February 16, 1924.

      E. V. Heath, for plaintiff in error.
    P. B. Lewis Jr., contra.
   Broyle's, C. J.

1. The judgment upon a demurrer cannot be the basis of a motion for a new trial, and the ground of the motion in the instant case complaining of the overruling of a demurrer to the petition cannot be entertained.

2. Grounds 2, 3, 4, and 5 of the amendment to the motion for a new trial, complaining of the admission of stated testimony over objection, cannot be considered, as it is not stated in any of the grounds what the objections were that were made at the time of the admission of the testimony. Steed v. Cruise, 70 Ga. 168 (5), 176 (5); Morgan County Bank v. Poullain, 157 Ga. 423 (121 S. E. 813 (4), 815 (4)).

3. When the alleged errors of commission and omission in the charge of the court are considered in the light of the charge as a whole and of all the facts of the case, none of them requires a reversal of the judgment below.

4. The plaintiff's contention was that the defendant bank had sold his third interest in an insurance company to P. W. Thompson for one thousand dollars, and his suit was for the recovery of that sum, which was awarded to him by the verdict. One ground of the motion for a new trial was as follows: “That the evidence in the case, as shown by testimony of P. W. Thompson, witness for plaintiff, and the party alleged to have purchased the interest of plaintiff from the defendant bank, as well as the notes executed by said Thompson, and the entries from the cash-book of the Bank of Waynesboro, all of which were offered in evidence by the plaintiff, showed conclusively that the said Thompson only purchased and paid to the Bank of Waynesboro the sum of $500, and not $1,000, for a one-sixth interest in an insurance agency. Therefore the recovery for the plaintiff, under their evidence, could not have been for more than $500, instead of $1,000, the amount stated in the verdict of the jury.-” There was some evidence which authorized the jury to find that the defendant bank eventually received all of the thousand dollars which Thompson paid for the third interest in the company.

5. The verdict was authorized by the evidence, and the overruling of the motion for a new trial was not error for any reason assigned.

Judgment affirmed.

Lulce and Bloodworbh, <717., concur.


text:
    15434.
    GOODRICH v. GOLDSTEIN et al.

    A partnership is not liable for a tort of one of the partners in which his copartners did not join.
    The court did not err in awarding the nonsuit complained of.
    Decided June 10, 1924.
    Action for libel; from Baldwin superior court — Judge Park. January 16, 1924.
    This is a suit by Baris Goodrich against A. Goldstein and C. Goldstein, of Baldwin county, Georgia, David Rothschild and Ger-son Rothschild (doing business under the name of David Rothschild & Company), of Muscogee county, Georgia, and the Waxelbaum Company, a corporation of Bibb county, Georgia, to recover damages for an alleged libelous advertisement, inserted in the Union Recorder, a newspaper of Milledgeville, Georgia, by A. Goldstein, The petitioner alleges that all the above-named defendants were “joint owners of, jointly engaged in, and partners in the conduct of a dry-goods business, and doing business under the name of C. Goldstein, of Milledgeville, Georgia, said defendant A. Goldstein being the active manager of said store and business, having full and complete management and control of the buying and selling, placing the goods on the market and advertising the same, and is the duly constituted and authorized agent of the said other defendants in the advertisement by publications and writing of said business and the goods for sale in said store and business;” and that “the said defendants did falsely and maliciously compose or cause to be composed by their duly qualified and authorized agent, said A. Goldstein, and caused the same to be printed of and concerning plaintiff in his said business, in a newspaper known as the Dnion-Reeorder, a gazette published at Milledgeville, Georgia, and other public places in the city of Milledgeville and county aforesaid, a false, scandalous, and malicious and defamatory matter,” to wit: “Warning. One of our competitors had put out a sign ‘Fall Opening Sale.’ We therefore want to call the attention of Baldwin and surrounding counties that the above sign is nothing but misleading. Don’t be misled if you want the right prices and right place come to Gold-stein’s Stand, Milledgeville, Ga. We have only one price. More goods for same money, same goods for less money.”
    Defendants David Rothschild and Gerson Rothschild, doing business in the name of Rothschild & Company, filed a sworn plea in which they denied the partnership as alleged, and also denied that they had participated or concurred in the alleged tort. The defendants A. Goldstein, C. Goldstein, and the Waxelbaum Company filed an answer in which they denied all the material allegations of the petition. On the issues thus formed the court granted a nonsuit as to all the defendants except A. Goldstein, and ordered the case to proceed as to him. To this judgment the plaintiff excepts.

      Sibley & Sibley, for plaintiff.

      Jones, Parle & Johnston, Allen & Pottle, for defendants.
   Luke, J.

(After stating the foregoing facts.) Conceding (but not deciding) that the advertisement inserted in the newspaper by A. Goldstein was libelous, and that the evidence adduced upon the trial sufficiently proved that this defendant and the other named defendants were partners as alleged, still we are of the opinion that the trial court’s judgment was in accord with the law of this State, expressed in Battle v. Pennington, 14 Ga. App. 58 (80 S. E. 298), in which case it was said: “It seems to us that this question [whether or not a partnership is liable for a tort committed by one of the partners] is governed by a plain and unambiguous section of the code. Section 3187 of the Civil Code is in this language: ‘Partners are not responsible for torts committed by a copartner. Eor the negligence or torts of their agents or servant they are responsible under the like rules with individuals.’ This section was interpreted in the case of Corbett v. Connor, 11 Ga. App. 385, wherein the court says: ‘The second paragraph of the section has no direct application to the question now under consideration, as this part of the section manifestly refers to “agents or servants” who are not members of the partnership, and not to the partners themselves. Ozborn v. Woolworth, 106 Ga. 460 (32 S. E. 581). The first part of the section, which applies to torts of the partners themselves, explicitly declares that “partners are not responsible for torts committed by a copartner.” Tbe words used are exclusive; they neither express nor imply an exception. The language is a statutory declaration that any toyt committed by one partner is beyond the scope of the partnership business and does not bind the partnership. In some other jurisdictions partnerships are held liable for the acts of a partner in the commission of a tort, but the statute of this State does not even make the exception that the partnership would be liable if the tort of the partner was committed within the scope of the partnership business. “Some courts hare held that the partnership is not liable for the wilful torts of one of the partners, and others that the partnership is liable when such a tort is within the scope of the partnership business. After a careful investigation of the text-books and decisions, we find that the great trend of modern authority is to make the partnership liable for all torts of its members which are within the scope of the partnership business. But whatever may be the law in other jurisdictions, the question has been settled in this State by the Civil Code” [Code of 1910, §318?]. . . There are several decisions to the effect that the partnership would be liable “when all the members joined in the commission of the tort.” . . In Ozborn v. Woolworth, supra, referring to the section of the code now considered, it is said: “Since the code expressly declares that a partnership is not liable for the torts of its members, the mere fact that all the partners approved of a tort committed by one of their number cannot make the partnership liable for that tort upon the idea of ratification.” ’ ” -

Judgment affirmed.

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


text:
    15489.
    LUCAS v. HAWKINS.
    “The law embodied in the Civil Code, § 6152, does not in any case authorize delay in tendering to a trial judge a .bill of exceptions alleging error in a judgment rendered during a given term, for more than thirty days after the final adjournment of the court for that term.”
    Decided June 10, 1924.
    Certiorari; from Fulton superior court — Jpdge Humphries. December 6,-1923.

      Bryan & Middlebroolcs, for plaintiff in error.

      H. A. Allen, contra.
   Bloodworth, J.

A motion to dismiss the bill of exceptions was made on the following grounds: “That said bill of exceptions was not signed and certified by the judge of trial court within time required by law. The judgment in the lower court was rendered on the 6th day of December, 1923, as is shown by the record, and the bill of exceptions was tendered to, and signed and certified by, the trial judge on the 4th day of February, 1924, more than thirty days after the rendition of the judgment excepted to and basis of bill of exceptions, and more than thirty days after the adjournment of the term of the court at and in which the judgment excepted to was rendered. The judgment was rendered on the 6th day of December, 1923, which was during the November term of Fulton superior court, and the term of court at which said judgment was rendered, to wit, November term) 1923, Fulton superior court, automatically and by operation of law was adjourned not later than the 31st day of December, 1923.” This motion was resisted upon the ground that “under section 6152 of the Civil Code of Georgia (1910), the bill of exceptions in the above-stated case was tendered to the trial judge within 60 days from the date of decision, and, further, that the court did not adjourn within thirty days from the date of organization and opening of the court, and that, under said code section and under the facts set out in the motion to dismiss, the bill of exceptions was tendered in proper time.”

Construing the act of 1875 (Civil Code of 1910, § 6152), the Supreme Court, in Forsyth v. Preer, 64 Ga. 281, 282, said: “It is sought, however, to take this case out of the general rule by force of the act of 1875, which requires the bill of exceptions to be certified within sixty days from the date of the judgment complained of, where the court sits longer than thirty days and the bill of exceptions was certified within sixty days from'the adjournment as well as from the refusal of the new trial. But the act of 1875 must be construed in harmony with the old law on the same subject and the general spirit of the constitution and laws in regard to expediting the trial of cases in this court. Its purpose was not to postpone the time of bringing writs of error here, but to expedite that time. If the court sits longer than thirty days, it declares substantially that the litigant shall not wait until the thirty days have expired after adjournment, but he shall move within sixty days from the date of the decision complained of, even if he has to move within term or before the thirty days allowed by the old law has elapsed. But the legislature did not mean that if the court sat six months and on the last day of the session a judgment was rendered, the party complaining of it should have sixty days to move instead of thirty. The reason and spirit of the act of 1875, as well as the policy of expediting the final decision of suits to be found in the constitutions of this State, and in the act organizing this court, will militate against such a construction. We hold, therefore, that in all cases the bill of exceptions must be tendered within thirty days of the adjournment of the lower court, to the judge thereof; and in cases where the session is protracted beyond thirty days from the date of its commencement, the party must move within sixty days from the date of that judgment of which he complains, even if he has to move during term or before the thirty days after adjournment have passed; but in no case is he permitted to wait longer than thirty days after the court' adjourns. The plaintiff in error here having waited longer than thirty days after the court had adjourned, the writ of error must be dismissed.” Among the cases reaffirming this ruling.are the following: Huff v. Brantley, 66 Ga. 599; Dietz v. Fahy, 107 Ga. 325 (33 S. E. 51); Crawford v. Goodwin, 128 Ga. 134 (2) (57 S. E. 240); Grant v. So. Bell Tel. &c. Co., 145 Ga. 298 (89 S. E. 364). In First National Bank of Forsyth v. Taylor, 138 Ga. 119 (74 S. E. 783), and in Cunningham v. Storm, 144 Ga. 324 (87 S. E. 20), a motion was made to review and overrule the rulings in the first three cases referred to above, but in each case the motion was denied. It appearing that in this case the plaintiff in error waited more than thirty days after the court had adjourned, to file his bill of exceptions, the writs of error must, under the rulings cited, be dismissed.

Writ of error dismissed.

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


author: Bboyles, C. J.

text:
    15491.
    Gazaway v. The State.
    Decided June 10, 1924.
    Conviction of larceny of automobile; from Fulton superior court —Judge. Sliurley presiding. February 11, 1924.

      B. L. Chappell, L. S. James, for plaintiff in error.

      John A. Boylcin, solicitor-general, B. A. Stephens, B. H. Pharr, contra.
   Bboyles, C. J.

1. The ground of the motion for a new trial based upon alleged newly discovered evidence cannot be considered, as the ground does not disclose any affidavit by the defendant or his counsel that they did not know of the existence of such evidence before the trial and that the same could not have been discovered by the exercise of ordinary diligence.

2. The conviction of the defendant did not depend entirely upon circumstantial evidence, and, therefore, the failure of the court to instruct the jury upon the law of circumstantial evidence was not error, no timely written and appropriate request therefor having been presented to the court.

3. In the light of the facts of the case, none of the other special grounds of the motion for a new trial requires a reversal of the judgment below.

4. The verdict was amply authorized by the evidence, and the overruling of the motion for a new trial was not error.

Judgment affirmed.

Luke and Bloodworth, JJ., ecmeur.


author: Bboyles, 0. J.

text:
    15493.
    Bank of Commerce v. First National Bank of Ocilla.
   Bboyles, 0. J.

1. “Under repeated decisions of this court and of the Supreme Court, each special ground of a motion for a new trial must be complete within itself; and when so incomplete as to require a reference to the brief of evidence, or to some other portion of the record, in Order to determine what was the alleged error and whether such error was material, the ground will not be considered by the reviewing court.” Stephens v. Blackwell, 24 Ga. App. 798 (4) (102 S. E. 452); Pound v. Smith, 146 Ga. 431 (5) (91 S. E. 405). Under this ruling grounds 2, 5, and 6 of the amendment to the motion for a new trial present nothing for the consideration of this court.

2. “The court may properly propound questions to a witness on the stand, with a view to elicit the truth of the ease; and if in such examination the court does not express or intimate an opinion as to the credibility of the witness, or as to what has or has not been proved, the mere fact that competent testimony of the witness so elicited may be detrimental to the interest of a party will not be cause for granting him a new trial.” Johnson v. Leffller Co., 122 Ga. 670 (7) (50 S. E. 488). The questions which the court in the instant case propounded to a witness, as complained of in grounds 3 and 4 of the amendment to the motion for a new trial, were not improper for any reason assigned.

Decided June 10, 1924.

Complaint; from Irwin superior court — Judge Eve. February 21, 1924.

A. J. & J. G. McDonald, for plaintiff.

Rogers & Rogers, for defendant.

3. The documentary evidence set forth in grounds 7, 8, and 9 was relevant and material to the issues in the case, and its admission in evidence was not error for any reason assigned.

4. Where “an attorney for a plaintiff has accepted from the defendant a sum less than the amount of the plaintiff’s claim, as a full settlement thereof, without authority from his client to make such a compromise, the defendant, upon proper pleading and proof, would be entitled to a credit for the amount actually paid by him to the attorney.” Kiser v. Hancock, 106 Ga. 217, 219 (32 S. E. 123). Under this ruling, and the uncontradicted facts of the instant case, which show that the attorney who filed suit in behalf of the plaintiff was the attorney to whom the defendant paid a certain sum of money (less than the full amount of the plaintiff’s claim) with the distinct understanding and agreement that in case his client, the plaintiff, refused to accept the amount so paid in full settlement of the claim they would litigate the balance, a credit for the amount of money actually paid the plaintiff’s attorney of record was demanded, and, since the defendant upon the trial offered to pay immediately into court a sum of money sufficient to pay the balance of the plaintiff’s claim, the court did not err in directing a verdict in favor of the defendant.

(a) While it is true, as alleged and complained of by the plaintiff in error in its motion for a new trial, that at the time of the direction of the verdict the defendant had not actually paid into court the amount admitted tó be due, this irregularity does not require a reversal of the judgment below, since the court, in a note attached to the motion for a new trial, states, that “attorneys for defendant stated during progress of trial that they were willing and then offered to pay into court the $120 just as soon as it could be brought from the bank to the courthouse, if case would be held open for this purpose, and the verdict was directed with this statement in view, and the money was brought in and paid over under direction of the court within a few minutes thereafter.”

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    15495.
    SMITH & CADLE v. ROSS.
    Bar by the statute of limitations, where not apparent from the plaintiff’s petition, is not a ground for dismissal of the petition on oral motion.
    Omission of the date of the account sued upon was not a sufficient reason for dismissal of the action, on oral motion made at the trial term.
    Decided June 10, 1924.

      Complaint; from city court of Carrollton — Judge Hood. March 12, 1924.

      Samuel J. Boylcin, Boylcin & Boylcin, for plaintiffs.
   Bloodworth, J.

This was a suit upon an account. The account was not itemized, nor was the date thereof given, though the petition did allege that the defendant was “indebted to your petitioners in the sum of $248.29, besides interest at 7%, for two years; interest to date of filing suit being $39.72; said indebtedness arising upon open account, a copy of which is hereto attached.” At the trial term of the court the defendant made an oral motion to dismiss the suit “for the reason that there is no date set out in it.” The court sustained the motion. In Brock v. Wildey, 132 Ga. 19 (63 S. E. 794), it was held: “Where it does not affirmatively appear upon the face of the petition that the cause of action is barred by the statute of limitations, this defense cannot be made by an oral motion to dismiss the case on the ground that the action is barred by the statute.” It is matter for plea. See cases cited in subdivisions 1, 2, page 24. In Potts-Thompson Co. v. Capital City Tobacco Co., 137 Ga. 648 (1) (74 S. E. 279), the Supreme Court said: “A motion in the nature of a special demurrer, to dismiss a petition, came too late at the trial term.” Hnder the rulings in the foregoing cases the court erred in dismissing the petition.

Judgment reversed.

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


text:
    15497.
    FAIRBURN AND ATLANTA RAILWAY AND ELECTRIC COMPANY v. HALE.
    Pending a motion for a new trial tlio judge may withdraw liis approval of what purports to bo a copy of his charge to the jury, and may amend it and an approved ground containing'what purports to be an extract from the charge, so as to make it conform to the charge given.
    The charge of the court contained no error that requires a reversal.
    Newly discovered evidence not likely to produce a different result on another trial and which in the main is cumulative does not require a new trial. The motion for a new trial, so far as based on such evidence, was defective in not showing by affidavits of all the counsel for the movant that they did not know of it before the trial.
    Whether ordinary care was exercised in driving the automobile upon the railroad-track at a private crossing was a question for the jury; and this court cannot sot aside their finding thereon.

      The verdict was authorized by the evidence, and the court did not err in overruling the motion for a new trial.
    Decided June 10, 1924.
    Action for damages; from Clayton superior court — Judge Humphries presiding. February 19, 1924.
    Application for certiorari was denied by the Supreme Court.

      J. F. Golightly, Wright & Mundy, W. H. Reynolds, for plaintiff in error.

      O. J. Coogler, Heivlett & Denniss contra.
   Broyles, C. J.

1. Upon a pending motion for a new trial of a case, where the judge has approved the charge of the court as presented to him and has approved all of the grounds, both general and special', of the motion, and has taken the motion under consideration, but, before finally passing thereon, discovers that the charge of the court as originally approved was not the charge actually given, and that one of the special grounds of the motion, complaining of an excerpt from the charge, does not speak the truth, it is not only the privilege but the duty of the judge to withdraw his approval of the charge as originally presented, and so to amend it as to make it the charge actually given, and to withdraw his approval of that ground of the motion. This ruling eliminates ground 2 of the amendment to the motion for a new trial, and also disposes of the exception to the order of the court amending the charge as originally approved.

2. The other alleged errors in the charge of the court, when considered in the light of the charge as a whole and the facts of the case, do not require a reversal of the judgment below.

3. This court cannot hold, as a matter of law, that the verdict (for $2,500) was excessive.

4. The alleged newly discovered evidence is in the main merely cumulative, and is not of such a character as would likely produce a different result upon another trial of the case. Moreover, the ground based upon such evidence is defective in that it fails to set forth affidavits from all of the movant’s counsel that they were unaware of the evidence before the trial of the case. Civil Code (1910), § 6086.

5. It is contended by the able counsel of the plaintiff in error that this court should hold that as a matter of law the defendant in error, in driving his automobile upon and across the tracks of the railway company, upon a private crossing, under the circumstances of the case, was lacking in ordinary care for his safety, and should set aside the verdict rendered in his favor. We cannot agree with this contention. Under all the particular facts of the case it was for the jury to say whether the driver of the automobile exercised ordinary care in the premises. None of the numerous cases cited by counsel for the plaintiff in error is similar to this case.

6. The verdict was authorized by the evidence, and the overruling of the motion for a new trial was not error.

Judgment affirmed.

Lulce and Bloodworth, JJ., concur.


author: Bkoyles, C. J.

text:
    15496.
    Fairburn and Atlanta Railway & Electric Co. v. Cook.
    Decided June 10, 1924.
    Description of case, and names of counsel, the same as in the case cited above.
   Bkoyles, C. J.

This case is controlled by the decision this day rendered in Fairburn & Atlanta Railway & Electric Co. v. Hale (No. 15497), ante, 412.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    15498.
    Parrott v. The State.
    Decided June 10, 1924.
    Indictment for carrying pistol, etc.; from Murray superior court —Judge Tarver. February 23, 1924.
    A general verdict of guilty was rendered against Parrott upon an indictment in two counts, charging respectively the carrying of a pistol concealed, and the carrying of a pistol without a license. The State’s witness testified: that the defendant was with another person on the front seat of a Ford ear which contained about 65 gallons of whisky, and was driving the car, and the witness (an officer) asked him where “the big gun was,” and the defendant replied, “You can see for yourself;” and, when the defendant moved, the witness “saw something bright, sticking up between the cushions and the back of the seat — front seat, where he was sitting; reached in and got it; it was a pistol.” The witness “could not see until he moved; it was toward his right side and rather back of him, . . a large pistol, 30-40,” the witness thought. The witness could not see the .pistol until the defendant moved; the pistol “was touching him; . . he did not have it in his clothes, nor in his pocket” when the witness saw it. “It was down rather behind the cushion, between the cushion and the back of the seat.” The defendant, in his statement at the trial, said that he did not know the pistol was there, and did not know anything about it. The other person mentioned testified that he was with the defendant “all the time on that trip, and did not see the gun until Mr. Allred [the State’s witness] got it out.”
   Luke, J.

1. Under the particular facts of the ease the admission of evidence as complained of in the motion for a new trial was not error.

2. There was some evidence which authorized the verdict, and, the finding of the jury having met with the approval of the trial judge, this court is powerless to interfere with the judgment overruling the motion for a new trial. The facts of the instant ease distinguish it from that of Sanders v. State, 24 Ga. App. 329 (100 S. E. 784), relied upon by counsel for plaintiff in error.

Judgment affirmed.

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

' The testimony that the defendant had about 65 gallons of whisky in the car was admitted over the objection of the defendant that it was “incompetent, irrelevant, and immaterial;” and in the motion for a new trial it was contended that this testimony tended to inflame the minds of the jurors and influence them against the accused.

Error was assigned also upon the judge’s instruction to the jury that “it would not be necessary to the guilt of the accused that he had the pistol in his pocket, or that he had it in his clothes; if he had it about his person concealed, that would be sufficient.” It was contended that this instruction was not authorized by the evidence.

H. H. Anderson, for plaintiff in error.

J. M. Lang, solicitor-general, contra.


text:
    15500.
    WATERS v. THE STATE.
    A verdict supported by any evidence and approved by the trial judge cannot be disturbed by this court because of alleged insufficiency of evidence.
    Decided June 10, 1924.
    Indictment for possession of liquor; from Murray superior court —Judge Tarver. February 23, 1924.

      E. E. Anderson, for plaintiff in error.

      J. M. Lang, solicitor-general, contra.
   Bloodworth, J.

The motion for a new trial contains the general grounds only. There is some evidence to support the verdict, and “whenever there is any evidence, however slight, to support a verdict which has been approved by the trial judge, this court is absolutely without authority to control the judgment of the trial court/’’ Bradham v. State, 21 Ga. App. 510 (94 S. E. 618).

Judgment affirmed.

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


author: Bkoyees, C. J.

text:
    15501.
    Dunham v. The State.
   Bkoyees, C. J.

1. A revision of the jury lists cannot be ordered by the judge of the superior court in counties not containing an incorporated town of ten thousand or more inhabitants, except biennially, or triennially, on the first Monday in August, or within thirty days thereafter, unless the jury commissioners have failed to revise the jury list as provided by law. Penal Code (1910), §§ 810, 818.

2. The power of a judge of the superior court to order a revision of the jury lists is limited to the failure of the jury commissioners to revise the jury lists as provided by law. If the jury commissioners revise the lists, their revision cannot be treated as a failure to act, unless the act of revision was in violation of the statute. The opinion of the judge that the jury lists do not give fair and just representation to the citizenship of the county, for the reason that no names of persons residing in a disputed portion of the county (a newly created county) were put on the jury lists, and that in this disputed territory (which was subsequently determined to be a part of the new county) were a number of the best men of the county, who were competent and qualified to act as grand and traverse jurors, does not authorize a vacation of the jury lists as having been made in violation of law. See, in this connection, Davis v. Arthur, 139 Ga. 74 (2, 6) (76 S. E. 676); Carter v. State, 143 Ga. 632 (2 b) (85 S. E. 884).

3. The provision in section 819 of the Penal Code of 1910, that the jury commissioners, in revising the jury lists, shall select from the books of the tax-receiver upright and intelligent men to serve as jurors, does not apply to the making of jury lists in a recently created county, where it is provided by section 833 of the Civil Code that “immediately after the election and qualification of the officers of the new county, it shall be the duty of the judge of the superior court to appoint jury commissioners as required by law, and the jury commissioners . . . shall proceed immediately to make a grand and traverse jury box from the qualified jurors of the county, as now provided by law, and draw therefrom, pursuant to law, panels of grand and traverse jurors for the succeeding term of the superior court of said county.” It is obvious that immediately after the election and qualification of the officers of a new county there could not be tax-receiver’s books.

Decided June 10, 1924.

Indictment for using profane language in female’s presence; from Long superior court — Judge Sheppard. February 9, 1934.

M. Price, for plaintiff in error. • .

J. Saxton Daniel, solicitor-general, contra.

4. A defect which goes to the validity of the panel of jurors as a whole is ground for challenge to the array. Carter v. State, 143 Ga. 632 (2 c), 639 (85 S. E. 884); Thompson v. State, 109 Ga. 272 (34 S. E. 579).

5. Under the above rulings the jury lists compiled by the jury commissioners in January, 1921, were made in conformity to the law, and the revision of the lists in September, 1921, was not a lawful or legal revision, and the court erred in overruling the defendant’s challenge to the array of the panel when put upon him; and the further proceedings in the case were nugatory.

Judgment reversed.

Lulte and Bloodworth, JJ., concur.


text:
    15502.
    OWENS v. THE STATE.
    The ground of the motion for a new trial alleging that the admission of certain testimony over objection was error for stated reasons is defective in not showing what specific objection was stated to the court at the time the testimony was admitted.
    The ground of the motion for a new trial based on refusal to declare a mistrial on account of language of the solicitor-general. in his argument to the jury is defective in not showing that counsel for the movant gave to the judge any reason why the statement objected to was cause for a mistrial.
    A new trial is not required because of the instructions of the court complained of.
    The sentence imposed, being within the limits prescribed by law, is not subject to review.
    Decided June 10, 1924.
    Rehearing denied July 15, 1924.
    Indictment for larceny of automobile; from Bibb superior court —Judge Mathews. February 35, 1934.

      John R. Cooper and W. 0. Cooper Jr., for plaintiff in error.

      Charles Ii. Garrett, solicitor-general, contra.
   Luke, J.

1. A special ground of a motion for a new trial based upon the admission of evidence should state the objection made to the evidence, and that such objection was urged at the time the evidence was admitted; otherwise no question is raised for determination. See Boatright v. State, 30 Ga. App. 10 (1) (116 S. E. 557), and citation. Under this ruling, ground 1 of the amendment to the motion for a new trial cannot be considered.

2. The ground of the motion for a new trial based upon the refusal to declare a mistrial is too defective to be considered. The motion for a mistrial was made because of certain language used by the solicitor-general in his argument to the jury, and it is alleged in the ground that the statement of the prosecuting officer was unauthorized by the evidence, but it does not appear from the ground that at the time of the motion such allegation was made to the trial court. The ground fails to show that counsel for the accused gave to the trial judge any reason why the statement of the solicitor-general was cause for a mistrial.

3. Neither of the excerpts from the charge of the court complained of in grounds 3 and 4 of the amendment to the motion for a new trial shows cause for a reversal of the judgment below.

4. Ground 5 complains that “the sentence as imposed by the jury in this case, of two years as the minimum and two [three] years as the maximum, is out of proportion to the enormity of the crime charged, and tends to deprive the defendant of his liberty without due process of law, and to deny to him the equal protection of the laws, as guaranteed to him under the constitution of the State of Georgia and the United States of America.” There is no merit whatever in this ground. “The sentence imposed, being within the limits prescribed by law, is not subject to review. Reese v. State, 3 Ga. App. 610.” Taylor v. State, 8 Ga. App. 241 (2) (68 S. E. 945).

5. The evidence authorized the verdict, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, G. J., and Bloodtvorth, J., concur.


text:
    15504.
    GOODSON v. ADAMS GROCERY CO.
    1. The motion to dismiss the bill of exceptions is overruled.
    2. The court did not err in admitting the testimony as to the “telephone conversation” with the defendant, the witness having testified that he had several conversations with her and “recognized her voice.”
    3. There is evidence to support the verdict, and the judge of the superior court did not err in overruling the certiorari.
    Decided June 10, 1924.
    Certiorari; from Bibb superior court — Judge Malcolm D. Jones. February 29, 1924.

      A. W. Graves,, Frank F. Herndon, for plaintiff in error.

      Butler & Murray, contra.
   Bloodworth, J.

In the petition for certiorari it is alleged that the court “erred in admitting over the objection of counsel for the defendant the testimony of Mr. Adams, president of said company, for the reason that it dealt with a telephone conversation, and a witness testified that he did not know whether or not it was the defendant talking to him.” Basing its ruling on that of the Supreme Court in Buckner v. State, 115 Ga. 238 (41 S. E. 583), and Colbert v. State, 118 Ga. 302 (45 S. E. 403), this court, in Gilmore v. Georgian Company, 17 Ga. App. 759 (88 S. E. 416), held: “In a certiorari ease the answer of the trial judge is the only source from which knowledge of the facts of the case and the rulings made therein can be derived.” The answer of the judge who tried this ease shows that the witness Adams testified that he had several conversations with the defendant, “and recognized her voice.” ITnder this answer and the ruling in Easterling v. Bell, 29 Ga. App. 465 (2) (116 S. E. 50), the court did not err in admitting that portion of the evidence of Mr. Adams of which complaint is made in the petition for certiorari.

Judgment affirmed.

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


text:
    15505.
    McKIBBEN v. LUTHER WILLIAMS BANKING COMPANY.
    1. Discharge of tile resident defendant upon a matter of avoidance not existing when the suit was brought will not prevent the court from proceeding to judgment against the nonresident defendant, in an action against joint and several obligors residing in different counties, where the court had jurisdiction of both defendants at the commencement of the action.
    2. An action brought in the name of a certain “banking company” could be amended by alleging that‘the plaintiff was a partnership composed of named individuals.
    3. Where an action on a promissory note signed “Akin & Company” and payable to a banking company was brought by the payee against persons whose names appeared on the back of the note, and the petition alleged that the note was “executed and indorsed by said defendants in favor of petitioner,” a new cause of action was not stated by an amendment alleging that the note was executed “by Akin & Company, a Georgia corporation,” and indorsed by the defendants “as sureties;” and the court did not err in allowing the amendment.
    4. If the defendant pleads to the merits without protestation as to the jurisdiction, or without simultaneously pleading as to it, jurisdiction of the person is waived and a plea to the jurisdiction should not thereafter bo considered. The court did not err in overruling the oral motion by which the defendant, at the conclusion of the evidence, attempted to set up want of jurisdiction as to himself, upon the ground that the evidence showed that he was not a surety, but was a guarantor, as alleged in an amendment to his plea, and that the petition showed that he was a nonresident of the county of the suit.
    5. It cannot as a matter of law be held that the evidence shows that the contract of the defendant was one of guaranty.
    0. The inclusion of interest and attorney’s fees in the judgment, in accordance with the terms of the note sued on, was proper, under the pleadings.
    Decided June 10, 1924.
    Complaint; from city court of Macon — Judge Gunn. February 23, 1924.
    Tbe Luther "Williams Banking Company sued T. N. McKibben, a resident of Bibb county, Georgia, and J. EL McKibben, a resident of Butts county, Georgia, upon a promissory note executed by Akin & Company to the plaintiff. On the back of the note appeared the names “Thomas N. McKibben,” “L. R. Akin,” and “J. H. McKibben.” In addition to the usual allegations the petition alleged that the note sued upon was “executed and indorsed by said defendants in favor of petitioner.” T. N. McKibben filed a plea of bankruptcy, alleging that he was adjudicated a bankrupt after the filing of the suit. J. EL McKibben filed a plea to the jurisdiction, in which he alleged, in substance, that he was a resident of Butts county, and that the city court of Macon, being a court of Bibb county, did .not have jurisdiction as to him, because the other defendant, T. N. McKibben, a resident of Bibb county, was adjudicated a bankrupt after the filing of the suit. A demurrer to this plea was sustained, and J. H. McKibben excepted pendente lite. J. H. McKibben filed also general and special demurrers, and an answer. Thereupon the plaintiff filed two amendments to its petition, one alleging that The Luther Williams Banking Company was “a partnership composed of Luther, F. E., F. W., R. H., and H. V. Williams,” and the other alleging that the note sued upon was executed “by Akin &'Company, a Georgia corporation,” and indorsed by the defendants “Thomas N. MeKibben and J. H. McKibben as sureties.” These amendments were allowed over objections, and J. H. McKibben then filed a special demurrer to the petition as amended, on the ground that it set out a new cause of action. This demurrer was overruled, the general demurrer and other special demurrers were also overruled, and to all these adverse rulings J. H. McKibben excepted pendente lite. Thereafter he filed an amendment to his original answer, in which amendment- he alleged, in substance, that he was not a “surety” or “indorser,” but a “guarantor.” This amendment was allowed, and the case proceeded to trial before the judge, who by agreement tried it without a jury. At the conclusion of the evidence for both sides J. H. McKibben made an oral motion to dismiss the case, and especially as against him, upon the ground that the pleadings and the evidence showed that he was a guarantor, residing in Butts county, and that Thomas N. McKibben had been jointly sued with him. This motion was overruled, and he excepted pendente lite. Thereupon the judge rendered a verdict and judgment in favor of the plaintiff against J. H. Mc-Kibben for the full amount of principal, interest, and attorney’s fees. J. H. McKibben made a motion for a new trial, which was overruled, and the case came to this court upon a bill of exceptions assigning error upon the exceptions pendente lite and upon the overruling of the motion for a new trial.

      W. T. Davidson, for plaintiff in error.

      Brock, Sparks & Russell, contra.
   Broyles, C. J.

(After stating the foregoing facts.)

The plea to the jurisdiction was properly dismissed on demurrer. This ‘court has held that in a suit against joint and several obligors residing in different counties, where the court has jurisdiction of them both when the suit is filed, the mere fact that the resident defendant is subsequently discharged upon some matter in avoidance not existing at the commencement of the action will not prevent the court from proceeding to judgment against a nonresident defendant. Daniel v. Browder-Manget Co., 13 Ga. App. 392 (2) (79 S. E. 237). Under this ruling, the court did not lose its jurisdiction over the nonresident defendant because of the bankruptcy (even assuming a discharge therein) of the resident defendant, occurring after the institution of the action. Regardless of the soundness of the entire ruling contained in the second headnote of the decision just cited, the soundness of so much of it as is applicable to this case is not doubted. Therefore the request of the plaintiff in error, that this decision be reviewed and overruled, must be declined. McKibben v. Fourth National Bank of Macon, 32 Ga. App. 222 (122 S. E. 891).

The defendant demurred to the petition upon the ground that it “is brought in a name which is neither that of a natural person, a corporation, nor such artificial person as is recognized by the law as capable of suing or bringing such a petition,” and upon the further ground that the “petition does not allege that the plaintiff is a corporation, nor is it alleged in said petition that plaintiff is a partnership, nor does said petition import that plaintiff is a corporation, partnership, or natural person.” To meet this demurrer the plaintiff filed an amendment to its petition (originally brought in the name of the Luther -Williams Banking Company), in which amendment it specifically alleged that the plaintiff company was a partnership composed of named individuals. The court did not err in allowing this amendment over the objection of the defendant, or in thereafter overruling the demurrer. In the case of Perkins Co. v. Shewmake, 119 Ga. 617 (46 S. E. 832), it was held that a suit against “The C. II. Perkins Company is not void, these words importing a corporation,” and that “a petition in such a suit may be amended by alleging that the company is a partnership composed of named individuals.” See also the case of Bremen Foundry &c. Works v. Boswell, 22 Ga. App. 434 (96 S. E. 182), where this court states the rule as follows (p. 436) : “In a case in which the name of the plaintiff might import either a corporation or a partnership, the defendant, upon calling for the information by timely and appropriate demurrer, is entitled to know from the plaintiff the exact nature of his legal entity; and, upon the filing of such objection, the plaintiff, if it be a corporation, should by amendment so state; and if it be a partnership, it should amend by so alleging, and also by setting out the names of the partners.”

The defendant demurred also upon the ground that the suit could not be maintained against him as an indorser of the note sued upon, for the reason that- it is alleged in the petition that he “executed and indorsed” the said note, whereas the note, attached to the petition, shows on its face that it was not “executed” by the defendant, that he was not the payee thereof, that his indorsement of the note was not made for the purpose of passing title thereto, and that he never was the owner of the note. To meet this ground of the demurrer the plaintiff filed an amendment in which it alleged that the note sued upon was executed “by Akin & Company, a Georgia corporation,” and indorsed by the defendants, “Thomas N. McKibben and J. H. McKibben, as sureties.” The court did not err in allowing this amendment and in thereafter overruling the defendant’s demurrer. Nor did the court err in overruling a special demurrer to the petition, as thus amended, upon the ground that it stated a new cause of action: The amendment merely amplified and explained the allegation in the petition that the note was “executed and indorsed” by the defendants, so as to make such allegation conform to the note, which was attached to and made a part of the petition, and which showed conclusively that it was executed by Akin & Company and indorsed in blank by Thomas N. McKibben, L. K. Akin, and J. H. McKibben. Obviously, the original petition was not brought against the defendant as a maker merely because it alleged that he “executed” the note. It is also obvious that the original petition was not proceeding against the defendant upon a strict contract of indorsement merely because it alleged that he “indorsed” the note sued upon, since the note, which was a part of the petition, showed clearly that it was not indorsed for the purpose of negotiation or for the purpose of transferring title thereto.

After amending his plea to the merits by alleging that he was a “guarantor” and not a “surety,” and after both sides had introduced evidence and closed, the defendant made an oral motion to dismiss the suit, upon the ground that the petition alleged that he was a resident of Butts county, Georgia, at the time suit was filed, and that he was jointly sued with Thomas N. McKibben, a resident of Bibb county, Georgia, in the city court of Macon, and that the evidence adduced showed that he was a guarantor and not a surety. This motion was tantamount to a plea to the jurisdiction. Aside from the question as to whether or not the evidence showed that the defendant was a guarantor (which question will be hereinafter discussed), the petition shows that the defendant, a resident of Butts county, was sued with his co-obligor, T. N MeKibben, a resident of Bibb county, in the city court of Macon, upon an ordinary promissory note. Therefore, on the face of the pleadings, there was nothing that showed that the city court of Macon did not have jurisdiction over the person of the defendant, and the only legal way the defendant could have objected to the jurisdiction of the Bibb-county court would have been to file a plea to the jurisdiction at the first term. No such plea was filed, and the court properly overruled the oral motion to dismiss the case. See, in this connection, Cox v. Adams, 5 Ga. App. 296 (2) (63 S. E. 60), where it was held: “If the defendant pleads to the merits without protestation as to the jurisdiction, or without simultaneously pleading as to it, jurisdiction of the person is waived and a plea to the jurisdiction should not thereafter be considered.”

In arguing the general grounds of the motion for a new trial the defendant contended that the evidence showed conclusively that he was a guarantor and not a surety. We cannot agree with this contention. In the testimony there is nothing that connects the defendant with the plaintiff banking company, other than his blank indorsement of the note sued upon. The mere fact that the officers of Akin & Company, the maker of the note, transferred to the defendant certain other notes in consideration for his guaranteeing the payment of the note to the plaintiff banking company was insufficient to create a contract of guaranty between him and the plaintiff, there being no evidence whatever that the banking company ever knew of the consideration moving from the maker of the note to the defendant. A contract of guaranty, like any other contract, is governed by the intention of the parties. “There must be mutual assent to the terms of the guaranty. That is, there must be, in some form, an offer of guaranty from the one party and an acceptance thereof by the other party, . . but if the guaranty is signed by the guarantor at the request of the guarantee (the payee or creditor), or if the latter’s agreement to accept is contemporaneous with the guaranty, or if the receipt from him (the payee) of a valuable consideration, however small, is acknowledged in the guaranty the mutual assent is proved.” 28 Corpus Juris, 898, 903. ' In the instant case the evidence fails to show that any such contract was entered into between the defendant and the plaintiff. It is true that section 3538 of the Civil Code (1910) declares that a contract of suretyship differs from a contract of guaranty in that “the consideration of the latter is a benefit flowing to the guarantor.” However, this is only one of the tests to distinguish a contract of suretyship from a contract of guaranty. This is clearly pointed out in the case of Baggs v. Funderburke, 11 Ga. App. 174 (74 S. E. 937), where it is held: “The test laid down in the code, to distinguish a contract of surety-ship from one of guaranty, is not decisive. As with other contracts, the whole matter is governed by the intention of the parties. Eor instance, in the usual indemnity contracts, the parties generally intend that the indemnitor shall be surety, although he receives an independent consideration. And again, sometimes a contract will be construed to be one of guaranty although the guarantor receives no consideration other than the benefit flowing to his principal.” For other cases which show that the question of consideration is not the only distinction between a contract of surety-ship and one of guaranty, see: Manry v. Waxelbaum Co., 108 Ga. 14 (33 S. E. 701); Fppens v. Forbes, 82 Ga. 748 (9 S. E. 723); Fields v. Willis, 123 Ga. 272 (51 S. E. 280); Watkins Medical Co. v. Marbach, 20 Ga. App. 691, 693 (93 S. E. 270); Georgia Casualty Co. v. Dixie Trust &c. Co., 23 Ga. App. 447 (98 S. E. 414). We cannot hold, as a matter of law, that the evidence in the instant case shows that it was the intention of the plaintiff and defendant that the contract should be one of guaranty.

There is no substantial merit in the contention that since the petition does not allege that the defendant is indebted for interest, and there is no prayer for the recovery of interest, the judgment rendered by the court is contrary to law because it includes interest and attorney’s fees, the latter being ten per cent, of the principal and the interest. Where, as in the instant case, a promissory note containing an agreement to pay all interest at the rate of eight per cent, per annum, with all costs of collection including ten per cent, attorney’s fees, is sued upon, and it is alleged that the plaintiff has complied with section 4252 of the Civil Code of 1910 as to the collection of. attorney’s fees, to be calculated upon the basis of ten per cent, of the principal and the interest, and it is prayed that process issues requiring the defendant to be and appear at the next term of the court to answer plaintiff suit, to which, a copy of the note is attached and made a part thereof, such suit will be construed to be for the recovery of the principal, interest and attorney’s fees. See, in this connection, Hamilton v. Rogers, 126 Ga. 27(3) (54 S. E. 926).

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


author: Bdoodwoktii, J.

text:
    15507.
    Edgley v. Columbus Iron Works Company.
    Decided June 10, 1924.
    Action for damages; from Muscogee superior court — Judge Munro. February 23, 1924.
    The petition alleges that the defendant injured and damaged the plaintiff in a stated sum, “caused by the negligent acts and conduct of defendant as more fully hereinafter set forth.” It -is alleged, that the plaintiff was working for the defendant for hire in the defendant’s iron works, when the defendant’s foreman directed'him to operate a certain crimping machine, which he did not know how to operate, and which was broken, that he had no notice of the break, that in operating the machine he was injured by the loss of two fingers on his left hand, and that the break in the machine caused the injury. Paragraph 8 as amended alleges: “Petitioner entered into an oral contract with the said defendant in which the defendant agreed to hire the plaintiff for and during the remainder of his lifetime so long as the plaintiff would make a good1-and efficient laborer at the same rate of pay they would be from time to time paying for the same and like kind of work.” It is further alleged: (9) “Plaintiff agreed to perform all the duties which would be required of him for the consideration of having work to do which would afford your petitioner with work all the time he agreed to settle the above cause of action plaintiff at that time had against the said” defendant. (10) “Defendant agreed with plaintiff to furnish him work as long as he lived should he refuse to sue said defendant on said cause of action he had against the defendant, and it was agreed between both the plaintiff and defendant that if the plaintiff did not bring suit and would settle by this agreement the defendant would furnish work for the plaintiff to perform at all time.” (11) “Defendant further agreed to pay plaintiff ordinary and regular prices for- his labor, and that the defendant has failed and refused to carry out its part of the said contract, breached the same, and continues to breach the same, although after [?] requested to allow plaintiff to go to work and furnish work to do.” There are additional allegations as to breach of the contract, and it is alleged that “the defendant in failure to comply with its contract has injured and damaged your petitioner in the sum of money great than is one fifth of his earning capacity for and during the remainder of his life;” that he was 33 years of age at the time of his injury, his expectancy was 75 years, and his earning capacity was $3.75. The concluding allegations are that the plaintiff was not at fault, and that the defendant was negligent in sending plaintiff to a machine with which he was unacquainted and which was out of repair; and damages in the sum first stated are prayed for.
   Bdoodwoktii, J.

The petition contains allegations appropriate' to an action to recover damages for a breach of a contract or for damages founded in tprt. The petition having been demurred to as duplicitous, and the plaintiff not having elected which cause of action he would pursue, the demurrer was properly sustained. Brooks v. Tucker, 29 Ga. App. 795 (116 S. E. 552), and eases cited; Central Railroad Co. v. Pickett, 87 Ga. 734 (1), 735 (1) (13 S. E. 50).

Judgment affirmed.

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

M. H. Norris, for plaintiff. A. W. Gozarb, for defendant.


text:
    15508.
    Wilson v. The State.
    Decided June 10, 1924.
   Bloodworth, J.

“Tlie evidence relied upon by the State to connect the accused with the offense of having in his custody and control intoxicating liquor was wholly circumstantial in character, and did not exclude every reasonable hypothesis save that of the guilt of the accused. Accordingly the court erred in overruling the motion for a new trial.” Cummings v. State, 25 Ga. App. 427 (103 S. E. 687); Toney v. State, 30 Ga. App. 61 (116 S. E. 550); Harris v. State, 28 Ga. App. 463 (111 S. E. 686).

Judgment reversed.

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

Conviction of possessing liquor; from Douglas superior court-judge Irwin. March 14, 1924.

From the evidence it appears that in May, 1923, a gallon jug almost full of whisky was found sitting by the side of the garden fence and in the garden of the house in which the defendant, Joe Wilson, and his family, resided with his son-in-law Ayers and the family of Ayers, and where he had resided since some time after Christmas as a tenant of McPherson. The jug was about fifteen steps from the back door of the house and “in the sight of the back door.” Tracks led “from his back door by his garden. In the pasture about 200 yards . . a three-gallon jug with about two gallons in it” was found. The sheriff, in his testimony as to the finding of the whisky, said: “It was raining along then, and these tracks had been made immediately after a good big rain, enough to wet the ground pretty wet. The tracks went to the three-gallon jug of whisky and back to [Wilson’s] house. . . His shoes seemed to fit the tracks that was in the field. I didn’t measure any tracks, but he was making them around there all the time, and it was a small kind of track.” “He was away from home when I got there and I sent after him. I had met him in the road.” “I saw Ayers’ tracks around in the yard. I knew one from the other. I couldn’t say whether Ayers made any tracks to the place or not; he had on a shoe a good deal smaller than Mr. Wilson, with a sharp toe.” It was testified that Ayers moved away from the place some time in May, after the liquor was found, and that “he was a liquor dealer all the time.” A witness testified that a negro, who was with him on the day of the finding of the liquor by the sheriff and before the sheriff went there, got some whisky after going to that place; the witness did not know whether the negro got it at Wilson’s house or not, or whether Wilson was then, at home; the witness was about a quarter of a mile away when he saw the negro go into Wilson’s front yard and towards the house, but did not know whether the negro went into the house; the negro returned with whisky in a gallon can, after about thirty minutes. The defendant, in his statement at the trial, denied knowledge of the whisky, and said that no negro came to his house for liquor, so far as he knew. There was testimony as to his good character.

J. B. Hutcheson, for plaintiff in error.

E. 8. Griffith, solicitor-general, contra.


text:
    15509.
    Guyton v. The State.
    Accusation of gaming; from city court of Baxley — Judge Speer. March 8, 1924.

      J. B. Moore, for plaintiff in error.

      Wade E. Watson, solicitor-general, contra.
   Broyles, C. J.

Tlie evidence tending to establish the conviction of the defendant being wholly circumstantial, the failure of the ■ judge to instruct the jury upon the law of circumstantial evidence, even in the absence of a timely and appropriate written request, was error requiring the grant of a new trial.

Judgment reversed.

Luke and Bloodworth, JJ., eoneur.


text:
    15510.
    Wolf v. The State.
    Decided June 10, 1924.
    Rehearing denied July 15, 1924.
    Indictment for larceny of automobile; from Bibb superior court —Judge Mathews. February 25, 1924.

      John B. Cooper, W. 0. Cooper Jr., for plaintiff in error.

      Charles E. Garrett, solicitor-general, contra.
   Luke, J.

1. The contention that the venue was not proved, in this case is without merit. The evidence authorized a finding that the automobile which the defendant was charged with stealing was stolen in Bibb county, where the larceny is alleged to have been committed.

2. None of the excerpts from the charge of the court, when considered in the light of the charge as a whole, shows cause for a reversal.

3. The evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis than that of guilt.

Judgment affirmed.

Broyles, G. J., and Bloodworth, J., eoneur.


text:
    15511.
    Brakefield v. Hillyer, executrix.
   Broyles, C. J.

1. Where A sells an automobile to B, under a title-retention contract, and receives B’s notes for the purchase-price, due on different dates several months thereafter, and where, before any note falls due, A sells the notes and the title-retention contract to O, A indorsing in blank the notes, and indorsing the contract over to 0, and where O, before the maturity of any of the notes, sells the notes and contract to D, C indorsing in blank the contract but not indorsing the notes, and where D subsequently brings suit against B and 0 for the balance of the purchase-price of the automobile, no cause of action is set forth against 0, and the petition is subject to dismissal on genex-al demurrer,

(a) The infirmity of the petition is not cured by an amendment which sets up that the indorsement in blank by C of the title-retention contract “was equivalent to indorsing the said notes in blank.”

Decided June 10, 1924.

Complaint; from city court of Macon — Judge Gunn. February 6, 1924.

E. 17. Maynard, E. F. Taylor, for plaintiff.

J ones, Parle & J olmston, for defendant.

2. A second count, offered as an amendment to the petition, alleged that when C sold the retention-of-title contract and the notes to D, C knew that B was insolvent, and that the notes and contract were worthless, and that D did not have such knowledge, and, therefore, that C is liable to D for a breach of his warranty. A third count, offered as an amendment, alleged that when C sold and delivered the notes and contract to D, C promised that if the notes were not paid by B, he (C) would pay them. Held: Conceding (but not deciding) that these two counts set forth a cause of action against C, it was a new and distinct cause of action, and the court did not err in disallowing the amendments, or in dismissing the petition on general demurrer.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    15514.
    Sirmans v. City of Ray City.
    Decided June 10, 1924.
    Rehearing denied July 15, 1924.
    Action for damages; from Berrien superior court — Judge Dickerson. Marclr 20, 1924.
    On July 13, 1923, Mrs. Sirmans sued the City of Eay City for damages because of the construction of a dam by the city in 1922. As to demand upon the city the original petition alleged: “5.
    That your petitioner did, on the 9th day of July, 1923, make written demand upon tlie defendant for .the payment of said damages, and the same was refused; that prior to the 9th day of July, 1923, your petitioner had made divers demands upon said corporation for the payment of said damages, same being refused.” By amendment the plaintiff alleged: (1) “Immediately upon the service of said notice being served upon the City of Eay City they refused payment.” (2) “On or about April 1st, 19 — , this plaintiff met in the counsel [council?] room of the city, and said counsel took up the damages and this plaintiff in said meeting for that purpose made the fact set out heretofore in this petition known to them, and said meeting was adjourned over until the next day, at which time they refused the demands of this plaintiff, and said demand by this plaintiff and motion of counsel and refusal was more than thirty days prior to the filing of this suit.” The defendant demurred to the petition generally and on the following grounds (among others) : “It demurs to paragraph 5 of said petition for the reason that said paragraph nor any other paragraph in said petition does not set out that the required notice was served on defendant prior to the bringing of said suit. The reference of demand showing in petition sets forth July 9, 1923, as the time of demand, and the suit shows to have been filed July 13, 1923, just four days after the alleged demand, which demand is not in accordance with law.” “The amendment nowhere sets up nor alleges that the City of Eay City by its constituted authorities met and refused within the thirty days allowed by law the payment of amount of alleged damages sued for.” “Said amendment nowhere- alleges that a written demand in terms of the law was made upon the defendant prior to the alleged refusal on the part of defendant.”
   Broyles, C. J.

An action for money damages against a municipal corporation, for injuries to person or property, cannot be maintained unless it is made to appear that before the suit was filed the governing authority of the municipality was furnished with a written statement of the plaintiff’s claim, and that such statement set forth the time, the place, and the extent of the alleged injuries as near as practicable, and the negligence which caused them. Civil Code (1910), § 910; Marks v. City of Rome, 145 Ga. 399 (3) (89 S. E. 324); City Council of Augusta v. Marks, 124 Ga. 368 (52 S. E. 539); Maryon v. City of Atlanta, 149 Ga. 36 (99 S. E. 116).

(a) While a substantial compliance with the above-cited code section is all that is required (Langley v. Augusta, 118 Ga. 590 (11), 600, 45 S. E. 486), the petition as amended in the instant case showed no such compliance and was fatally defective in this respect. It follows that the court did not err in dismissing it on general demurrer.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

Cited by counsel for plaintiff: 8 Ga. App. 98; 113 Ga. 619; 124 Ga. 365(5).

Jeff S. Story, for plaintiff.

P. T. Knight, for defendant.


text:
    15516.
    COUNCIL v. WILSON.
    From the petition as amended it appears that a sale of the entire property and not merely of the undivided half interest of the defendant, the sole signer of the contract sued upon, was contemplated by the contract, which states, “We have this day sold the property known as the Barlow block, . . being all of the property we own located in that block,” and “the purchase price at which we agree to sell the above-described property is” a named sum, and “the above is subject to approval of” the other joint owner, who, it is alleged, declined to approve of the sale on the terms stated. An action based on the theory of a sale of the defendant’s undivided half interest alone was not maintainable; and the court properly sustained the demurrer and dismissed the suit.
    Decided June 10, 1924.
    Action for breach of contract; from city court of Americas— Judge Harper. February 18, 1924.
    C. M. Council sued F. A. Wilson and Mrs. Anna Pryor for damages on account of the breach of a contract for the sale of certain realty, alleging that each defendant owned a half undivided interest in the property. The alleged contract is as follows: “We have this day sold the property known as the Barlow block located on Jackson street in Americus, Ga., to C. M. Council, being all of the property we own located in that block. Beceipt of one hundred dollars is hereby acknowledged as part payment. The purchase price at which we agree to sell the above-described property is sixty thousand dollars clear of all indebtedness, except as stated -below. [Then follow terms of payment and reference to a loan assumed.] This transaction is to be closed up as soon as title has been examined and found satisfactory. The above is subject to approval of Mrs. Anna W. Pryor. (Signed) F. A. Wilson.” Plaintiff alleged, “that Mrs. Anna Pryor declined to approve of the sale of said property on the terms stated in said writing,” but made a proposition of sale -to him; and that at a later date plaintiff, through his attorney, accepted Mrs. Pryor’s proposition, but she declined, stating that she had received a better offer for the property before she was notified of his acceptance of her proposition. By amendment Mrs. Pryor was stricken as a party defendant, and it was alleged that Wilson was liable individually for a breach of the contract of sale. By a second amendment it was alleged that Wilson entered into an agreement with Mrs. Pryor that neither he nor she would sell their interests in the property without the consent and approval of the other, and that Wilson declined to sell his individual interest to plaintiff, stating as his reason therefor that Mrs. Pryor did not give her approval. Plaintiff alleged that Mrs. Pryor and Wilson sold the property to another party, and that in so doing Wilson breached his contract with plaintiff. The court sustained' a demurrer to the petition as amended, and dismissed the suit.

      B. L. Maynard, for plaintiff. W. W. Dykes, for defendant.
   Bloodworth, J.

(After stating the foregoing facts.)

As to the amendment alleging that Wilson made an agreement with Mrs. Pryor that neither would sell without the approval of the other, the record shows that Wilson proceeded along this line in the very beginning of his negotiations with the plaintiff, and the alleged contract of sale shows this on its face. No other specific acts are alleged which would show that Wilson interfered with or prevented Mrs. Pryor from selling the property.

The suit as originally filed was against Wilson and Mrs. Pryor, and alleged that the contract was for the sale of .the entire property. As amended it was against Wilson only, and alleged that the contract was for the sale of Wilson’s individual half interest in the property. The latter allegation is entirely inconsistent with the former. See Civil Code (1910), § 5683; Milburn v. Davis, 92 Ga. 362 (1) (17 S. E. 286). To be a contract for the sale of realty the description in the writing was extremely meagre. While the consideration to be paid for the land is set out, the writing shows no consideration .for the contract of sale. Except by implication, the petition does not even allege that the plaintiff offered to buy Wilson’s interest only. On the contrary, it appears that the negotiations contemplated a salé of the whole title and interest in and to the property involved. No legal tender of the purchase price was made by the plaintiff. The failure of Mrs. Pryor to approve the terms of sale released Wilson, under the specific terms of the writing. It is apparent from the above that a case for specific performance of this alleged contract could not be made out, and, this being true, a suit for damages for a breach of such contract could not be maintained. “In order to recover damages in lieu of specific performance, it is essential that a case for specific performance be made out.” Pippins v. Phillips, 123 Ga. 416 (51 S. E. 410).

The entire cause of action is based upon the writing attached to the petition, which alleges: “Your petitioner contracted for the purchase of said Barlow block above described, as _ evidenced by a writing signed by F. A. Wilson Sr., a copy of which is hereto attached and marked Exhibit A.” In the first place, the alleged contract throughout contains the personal pronoun “we;” which shows on its face that it was contemplated that it be signed by Wilson and Mrs. Pryor. Mrs. Pryor never did sign it, and no one signed it for her or purported to have authority to sign it for her. In the second place, such description of the property as is given in the alleged contract of sale is of the entire “Barlow block, . . being all of the property we own located in that block;” which shows that the entire property, and not merely Wilson’s half interest in it, was to be sold if any at all was to be sold. In the third place, the alleged contract distinctly provides in plain and unambiguous terms that “the above is subject to the approval of Mrs. Anna Pryor.” (Italics ours.) This being true, Wilson would not be bound under any circumstances unless Mrs. Pryor approved it; and he would not be bound even had the writing contemplated that he sell his own interest only;

Since the pleadings show on their face that the plaintiff’s cause of action was based on this writing, that the written proposition was not binding unless Mrs. Pryor approved it, that Mrs. Pryor never did approve it, and there was no • allegation to that effect, and that Wilson never agreed to sell his half only, the cause of action must fall, and the trial judge, therefore, properly sustained the demurrer and dismissed the suit.

Judgment affirmed.

Broyles, G. J., and Jjiücc, J., concur.


author: Bkoyles, O. J.

text:
    15517.
    Sims v. Graham.
    Decided June 10, 1924.
   Bkoyles, O. J.

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

2. This court not being satisfied that the writ of error was prosecuted for delay only, the request of the defendant in error for the award of damages is denied.

Judgment affirmed,.

Luke and Bloodworth, JJ., concur.

Trover; from city court of Newnan — Judge Post. March 11, 1934.

T. G. Farmer Jr., for plaintiff in error.

Stanford Arnold, contra.