author: Bloodworti-i, J.

text:
    17016.
    MILLER v. EQUITABLE CREDIT COMPANY.
    “1. Where one sells property, taking purchase-money notes containing a retention of title, and where on default in the payment of such notes the vendor levies an attachment on the property, the vendee replevies the property, the vendor files his declaration in attachment, and the debtor is adjudicated a bankrupt within four months after the levy of the attachment, and thereafter on the trial of the ease the defendant pleads his discharge in bankruptcy, such discharge does not affect the right of the vendor, holder of the title, to obtain a special judgment against the property and to bring the property to sale to pay'the debt.

      Appeal and Error, 4 C. J. p. 1248, n. 48 New.
    Bankruptcy, 7 C. J. p. 197, n. 89; p. 409, n: 85; p. 411, n. 17.
    Exemptions, 25 C. J. p. 118, n. 82.

      “2. ‘The effect of 67 f of the national bankruptcy act is not to avoid the levies and liens therein referred to against all the world, but only as against the trustee in bankruptcy and those claiming under him.’ Mc-Kenney v. Cheney, 118 Ga. 387 (45 S. B. 433) ; Spradlin v. Kramer, 146 Ga. 396 (91 S. E. 409) MeBride v. Gibbs, 148 Ga. 380 (96 S. E. 1004) ; Coker v. Viter, 152 Ga. 157 (108 S. E. 538).'-
    “3. The replevy bond takes the place of the property, and in 'the circumstances above stated the discharge in bankruptcy will not prevent a judgment being rendered against the surety on such bond.
    “4. These rulings do not conflict with Alvaton Mercantile Co. v. Caldwell, 156 Ga. 317 (119 S. E. 25). In that case the court was not dealing with the rights of a creditor to subject property which he had sold with retention of title, or on which he held a lien by contract. The lien asserted was one arising by general judgment. The general judgment being void because of discharge in bankruptcy, the lien created thereby and the liability of the surety were also discharged.
    “5. Moreover, the homestead exemption feature adds nothing to the benefit , of the debtor. In the purchase-money note sued on there was a waiver of homestead, a retention of title, and also the express retention of the right to take possession of the property on default in payment of the debt. Therefore, the debt being for purchase money, the debtor having no title and having waived homestead, he was absolutely without legal right to interfere with the subjection of the property to payment of the debt. Perdue v. Praley, 92 Ga. 780 (19 S. E. 40) ; Johns v. Robinson, 119 Ga. at page 63 (45 S. E. 727)(”
    Decided May 11, 1927.
    Attachment; from city court of Floyd county — Judge Bale. November 9, 1925.

      M. B. Eubanks, for plaintiff in error.

      Willingham, Wright & Covington, contra.
   Bloodworti-i, J.

This case was carried by certiorari from this court to the Supreme Court. The foregoing are the rulings of the Supreme Court on a hearing of the case (164 Ga.). The effect of these rulings is to reverse the former decision of this court in this case (Miller v. Equitable Credit Co., 35 Ga. App. 184, 133 S. E. 750), which reversed the judgment of the trial court, and the judgment of the superior court is now

Affirmed.

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


source: Caselaw Access Project

author: Broyles, C. J.

license: Public Domain

text:
    17558.
    Alred v. Alred.
    Decided May 11, 1927.
    Complaint; from Floycl superior court — Judge Maddox. June 22, 1926. ■
    The requested instructions referred' to in the fourth paragraph of the syllabus were in substance as follows: (1) In order for the jury to find a verdict in favor of the plaintiff against the defendant for any sum for services in the nature of care and attention to the defendant’s son, it must affirmatively appear either that the services were rendered under an express contract that the plaintiff was to be paid for them, or the circumstances must plainly indicate that it was the intention of both the plaintiff and the defendant that compensation should be made, and negative the idea that the services were performed merely because of that natural sense of duty, love and affection, which arises out of the relationship existing between them. (2) Shown by paragraph 2 of the syllabus. (3) “Inasmuch as this is a suit of a father against his own son for services rendered to the father in the nature of care and attention to the grandson of the plaintiff and son of the defendant, . . before you would be authorized to find a verdict in. favor of the plaintiff against the defendant, it must affirmatively appear either that the services were rendered under an express contract that the father was to be paid by the son for them, or the surrounding circumstances must plainly indicate that it was the intention of both the father, the plaintiff, and the son, the defendant, that compensation should be made and negative the idea that the services were performed merely because of that natural sense of duty, love and affection which arises out of the relationship existing between them.” (5) “If you find from the evidence in this case that the plaintiff furnished the services to the son of the defendant gratuitously, and that at the time he so furnished the services he had no intention of charging the defendant anything for such services, then you would find for the defendant.” (6) “If as a matter of fact you find that the plaintiff furnished services to the son of the defendant gratuitously, and that he had no intention of charging the defendant anything for services rendered to the defendant’s son at the time that the services were furnished, and that the plaintiff was furnishing these services to the son of the defendant out of natural love and affection for his grandson and his own son, that as a matter of law he could not change his mind afterward and charge defendant for such services.”

      New Trial, 29 Cyc. p. 786, n. 87; p..788, n. 95; p. 790, n. 10.
    Work and Labor, 40 Cyc. p. 2809, n. 13; p. 2815, n. 50; p. 2817, n. 58, 60; p. 2820, n. 75; p. 2856, n. 74; p. 2857, n. 78.
   Broyles, C. J.

1. Under the ruling of the Supreme Court in this case (164 Ga., 137 S. E. 823), in answer to a question certified by this court, the motion to dismiss the bill of exceptions is denied.

2. “Ordinarily, when one renders services . . valuable to another, which the latter accepts, a promise is implied to pay the reasonable value thereof; but this presumption does not usually arise in cases between very near relatives.”

3. “In order to authorize a recovery by a son against the estate of his deceased father for services in the nature of care and attention to the latter while old and infirm, it must affirmatively appear either that the services were rendered under an express contract that the son was to be paid for them, or the surrounding circumstances must plainly indicate that it was the intention of both parties that compensation should be made, and negative the idea that the services were performed merely because of that natural sense of duty, love and affection, which arose out of the relation existing between them.” O’Kelly v. Faulkner, 92 Ga. 521 (17 S. E. 847), and cit. This ruling is applicable to the instant case, where a father sought a recovery from his son for services in the nature of care, attention, and support of a minor child of the defendant, and the grandson of the plaintiff.

4. Under the rulings stated above in paragraphs 2 and 3, and the facts of the instant case, the court erred in refusing to comply with, the timely and appropriate requests to charge set forth in grounds 1, 2, 3, 5, and 6 of the amendment to the motion for a new trial. The court erred also in charging' as set forth in ground 8, for the reason stated in subsection (c) of the ground. It follows that the refusal to grant a new trial was error.

Judgment reversed.

Luke and Bloodworth, JJ., concur.

The charge excepted to, as set forth in ground 8 of the motion for new trial, was as follows: “If the father fails to support his minor child, and another does support said child and furnishes him with the necessities of life, the father would be liable for any amount so expended and the reasonable market value of any necessaries so furnished.” Error, was assigned, because: (a) There was no evidence warranting the instruction, (b) The stated principle of law does not apply to a case where a father sues his own son for services rendered to the plaintiff’s grandson, (c) The court failed to charge in the same connection that the stated principle of law does not usually arise in cases between very near relatives, and failed to charge in substance as shown by the request in ground 3 of the motion.

Porter & Mebane, for plaintiff in error. M. B. Eubanks, contra.


author: Luke, J.

text:
    17844.
    Southland Loan & Investment Co. v. Truelove et al.

    Decided May 11, 1927.
    Certiorari; from Fulton superior court — Judge Howard. October 13, 1926.

      Efurd & Phillips, Noah J. Stone, for plaintiff.

      P. W. Flint, G. H. Cornwell, for defendants.
    Certiorari, 11 O. J. p. 151, n. 51; p. 155, n. 84; p. 184, n. 56.
   Luke, J.

Under the decision of this court in East River National Bank v. Ellman, 36 Ga. App. 263 (136 S. E. 799), the petition for certiorari in the instant case did not plainly and distinctly set forth the errors complained of; and such a petition not being amendable, it should have been dismissed upon the hearing, on the motion of the defendant in certiorari. See also Dean v. Johnson, 18 Ga. App. 661 (90 S. E. 286); Green v. Patterson, 25 Ga. App. 374, 375 (103 S. E. 437).

Judgment reversed.

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


text:
    17899.
    Waldhour v. The State.
    Decided May 11, 1927.
    Public indecency; from city court of Savannah — Judge Rourke. December 30, 1926.

      Gordon Saussy, for plaintiff in error.

      Walter C. Hartridge, solicitor-general, contra.
    Criminal Law, 16 C. J. p. 1180, n. 74; 17 C. J. p. 271, n. 41.
    Obscenity, 29 Cyc. p. 1322, n. 70.
   Luke, J.

The defendant was found guilty of committing “a notorious act of public indecency,” and there was ample evidence to authorize such a finding, which is approved by the trial judge. The motion for a new trial based on the general grounds only was properly overruled.

Judgment affirmed.

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


author: Bloodworth, J.

text:
    17947.
    BOWDEN et al. v. THE STATE
    1. “An affidavit filed for tlie purpose of bringing a ease to this court in forma pauperis must be ‘intituled in the cause’, or otherwise on its face affirmatively show its relation thereto, or it will not be treated as sufficient to relieve the plaintiff in error, or his attorney, from paying the costs accruing in this court.”
    2. The evidence of the accomplice as to the guilt of the accused was direct and positive, and while the evidence of the accomplice must be corroborated, the extent of the corroboration is entirely for the jury. There being some corroborating testimony, this court will not say that the evidence did not authorize the verdict. Brown v. State, 18 Ga. App. 288 (1, a, Z>) (89 S. E. 342), and cit.
    Criminal Law, 16 C. J. p. 698, n. 88; p. 700, n. 92; p. 714, n. 34; 17 C. J. p. 104, li. 87; p. 255, n. 53.
    Decided May 11, 1927.
    Burglary; from Putnam superior court — Judge Park. December 28, 1926.

      W. T. Davidson, for plaintiff in error.

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

Only the first headnote needs to be enlarged upon. Each of the plaintiffs in error sought to bring his case to this court by pauper affidavit. The affidavit made by Williams, alias Adams, is as follows: “Georgia, Putnam County. Personally appeared before the undersigned Ambrosia Williams, alias Buddie Adams, one of the plaintiffs in error in the bill of exceptions filed in the case of Dock Bowden and Ambrosia Williams, alias Buddie Adams, and on oath says that he is, because of his poverty, unable to pay the costs in said case. (Signed) Ambrosia Williams, alias Buddie Adams, (by) his mark. Sworn to and subscribed before me this 18th day of January, 1927. L. M. Pennington, N. P. (Seal) L. M. Pennington, Notary Public Putnam county, Ga.” The affidavit made by Bowden is substantially the same as the foregoing, except that in it there is the additional statement that the case is “from Putnam superior court.” The headnote which we are discussing is a copy of the first headnote in Parks v. State, 110 Ga. 760 (36 S. E. 73). In discussing that case Justice Cobb said: “If the affidavit is not entitled in the cause, or if the name of the case does not appear in some part of the affidavit, or the statements made therein be not sufficient to indicate to what case the affidavit relates, it could not be used as a foundation for a prosecution for perjury, and for this reason it should not be received as evidence in any court in any proceeding whatsoever.” From an examination of the pauper affidavits filed it can not be ascertained even whether they relate to civil or criminal cases. While the names of the parties appear in the affidavits, the name of the case does not appear in either of them. As neither of the 'pauper affidavits is entitled in the cause, and as there is nothing in either of them to affirmatively indicate to what cause it relates, the clerk of this court properly required the payment of costs in each case.

Judgment affirmed.

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


author: Bloodwoetii, J.

text:
    17991.
    Greene v. Maxwell Brothers.
    Decided May 11, 1927.
    Claim; from Richmond superior court — Judge A. L. Franklin. January 8, 1927.

      B. B. McGowen, for plaintiff in error. J. Paul Stephens, contra.
    New Trial, 29 Cyc. p. 824, n. 41.
   Bloodwoetii, J.

There is nothing in the special ground of the motion for a new trial that requires another trial of the case; there is sufficient evidence to support the verdict, and the judge did not err in overruling the motion for a new trial.

Judgment affirmed.

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


text:
    17996.
    BENNETT, superintendent, etc., v. TAYLOR et al.

    In an ordinary action in a city court where an entry of personal service upon an individual defendant is returned by the sheriff, and where the entry is traversed by the defendant at the first term of the court after the date of the entry, and the sheriff is made a party, and where, upon the trial of the issue so made, undisputed evidence discloses that the sheriff left a copy of the petition and process in question with a son of the defendant at the defendant’s office (the office not being at the defendant’s residence), the defendant being absent at the time and not having subsequently waived proper service, a verdict in favor of the traverse is demanded.
    Decided May 11, 1927.
    Process, 32 Cyc. p. 448, n. 41; p. 462, n. 81; p. 463, n. 92; p. 464, n. 93; p. 501, n. 24.

      Traverse of service entry; from city court of Summerville— Judge Neal. February 14, 1927. • '

      Wesley Shropshire, for plaintiff.

      Denny & Wrighi, B. S. Taylor, for defendants.
   Broyles, C. J.

The plaintiff in error brought suit in the city court of Summerville against Taylor and others on a promissory note. The sheriff returned an entry of personal service upon Taylor. At the first term of the court after the return, Taylor filed a traverse to the return and the sheriff was made a party. Upon the hearing of the issue thus made, the court directed a verdict in favor of the traverse, and such a verdict was returned by the jury. The plaintiff’s motion for a new trial was denied, and to this judgment exceptions were taken. Upon the trial the only witnesses introduced were Taylor and the sheriff. Taylor testified as follows: “On the date of the alleged service I was in "the city of Atlanta. On my return the next day I found a copy of the petition and process on my office table in the Chattooga County Bank. I am president of the bank and my office is in the bank. A day or so afterwards J. W. Alexander, the sheriff, came into my office. He asked me if Gene, who is my son, gave me the copy of the petition and process. I told him ‘No,’ but I said to him, ‘I acknowledge that I got the copy.’ I am positive that I used no other language, for I was laying for him, expecting this very thing.” The testimony of the sheriff was as follows: “On June 11th I was sheriff of Chattooga county, Georgia. On that date, in the evening, I went to the office of John D. Taylor in the Chattooga County Bank, to serve the process. He was not in the office [but] his son and law partner [was]. I asked him if he would give the copy of the petition and process to his father. He said he would, and I delivered it to him. That night I got to thinking about it, so next day I went to the office of John D. Taylor in the bank. I asked him if he got the copy. He replied that he did. I understood him to say ‘I acknowledge the service.’ He might have used the exact language testified to by him but I didn’t so understand it. Thinking the service satisfactory I made the entry.”

“There are only two methods prescribed by the code for serving an ordinary process upon an individual defendant. One is personal service and the other is by leaving a copy at his ‘most notorious place of abode/ in suits in a justice’s court, and ‘at his residence/ in cases in the superior and city courts, Civil Code, §§ 4717, 5563. The statutory method of service is exclusive, and such a defendant can not be served by leaving a copy ‘ at his office ’ unless his office is also his most notorious place of abode, or residence.” Fincher v. Hanson, 12 Ga. App. 608 (2), 611 (77 S. E. 1068).

It is also well settled that where the testimony of witnesses is in apparent conflict, the testimony should be so reconciled, if possible, as to impute perjury to no witness. Under this rule it is clearly apparent that the testimony of Taylor must be accepted as the true version of the conversation between him and the sheriff, and it follows that Taylor’s admission to the sheriff that he “got the copy” did not amount to a waiver of proper service. The case of Johnson v. Johnson, 52 Ga. 449, cited by counsel for the plaintiff, is easily distinguishable by its particular facts from the instant case. The direction of the verdict in favor of the traverse was not error.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    17998.
    SCRIBNER v. ADAMS.
    Where the evidence does not demand the verdict, and the order overruling the motion for a new trial, based upon the general grounds, shows on its face that the presiding judge did not exercise his legal discretion in passing upon the motion, the judgment will be reversed.
    Appeal and Error, 4 O. J. p. 833, n. 57; p. 834, n. 65.
    New Trial, 29 Cyc. p. 820, n. 35. •
    Decided May 11, 1927.
    Action of slander; from Chatham superior court — Judge Meldrim. January 27, 1927.

      Oliver & Oliver, John Z. Ryan, for plaintiff.

      Shelby Myrich, George II. Richler, for defendant.
   Luke, J.

Miss Yerna M. Scribner, a trained nurse, sued J. L. Adams, secretary and treasurer, and one of the managers of the Savannah Hospital, alleging that while she was superintendent of the Savannah Hospital, the defendant, at a meeting of the board of directors of the said institution, spoke of and concerning her the following false, defamatory, derogatory, and slanderous words, to wit: “I believe it to be true that she (meaning your petitioner) received graft from the x-ray people (meaning the Victor X-ray Machine Company), although I can not prove it, and I make this charge because of the fact that a telegram came relative to the transaction (meaning the purchase of the x-ray machine by the Savannah Hospital from the Victor X-ray Company) and I never got it, but I later got a copy of it from the Western Union Telegraph Company.”

The jury found for the defendant; and in passing upon the motion for a new trial, based upon the usual general grounds, the presiding judge passed the following order: “This was an action for slander. The verdict was for the defendant. The motion for new trial is on the general grounds. There are no exceptions to any of the rulings or to the charge. The defense is twofold: (1) that the words averred were not spoken; (2) that the alleged slander was a conditional privileged communication. As to the first defense, I am clear that the words averred were spoken either literally or substantially, and if there were nothing more in the ease I should not hesitate to grant a new trial. As to the second defense, of conditional privileged communication, it is insisted by movant that there was no plea of privilege. This is true, and good pleading would require such plea. But the defendant, after denying that he had spoken the words charged, testified without objection that the words spoken by him were uttered bona fide, to protect his interest, and without malice. This issue of conditional privilege was made by the evidence, it was argued by counsel, and I charged -on that issue as follows: ‘Statements made with a bona fide intent on the part of the speaker to protect his own interest in a matter where it is concerned, — if you find that to be true, — would require a verdict for the defendant.’ This charge I was constrained to give on a vital issue made by the evidence. There was evidence to support this charge. There is no exception to it. There can be none. The jury had the right to find that the communication was conditionally privileged. I have no right to arbitrarily set aside a verdict. It is a legal discretion which I am permitted to exercise, and the verdict is approved on the sole ground of a conditional' privileged communication.' I trust that the movant may except to this decision, and that the Court of Appeals may reverse it.”

in. passing upon a demurrer to the petition in the case at bar, this court held, in Adams v. Scribner, 36 Ga. App. 15 (135 S. E. 110), that the petition set out a cause of action, that the slanderous charges as made were conditional privileged communications, and that (quoting from the decision in Nicholson v. Dillard, 137 Ga. 225 (4), 73 S. E. 382), in order for such “communications to be so privileged as to be a bar in a suit for slander, it must appear that the words were spoken bona fide to protect the speaker’s private interests, and not with malicious intent.”

We do not care to comment on the evidence in this case further than to say that it was conflicting, and that it did not demand the verdict. “When the evidence is conflicting, applications for new trial upon the ground that the verdict is contrary to the evidence, or contrary to the weight of the evidence, or decidedly and strongly against the weight of the evidence, are addressed to the sound legal discretion of the trial judge. The law imposes upon the trial judge the duty of exercising his discretion in all such cases. See Rogers v. State, 101 Ga. 651 [28 S. E. 978]; Central of Georgia Ry. Co. v. Harden, 113 Ga. 453 [38 S. E. 949]. When it appears from the record that the trial judge in overruling the motion for a new trial has not exercised this discretion, the judgment overruling the motion will be reversed.” Thompson v. Warren, 118 Ga. 644 (45 S. E. 912). See also McIntyre v. McIntyre, 120 Ga. 67 (47 S. E. 501, 102 Am. St. R. 71, 1 Ann. Cas. 606); Livingston v. Taylor, 132 Ga. 1 (7), (63 S. E. 694); Cotton States Seed &c. Co. v. Macon, Dublin &c. R. Co., 23 Ga. App. 206 (98 S. E. 108). In Walters v. State, 6 Ga. App. 565 (65 S. E. 357), the court said: “If the judge meant to say that the verdict of the jury had convinced his mind and conscience of the defendant’s guilt, the approval is sufficient; but if he meant to say that he did not have the power to set it aside, or that there was no duty upon him to set it aside if his mind and conscience were not' convinced of the defendant’s guilt, then the approval is insufficient. Before the verdict of the jury becomes final it should, where the defendant requires it by a motion for a new trial, receive the approval of the mind and conscience of one more man — the trial judge. Until all thirteen, the-'twelve jurors and the judge, agree upon the prisoner’s guilt, his conviction is not legally final. The finding of the jury is not binding on the judge. It may be and for tbe most part should be highly persuasive upon him; but he is authorized to set it aside, and indeed is under the duty of doing so if he does not approve it as a finding of fact.”

We have never known a judge to approve a verdict with such unqualified reluctance as is shown by the judge’s order in this case. Iiis statement that the jury had the right to find as they did, coupled with his further statement that he had no right to arbitrarily set the verdict aside, and his conclusion that he hoped this court would reverse his decision, all lead us to conclude that the verdict did not have the sanction of the mind and conscience of the court, and that he felt that he did not have the power to set it aside. In short, we think that because of his conscientious desire to perform his duty and keep within the law, his honor failed to exercise that discretion which the law requires of him in cases like the one under consideration.

Judgment reversed.

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


text:
    17999.
    AYERS et al v. CALHOUN, receiver.
    In the petition in this case, by which the receiver of an insolvent bank sought to recover a balance alleged to be due on subscriptions to stock of the bank, and in which it was alleged that the defendants got together and illegally and eollusively sold their stock to the bank when it was insolvent, a cause of action was stated; and there was no misjoinder of parties or of causes of action.
    The amendment, by which it was sought to consolidate this case with an action of the receiver against the remaining stockholders of the bank, to recover the amount due on their unpaid stock subscriptions and the amount of their double liability, was properly allowed.
    The court did not err in overruling the demurrer or in ordering that the cases be consolidated.
    Actions, 1 C. J. p. 1124, n. 16; p. 1125, n. 33.
    Banks and Banking, 7 G. J. p. 737, n. 5.
    Decided May 11, 1927.
    Complaint; from Wheeler superior court — Judge Camp presiding. November 8, 1926.
    Application for certiorari was made to the Supreme Court.

      Archibald E. Davis, for plaintiffs in error. W. S. Mann, contra.
   Bloodworth, J.

Error is assigned because of an amendment to the petition, and because of the consolidation of two cases pending in the same court. To make clear the rulings in the headnotes it is necessary to add the following only: The petition, which was amended, was brought by Calhoun as receiver of the Bank of Alamo, against Mrs. Nettie C. Ayers, EL F. Bogers, Mrs. J. L. Bogers, and I. C. Sinclair. The court, on motion of the defendant’s attorneys, dismissed the suit as to H. F. Bogers. The petition alleged, that on or about the 14th of March, 1914, the defendants were stockholders in said bank; “that about said time said defendants got together and illegally and without lawful authority and collusively sold said stock to said bank and received from said bank therefor the sum of $4,875; that at said time said parties had only paid the said bank on said stock sixty per cent, thereof, and was [were] due said bank on their stock subscriptions for said several shares of stock the sum of $2,600, which said amount they never at any time paid said bank. At the time of the selling of said stock to said bank as aforesaid the said bank was insolvent, and said defendants knew and had notice that the said bank was insolvent;” and that said defendants are indebted to said bank in the sum of $4,875. The amount of indebtedness of each of the defendants was set out, and it was alleged that these amounts were sued for “for the benefit of the depositors.” To the petition a demurrer was filed, on the following grounds: “1. Because the same sets out no cause of action. 2. Because there is a misjoinder of parties defendant, there being no facts alleged which show’ any joint liability. 3. Because there is misjoinder of causes of action, the petition seeking to recover on account of a fraudulent sale (the same being a tort), on account of unpaid balance of subscription to stock, and on account of a double liability. 4. Because no facts are alleged showing insolvency of the bank or showing liability for unpaid stock subscriptions, or showing double liability on the part of the stockholders.” An amendment to the petition was filed, in which it is alleged that Calhoun, as receiver, by proper order of the court was authorized to bring said suit, and that since taking over the assets of said bank he has reduced the same “to cash and collected all of the notes and accounts due said bank that it is probable he will be able to collect or reduce to cash, and the same is insufficient to pay the indebtedness due by said bank; . . that petitioner has pending in his favor, as receiver in this court, a suit against all of the remaining stockholders of said bank, the same being authorized by an order of this court, to recover of said stockholders the amount of their respective subscriptions to the capital stock of said bank, the same being forty per cent. (40%) thereof, and also to recover of said stockholders their double liability in favor of and for the benefit of depositors; that the subject-matter of said suit and of this suit is the same and identical and in which your petitioner as plaintiff and the defendants in that suit and in this suit are all alike interested; that the obligations and liabilities of the defendants in this suit sought to be enforced by your petitioner are assets of said bank for the benefit of creditors, and directly relate to and fix and determine the amount of liability of the remaining stockholders in the suit against them, and that the suit against the remaining stockholders is assets for the benefit of creditors relating to and fixing and determining the amount of liability of the defendants in .this suit; that the nature of the claims and demands of your petitioner against all of the defendants in both of said suits for the benefit of creditors are such that each relates to and fixes and determines the liability of all of the others of the defendants, and are such that some of the demands against some of the defendants, if collected and realized, would result in decreasing the liability of all of the defendants on other or like demands against all of them, and in like manner, should the same be collected and enforced, would result in increasing the like and common demand against all of said defendants; that there should, therefore, be an accounting between the parties as between the defendants themselves and as between your petitioner and the defendants, in order and for the purpose to fix and determine the liability of each of said defendants. To bring suit against each of said defendants separately would involve plaintiff in a multiplicity of suits at great expense and cost to the estate represented by him, and the same would result in collecting from some of such defendants more than a just proportion of the obligations of such defendants to said bank for the benefit of the creditors. That this court has jurisdiction of the subject-matter of this suit, the original petitions for receiver having been filed in this court and receiver appointed by this court, and the said bank and its affairs now being in the custody and jurisdiction of this court, through said case and its receiver, your petitioner. That the suit in this case and the said suits in favor of your petitioner against tlie remaining stockholders, filed to the March term, 1917, are both pending in this court, and they should be consolidated into one action by order and judgment of this court, in order that there might be a proper accounting between the parties and a fair and just adjustment of the liabilities of the several defendants to said bank and to your petitioner as receiver thereof.” The prayer of the petition is, “that this his amendment be allowed; and that the above-stated cause, by order and judgment of the court, be consolidated with the case in favor of your petitioner against the remaining stockholders, being styled B. S. Calhoun, receiver, vs. S. I. Bullard et al., filed to the March term, 1917, of this court, and that said two eases'proceed as so consolidated; that there be an accounting between the parties; that the liabilities of the several defendants -may be equitably and justly proportioned and fixed; and that petitioner have judgment against each of the several defendants for their respective, obligations and liabilities as so fixed and determined; and petitioner prays for such other and further relief as to the Court may seem proper and the exigencies of the said case may require.”

The amendment and the motion to consolidate the two cases was allowed, and the defendants excepted.

Judgment affirmed.

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


author: Broyles, O. J.

text:
    18000.
    Pilcher v. Enterprise Manufacturing Company.
    Appeal and Error, 4 C. J. p. 1041, n. 32, 33.
    Sales, 35 Cyc. p. 355, n. 88; p. 356, n. 96; p. 359, n. 26,
   Broyles, O. J.

1. Where an action in trover was brought by the grower of certain cotton to recover the cotton or the value thereof from one who without notice and in good faith had purchased the cotton at the market price from a cotton factor of good standing who at the time of the sale was in possession of the cotton, and where upon the trial the undisputed evidence disclosed the foregoing facts and also that, under the universal custom in. the cotton trade, a cotton factor was recognized and dealt with as having the authority to sell all cotton in his possession and to pass a valid title thereto to the purchaser, and that it was not incumbent upon the purchaser to make any inquiries or investigation as to the factor’s authority to sell the cotton, the verdict in favor of the defendant was demanded. This is true although the grower of the cotton may have been ignorant of the above'-stated custom of the cotton trade, and although he may have believed he was sending liis cotton to a warehouseman and not to a factor, and although he may have shipped the cotton to the factor’s warehouse (the undisputed evidence disclosing that all cotton factors had warehouses in which cotton sent to them was stored until sold) for the purpose of storage only and so instructed the factor, and although the factor may have wrongfully and fraudulently violated such instructions. “A title obtained by fraud, though voidable in the vendee, will be protected in a bona fide purchaser without notice.” Civil Code (1910), §§ 4119, 4120; Rosser v. Darden, 82 Ga. 219 (7 S. E. 919, 14 Am. St. R. 152); Willingham v. McGuffin, 18 Ga. App. 658 (90 S. E. 356), and cit.

Decided May 11, 1927.

Complaint in trover; from Richmond superior court — Judge A. L. Franklin. February 2, 1927.

Paul T. Chance, for plaintiff.

Hull, Barrett & Willingham, for defendant.

2. The' verdict being demanded by the evidence, the alleged errors in the charge of the court are immaterial.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    18002.
    Georgia Casualty Company et al. v. Kilburn.
    Decided May 11, 1927.
    Appeal; from Bibb superior court — Judge Mathews. February 5; 1927.

      Brock, Sparks & Russell, for plaintiffs in error.

      Walter JDePore, James C. Bstes, W. A. McClellan, contra.
    Workmen’s Compensation Acts, C. J. p. 123, n. 47.
   Luke, J.

This being an appeal from the judgment of the superior court affirming an award of the industrial commission under the workmen’s compensation act, and the evidence failing to show that the death of the deceased arose out of and in the course of his employment, the judgment of the superior court was error.

Judgment reversed.

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


author: Bloodwoktii, J.

text:
    18004.
    Southern Cotton Oil Co. v. Atlanta Trust Co.
    Decided May 11, 1927.
   Bloodwoktii, J.

The court did not err in overruling the certiorari. Judgment affirmed. Luke, J., concurs.

Broyles, C. J., disqualified.

Certiorari; from Fulton superior court — Judge Pomeroy. February 11, 1927.

Candler, Thomson & Hirsch, for plaintiff in error.

Hoke O’Kelley, Spalding, MacDougald & Sibley, contra.


author: Bloodworm, J.

text:
    18005.
    Pittman v. The State.
    Decided May 11, 1927.
    Possessing intoxicating liquor; from city court of Dublin— Judge Bidgood. January 22, 1927.

      W. A. Dampier, for plaintiff in error.

      J. A. Merritt, solicitor, contra.
    Criminal Law, 16 C. J. p. 1010, n. 13; 17 C. J. p. 271, n. 41.
    Intoxicating Liquors, 33 C. J. p. 761, n. 53.
   Bloodworm, J.

This is a ease of circumstantial evidence. The jury were instructed that “the proven facts and circumstances must not only be consistent with the hypothesis of guilt, but must exclude every reasonable hypothesis, save the guilt of the accused.” The evidence was sufficient to satisfy the jury of the guilt of the accused. The trial judge, who, like the jury, saw the witnesses and heard their testimony, approved the verdict. This court can not say that the verdict was unauthorized.

Judgment affirmed.

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


text:
    18006.
    Crowe v. The State.
    Criminal Law, 16 O. J. p. 451, n. 91; p. 452, n. 95, 96, 97; p. 482, n. 1; p. 511, n. 31.
   Broyles, C. J.

1. “Motions for continuance, made at the term at which the indictment is found, while addressed to the discretion of the court, stand upon a different footing from such motions made at a subsequent term. In such eases the discretion of the court should be liberally exercised in favor of a fair trial, no less than that the trial should be speedy; and every facility should be afforded a defendant for presenting his defense as fully as he might be able to do were the case tried at a subsequent term. Reasonable opportunity for the defendant to prepare his defense should not be sacrificed in the interest of speed.” Brooks v. State, 3 Ga. App. 458 (3) (60 S. E. 211); Waldrip v. State, 34 Ga. App. 692 (130 S. E. 829).

2. Under the above-stated ruling and the facts of this case, the court erred in overruling the defendant’s motion for a continuance, and that error rendered nugatory the further proceedings in the case.

Decided May 11, 1927.

"Violating liquor law; from Taliaferro superior court — Judge Perryman. February 14, 1927.

Hawes Cloud, Hugh E. Combs, Noel P. Park, for plaintiff in error.

M. L. Felts, solicitor-general, J. A. Beazley, contra.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


text:
    18007.
    Kelly v. Cates.
    Decided May 11, 1927.
    Claim; from city court of Waynesboro — Judge Davis. January 25, 1927.

      G. C. Anderson, for plaintiff in error.

      Lewis, Lewis & Ellis, contra.
    Executions, 23 O. J. p. 597, n. 27, 39; p. 598, n. 44, 45; p. 602, n. 30; p. 603, n. 57; p. 604, n. 66.
   Luke, J.

1. “Where a claim of title is filed to property levied upon, an issue of fraud in the acquirement of title by the claimant may be inquired into without being specially pleaded.” Hancock v. Green Miller Co., 35 Ga. App. 81 (3) (132 S. E. 136).

2. “On the trial of a claim case where the issue is the bona fides of the transfer of property by the defendant in execution to the claimant, and there are circumstances which if not satisfactorily explained may be regarded as badges of fraud, it is for the jury and not the judge to pass upon such issues.” Greene v. Matthews, 31 Ga. App. 265 (6) (120 S. E. 434); Kelley v. Stovall, 138 Ga. 186 (75 S. E. 6); Atwood v. Edenfield, 150 Ga. 198 (103 S. E. 170).

3. It appearing from the testimony of the defendant in execution that the mules claimed were in his possession and control for more than a year between the judgment and the levy, the burden of proof rested upon the claimant. Martin v. Cowan, 134 Ga. 477 (68 S. E. 69); Deloach v. Myrick, 6 Ga. 410 (3).

4. Since this case will probably be tried again, we shall make no comment upon the evidence except to say that a painstaking perusal ’of the record convinces us that the evidence did not demand a verdict for the claimant, and that the court erred in directing a verdict for him.

Judgment reversed.

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


text:
    18008.
    MOBLEY v. TUFTS.
    Under the evidence adduced upon the trial of the case, the verdict directed by the court was not demanded, and the court erred in directing it.
    Agency, 2 O. J. p. 624, n. 92, 95; p. 626, n. 7.
    Payments, 30 Cyc. p. 1188, n. 84.
    Decided May 11, 1927.
    Distraint; from city court of Waynesboro — Judge Davis. January 27, 1927.

      G. C. Anderson, for plaintiff! in error.

      Fullbright & Burney, contra.
   Broyles, C. J.

A executed a “rent note” in which she promised to pay B or bearer 3,500 pounds of middling lint cotton on September 15, 1926, at Waynesboro, Georgia. B resided in the State of New York, and on September 15, 1926, the note was there in her possession, and it was not forwarded to Waynesboro until about September 25, 1926. On September 14, 1926, C (the agent and husband of A) inquired of the brother of B (who had acted as B’s agent in taking the rent note) as to the whereabouts of the note, and the brother told C that he did not know where the note was, but that it might be at the Bank of Waynesboro. C, on September 15, 1926, went to the Bank of Waynesboro and asked the cashier of the bank if he had the note in question, and was told that it had not come in. A few days later he returned to the bank and was told the same thing. He went again to the bank on September 25, 1926, and received .the same information. In the meantime O wrote to B in New York City, asking her where he could find, the note. He received a reply dated September 23, 1926, but which was mailed at 6 :30 p. m. on September 24, 1926, in which B wrote that she was “sorry about the rent note,” but had mailed it to the Waynesboro Bank “this a. m. before your letter came.” On September 14, 1926, A was prepared to pay the rent note in money, but was not able either then or on the next day to pay all the cotton called for by the note. On October 7, 1926, C went once more to the bank and found the note there. He then delivered to the bank warehouse receipts for 2,069 pounds of middling lint cotton and 1,428 pounds of strict low middling cotton, and offered to pay the bank the value of the shortage in the weight of the cotton, to wit, 3 pounds, and the difference in (price of the grades of the cotton. The offer was refused by the bank, and the cotton was -accepted by the '-bank as a credit only upon the note, the bank claiming that A still owed B the difference between the market value of'the cotton on September 15, 1926, and on October 7, 1926, the value being less on the latter date. A refused to pay this difference, and B sued out a distress warrant for the amount of the difference, which she alleged was $115.29. Upon the trial the undisputed evidence showed that this difference was more than the amount claimed by the plaintiff, and the court, on motion of counsel for the plaintiff, directed a verdict in her favor for the amount sued for, with interest from September 15, 1926, and to this judgment A (the defendant) excepted.

' All agreements to pay in specifics are presumed to be made in favor of the debtor, and he has the option of paying the debt either in specifics or in money amounting to the value of the specifics; and ordinarily that value will .be the market value of the specifics at the time of the maturity of the obligation, at the place where it was payable (if a specific place was mentioned in the note), with lawful interest thereon. Civil Code (1910), §§ 4270, 4271; Dooley v. Wilbanks, 25 Ga. App. 34 (102 S. E. 365). In the instant case, however, the obligation was payable at Waynesboro, Georgia, on September T5, 1926, and on that date the note was not in the possession of any agent of the creditor at Waynesboro, but was in the possession of the creditor herself in the State of New York. Under these circumstances it was not incumbent upon the debtor to pay the obligation on the date of its maturity (September 15, 1926). “Where money is due on a written evidence of debt, payment to an agent of the creditor who fails to produce the obligation is at the risk of the debtor. Non-production of the security rebuts the implication of authority arising from the agent’s employment, and it must be otherwise established.” Civil Code (1910), § 3578. -Especially is this true where, as in this case, the note was payable to the creditor or bearer. It follows that the debtor was not liable to the creditor-for the difference between the market value of the cotton on September 15, 1926, and on October 7, 1926, and the direction of a verdict finding the debtor so liable was error.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


text:
    18009.
    Shaner Motor Company v. Williams.
    Decided May 11, 1927.
    Claim; from city court of Waynesboro — Judge Davis. January 27, 1927.

      C. G. Anderson, for plaintiff. Fullbright & Burney, contra.
    Executions, 23 C. J. p. 596, n. 17; p. 602, n. 30; p. 604, n. 66.
    Husband and Wife, 30 C. J.-p. 510, n. 16; p. 578, n. 65.
   Broyles, C. J.

1. When husband and wife live together, the house in which they live and all property in the house and upon the premises are in the legal possession of the husband as the head of the family, and ' presumptively the title to such property is also in the husband. Smith v. Berman, 8 Ga. App. 262 (2), 271 (68 S. E. 1014).

2. The issue in a claim case is whether the property levied on belongs to the defendant in fi. fa., or to the claimant. Cecil v. Gazan, 71 Ga. 631.

3. In the instant case the evidence for the plaintiff in fi. fa. showed prima facie that the property levied upon belonged to the defendant in fi. fa.; and the court erred in directing a verdict in favor of the claimant.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


text:
    18010.
    Parker v. Goff.
    Decided May 11, 1927.
    Trover; from city court of Douglas — Judge Roberts. January 26, 1927.

      J. N. McDonald, Mingledorff & Gibson, for plaintiff in error.

      F. L. Grantham, contra.
    Appeal and Error, 4 C. J. p. 853, n. 58; p. 864, n. 32, 34.
    New Trial, 29 Cyc. p. 942, n. 95.
   Luke, J.

There was some evidence showing title to the cattle and hogs in question in the defendant in error, and the verdict, approved by the trial judge, can not be set aside on the general grounds of the motion for a new trial. There is no merit in any of the special assignments of error.

Judgment ajj/L-med.

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


text:
    18011.
    Wilson v. McConnell.
    Decided May 11, 1927.
    Appeal; from Chatham superior court — Judge Meldrim. January 18, 1927.

      James W. Hennessy, Jr., for plaintiff in error.

      Robert L. Golding, contra.
    Appeal and Error, 3 C. J. p. 819, n. 26; p. 1370, n. 33; p. 1372, n. 41; 4 O. J. p. 864, n. 32, 33; p. 866, n. 51.
    New Trial, 29 Cye. p. 942-, n. 95; p. 947, n. 9; p. 949, n. 11.
    Trial, 38 Cye. p. 1378, n. 2; p. 1386, n. 56;’p. 1387, n. 62, 72 New; p. 1610, n. 96.
   Bloodworth, J.

(a) In a ground of the motion for a new trial which complains of the admission of testimony it must appear how the testimony which was admitted over objection was material and how its admission could have been hurtful to the plaintiff in error. Hunter v. State, 148 Ga, 566 (2).

(6) “Objections to the admission of testimony are insufficient where no specific ground of objection is stated. An objection on the ground that the testimony is ‘not competent,’ or is ‘inadmissible,’ is not sufficient.” Parker v. State, 28 Ga. App. 673 (112 S. E. 908). See Citizens Banking Co. v. Jones, 34 Ga. App. 427 (119 S. E. 910), and cit. Under the rulings in the foregoing cases this court is not called upon to consider the assignment of error in ground 1 which alleges that the court erred in admitting certain evidence which was alleged to be “irrelevant and immaterial,” and to be “also inadmissible.” See also Martin v. State, 35 Ga. App. 575 (2a), (134 S. E. 185).

2. The charge was full and fair and covered the issues made, and is not subject to attack, for any of the alleged errors either of omission or commission, made on it.

3. There is a sharp conflict between the evidence of the witnesses for the plaintiff and those of the defendant. Whenever this is true it must be left to a jury of the vicinage to reconcile the conflict. By their verdict the jury have settled the issues in favor of the plaintiff. The judge who tried the case has approved the verdict, and in such cases this court never interferes with the discretion of the trial court in refusing to set aside the verdict of the jury.

Judgment affirmed.

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


text:
    18012.
    Globe & Rutgers Fire Insurance Co. v. Poolas.
    Appeal and Error, 4 C. J. p. 1137, n. 52; p. 1138, n. 63; p. 1143, n. 3.
    Eire Insurance, 26 C. J. p. 489, n. 59; p. 578, n. 9.
   Broyles, C. J.

1. The overruling of the special demurrers to the amended petition was not error.

Decided May 11, 1927.

Complaint on fire policy; from city court of LaGrange — Judge Tuggle. January 24, 1927.

Smith, Hammond & Smith, E. T. Moon, for plaintiff in error.

Duke Davis, contra.

2. Under .the facts of the case the finding of the jury, that the defendant’s refusal to pay the plaintiff’s claim was in bad faith, was not authorized. With this exception, the verdict was authorized by the evidence, and none of the special grounds of the motion for a new trial require another hearing of the case. If the plaintiff will write off from the verdict and judgment the sum of $133.20 (the amount found for damages and attorney’s fees), when the judgment of this court is made the judgment of the trial court, the judgment refusing the grant of a new trial will be affirmed; otherwise the judgment will stand reversed. The costs of bringing the writ of error to this court are taxed against the defendant in error.

Judgment affirmed, upon condition.

Luke and Bloodworth, JJ., eoneur.


text:
    18014.
    Goodman v. Goodman et al.

    Decided May 11, 1927.
    Appeal; from Cook superior court — W. D. Buie, judge pro hac vice. February 8, 1927.

      L. E. Lastinger, C. A. Christian, for plaintiff in error.

      H. W. Nelson, contra.
    Appeal and Error, 3 O. J. p. 1301, n. 59.
    Courts, 15 C. J. p. 1018, n. 32 New.
   Luke, J.

1. The two sole heirs of an estate have the right to interpose a caveat to an application for a year’s support; and the judge of the superior court correctly overruled the motion to dismiss the caveators’ appeal from an adverse decision of the court of ordinary for the alleged reason that the said heirs had no such right. Mathews v. Rountree, 123 Ga. 327 (51 S. E. 423).

2. In such a case one named as executor in an alleged will of the person who left the said estate, and who, as such executor, had also filed a caveat to the granting of the year’s support and whose appeal from the judgment of the court of ordinary to the superior court was dismissed on motion “because the will was never probated in solemn form and he never qualified as executor,” was a proper party to sign the appeal bond of the said heirs, and the court did not err in refusing to dismiss their appeal on the ground that “the only surety offered upon the appeal bond was a party at interest and the bond was void.”

Judgment affirmed.

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


text:
    18015.
    O’Neal v. The State.
    Decided May 11, 1927.
    Manslaughter; from Upson superior court — Judge Searcy. February 16, 1927.

      John B. McDonald, for plaintiff in error.

      E. M. Owen, soliciior-gcneral, James B. Davis, contra:
    Criminal Law, 16 C. J. p. 1050, n. 84; p. 1149, n. 92.
    Homicide, 30 C. J. p. 316, n. 68.
   Luke, J.

The defendant was charged with murder and was convicted of voluntary manslaughter. Neither the excerpt from the charge nor the refusal to charge, set out in the motion for a new trial, shows cause for a reversal. The charge as a whole was full and fair and covered the law applicable to the case. The verdict was authorized by the evidence.

Judgment affirmed.

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


author: Bloodwobth, J.

text:
    18016.
    Rhodes v. The State.
    Decided May 11, 1927.
    Making intoxicating liquor; from Burke superior court — Judge Strange presiding. February 14, 1927.

      Hammond & Kennedy, for plaintiff in error.

      George Hains, solicitor-general, John M. Graham, contra.
    Criminal Law, 16 C. J. p. 1149, n. 91, 92.
    Intoxicating Liquors, 33 O. J. p. 758, n. 80.
   Bloodwobth, J.

1. There is nothing that requires the grant of a new trial in the ground of the motion for a new trial which alleges that the court erred in the charge on confessions.

2. Under the ruling in Lee v. State, 35 Ga. App. 235 (133 S. E. 281), there is no merit in any of the other special grounds of the motion. See also Walker v. Dorminey, 150 Ga. 635 (104 S. E. 447).

3. There is ample evidence to sustain the verdict.

Judgment affirmed.

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


author: Bboyles, C. J.

text:
    18017.
    Thomas v. The State.
    Criminal Law, 16 C. J. p. 1217, n. 45; 17 C. J. p. 271, n. 41.
    Intoxicating Liquors, 33 C. J. p. 764, n. 1.
   Bboyles, C. J.

The motion for a new trial contained the usual general grounds only. The verdict was authorized by the evidence; and, the finding of tlie jury having been approved by the trial judge, this court is without authority to interfere.

Decided May 11, 1927.

Selling intoxicating liquor; from city court of Valdosta — Judge Cranford. February 25, 1927.

W. B. Cook, Franklin & Langdale, for plaintiff in error.

R. G. Dickerson, solicitor-general, contra.

Judgment affirmed. Luke and Bloodworth, JJ., concur.


text:
    18018.
    Marshall v. The State.
    Decided May 11, 1927.
    Possessing intoxicating liquor; from city court of Valdosta— Judge Cranford. February 12, 1927.
    IF. F. Perry, for plaintiff in error.

      B. G. Dickerson, solicitor-general, contra.
    Criminal Law, 17 C. J. p. 271, n. 41.
    Intoxicating Liquors, 33 C. J. p. 761, n. 53; p. 762, n. 57.
   Luke, J.

A conviction of possessing whisky was authorized by the evidence, which shows that whisky was found in the home which defendant with his family occupied, and that he was in the room where it was found. The verdict was approved by the trial judge, and this court will not interfere therewith.

Judgment affirmed.

Broyles, C. J., and Bloodworlh, J., concur.


text:
    18019.
    Quinn, alias Marshall, v. The State.
    Criminal Law, 16 C. J. p. 1217, n. 45; p. 1218, n. 65, 66; p. 1219, n. 67, 68; 17 C. J. p. 177, n. 88; p. 178, n. 90.
    Intoxicating Liquors, 33 C. J. p. 761, n. 53.
   Bloodworth, J.

1. “Each special ground of a motion for a new trial must be complete and understandable within itself, without reference to any other part of the record. This court-is not required to look beyond the ground itself lo learn the facts or to ascertain error.” (Italics ours.) Russ v. State, 35 Ga. App. 476 (133 S. E. 748). “A ground of a motion for a new trial in which error is assigned on the exclusion of certain testimony is insufficient when it does not appear from the ground itself that the exclusion of the testimony was prejudicial to the complaining party.” Campbell v. Walker, 20 Ga. App. 88 (4) (92 S. E. 545). See Cason v. Dickson, 30 Ga. App. 336 (118 S. E. 72); Quillian v. State, 32 Ga. App. 540 (123 S. E. 913). Under the principles announced in the foregoing decisions the special ground of the motion for a new trial is not complete within itself. It fails to show that the evidence, which was excluded, was material, or that its exclusion was harmful to the accused. To ascertain these facts this court would have to examine other portions of the record, and this it is not required to do.

Decided May 11, 1927.

Possessing intoxicating liquor; from city court of Valdosta— Judge Cranford. February 12, 1927.

W. E. Perry, for plaintiff in error.

R. G. Dickerson, solicitor-general, contra.

2. The evidence authorized the verdict.

Judgment affirmed.

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


text:
    18027.
    Johnson v. The State.
    Decided May 11, 1927.
    Manslaughter; from DeKalb superior court — Judge Hutcheson. January 29, 1927.

      Branch & Howard, B. H. Burgess, for plaintiff in error.

      Claude C. Smith, solicitor-general, contra.
    Criminal Law, 16 C. J. p. 931, n. 95; p. 1180, n. 74; p. 1217, n. 45.
    Homicide, 30 C. J. p. 316, n. 68.
   Broyles, C. J.

The motion for a new trial contained the usual general grounds only. The evidence for the State, combined with portions of the defendant’s statement to the jury (and it is well settled that the jury can believe portions of a defendant’s statement and disbelieve the rest of it), authorized the verdict, and the refusal to grant a new trial was not error.

Judgment affirmed.

Luke and Bloodwortk, JJ., concur.


text:
    18032.
    Ellis v. The State.
    Gaming, 27 C. J. p. 1037, n. 1, 3, 4.
   Luke, J.

Evidence that the defendant and another negro, employees of the Atlantic Ice and Coal Corporation, were on their knees in the gear-room of that corporation, with a coat lying on the floor between them; that the defendant was shuffling cards; that when a policeman entered the room the other negro grabbed a number of pieces of silver money from the said coat, and that a third negro was standing with his hands on his knees apparently observing the proceedings, is sufficient to sustain the defendant’s conviction of gaming. Frost v. State, 120 Ga. 311 (47 S. E. 901); Welsh v. State, 6 Ga. App. 783 (65 S. E. 815); Simmons v. State, 17 Ga. App. 288 (86 S. E. 657); Griffin v. State, 2 Ga. App. 534 (58 S. E. 781); Washington v. State, 24 Ga. App. 65 (100 S. E. 31); Schley v. State, 25 Ga. App. 549 (103 S. E. 799); Roberts v. State, 26 Ga. App. 66 (105 S. E. 707); Griffin v. State, 5 Ga. App. 43 (62 S. E. 685).

Decided May 11, 1927.

Gaming; from city court of Americus — Judge Harper. February 25, 1927.

Zach Childers, for plaintiff in error.

T. O. Marshall, solicitor, contra.

Judgment affirmed.

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


text:
    18033.
    Gaines v. The State
    Decided May 11, 1927.
    Certiorari; from Fulton superior court — Judge Pomeroy. February 14, 1927.

      C. G. Battle, for plaintiff in error.

      Roy Dorsey, solicitor, John A. Boykin, solicitor-general, J. W. LeCraw, contra.
    Certiorari, 11 C. J. p. 157, n. 60 New.
   Bloodworth, J.

In the criminal court of Atlanta the plaintiff in error was convicted of possessing “corn whisky.” In the light of the untraversed answer of the judge of that court to the petition for certiorari, the judge of the superior court did not err in overruling the certiorari.

Judgment affirmed.

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


author: Bhoyles, C. J.

text:
    18039.
    Kerby v. The State.
    Criminal Law, 16 C. J. p. 1145, n. 51; p. 1217, n. 44, 45 ; 17 C. J. p. 203,' ji. 85,
   Bhoyles, C. J.

1. The 4th special ground of the motion for a new trial is disapproved by the trial judge.

2. The 5th special ground is not complete and understandable within itself, and can not be considered.

3. The 6th and 7th special grounds show that hearsay prejudicial to the accused was admitted in evidence over his timely and appropriate objections; and this error, under all the facts of the case, requires another trial.

4. The 8th special ground is without merit.

Decided May 11, 1927.

Possessing intoxicating liquor; from city court of Swainsboro— Judge Herrington. February 15, 1927.

The accusation charged that Kerby did possess and control a quantity of whisky and other intoxicating liquor. There was testimony of a “raid” and of finding “moonshine liquor” on the premises occupied by him. The grounds of the motion for new trial referred to in paragraphs 2, 3 and 4 of the syllabus were based on the admission of the following testimony, over the movant’s objection that it was hearsay and not within the knowledge of the witnesses: (5) “Yes, it was found on his land. I will swear positively to the best of my knowledge that the land belonged to the defendant. I never seen no deed; all I know is what other people say.” (6) “It had been reported to me that, he [defendant] was handling liquor down there, and that is how come me down there, and' I found it just like it was reported.” (7) “Some of the citizens reported to us that Mr. Kerby brought liquor back and forth on Saturday and Sunday to Nunez and sold it there.”

The 8th ground assigned error on the admission of the following testimony over the objection that it was irrelevant, tended to prejudice the jury against the defendant, and did not tend to show that he had possessed or controlled whisky: “Yes, these two men were sitting in the car, and they had some liquor in the car right at Mr. Kerby’s gate.”

Price, Spivey & Rdenfield, for plaintiff in error.

I. W. Rountree, solicitor, contra.

5. As another hearing of the case must occur, the sufficiency of the legal evidence to support the verdict is not now passed upon.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


text:
    18046.
    LEE v. THE STATE.
    •Under the facts of this case, since the purchaser voluntarily delivered the property in the money to the accused, he could not be guilty of stealing the same from her, and therefore is not guilty of the oifense with which he was charged and of which he was convicted; and the judge of the superior court erred in declining to" sanction the, petition for certiorari.
    Decided May 11, 1927.
    Larceny, 36 O. J. p. 777, n. 13; p. 788, n. 66 New.

      Certiorari; from Fulton superior court — Judge Humphries. February. 10, 1927.

      Little, Powell, Smith & Goldstein, Eendriclc Scott, for plaintiff in error.

      Boy Dorsey, solicitor, John A. Boylcm, solicitor-general, J. W. LeCraw, contra.
   Luke, J.

J. F. Lee was charged with and convicted of simple larceny, in the criminal court of Atlanta. The judge of the superior court declined to sanction his petition for certiorari, and to this he excepted. The accusation upon which he was convicted charged him with “the offense of misdemeanor, for that the said J. F. Lee, in the county aforesaid, on the 2d day of August, 1926, did wrongfully and fraudulently take and carry away, with intent to steal the same, .one and 22/100 ($1.22) dollars in money, the property of Mrs. Ellis Barrett, and of the value of one and 22/100 ($1.22) dollars, contrary to the laws of said State,” etc. The accusation is labeled on the back as “simple larceny.” The evidence for the State shows that the defendant was assistant manager of a filling station in the city of Atlanta; that he had an arrangement with two negro porters to so manipulate the pump as to give a less amount of gasoline than was ordered and paid for; that Mrs. Barrett went to the station, ordered seven gallons of gasoline, handed the defendant $2 to pay therefor, and from the $2 the defendant deducted pay for seven gallons of gasoline, knowing that Mrs. Barrett had received less than that quantity; that she had been given the $2 by a police officer, and that she went to the filling station to make the said purchase at the instance and request of the officer and for the purpose of catching the defendant in the said act. The State contends that by virtue of substantially these facts the defendant “did wrongfully and fraudulently take and carry away, with intent to steal the same, $1.22 in money, the property of Mrs. Ellis Barrett.” The only material issue presented for our decision is whether or not the above state of facts, in substance, constitutes the offense of simple larceny.

In Welch v. State, 126 Ga. 495 (55 S. E. 183), the Supreme Court held: “If one meaning to steal another’s goods fraudulently prevails on the latter to deliver- them to him, under the understanding that "the property in them is to pass, he commits neither larceny nor any other crime by the taking, unless the transaction amounts to an indictable cheat.” In that case money was obtained with fraudulent intent and by means of false representations, but the property in the money passed to the accused, and the court held that there was no larceny. In the case under consideration, if the defendant, with intent to steal the money, had fraudulently gotten only possession of it, and then, without having the property in it, had converted it to his own use, he would have been guilty of larceny. But such was not the case. Mrs. Barrett delivered the property in the money to the defendant,, intending that the title to the same should pass to him. The defendant did not steal the money or any portion of it from Mrs. Barrett. She gave it to him intentionally and received the amount of change which she expected. What she failed to receive was the quantity of gasoline ordered and paid for. In the case of Jones v. State, 97 Ga. 430 (25 S. E. 319, 54 Am. St. R. 433), a child gave the accused a $20 gold piece, thinking it was a dollar; the accused ascertained that it was a $20 gold piece and that the child thought it was a dollar, and he gave her 75 cents in change on a 25 cents purchase, which was the amount she expected and the amount which would have been due if the coin had been only one dollar as she thought. On this state of facts the Supreme Court held that “the offense can not be larceny; and if this be true, it falls directly within the description embraced in section 4595 of the Code, defining the offense of being a common cheat, and swindler.” See also Foster v. State, 117 Ga. 39 (43 S. E. 421).

In the instant case the accused may have been guilty of cheating and swindling; as to this we are not called upon to decide, but since the purchaser voluntarily delivered the property in the money to the accused, he could not be guilty of stealing the same from her, and therefore is not guilty of the offense with which he was charged and of which he was convicted.

Judgment reversed.

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


author: Jenkins, P. J.

text:
    17721.
    ANDERSON v. TROWBRIDGE HARDWARE COMPANY.
    Where in a justice’s court tlie answer to a summons of garnishment duly served was construed by the trial justice as a nullity, and thereupon judgment was entered against tile garnishee as in default, and no appropriate remedy was sought to reverse or set aside that judgment, affidavit of illegality did not lie to an execution issued thereon.
    Executions, 23 C. J. p. 548, n. 74, 75, 76.
    Justices of the Peace, 35 C. J. p. 609, n. 21 New.
    Decided May 11, 1927.
    Certiorari; from Richmond superior court — Judge A. L. Franklin. October 13, 1926.

      Paul T. Chance, for plaintiff. B. B. McCowen, for defendant.
   Jenkins, P. J.

Anderson sued Toole in a justice’s court and garnisheed Trowbridge Hardware Company, which company as garnishee was regularly served. The garnishee sought to make answer of no indebtedness at the term to which the summons of garnishment was returnable, which answer, on the trial of the case, was construed by the justice as being á nullity and of no effect. Whereupon judgment by default was rendered in favor of, the plaintiff against the garnishee in the amount of the judgment which had been rendered against the principal defendant. In an affidavit of illegality interposed to a levy made upon the execution issued upon the default judgment rendered against it, the garnishee set up that it had filed a valid answer of no indebtedness to the summons of garnishment, to which no traverse had been made. Upon the hearing of the issue made by the affidavit of illegality, the garnishee offered then and there to amend its answer which had been filed in the garnishment proceeding, so as to cure any alleged defect therein; and the proffered amendment was disallowed by the justice, who then proceeded to dismiss the affidavit of illegality. Whereupon by certiorari the .case was brought to the superior court, and the judge sustained the certiorari and entered up judgment in favor of the garnishee for costs. To this judgment exception is taken.

A defendant against whom a judgment has been rendered after he has been duly served has had, in legal contemplation, his day in court, and can not go behind the judgment by an affidavit of illegality. Such a remedy can not be used as a substitute for certiorari or other appellate procedure in order to correct mere errors of law which might have taken place on the trial. Fitzgerald Granitoid Co. v. Alpha Portland Cement Co., 15 Ga. App. 174 (82 S. E. 774); Arnold-Forrest Co. v. Fleeman, 9 Ga. App. 483 (71 S. E. 766). Accordingly, the garnishee in this case is bound by the action of the justice in construing its answer as a nullity and in entering up judgment, against it as in default, whether such action by the justice was in fact erroneous or not. Davis v. Rhodes, 112 Ga. 106 (37 S. E. 169).

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    17724.
    Hall v. Meacham.
    Decided May 11, 1927.
    Action for damages; from Pulton superior court — Judge How.ard. October 7, 1926.

      Lawton Nalley, for plaintiff. McDaniel & Neely, for defendant.
    Appeal and Error, 3 C. J. p. 481, n. 8; p. 1075, n. 84; p. 1076, n. 87.
   Jenkins, P. J.

The only error assigned in the instant case being the overruling of a demurrer to the plea of the defendant in the court below, and no final judgment having been rendered in that court, the bill of exceptions is prematurely brought and must be dismissed. United Glass Co. v. McConnell, 110 Ga. 616 (36 S. E. 58); Fugazzi v. Tomlinson, 119 Ga. 622 (46 S. E. 831); Floyd v. Massachusetts Mills, 25 Ga. App. 519 (103 S. E. 801); Smith v. Leverett, 18 Ga. App. 582 (89 S. E. 1094); Samson Tractor Co. v. Furlong, 28 Ga. App. 659 (112 S. E. 903).

Writ of error dismissed.

Stephens and Bell, JJ., concur.


text:
    17745.
    ALSTON v. NEW YORK CONTRACT PURCHASE CORPORATION.
    1. Under section 2209 of the Civil Code of 1910, it is the “duty” of all corporations, whether domestic or foreign, doing business in this State, except those therein exempted, to make an annual return to the Secretary of State, embracing the information required by this section, and pay the fee prescribed by section 2210. The penalty for noncompliance with the provisions of this section is $50, as prescribed by section 2211, “provided, the Secretary of State shall have in his discretion authority to suspend the penalty or issuance of fi. fas. when he shall be convinced that there lias been no bad faith in failure to comply with the requirements of this Article.” The act docs not in any manner purport by its terms to prohibit a corporation from doing business in this State until it shall have filed the report and paid the fee prescribed. Accordingly, a corporation doing business in this State prior to making the report and paying such fee does not thereby violate the terms of the statute, the terms of the statute which in such a case it does violate being merely the requirement to file the report and pay the fee prescribed, which breach renders the corporation subject, within the discretion of the secretary of State, to the penalty imposed thereby. The penalty prescribed being all inclusive, and the corporation not being prohibited by such breach of duty from doing business within the State, its contracts are not rendered void by a failure to comply with the requirements mentioned. Nor does the failure On the part of the corporation to register with the comptroller-general and pay the tax required by the act approved December 19, 1923 (Ga. L. Ex. Sess. 1923, p. 20), known as the general tax act, render the contracts of the corporation void and unenforceable, since the purpose of the general tax act, as defined by its caption, is merely to raise revenue, and it can not be taken to impliedly nullify contracts made in the absence of a compliance with its provisions. Toole v. Wiregrass Develop-. ment Go., 142 Ga. 57 (82 S. E. 514) ; Morris v. Moore, 143 Ga. 512 (85 S. E. 635) ; MoLamb v. Phillips, 34 Ga. App. 210 (129 S. E. 570).

      Appeal and Error, 3 C. J. p. 689, n. 41.
    Corporations, 14a C. J. p. 344, n. 42 New; p. 1296, n. 94 New.

      2. Under the pleadings and the agreed statement of facts the defense of the defendant in the trial court was based solely upon the point that the plaintiff had failed to comply with the law referred to in the preceding division of the syllabus, “and the case was submitted to the court on the sole point as to whether or not the contract was valid or void” by reason of the breach of the duty imposed by such statutes. This being . true, the question for determination is limited to the effect of the noncompliance with the provision of the statutes referred to, and no question is raised by the record involving the validity of the contract as affected by the laws and decisions of another State.
    Decided May 11, 1927.
    Certiorari; from Fulton superior court — Judge Howard. September 21, 1926. '

      Candler, Thomson & Hirsch, W. B. Cody, for plaintiff in error.

      B. H. McWilliam, contra.
   Jenkins, P. J.

The New York Contract Purchase Corporation, as assignee of the National Electric Sales Company Incorporated, of Baltimore, Maryland, brought suit in the municipal court of Atlanta against Mrs. W. C. Alston for an amount alleged to be due under a contract between the assignor company and the defendant for the installation of certain electrical fixtures in her dwelling. The defendant answered, setting up that the contract was illegal, void, and of no effect, for the reason that the National Electric Sales Company was not authorized to transact business within the State of Georgia according to the laws thereof. The trial judge in the municipal court found in favo# of the defendant, and the plaintiff took an appeal to the appellate division of the municipal court. On the hearing before the appellate division of that court, a written agreement setting out the facts of the case was entered into, as follows: “All of the allegations in the petition filed by plaintiff in the trial court, appellant herein, were admitted as true by the defendant in the trial court, appellee herein. The defense of the defendant in the trial court, appellee herein, was based solely upon the point that the National Electric Sales Company, with whom the defendant had contracted for the work alleged to have been performed, had not applied to the Secretary 0‡ the State for a license to do business in the State of Georgia, nor had they made a statement to the Secretary of State setting forth the names of the incorporators, nor had they paid the taxes required of foreign corporations to authorize them to do business in the State of Georgia; this part of the defense of the defendant was admitted by the plaintiff as true, and the case was submitted to the court on the sole point as to whether or not the contract was valid or void by reason of the fact that the National Electric Sales Company Inc., of Baltimore, Maryland, failed to comply with the statute relative to foreign corporations, as above stated.” On the'hearing of the appeal, the appellate division of the municipal court affirmed the judgment of the trial judge; the plaintiff sued out certiorari, and the defendant now excepts to the judgment of the superior court sustaining the certiorari.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    17750.
    Home Insurance Company v. Head.
    Evidence, 22 C. J. p. 96, n. 92; p. 98, n. 8; p. 101, n. 40, 41; p. 102, n. 49, 57 New; p. Ill, n. 51, 52, 53, 54.
    Insurance, 33 O. J. p. 70, n. 83.
    Mutual Benefit Insurance, 29 Cyc. p. 92, n. 23 New.
   Jenkins, P. J.

Where it is shown without dispute that a letter was properly addressed, stamped,- and mailed, a presumption arises that it was received by the addressee. National Building Asso. v. Quinn, 120 Ga. 358 (47 S. E. 962); Bankers Mutual Casualty Co. v. Peoples Bank, 127 Ga. 326 (56 S. E. 429). Such a presumption is not conclusive, and “is entirely overcome by the uncontradicted evidence of the addressee that the letter was never received by him, unless there is aliunde evidence that it was in fact received.” Rawleigh Medical Co. v. Burney, 25 Ga. App. 20 (3) (102 S. E. 358). However, in order for such rebuttal proof to be conclusive, the evidence must be clear that the letter was never received by the addressee, and the rule is not met where, as in this case, the only evidence going to indicate the nbn-receipt of a letter to an insurance company is by the office manager of the corporation, in charge of the collection of premium notes, and is to the effect that “so far as can be found” no such letter was received by the addressee, but where it does not appear that it was the duty of that officer to receive such a letter, or that its receipt would come to his knowledge, or what effort or investigation was made to find the letter. Accordingly, the finding of the jury that the policy for which the premium note sued on had been given had been cancelled by correspondence was authorized by the evidence.

Decided May 11, 1927.

Complaint; from Jackson superior court — Judge Stark. October 2, 1926.

Jere S. Ayers, for plaintiff. Pemberton Cooley, for defendant.

2. Where it appears that the defendant had paid the premiums on his policy of insurance to a date well in advance of the date of cancellation, and no evidence is-offered as to the “customary short-term rates” to which the company would be entitled on cancellation by the terms of the policy, it will be presumed that the payment made, which covered the premiums due at the contract rate to a date much later than the date of cancellation, were sufficient to cover any premium which might be due the company at the short-term i-ate, since the measure of any such vague and indefinite rates was a matter lying peculiarly within the knowledge of the company, and no proof thereof was offered. Civil Code (1910), § 5749. Moreover, it appearing in the instant case-that the company had wrongfully insisted that the policy had become lapsed on account of-the nonpayment of premiums, and had held it out as lapsed for a lengthy period of time, the insured would be entitled to cancel the policy without the payment of any excess short-rate premiums as provided by the terms of the policy.

3. It appearing that the defendant had made full payment of all installments of his premium note well in advance of the date of cancellation, partly by cash payment and partly by arranging for the extension of credit with the company’s agent, and that the company had accepted such payment and charged the premiums to its agent’s account, a verdict in defendant’s favor as against installments of the premium note maturing for a term of years after such cancellation was demanded.

Judgment affirmed.

Stephens and Bell, JJ., concur.


author: Jenkins P. J.

text:
    17754.
    Georgia, Florida & Alabama Railway Co. v. Hatcher.
    Decided May 11, 1927.
    Certiorari; from Miller superior court — Judge Yeomans. October 29, 1926.

      N. L. Stapleton, for plaintiff in error. J. A. Dralce, contra.
    Railroads, 33 Cye., p. 1216, n. 45; p. 1274, n. 16; p. 1276, n. 32, 33; p. 1277, n. 36; p. 1305, n. 39; p. 1309, n. 70.
   Jenkins P. J.

“Where it appears in a suit against a railroad company, for damages on account of the killing of live stock, that the engineer was at the place on the engine where his duty required him, that he was looking ahead when the animal was first seen in the middle of the track in a curve, that because of the curve, the boiler, smoke-stack, and sandbox obstructing the view, the animal could not have been sooner seen, and that it was impossible to stop the train before striking the animal after it was seen, and the only circumstance from which negligence could be inferred was that the fireman at the time of the killing of the animal was engaged in supplying his engine with fuel, and was not on the lookout, such absence of the fireman from a position to look out, and the failure of the railroad company to place a third employee on the engine to take the fireman’s place when he was supplying his engine with fuel, would not warrant a finding in favor of the plaintiff.” Rogers v. Georgia Railroad Co., 100 Ga. 699, 700 (28 S. E. 457, 62 Am. St. R. 351). Where, however, as in the instant case, although it appears from the testimony of the engineer that at the time the hog was killed he was at his place on the right-hand side of the engine, as his duty required, and was looking ahead when the animal was first seen by him to appear suddenly upon the track, about twenty feet ahead of the engine, after having mounted the railroad embankment from the left side thereof, and that it was impossible to stop the train or otherwise avoid the collision after the animal thus became apparent to him, but where, from the physical facts and circumstances indicated by the evidence, it is inferable that if the fireman stationed on the left side of the engine had been looking ahead he might well have ascertained the presence and approach of the animal, as it mounted the embankment from that side, in time to have avoided the collision; and where it is not made to appear from the evidence of the fireman that he was either looking ahead at the time of the collision or was engaged in supplying his engine with fuel, it can not be said as a matter of law that the presumption of negligence has been overcome so as to render the verdict in favor of the plaintiff contrary to law as being altogether unsupported. Western & Atlantic R. Co. v. Clark, 2 Ga. App. 346 (1, 2) (58 S. E. 510); Atlantic & Birmingham Ry. Co. v. Clute, 3 Ga. App. 508 (60 S. E. 277); Atlantic Coast Line R. Co. v. Paulk, 33 Ga. App. 293 (125 S. E. 865). While from the testimony of the fireman it appears that he did not actually “see the hog,” .the burden resting upon the defendant to account for diligence on his part was in no wise met by his mere speculative testimony that he would “guess” that he “must” have been engaged in firing the engine.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    17784.
    Bateman et al. v. Gamble & Company.
    Decided May 11, 1927.
    Complaint; from city court of Macon — Judge Nall. August 27, 1926.

      Martin, Martin & Snow, for plaintiffs in error.

      Wallace Miller, John J. McCreary., contra.
    Appeal and Error, 3 O. J. p. 481, n. 8; p. 1075, n. 84; p. 1076, n. 87.
   Jenkins, P. J.

The only assignment of error in this case is upon a judgment sustaining a demurrer to the defendant’s plea and answer. Under the ruling of the Supreme Court in Bozeman v. Ward-Truitt Co., 141 Ga. 45 (80 S. E. 320), the case is prematurely before this court, and the motion of the defendant in error to dismiss the writ of error must be allowed. See, in this connection, Hall v. Glass, 25 Ga. App. 710 (104 S. E. 512); Floyd v. Massachusetts Mills, 25 Ga. App. 519 (103 S. E. 801); Tinsley v. Gullett Gin Co., 21 Ga. App. 512 (94 S. E. 892); Johnson v. Battle, 120 Ga. 649 (48 S. E. 128); Thomas v. Berry, 151 Ga. 7 (4) (105 S. E. 478); Lang v. Hall, 25 Ga. App. 118 (102 S. E. 877).

Writ of error dismissed.

Stephens and Bell, JJ., concur.


text:
    17804.
    DUGGER v. CENTRAL OF GEORGIA RAILWAY CO.
    “A railroad company is not liable for damages resulting from an assault and battery inflicted by its station agent . . . upon a third person, when it appears that the difficulty which gave rise to the beating arose out of a personal quarrel, and that the agent, so far as related to his participation therein, was acting upon his individual responsibility and not within- the scope of the business of his agency as an employee of the company.” Lynch y. Florida Central d-c. R. Co., 113 Ga. 1105 (39 S. E. 411, 54 L. R. A. 810).
    Master and Servant, 39 C. J. p. 1307, n. 15.
    Decided May 11, 1927.
    Action for damages; from city court of Springfield- — Judge Sliearouse. November 8, 1926.

      Oliver & Oliver, for plaintiff.

      H. Wiley Johnson, for defendant.
   Jenkins, P. J.

Plaintiff sued the railway company for an alleged assault upon him by a station agent. The petition alleged that the agent “was acting within the scope of his employment when-said tort was committed upon the person of petitioner,”, but the plaintiff’s proof showed that such was not the cáse, and that the cause of the difficulty related to a controversy which had occurred on the preceding day and on several other days prior to the day of the difficulty relating to the failure of the agent to keep the waiting-room open prior to the agent’s arrival at the station. It appears from the record that the agent had on previous occasions notified the plaintiff that the waiting-room was kept closed prior to the agent’s arrival at the station in accordance with instructions from his superior officers, and it is plainly inferable from the plaintiff’s testimony that the plaintiff had threatened to make complaint to such higher officials. It appears, however, that instead of doing so he proceeded’on the day of the difficulty to approach the agent at his place of business in order to complain again or upbraid him for his real or supposed breach of duty. Since it appears that the real purpose of the person assaulted in approaching the agent at his place of business was not to attend to any sort of legitimate business with the agent in his representative capacity, but was solely to renew what had become a mere personal quarrel between the plaintiff and the agent, the plaintiff being under notice that the agent was acting according to his instructions, the railroad company had no concern in what passed between them, and the judge did not err in granting a nonsuit. Civil Code (1910), § 4413; Georgia Railroad &c. Co. v. Richmond, 98 Ga. 495 (2) (25 S. E. 565).

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    17820.
    Curtis et al. v. Ashworth.
    Decided May 11, 1927.
    Damages; from city court of Eloyd county — Judge Bale. November 3, 1936.
    Certiorari was granted by the Supreme Court.

      Harris & Harris, for plaintiffs in error.

      Willingham, Wright & Covington, contra.
    Courts, 15 C. J. p. 919, n. 1.
   Jenkins, P. J.

The only point raised by the record and argued in the briefs of counsel in this case is controlled adversely to the contention of the plaintiffs in error by the decision of this court in Griffin v. Miller, 29 Ga. App. 585 (116 S. E. 339). Accordingly the court did not err in overruling the general demurrer to the petition.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    17872.
    Ocean Accident & Guarantee Corporation et al. v. Wilson.
    Decided May 11, 1927.
    Appeal; from Washington superior court — Judge Hardeman. November 15, 1926.

      Ralph G. Sims, for plaintiff in error. J. Hines Wood, contra.
   Jenkins, P. J.

Whatever may have been the previous relation of the deceased to the defendant, the evidence authorized the finding that at the time of the accident which resulted in his death he was an employee of the defendant, and not the employee of an independent contractor, and the authorized finding of the industrial commission upon this issue can not be disturbed. See, in this connection, Ocean Accident &c. Corp. v. Council, 35 Ga. App. 632 (134 S. E. 331), and cit.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    17311.
    CAMBRON, or CAMERON, v. THE STATE.
    1. “A person whose wife is a first cousin to B is not competent to serve as a juror upon the trial of A where A and B are jointly indicted for murder and, the defendants having elected to sever, A is first placed upon trial.”
    2. On the first trial of this case the court did' not err in declaring a mistrial; nor did the court, on the second trial, err in striking the plea of former jeopardy.
    3. The grounds of the motion for a new trial based upon alleged errors in the admission of evidence do not properly present any question for determination by this court. Even if the court erred in the admission of this evidence) none of it was of such character as to require the grant of a new trial.
    4. For no reason alleged was there such error in any of the excerpts from the charge of which complaint is made as would require the grant of a new trial.
    (a) Under an indictment for murder the accused may be convicted Of involuntary manslaughter in the commission of an unlawful act if the lesser offense is sufficiently charged in the indictment.

      (b) In the indictment in this case the offense of involuntary manslaughter in the commission of an unlawful act is sufficiently alleged.
    5. The ground of the motion for a new trial based on'the refusal of certain written requests to charge is not in proper form for consideration, since it does not show that the requested instructions were pertinent and applicable to the facts of the case. 1-Iightower v. State, 33 Ga, App. 73 (125 S. E. 511), and eit.

      Criminal Law, 16 C. J. p. 253, n. 13; p. 1094, n. 18; 17 C. J. p. 88, n. 48 New; 56 New; p. 89, n. 65 New; p. 91, n. 77; p. 317, n. 10; p. 339, n. 64.
    Indictment and Information, 31 C. J. p. 858, n. 93.
    Juries, 35 C. J. p. 320, n. 28.

      Decided May 12, 1927.
    Involuntary manslaughter; from Fulton superior court — Judge Humphries. February 25, 1926.

      Hanuell, F airman & Barrett, for plaintiff in error.

      John A. Boykin, solicitor-general, H. A. Stephens, J. H. Hudson, J. W. LeCraw, contra.
   Bloodworth, J.

Headnotes 1 and 5 require no elaboration.

The record in this case shows that during the first trial thereof “two persons jointly indicted for murder elected to sever, and A was first placed on trial (thus postponing the result as to B to the verdict in the case of A); and after a jury had been selected and sworn and several witnesses had testified for the State, one of the jurors in the trial of A announced to the court that his wife was a first cousin to B. This statement of the juror was not contraverted, but seems to have been accepted as true by the judge and all parties to the cause. Under these circumstances the court did not err in directing a mistrial, over the objections of A, regardless of the fact that when the jury was being selected the jurors were asked whether they were related to A, but no inquiry as to their relationship to B was made.” What is just above quoted is the answer by the Supreme Court to a question certified to it by this court. See Cambron v. State, 164 Ga. (137 S. E. 780). When the case was tried in the superior court for the second time the accused filed a plea of former jeopardy, insisting that at the time a mistrial was declared he was in jeopardy, and that the declaring of a mistrial was over his objections, “contrary' to law, and without authority of law,” and that the legal effect thereof was his complete acquittal. Upon motion of the solicitor-general the plea of former jeopardy was stricken. Under the rulings of the Supreme Court quoted above this was not error.

Each special ground of a motion for new trial must be complete and understandable within itself, without reference to any other part of the record. This court is not required to look beyond the ground itself to learn the facts or to ascertain error. Franklin v. State, 28 Ga. App. 460 (1 a, b, c) (112 S. E. 170). “Under repeated rulings of the Supreme Court and of this court a special ground of a motion for a new trial must be complete and understandable within itself, and the reviewing court will not consider a ground which complains of the admission of specified evidence, the materiality of which can not be determined without an examination of the brief of evidence or some other part of the record. Nor is the admission of immaterial and irrelevant evidence, not shown to have been harmful, cause for a new trial. Thompson v. Thompson, 77 Ga. 692 (7) [3 S. E. 261]; Armour Fertilizer Works v. Dwight, 22 Ga. App. 144 (3) (95 S. E. 746); Milwaukee Mechanics Ins. Co. v. Rawls, 26 Ga. App. 584 (1) (107 S. E. 262).” Hamrick v. Stewart, 29 Ga. App. 220 (4) (114 S. E. 723). Under the principle announced in the foregoing cases we are not called upon to consider the assignments of error in grounds 1 to 6, inclusive, of the motion for a new trial. Even if the court erred in admitting the evidence referred to in these grounds, it is not shown to be of such character as to require the grant of a new trial.

For no reason alleged was there such error in any of the excerpts from the charge of which complaint is made in the motion as would require the grant of a new trial.

“Under an indictment for murder the accused may be convicted of a lower grade of felony, or even of a misdemeanor, if the lesser offense is one involved in the homicide and is sufficiently charged in the indictment.” Watson v. State, 116 Ga. 607 (4) (43 S. E. 32, 21 L. R. A. (N. S.) 1). The indictment in the instant case charges that the accused did “kill and murder one Ralph Elliott, by then and there running and driving an automobile over, against, and upon the said Ralph Elliott, thereby causing and inflicting injuries, wounds and bruises upon his body from which he, the said Ralph Elliott, died.” This sufficiently charges the offense of involuntary manslaughter in the commission of an unlawful act. Reams v. State, 24 Ga. App. 135 (1-a) (100 S. E. 230).

Judgment affirmed.

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


text:
    17997.
    Fuston v. The State.
    Decided May 12, 1927.
    Possessing intoxicating liquor; from city court of Swainsboro— Judge Herrington. February 7, 1927.

      Kirkland & Kirkland, for plaintiff in érror.

      I. W. Rountree, solicitor, contra.
    Criminal Law, 16 C. J. p. 765, n. 60.
    Intoxicating Liquors, 33 C. J. p. 7G1, n. 53; p. 801, n. 18, 19.
   Broyles, C. J.

The u evidence was sufficient to exclude every reasonable hypothesis save that of the defendant’s guilt, and none of the special grounds of the motion for a new trial require another hearing of the case.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


author: Bell, J.

text:
    17619.
    Payne, administrator, v. Jordan et al.

    Decided May 12, 1927.
    Army and Navy, 5 C. J. p. 370, n. 48 New.
    Executions, 23 C. J. p. 547, n. 54 New.
    Exemptions, 25 C. J. p. 82, n. 44.
    Tx-usts, 39 Cyc. p. 529, n. 66, 76.
   Bell, J.

An execution was levied upon certain property of the defendant in fi. fa., who interposed an affidavit of illegality. The case as thus made was submitted to the trial judge, to be determined by him without a jury, upon the following agreed facts: “Defendant is the beneficiary under a policy in accordance with the provisions of the war-risk insurance act passed by Congress in the year 1917, and as such she receives checks monthly, the proceeds of which she invested in a house and lot located in the city of Reynolds, in said county, the same being the property levied upon as above referred to. No other money went into the purchase of said property except such funds as above referred to. We agree that the only issue in said case is whether or not the property in question being purchased with said funds is subject to said execution. The court having rendered judgment sustaining the affidavit of illegality, and the motion of the plaintiff in fi. fa. for a new trial having been overruled, the plaintiff in fi. fa. excepted. Held: Under the provisions of section 28 of the act of Congress known as the war-risk insurance act, approved October 6, 1917, and amended June 25, 1918, c. 104, § 2, 40 Stat. (U. S. Comp. Stat. 1918, § 514nnn¼, p. 1739), as construed by the Supreme Court of this State in Payne v. Jordan, 152 Ga. 367 (110 S. E. 4), there was no error in the judgment complained of. Compare Ober Co. v. Cochran, 118 Ga. 396 (45 S. E. 382, 98 Am. St. R. 118); Luthersville Banking Co. v. Hopkins, 12 Ga. App. 488 (77 S. E. 589); 39 Cyc. 528-543; and see also the State exemption laws, Civil Code (1910), 3377-3425.

Judgment affirmed.

Jenkins, P. J., concurs. Stephens, J., dissents.

Illegality of execution; from Taylor superior court — Judge McLaughlin. February 2, 1927.

Homer Beeland, for plaintiff.