text:
    15826.
    Mays v. Mays.
   Bell, J.

1. Where a verdict was directed by the court upon the first trial of a case, and a judgment refusing a new trial to the losing party was reversed upon the ground, among others, that the direction of the verdict was error, the grant of a new trial by the presiding judge after verdict found by the jury at the new trial, without direction, being the first judgment setting aside an actual finding of the jury, is subject to the rule that the first grant of a new trial will not be disturbed except where the verdict is demanded by the evidence, notwithstanding the second verdict was in favor of the same party and to the same effect as the first one. See, in this connection, Jordan v. Dooly, 129 Ga. 392 (58 S. E. 879).

Decided December 18, 1924.

Appeal; from Butts superior court—Judge Persons. June 11, 3924.

W. E. Watkins, J. T. Moore, Reagan & Reagan, Horace & Frank Holden, for plaintiff.

R. R. Arnold, G. L. Redman, H. M. Fletcher, for defendant.

2. The grant of the motion for a new trial, to which exception is taken in the instant writ of error, having been awarded tinder the circumstances stated in the preceding paragraph, was the equivalent of a first grant, within the meaning of the rule as laid down in the Civil Code, § 6204, and, the verdict not having been absolutely demanded by the evidence, “this court, without undertaking to make any adjudication with respect to the reason assigned by the trial judge as the basis of his action, will affirm the judgment” (Carr v. Carr, 157 Ga. 208); and this would be true even though it should appear that “the presiding judge considered irrelevant, immaterial and improper matter in passing upon the motion.” Hawk v. Western & Atlantic Railroad, 20 Ga. App. 395 (2) (93 S. E. 40).

3. It was not necessary to the conclusions reached in Cloud v. Hawkes Co., 18 Ga. App. 772 (90 S. E. 652), and National Bank v. Piland, 22 Ga. App. 471 (96 S. E. 341), to classify the judgments granting the new trials in these cases respectively as first grants, under the Civil Code (1910), § 6204, since in each of them the trial judge had committed error in directing a verdict, and the grant of a new trial was required in order to correct that error. Therefore, so much of the language in each of these decisions as undertook to classify the judgment granting the new trial as a first grant was obiter, and, being now deemed unsound, will not be followed.

Judgment affirmed.

Jenkins, P. J., concurs. Stephens, J., concurs m the judgment.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    15812.
    Smith v. Seawright.
   Per Curiam.

1. It is the duty of the owner of premises so to endose, or otherwise guard, an excavation thereon which lies in_ dangerous proximity to a public street or sidewalk as to afford one passing along the street or sidewalk, in the exercise of ordinary care, reasonable immunity against the danger of casually falling therein. Where the owner fails to perform this duty, a person exercising such care who so falls and is injured is entitled to recover from the owner damages therefor. Hutson v. King, 95 Ga. 271 (3) (22 S. E. 615).

2. Under the principle of the above-stated ruling and the facts of the instant case, eaeli count of the petition set out a cause of action, and the court erred in dismissing the suit, on general demurrer.

Decided January 13, 1925.

Action for damages; from Fulton superior court—Judge E. D. Thomas. July 5, 1924.

In the first count of the petition it is in substance alleged, that a brick building on a lot owned by the defendant in the city of Atlanta fronts north on Houston street and extends back flush against the sidewalk line about 60 feet along the west side of Hilliard street, and that an excavation about 4 feet wide and 10 feet deep extends across the back of the building to within 10 or 12 inches of the west edge of the sidewalk on Hilliard street. This excavation, “which was formerly used for an entrance into the basement of said building, and which was formerly protected by a gate and gate supports, is, and for a year or more past has been, unprotected, so that the same was an open space at the rear of said store and along the edge of said sidewalk; and . . tall weeds had grown around said excavation so that the same could not be discovered by casual passing and could be discerned only upon close inspection.” “On September 16, 1923, at about 4 o’clock a. m., petitioner was walking along the sidewalk on Hilliard street where said excavation abuts said sidewalk, and he hesitated for a moment at the rear corner of said brick building and fell into said excavation and was injured” in a manner described. “He had no knowledge whatsoever that said excavation was located at the point described . . or on the described property. . . The same was shielded and hidden by tall weeds and grass, . . it was dark at the time he was passing said point, and . . there was no sign or other indication of any character whatsoever to show the presence and existence of said excavation. . . He was in the exercise of ordinary care and diligence when he was injured, and in the exercise of the same was unable to avoid the consequences of defendant’s negligence which contributed to and caused his injuries. . . Defendant was negligent in that he maintained said excavation at the point described without any protection being placed around same and without any sign or light to indicate the presence of same, and in such close proximity to the sidewalk; . . there was no light along the rear of said store, and.it was dark at the time petitioner was injured. He was further negligent in that he maintained said excavation on his said premises and alleged [allowed ?] grass and weeds to grow up and around the same, so that same was hidden from view. He was further negligent in that he failed to maintain a light over or about said excavation so that same could be seen and avoided by pedestrians on said sidewalk.”

Judgment reversed.

Broyles, G. J., and Bloodworth, J., concurs. Luke, J., dissents.

The second count, after describing the building, the excavation, the weeds and grass, and the unprotected condition of the excavation as in the first count, alleged that at the time mentioned above the petitioner was a police officer of the city of Atlanta, and was on the morning watch, which extends from midnight to 8 o’clock the next morning, and that in the performance of his duty as such officer at about 4 o’clock in the morning he was examining the described premises for the purpose of protecting the premises from burglars and thieves, who were at that time numerous enough to attract attention in that neighborhood; that he had examined the rear of the property, along which a signboard had been erected; that back of the signboard it was very dark, and his partner, C. G. Hughes, had flashed his light at the back of the signboard in anticipation of finding loiterers, and petitioner had started forward, when he heard a suspicious noise, the cause of which is unknown to him, and he inadvertently stepped to one side and fell into the excavation at the sidewalk abutment of the same, “injuring him,” etc. He was at said property in the performance of his public duty as a policeman and for the purpose of preserving and defending the property of the defendant, and he was a licensee and had a right to be upon the defendant’s property, but had walked along the sidewalk on Hilliard street to the point where he fell, and inadvertently stepped aside and into the excavation on hearing the noise described. The excavation was dangerous in such close proximity to the sidewalk, which was constantly traveled by the public, as to create a continuing nuisance and source of danger to every one using the sidewalk. Allegations similar to those of the first count were made as to the petitioner’s ignorance of the excavation, his exercise of care, and the negligence of the defendant.

A general demurrer to each count was sustained.

Arminius Wright, for plaintiff.

Edgar B. Craighead, Chambers & Diclcey, Hewitt W. Chambers, for defendant.


author: Luke, J.

text:
    15946.
    Harper v. The State.
    Decided January 13, 1925.
    Conviction' of manufacture of liquor; from Baldwin superior court—Judge Park. September 16, 1924.
    Application for certiorari was made to the Supreme Court.
    From the evidence for the State it appears that the sheriff, with two other persons, went to a point near where a still was in operation making whisky, and that one of the party, who went ahead of the others to the' still, saw the defendant coming from it, and the defendant saw him and ran back towards the still and disappeared. No other person was seen at the still. The defendant attempted to establish an alibi.

      Allen & Pottle, Marion PL. Allen, for plaintiff in error.

      Doyle Campbell, solicitor-general, A. T. Clement, contra.
   Luke, J.

1. There is no merit in the special grounds of the motion for a new trial.

2. This case is controlled by the ruling in Yonce v. State, 154 Ga. 419 (114 S. E. 325); 29 Ga. App. 173-4 (114 S. E. 584).

Judgment affirmed.

Broyles, O. J., and Bloodioorth, J., concur.


author: Bloodworti-i, J.

text:
    15965.
    INTEGRITY MUTUAL CASUALTY CO. et al. v. HANKINS.
    1. Where an application for an award of damages is made to the industrial commission of Georgia, questions not raised when the case is heard by one of the commissioners, or on appeal to the full commission, can not be raised for the first time on appeal to the superior court.
    2. ' “Upon a review of an award made by the industrial commission under the provisions of the Georgia workmen’s compensation act, the commission’s findings of fact are, in the absence of fraud, conclusive, provided there is any evidence to support the award. Ga. L. 1920, p. 199. With respect to the sufficiency of the evidence to support it, such an award stands in this court upon the same footing as the verdict of a jury approved by the trial judge in other .cases.” London Guarantee £ Accident Go. v. Shockley, 31 Ga. App. 762 (1) (122 S. E. 99).
    Decided January 13, 1925.
    Rehearing denied February 11, 1925.
    Appeal; from Jefferson superior court—Judge Hardeman. September 29, 1924.
    Cranston TIankins applied to the State industrial commission for an award for an injury received by him while he was employed by the Macon Cooperage Company, and named the Integrity Mutual Casualty Company as the insurance carrier. Commissioner Kilburn heard the evidence and rendered an award in favor of the applicant. On appeal to the full commission, this finding was, upon a review of the evidence, affirmed. An appeal to the superior court of Jefferson county was allowed, and upon a hearing thereon by Judge Hardeman the finding of the full commission was affirmed. A writ of error was then sued out to review his judgment.

      Harry L. Greene, McDaniel & Neely, for plaintiff in error.

      Hardeman & Hardeman, contra.
   Bloodworti-i, J.

(After stating the foregoing facts.)

In the application for an appeal to the superior court the insurance carrier complains that the commission erred in holding that although Cranston Hankins was “mentally incompetent, it was not necessary for him to prosecute his claim by or through a guardian or trustee as provided in section 47 of the Georgia compensation law.” However, it does not appear that this question was raised on the hearing before Commissioner Kilburn or when the case was before the full commission; so this question is not properly before this court for consideration.

The only question which we are called upon to determine is whether there is sufficient competent evidence in the record “to Avarrant the industrial commission in making the order or decree complained of.” In his order affirming the award of the commission Judge Hardeman said: “I have revieAved carefully the record, and I am of the opinion that the facts found by the commission are sufficient and ample to support the award.” With this conclusion this court agrees. In New Amsterdam Casualty Co. v. Sumrell, 30 Ga. App. 682 (118 S. E. 786), Judge Bell said (p. 686): “The findings of the commission on questions of fact, if supported by any evidence, are conclusive. See section 59 of the workmen’s compensation act (Ga. L. 1920, p. 198).” It is well settled in this State that “when a verdict approved by the trial judge is supported by any evidence,' this court will not disturb it because of alleged insufficiency of evidence.” Heaton v. Puckett, 31 Ga. App. 526 (121 S. E. 240). Granting that in such a case as this the judge of the superior court, in passing on the facts of the case on appeal, could exercise his discretion, when he has done this and affirmed the decision of the industrial commission, and there is any evidence to support the award, this court, under the principle aunounced in the foregoing decisions and the one cited in the second headnote, is powerless to interfere. See also American Mutual Liability Ins. Co. v. Adams, 32 Ga. App. 759.

Judgment affirmed.

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


text:
    15981.
    Atlanta Wrecking Co. v. Etheridge.
    Decided January 13, 1925.
    Action for breach of contract; from Fulton superior court-judge Ellis. August 23, 1924.

      Walter A. Sims, A. B. Wilson, J. B. Berman, for plaintiff in error.

      II. A. Btheridge, contra.
   Luke, J.

The verdict in this case was authorized by the evidence and has the approval of the trial judge. In the light of the record as a whole, the special grounds of the motion for a new trial show no reversible error. The judgment overruling the motion for a new trial can not be disturbed.

Judgment affirmed.

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


text:
    15984.
    TILLMAN v. TWICKENHAM DEVELOPMENT CO.
    The evidence being in conflict as to the making of the contract alleged by the plaintiff, the verdict for the defendant, which was approved by the trial judge, will not be disturbed by this court.
    The exception to an extract from the charge of the court is without merit, when the remainder of the charge is considered.
    Decided January 13, 1925.
    Complaint; from Chatham superior court—Judge Meldrim. October 3, 1924.

      II. P. Cobb, for plaintiff.

      David G. Barrow, for defendant.
   Luke, J.

J. L. Tillman sued the defendant, alleging that while a minor he entered into a contract with the defendant for the purchase of certain property, under the terms of which he paid during minority a certain sum' of money, and that at the time of filing his suit he had reached majority; and, disaffirming the alleged contract, he prayed a judgment for the money so paid the defendant for the purchase of the property. Upon the issue raised by the pleadings and the evidence, which was in conflict as to the making of the alleged contract, the jury, as was their right, found the issues of fact with the defendant. Their finding has the approval of the trial judge.

The special ground of the motion for a new trial, assigning error upon an excerpt from the charge of the court, in the light of the entire charge and the issues raised by the pleadings and evidence, is without merit. The trial of the case was without error, and the court properly overruled the motion for a new trial.

Judgment affirmed.

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


author: LTjke, J.

text:
    15987.
    Pearson v. The State.
    Decided January 13, 1925.
    Conviction of manufacture of liquor; from Coweta superior court —Judge Eoop. October 9, 1924'.

      Post & Arnold, for plaintiff in error.
    TP. Y. Atkinson, solicitor-general, contra.
   LTjke, J.

The evidence in this ease almost demanded, if indeed it did not demand, the defendant’s conviction. The special grounds of the motion for a new trial, in the light of the record, are without merit. The motion for a new trial was properly overruled.

Judgment affirmed.

Broyles, O. J., and Bloodworth, J., concur.


author: Bloodworth, J.

text:
    15988.
    KATO v. THE STATE.
    Disqualification of a grand juror because his name was not on the grand-jury list or in the grand-jury box, and disqualification because of residing in another county, were matters of objection propter defectum, which could not avail the defendant when raised for the first time by motion for a new trial.
    Decided January 13, 1925.
    Conviction of wife ^beating; from Bacon superior court—Judge Summerall. October 11, 1924.
    I. J. Bussell, for plaintiff in error.

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

The defendant’s motion for a new trial in this case is based upon alleged newly discovered evidence that two of the grand-jurors finding the indictment against him were disqualified; one because his name did not appear on the grand-jury register or grand-jury list, or in the grand-jury box; and the other because he lived outside the county. The indictment under which the defendant was convicted was filed in court on January 26, he was arrested on that day, and was tried on January 28. He filed no challenge to the array of the grand jurors or plea in abatement to the indictment. The alleged disqualifications “are matters of objection in their nature propter defectum; and when relied on as grounds for showing illegality of the grand jury returning an indictment, all such objections should be made by a proper challenge to the array of'grand jurors before the indictment is found, where the illegality was known, or, if not known by the defendant or his attorney at law before indictment, by plea in abatement to the indictment. Turner v. State, 78 Ga. 174; Folds v. State, 123 167 (51 S. E. 305); Tucker v. State, 135 Ga. 79 (68 S. E. 786). Where there is no such challenge or plea in abatement, such questions can not be raised for the first time after verdict, by motion for a new trial. Jordon v. State, 119 Ga. 443 (46 S. E. 679). . . The fact that the defendant may have been ignorant and incarcerated in the jail prior to his indictment, and unable to employ counsel, and that immediately after the return of the indictment he was put on his trial, and the attorney at law then appointed for him by the court did not have any opportunity to make any investigation, would not render his conviction illegal on the account of a disqualification of the grand-jurors.” Lumpkin v. State, 152 Ga. 229 (7, 9) (109 S. E. 664).

Under the authorities cited above and the facts of the instant case, the judgment overruling the motion for a new trial must be

Affirmed.

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


text:
    15991.
    Milam v. Wilkerson.
    Decided January 13, 1925.
   Bloodworth, J.

In this State it is well settled that the judge of the superior court is bound by the untraversed answer of the magistrate who presided in the case. Applying this rule to the answer of the justice of the peace who tried this case, the judge of the superior court properly overruled the certiorari.

Judgment affirmed.

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

Certiorari; from Floyd superior court—Judge Wright. September 29, 1924.

Harris & Harris, for plaintiff in error.

J. L. Wallace, contra.


author: Luke, J.'

text:
    15993.
    Rawleigh Company v. Watson et al.

    Decided January 13, 1925.
    Complaint; from Colquitt superior court—Judge Thomas. October 16, 1924.

      Kline & Moore, for plaintiff.

      J. L. Dowling, for defendants.
   Luke, J.'

1. Where guarantors are joined with their principal as co-defendants, a demurrer on the ground of misjoinder, interposed by the guarantors, is properly sustained by the court. Etheridge v. Rawleigh Co., 29 Ga. App. 698 (1) (116 S. E. 903), and citations; Rawleigh Co. v. Salter, 31 Ga. App. 329 (120 S. E. 679).

2. The controlling facts of this case are, in principle, identical with those of Salter’s case, supra, except that in this ease the plaintiff alleged the insolvency of the principal debtor, and sought to have the judgment against the principal and the guarantors moulded according to the liability of each under their respective contracts, and claimed that so doing would avoid a multiplicity of suits. Held:

(а) In such a suit the solvency or insolvency of the principal debtor is wholly immaterial. Penn Tobacco Co. v. Leman, 109 Ga. 428 (2) (34 S. E. 679).

(б) The power of a superior court to mould its judgment according to the exigencies of the case does not authorize a plaintiff to join in one action two. separate claims against separate defendants. Ansley v. Davis, 140 Ga. 615 (79 S. E. 454), and citations.

(c) The equitable doctrine of joinder to avoid a multiplicity of suits has no application to an ordinary action at law of a creditor against the principal debtor and his guarantors.

Judgment affirmed.

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


text:
    15995.
    Mills v. The State.
    Decided January 13, 1925.
   Luke, J.

It appearing from the bill of exceptions and the record that the bill of exceptions was not tendered to the judge within twenty days from the date of the judgment overruling the motion for a new trial, this court is without jurisdiction to pass upon the merits of the assignments of error.

Writ of error dismissed.

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

Conviction of shooting at another; from Wilkes superior court-Judge Shurley. September 26, 1924.

Norman & Norman, for plaintiff in error.

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


text:
    15998.
    Wells v. The State.
    Decided January 13, 1925.
    Conviction of larceny of automobile; from Seminole superior court—Judge Custer presiding. October 21, 1924.

      Jesse A. Drake, Chester A. Drake, and J. F. Drake, for plaintiff in error. .

      B. T. Castellow, solicitor-general, B. B. Arnold, F. C. Hill, contra.
   Luke, J.

The evidence amply authorized the conviction, and the verdict has the approval of the trial judge. The special grounds of the motion for a new trial, in the light of the entire record, are without merit. The court properly overruled the motion for a new trial.

Judgment affirmed.

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


text:
    15999.
    George, marshal, et al., for use, v. Walker Brothers Co.
    Decided January 13, 1925.
    Certiorari; from Fulton superior court—Judge Bell. October 20, 1924.

      B. B. Jackson, T. L. Lanford, for plaintiffs.

      D. K. Johnston, for defendant.'
   Bloodworth, J.

The judge of the superior court committed no error in overruling the certiorari.

Judgment affirmed.

Broyles, G. J., and Buhe, J., eoneur.


text:
    16001.
    Lummus v. First National Bank of Hampton.
   Luke, J.

1. Where, in a suit on promissory notes, the defendant admits a prima facie case in the plaintiff and assumes the burden of proof, and the only evidence offered in support of one or more of the essential elements of his alleged defense is subject to the objection that it is hearsay, it is proper to direct a verdict for the plaintiff. Such evidence, though admitted without objection, is without probative force. Brooks v. Pitts, 24 Ga. App. 386 (1) (100 S. E. 776), and citations.

Decided January 13, 1925.

Complaint; from city court of Atlanta—Judge Reid. September 22, 1924.

E. M. Smith, Maddox &■ Maddox, for plaintiff in error.

O. E. Griffin, D. K. Johnston, contra.

2. Where it is proper to direct a verdict, but a verdict is directed for an amount greater than that sued for,’the judgment will be affirmed, with direction that the court below so amend the verdict and judgment as to make them conform to the pleadings. Morgan County v. Walton County, 121 Ga. 659 (49 S. E. 776).

3. In the instant case one of the notes sued on showed a credit of $25.39. The verdict is for the principal, interest, and attorney’s fees stipulated in the notes, without any allowance for the partial payment shown by the plaintiff’s petition. Direction is therefore given that the court below so amend the verdict and judgment as to allow the defendant the full benefit of such credited payment.

Judgment affirmed, until direction.

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


author: Bloodwortii, J.

text:
    16005.
    Sisson v. The State.
    Decided January 13, 1925.
    Conviction of robbery; from Fulton superior court—Judge Howard. October 4, 1924. '

      J. E. Gar si, R. 0. Lovett, for plaintiff in error.

      John A. Boylcin, solicitor-general, E. A. Stephens, Ralph E. Pharr, contra.
   Bloodwortii, J.

1. The special grounds of the motion for a new trial which properly present any question for determination by this court are, without merit.

2. There is evidence to support the -verdict, the trial judge has approved it, and this court will not interfere.

Judgment affirmed.

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


text:
      16020.

    Edwards v. The State.
    Decided January 13, 1925.
   Bloodwortii, J.

Neither of the special grounds of the motion for a new trial requires a reversal of the judgment; the verdict is supported by evidence, and is approved by the judge who tried the case.

Judgment affirmed.

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

Indictment for adultery’ and fornication; from Cobb superior court—Judge Blair. October 18, 1924.

Morris, Hawkins & Wallace, for plaintiff in error.

John 8. Wood, solicitor-general, contra.


text:
    16024.
    Hawkins v. The State.
    Decided January 13, 1925.
    Indictment for transporting liquor; from Dade superior court— Judge Tarver. September 27, 1924.

      John J. Lively, for plaintiff in error.

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

The evidence demanded tlie defendant’s conviction. The special assignments of error in the motion for a new trial are without merit, and the court properly overruled the motion. See Pullen v. State, 30 Ga. App. 24 (116 S. E. 871); Johnson v. State, 152 Ga. 271 (109 S. E. 662, 19 A. L. R. 641).

Judgment affirmed.

Broyles, O. J., and Bloodworih, J., conour.


author: Beoodworth, J.

text:
    16025.
    Williams v. The State.
   Beoodworth, J.

1. Granting, but not holding, that it was error to refuse to rule out the evidence of Jeff Shed as complained of in the motion for a new trial, this evidence was of such a nature that, had it been ruled out, it would not have affected the verdict. Adams v. State, 27 Ga. App. 48 (2) (107 S. E. 388). Moreover, “Where evidence is offered en bloc, some of which is not open to the objections made to it, the admission of such evidence is not ground for a new trial.” McGuire v. State, 29 Ga. App. 192 (114 S. E. 719); Edenfield v. Brinson, 149 Ga. 378 (5) (100 S. E. 373).

2. While it is true that “in a case of burglary, where the guilt of the accused depends upon the possession of an article alleged to have been contained in the house burglarized, it is essential that the identity of the article found in his possession with the article which is alleged to have been stolen shall be established beyond a reasonable doubt,” the same strictness of identification is not required where an accomplice in a burglary case swears positively to the fact of the burglary and this is shown also by other evidence, and where the accomplice swears that certain articles of like description to those found later in the possession of the accused were taken from the building burglarized. In such a case as this the identity of the articles alleged to have been stolen is a question for the jury. Watts v. State, 8 Ga. App. 205 (3) (68 S. E. 863). The court did not err in admitting in evidence the knives referred to in the motion for a new trial.

Decided January 13, 1925.

Indictment for burglary; from Habersham superior court—Judge J. B. Jones. September 13, 1924.

J. A. Henderson, J. C. & H. E. Edwards, for plaintiff in error.

Robert McMillan, solicitor-general, Pearce R. Matthews, contra.

3. In view of the charge given, it is not cause for a new trial that the court refused to charge in the language of the request set out in the motion for a new trial.

4. There is some evidence to corroborate the positive evidence of the accomplice in reference to the guilt of the accused. The jury having, said by their verdict that this corroboration was sufficient to authorize a conviction, and their finding having been approved by the trial judge, this court can not as a matter of law hold that the verdict is contrary to the evidence.

Judgment affirmed.

Broyles, C. J., and Luke, J., eoneur.


text:
    16039.
    Gillespie v. The State.
    Decided January 13, 1925.
    Reheabins denied February 11, 1925.
    Conviction of possession of liquor; from Gordon superior court —Judge Tarver. October 6, 1924.

      T. A. Henderson, J. H. Paschall, for plaintiff in error.

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

The evidence authorized the defendant’s conviction. The only special ground of the motion for a new trial approved by the court is without merit. The court properly overruled the motion for a new trial.

Jiidgmenl affirmed.

Broyles, G. J., and Bloodworlh, J., concur.


text:
    16040.
    Kelley v. The State.
    Decided January 13, 1925.
    Assault with intent to rape; from Wilkes superior court—-Judge Shurley. October 10, 1924.

      Hugh E. Combs, for plaintiff in error.

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

There is no merit in either of the special grounds of the motion for a new trial; there is evidence to support the verdict, which has the approval of the judge who tried the case, and who did not err when he overruled the motion for a new trial.

Judgment affirmed.

Broyles, G. J., cmd Luke, J., concur.


text:
    16042.
    WILKERSON v. THE STATE.
    A general verdict of guilty upon an indictment in two counts, one charging the keeping of a lewd house for the practice of fornication and adultery and the other charging the keeping .and maintaining of a common, ill-governed, and disorderly house, to the encouragement of idleness, drinking, and other misbehavior, was not authorized, where there was no evidence that authorized a conviction under the second count.
    Decided January 13, 1925.
    Keeping lewd house; from Wilkes superior court—Judge Shurley. October 14, 1924.

      H. E. Combs, F. IF. Gilbert, Colley & Colley, for plaintiff in error.

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

The defendant was convicted generally upon an indictment which in one count charged her with keeping a lewd house for the practice of fornication and adultery, and in the other charged her with keeping and maintaining a common, ill-governed, and disorderly house, to the encouragement of idleness, drinking, and other misbehavior (Penal Code, §§ 382, 383). There was no evidence authorizing a conviction under the second count, and therefore the verdict was contrary to law and the evidence, and the court erred in overruling the motion for a new trial. See, in this connection, Fanning v. State, 17 Ga. App. 316 (2) (86 S. E. 731); Brooks v. State, 27 Ga. App. 629 (87 S. E. 909).

Judgment reversed.

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


author: Per Curiam. Luke, J.,

text:
    15256.
    HITE, trustee, v. LIVERPOOL AND LONDON AND GLOBE INSURANCE COMPANY.
   Per Curiam.

Where a fire-insurance policy appears on its face to be issued to one as trustee, upon property purporting to belong to him but which in fact belongs to those for whom he acts as trustee, and where there is a provision in the policy of insurance avoiding it “if the interest of the insured in the property be not truly stated,” or “if the subject of insurance be personal property and be or become incumbered by a chattel mortgage,” and where the insurer) through its agent who issued the policy, had at that time actual notice from the trustee that the property insured was not his property, but was the property of those for whom he was acting as trustee, the insurer, because of its knowledge at the time of issuing the policy, is held to have waived the above-quoted provision of the policy. Sec Liverpool & London & Globe Insurance Co. v. Georgia Auto & Supply Co., 29 Ga. App. 334 (115 S. E. 138); Peoples & Planters Fire Association v. Wyatt, 31 Ga. App. 684 (121 S. E. 708).

Decided January 14, 1925.

Action on fire-insurance policy; from city court of Albany— Judge Clayton Jones. December 10, 1923.

Application for certiorari was denied by the Supreme Court.

Milner & Faricas, for plaintiff.

Smith, Hammond & Smith, Pottle & Hofmayer, for defendant.

(a) Applying the foregoing principle, the court erred in sustaining the demurrer to the petition and in dismissing plaintiff’s suit.

Judgment reversed.

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

Luke, J.,

dissenting. In my opinion the allegations of the petition in this case were insufficient in law. See Ward v. Lord, 100 Ga. 407.


author: Broyles, C. J. Bloodworti-i, J.,

text:
    15399.
    EISENBERG et al. v. HEBRAH GEMILUTH HESED SOCIETY.
    Where a policy of insurance is capable of being construed in two ways, the construction which is most favorable to the insured will be adopted.
    There being an apparent conflict in the by-laws of the defendant benefit society as to when a member is “in good standing,” the construction most favorable to the member will be adopted in determining as to the liability of the society for a death benefit; and under that construction and the uncontradieted evidence the deceased member in this case was “in good standing” at the time of his death.
    Decided January 14, 1925.
    Complaint; from Chatham superior court—Judge Meldrim. February 5, 1924.
    Application for certiorari was denied by the Supreme Court.

      David 8. Ailcinson, for plaintiffs.

      Meyer L. Oherlcas, Aaron Kraviich, for defendant.
   Broyles, C. J.

It is well settled that if a policy of insurance is capable of being construed in two ways, that interpretation must be placed upon it which is most favorable to the insured. Massachusetts Benefit Life Association v. Robinson, 104 Ga. 256 (2) (30 S. E. 198, 42 L. R. A. 261). In the instant case the constitution and by-laws of the defendant society constitute the policy of insurance. Section 5 of article XIII provides, that “The death benefit of a deceased member, wben in good standing, as hereinafter specified, and if not disqualified, by article XII, section 2, or otherwise, shall be two hundred ($200) dollars. . . The words fin good standing/ as hereinbefore or hereinafter used, shall be held to mean only those members-who shall have paid all current dues . . due or payable to the society at the time of his death.” (Italics ours.) (Article XII, section 2, refers to the payment of “weekly benefits” only, and is immaterial in this case.) Sections 1 and 2 of article XV are as follorvs: “Sec. 1. Any member of this society who owes $2.00 or over shall be in arrears and so remain until same is paid, and as long as a member is in arrears . . he is not entitled to any sick, mourning, death benefits, or funeral expenses. Sec. 2. When a member becomes in arrears he must pay all dues and fines in full, and he does not become in good standing until fifteen days after his payment is read by the financial secretary at a regular meeting of the society.”

There being an apparent conflict between the provisions of the two articles quoted, as to when a member is “in good standing,” the construction most favorable to the insured must be adopted. While the undisputed evidence showed that the deceased member was in arrears as to Ms current dues to the amount of $2, shortly before his death, and that he died before his payment was read by the financial secretary at a regular meeting of the society, it is also undisputed, in the pleadings and the evidence, that at the time of his death he had paid all the dues owing by him to the society, Ft follows that he was “in good standing”, when he died, and that he was entitled to the death benefit, and that a verdict for the plaintiff was demanded. Under this ruling it is not necessary to pass upon the alleged errors in the charge of the court. The overruling of the motion for a new trial was error.

Judgment reversed.

Luke, J., concurs. Bloodworth, J., dissents.

Bloodworti-i, J.,

dissenting. Necessarily I must agree with the headnote in. this case, for the principle therein announced is well settled. However, there is another rule of law just as well settled, and that is that “the contract as contained in the policy must be construed as a whole, so that, if possible, each stipulation shall be made consistent with the others, and the whole allowed to stand.” Construing together and as a whole the constitution and by-laws of the Hebrah Gemiluth Hesed Society, the writer thinks that the two stipulations quoted in the majority opinion, and which are held in that opinion to be “in apparent conflict,” are consistent with each other, and the contract should be allowed to stand. Under all the facts and circumstances of the case the writer thinks the judgment should be affirmed.


author: Bloodwobtii, J.

text:
    15947.
    Willis v. The State.
    Decided January 14, 1925.
    Indictment for larceny of cow; from Baldwin superior court— Judge Park. September 16, 1934.
    From the evidence it appears that Pearson’s cow, which was alleged to have been stolen by Bud Willis, the defendant, was found in the possession of Lingold, who had bought her from Willis. Lingold testified: “Willis first told me that he bought the cow from a negro and gave him $40. After that he told me that he got the cow from Mr. Boyer. He said that he and Ernest Wilson were working for Mr. Boyer, and Mr. Boyer owed them $10 apiece and gave them a gallon of whisky apiece, and they turned around and gave Mr. Boyer a gallon of whisky apiece for the cow. ” There was also evidence that the defendant sawed o£E the cow’s horns and cut off her ears, one of which had been marked with a split by Pearson, and that her tail was cut off after she left Pearson’s possession. Pearson testified that he missed the cow for about two months, and that when he missed her “she was lodged with Mr. Clint Boyer’s cows,” and was running at large; that he lived “in sight of Mr. Boyer’s.” Lingold testified that for a month or two before he traded for the cow he saw her running at large and at the home of Mrs. Hoover, the defendant’s sister, that the cow was milked there, and he traded for her there. The defendant’s father testified that Boyer tried to sell the cow to him, and afterwards sold her to the defendant. Ernest Wilson testified that the cow was on Boyer’s place when he (Wilson) and the defendant were doing carpentering work for Boyer, and that after they had been working there for about a week Boyer said lie did not have money to pay them and proposed that they trade for the cow, that they did so, and the defendant paid him (Wilson) for his part. The defendant, in his statement at the trial, said that he bought the cow from Boyer because it was the only way he could get paid for the work he had been doing for Boyer; that he sawed the cow’s horns off because "his sister told him that the cow was about to kill her cows and he would have to do something with her; that in sawing off the horns the saw cut the cow’s ear and he finished the cutting. He denied that he had said anything to Lingold about whisky in connection with the trading for the cow.
   Bloodwobtii, J.

The offense charged in the indictment being simple larceny, and the guilt of the accused being wholly dependent upon the inference arising from possession of the cow alleged to have been stolen, and this possession being shown by uneontradieted and unimpeached testimony to be consistent with his innocence of the offense charged, the conviction of the accused was unauthorized. Peeples v. State, 5 Ga. App. 706 (53 S. E. 719); Hampton v. State, 6 Ga. App. 778 (65 S. E. 816); Gibbs v. State, 8 Ga. App. 107 (68 S. E. 472); Brooks v. State, 21 Ga. App. 661 (94 S. E. 810); Williams v. State, 125 Ga. 268 (54 S. E. 166).

Judgment reversed,.

Luke and Blood-worth, JJ., concur. Broyles, O. J., dissents.

Allen & Pottle° Marion E. Allen, for plaintiff in error.

Doyle Campbell, solicitor-general, A. Y. Clement, contra.


author: Broyles, C. J.

text:
    15305.
    Washington et al. v. The State.
    Decided January 15, 1925.
    Conviction as accessory after the fact of murder; from city court of Newnan—Judge Post. December 28, 1923.

      J. 8. Eall, A. 8. Camp, George G. Finch, for plaintiff in error.
    IF. L. Stallings, solicitor, contra.
   Broyles, C. J.

1. Under the decision of the majority of the Justices of the Supreme Court in this ease, rendered December 19, 1924 (159 Ga. 416, 125 S. E. 836), the former judgment of this court (32 Ga. App. 72, 122 S. E. 629), dismissing the writ of error, is vacated, and the motion of the State to dismiss the bill of exceptions is denied.

2. The venue of the offense was sufficiently proved.

3. In the light of the charge of the court and the facts of the case, the refusal to give the requested charge was not error.

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

Judgment affirmed.

Luhe a/nd Bloockoortli, JJ., concur.


text:
    15979.
    Estroff v. Gillis.
    Decided January 15, 1925.
    Complaint; from city court oí Soperton—Judge O. J. Franklin presiding. September 15, 1924.

      E. J. Giles, Sajfold & Sharpe, for plaintiff: in error.

      Dallam R. Jacicson, N. L. Gillis, George B. Davis, contra.
   Broyles, C. J.

Under all the particular facts of the case, and the rulings of this court when it was here before (31 Ga. App. 501, 121 S. E. 339), it can not be held as a matter of law that the trial judge abused his discretion in granting a new trial, although it was the second grant thereof to the same party, and the motion for a new trial was based upon the usual general grounds only; the first new trial being granted because of an erroneous charge by the court.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    15983.
    Pitts, administrator, v. Eppinger, administrator.
    Decided January 15, 1925.
   Broyles, C. J.

An affidavit in forma pauperis, made for. the purpose of entering an appeal from a decision of the court of ordinary, is fatally defective if it states that the appellant is unable to pay the costs and give the security required by law in cases of appeal. Civil Code (1910), § 5010; Abernathy v. Mitchell, 113 Ga. 127 (2) (39 S. E. 930); Ball v. Mapp, 114 Ga. 349 (1) (2) (40 S. E. 272).

(a) While such an affidavit is amendable if proper showing be made that the word “and” was used by accident and mistake for the word “or,” yet where the appellant’s counsel merely orally stated to the court that he intended to write the word “or” instead of the word “and,” and that the use of the word “and” was “by a mistake and an error of the hand, and not because he did not know the law,” and requested permission to amend the affidavit, but where no amendment was prepared or tendered to the court, and no request made for time to prepare the amendment, the court did not err in dismissing the appeal, on the motion of the appellee. This is true although the court informed counsel for the appellant that the affidavit was not amendable. The proposed amendment was never filed-in the office of the clerk of the trial court, nor brought up in the bill of exceptions, nor attached thereto as an exhibit. Under these facts this court can not consider the assignment of error in the bill of exceptions upon “the refusal of the court to allow the said amendment.” See, in this connection, Simmons v. Freeman, 146 Ga. 118 (2) (90 S. E. 965).

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

Appeal; from Pike superior court—Judge Searcy. September 13, 1924.

J. A. Drewry, for plaintiff.

E. F. Dupree, B. 0. Johnson Jr., for defendant.


text:
    15986.
    Emory v. The State.
    Decided January 15, 1925.
    Conviction of manufacture of liquor; from Coweta superior court —Judge Poop. October 9, 1924.

      T. G. Farmer Jr., for plaintiff in error.
    IF. 7. Atkinson, solicitor-general, contra.
   Broyles, C. J.

1. The failure of the judge to instruct the jury upon the law of confessions is not error, where there was no written request for such instructions. Patterson v. State, 124 Ga. 408 (2), 410 (52 S. E. 534), and citations.

2. The verdict was demanded by the evidence.

Judgment affirmed.

Lulce and Bloodworth, JJ., concur.


text:
    15989.
    Lewis v. Theodoro.
   Broyles, C. J.

1. The respondent in contempt proceedings is not entitled to a trial by jury except where a jury trial is expressly provided for by statute, and the trial court in the instant case did not err in refusing to submit the issues of fact to a jury. Civil Code (1910), § 4643; Kingsbery v. Ryan, 92 Ga. 108 (17 S. E. 689); Lee v. Lee, 97 Ga. 736 (25 S. E. 174); Briesnick v. Briesnick, 100 Ga. 57 (3) (28 S. E. 154); Davis v. Davis, 138 Ga. 8 (74 S. E. 830).

2. The right to be heard is a substantial one, even in a contempt proceeding, and where, as in the instant case, the trial court strikes the sworn answer of the respondent, and refuses to hear any evidence offered by him in an effort to purge himself, but finds him guilty and orders that he be imprisoned, it is a gross abuse of discretion and erroneous. See Wheeler v. Thomas, 57 Ga. 161 (3).

3. Where, in a trover suit to recover a diamond ring, the defendant turns over the ring to his attorney for the purpose of securing a condemnation-money bond, and where the plaintiff elects to recover the ring itself, and the trial court finds for the plaintiff and orders that the ring be turned over to him, and where, subsequently, in a contempt proceeding, the defendant pleads his inability to comply with the order of the court on account of the death of his attorney to whom he had delivered the ring for the purpose above indicated, it is error for the court to adjudge him in contempt, it appearing that the defendant had not violated any order of the court directing him not to dispose of the ring, and that the condemnation-money' bond was amply sufficient to cover any damages that might result to the plaintiff.

Decided January 15, 1925.

Contempt; from city court of Athens—Judge Bradwell. September 27, 1924.

Carlisle Coll, for plaintiff in error.

T. J. Shackelford, W. K. Meadoio, contra.

Judgment reversed.

Luke and Bloodworth, JJ., eoneur.


text:
    15992.
    Pelham et al. v. Rawleigh Company.
    Decided January 15, 1925.
    Complaint; from city court of Cairo—Judge Rigsby. October 17, 1924.

      Hill & McElvey, S. P. Cain, for plaintiffs in error.

      M. L. Ledford,, contra.
   Broyles, C. J.

1. It is well-settled law that the principal debtor and a guarantor can not be sued as codefendants in the same action. Etheridge v. Rawleigh Co., 29 Ga. App. 698 (1) (116 S. E. 903), and authorities cited.

2. Under the ruling in Etheridge v. Rawleigh Co., supra, and Rawleigh Co. v. Salter, 31 Ga. App. 329, the contract in the instant case (on which the alleged sureties were sued in the same action which was brought against the principal debtor) was one of guaranty, and, the principal debtor and the guarantors having been joined as codefendants in the same suit, the trial judge erred in overruling the general demurrer to the petition, as such a demurrer is equivalent to a motion to dismiss the petition.

(a) The petition was defective in substance,, and was subject to the general demurrer interposed, although the demurrer did not specifically point out the defect but merely alleged that “plaintiff’s petition fails to set forth any cause of action in its favor and against either or all of the defendants.” See Martin v. Bartow Iron Works, 35 Ga. 319 (1), 323.

Judgment reversed.

Luke and Bloodworth, JJ., eoneur.


text:
    15994.
    Knight v. The State.
    Decided January 15, 1925.
    Rehearing denied February 11, 1925.
   Broyles, C. J.

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

Judgment affirmed.

Luke and Bloodworth, JJ., eoneur.

Indictment for possession of liquor; from Clayton superior court —Judge Hutcheson. October 4, 1924.

H. A. Allen, for plaintiff in error.


text:
    15997.
    PUTMAN v. THE STATE.
    A conviction of an attempt to make whisky was not authorized by the evidence. (Broyles, C. J., dissents.)
    Decided January 15, 1925.
    Indictment for manufacture of liquor; from Murray superior court—Judge Tarver. September 27, 1924.
    Huston Putman was indicted with his sons Ed and Oscar, and was found guilty of “an attempt to manufacture whisky.” The sons pleaded guilty. From the evidence it appeared that the sons lived with the father, and that a still was operated by the sons at a place in the woods, about a quarter of a mile from where they lived. A neighbor testified: “I went up to Mr. Putman’s (the defendant’s) home and asked him to have it [the still] moved, and he said he would when he could, and I says, Tf you can’t have it moved, I can,’ and he says, T want your friendship,’ and I says, Tf you want my friendship, keep that thing out from under my door;’ that he could run it under his own as long as he wanted to and I wouldn’t bother him, and he asked for a permit until the next morning at daylight to move it, and I went over there then and it was gone, but I don’t know who moved it. . . Mr. Put-man, the defendant, said he didn’t know whose still it was. . . The boys were down there at work. . . His boys were under age. . . He said the boys was running it, that it was not him, —said he had been quarreling with them about it, but he said he would move it. . . Mr. Putman never said whether he knowed about the still or not. . . I said, ‘What do you want to stick it under me for?’ And he says, ‘Uncle Bud, it was the boys. You know I would have more sense.’ I asked the boys what they were doing when I went up to it, and they said, ‘making syrup,’ they guessed.” The defendant, in his statement at the trial, said: “I’ll tell you how it was. My boys slipped out a half a bushel of meal and got out there with a little old outfit and tried to make some whisky, and Mr, Burkes told me about it, and I went and kicked it out and destroyed it, and gave them a whipping and sent them back to the house. I did not know anything about it, only the way they were acting.”

      W. JE. & W. G. Mann, for plaintiff in error.

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

The judgment of the majority of this court is that the record contains no evidence authorizing the verdict. The writer does not concur in that judgment.

Judgment reversed.

Luke and Bloodworlh, JJ., concur. Broyles, G. J., dissents.


author: Bell, J. Bell, J.

text:
    15861.
    Bank of Emanuel v. Hall, for use, etc.
   Bell, J.

1. In a suit by a depositor against a bank, upon certificates of deposit issued by tbo bank to him or .his agent, the plaintiff made a prima facie case of liability by proof of the execution and delivery of the certificates as alleged. Atlanta Trust Co. v. Close, 115 Ga. 939 (1). Where in such case the defendant bank sought to rebut the inference of liability by the testimony of the cashier and of the assistant cashier and bookkeeper, each of whom claimed to have personal knowledge of the subject-matter of their testimony, and the testimony of one tended to show that the transactions represented by the certificates were rescinded, and that of the other that the certificates were wholly without consideration from their inception, there was such inconsistency or conflict in their evidence that the question of the credit to be given to each of them was a matter for determination by the jury. Thus, irrespective of whether the defendant’s plea was sufficient to let in the defense or defenses sought to be asserted, and of whether the testimony of each of the witnesses was otherwise of such character as to be inherently subject to discredit in the minds of the jury, it can not be held as a matter of law that the prima facie case made in the plaintiff’s favor was conclusively rebutted. See Neill v. Hill, 32 Ga. App. 381 (2) (123 S. E. 30); Redd v. Lathem, 32 Ga. App. 214 (1) (123 S. E. 175); Blackwell v. Dannenberg Co., 32 Ga. App. 307 (123 S. E. 179).

2. A transcript of the testimony taken under the authority of the superintendent of banks in some inquiry within his department, from a witness who was not introduced in the trial of the present controversy, and was not a party thereto, was not admissible in evidence under any of the provisions of the act of August 16, 1919, creating the State banking department (Ga. L. 1919, p. 135; Park’s Code Supp. 1922, § 2263 (a) et seq.), and providing among other things that reports of the superintendent of banks and certain reports of banks made to him may, for some purposes, be admissible in evidence.

3. The evidence authorized the finding for the plaintiff in the sum sued for, and for no reason urged did tlie court err in overruling the motion for a new trial.

Decided January 17, 1925.

Rehearing denied February 14, 1925.

Complaint; from Emanuel superior court—Judge Hardeman. July 14, 1924.

Application for certiorari was denied by the Supreme Court.

Price & Spivey, for plaintiff in error. J. W. Rountree, contra.

Judgment affirmed.

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

ON MOTION FOR REHEARING.

Bell, J.

The original brief filed for the plaintiff in error, after a statement of the facts, was arranged numerically in two divisions. The first division began as follows: “Considering the general grounds of the motion for new trial, plaintiff in error respectfully contends that the verdict and judgment rendered in favor of the defendant in error is contrary to the evidence and without evidence to support it, and is decidedly and strongly against the weight of evidence, and contrary to law and the principles of justice and equity.” After thus stating their contentions generally, and, as we thought, in amplification or explanation of all that was insisted upon thereunder, the counsel proceeded to argue but two propositions under the general grounds of the motion, as follows: that the prima facie case of liability made by proof of the execution and delivery by the bank of the “deposit slips” was indisputably and conclusively rebutted; and that the plaintiff, having alleged a deposit of money, failed to prove his case as laid, in that he only proved by the deposit slips that checks or drafts were deposited, without showing that they were ever paid to or collected by the bank. The second division of the brief dealt with a lone special ground of the motion for new trial, which we disposed' of in the second division of the syllabus. In the motion for rehearing it is alleged that in rendering our decision we overlooked some fourteen matters, including facts in the record and decisions and statutes. Several contentions are made in the motion for rehearing which were not mentioned in the original brief. "We decided the case upon the particular contentions to which the general statement quoted above appeared to be impliedly limited, and overlooked no fact pertinent and material to their consideration. It is immaterial that we may have referred to the instruments sued on as certificates of deposit when as a matter of fact they were only deposit tickets or slips. Whether they be called “certificates,” “tickets,” or “slips,” the evidence showed that they were duly issued by the bank as receipts for money or its equivalent deposited, and proof of their execution and delivery made a prima facie case of liability in- the plaintiffs favor. This was practically conceded in the brief of the plaintiff in error.

One of the points made in the motion for a rehearing (and not made previously) is that the plaintiff, who' was a tax-collector whose bond had been breached, failed to prove, as alleged, that the usee, for whose benefit he sued, was surety upon Ms bond and had paid the amount of his shortage to the proper county authorities. If the plaintiff proved a cause of action in his own favor, it is immaterial whether he established a right of recovery in another. As was said in Norcross Mfg. Co. v. Summerour, 114 Ga. 156 (39 S. E. 870), “Any plaintiff may, at his option, provided so doing does not prejudice any defense which the defendant may have had, declare his intention to recover for the benefit of any other person [citing cases]. But irrespective of the right of such third person after recovery, to enforce such declaration of intention, it is certainly a matter about which ordinarily a defendant will not be allowed to complain. The liability of the defendant to the person for whose benefit the recovery is sought is not in any way involved in an action of the nature of the one instituted in the present case. It is a matter of no concern to the defendant what becomes of the money which he owes the plaintiff after it is recovered. As to him the words, for use of, etc., are generally mere surplusage.” .

A further point made for the first time in the motion for a rehearing is, that the plaintiff failed to prove the allegations of the petition to the effect that he had regularly filed his claim with the liquidating agent of the bank, and that the claim had been denied by the State superintendent of banks and notice of such denial given to the plaintiff, and that he brought- his suit within ninety days thereafter. It is alleged that we overlooked such failure of proof, as well as section 15 of article 7 of the act of August 16, 1919, to the effect that any suit upon a claim rejected by the superintendent of banks must t>e brought within ninety days after service of notice of such rejection. The allegations referred to are contained in paragraph 8 of the petition, in which it is averred that the claim, after being regularly presented, was rejected by the superintendent of banks on July 19, 1923, and that the plaintiff’s attorney acknowledges service of the notice of such denial. The suit was filed on September 13, 1923. The answer admitted the allegations of paragraph 8 of the petition. Proof of such allegation having been dispensed with by the admission in the answer, the ground of the motion now considered is obviously without merit.

The petition alleged that the defendant bank was in charge of a liquidating agent for the State banking department, and that the deposits represented State and county tax funds, and prayed that the claim be established and have priority of payment under subdivisions 1 and 2 of section 19 of article 7 of the act referred to. The verdict found for the plaintiff a stated sum of money,—the amount sued for,—but contained no specific reference to priority. The judgment, however, did order priority of payment as prayed for. There was no express contention in the brief of the plaintiff in error that the alleged deposits did not represent State and county tax funds. Nothing was said in dispute of the right of priority if the plaintiff was entitled to recover, but the attack upon the verdict under the general grounds was that the plaintiff was not entitled to recover at all. The point is made in the motion for rehearing, however, that' the evidence failed to show that the deposits represented State and county taxes, even if otherwise made as alleged. It is not yet insisted that if the deposits were made from State and county tax funds, the plaintiff would not be entitled to the priority of payment prayed for. Thus, relatively to the matter of priority, the only question presented, even in the motion for rehearing, is, whether the evidence authorized the inference that the deposits were made from such funds. It is urged in the motion that the deposit slips issued to “Joe B. Hall, T. C.,” were presumptively for deposits made by Joe B. Hall personally and individually. This is perhaps correct, but the plaintiff testified: “The account of 'Joe B. Hall, T. C.,’ was the tax-collector account. The State and county funds were deposited in that account. I did not have any individual funds in" that account.” While the plaintiff tax-collector did not claim to have personal knowledge of the particular deposits, or alleged deposits, involved in the present controversy, the evidence showed that the account in the name and style stated was carried by the bank as the official account of Hall as tax-collector. With respect to the deposit slips in question, the cashier testified: “I have seen them before. I issued them myself and-delivered them to L. S. Proctor. L. S. Proctor was at that time representing the tax-collector, and L. S. Proctor made the deposit in that account.” In these circumstances it seems'that the burden of evidence was shifted to the bank to show'that the deposits did not represent State and county taxes. The evidence as a whole authorized the inference that they did. As stated in the first division of the syllabus, the credibility of the witnesses therein referred to was, under the circumstances, a matter to be determined by the jury.

Whether under the pleadings the plaintiff would have been entitled to priority, or whether the verdict should be construed as having included a finding in favor of such priority, are questions upon which no decision has been invoked, and none is made. There is no contention that the judgment did not follow the verdict, and such contention could not have been made under the general grounds of the motion for new trial. Whether the plaintiff in error should be considered as having previously waived a number of the contentions made in the motion for rehearing, we think none of them require a withdrawal of our original decision.

Rehearing denied.

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


author: Broyles, O. J.

text:
    16000.
    Irby v. Allen & Company.
    Decided January 15, 1925.
    Rehearing denied February 11, 1925.
    Action for damages; from city court of Atlanta—Judge Eeid. June 11, 1924.
    Certiorari was granted by the Supreme Court.
    An action for false imprisonment was brought by Miss Elsie M. Irby .against. J. P. Allen & Company, a corporation conducting a department store in the city of Atlanta. From the record it appears that Mrs. W. E. Irby was charged with having passed a worthless check at the store of the defendant company; that Y. D. Young swore out a warrant charging Mrs. W. E. Irby with cheating and swindling, and obtained from the Governor of Georgia a requisition upon the Governor of Maryland for her arrest, naming S. H. Gresham as agent to bring her to Georgia for trial; that Miss Elsie M. Irby was arrested in Baltimore as Mrs. W. E. Irby, and turned over to Gresham, under this requisition, and brought by him to Atlanta, and was there imprisoned in jail until she was tried upon the charge and found not guilty. The plaintiffs petition alleged that Young and Gresham were agents of J. P. Allen & Company, and that’ all their acts in this matter were authorized by, and done with the consent and approval of, J. P. Allen & Company. From the evidence introduced by the plaintiff it appeared that Young and Gresham were employees of the Eetail Merchants Association of Atlanta, of which the defendant company was a member and to which it paid dues, and which rendered service to the defendant company and other merchants in the collection of. bad checks and in protecting them from thieves, shoplifters, etc. J. P. Allen, general manager of the defendant company, was introduced as a witness for the plaintiff, and in his testimony said that his company had no control over the acts of Young or of Gresham; that no other person than himself had authority from his company to have anybody arrested,.and that he had nothing to do-with the issuance of the warrant or the arrest, and never gave instructions to Young or to Gresham about anything in connection with the store of the defendant company. He testified: “When Mr. Young came to me the latter part of June, 1921, he told me that they arrested a Mrs. W. E. Irby, who gave us this check, in Eichmond, Virginia, and that they had gotten out a warrant for her; that he had gotten requisition papers from the Governor for Mrs. W. E. Irby. He told me the warrant and requisition papers had been issued for Mrs. W. E. Irby, and he asked me to put up the money to bring her back. He did not ask me to put up any money to bring Elsie M. Irby here; he asked me to put up the money to bring back Mrs. W. E. Irby, and I agreed to put up the money for the purpose of bringing this woman, Mrs. W. E. Irby, back. . . I paid the money to bring Mrs. W. E. Irby back. I did not know when she got back. I did not know who went after her. I did not have any further conversation with Mr. Young about this matter until after the trial. . . I did not know what was done with her when she was brought back. I did not know, and no one told me, that the girl that was brought back claimed that she was not Mrs. W. E. Irby, until after the trial. . . The thing was entirely in Mr. Young’s hands; I had nothing to do with it. I did not attend the trial, the grand jury, or anything else.” The witness testified that he had only one conversation with Young about the matter, and that was when he told Young that he would give the money to bring Mrs. W. E. Irby back; he did nothing except put up the money to bring Mrs. W. E. Irby back, and gave no instructions about it. Questions were put to the witness and answered as follows: “You just turned it over to him?” “Yes.” “And let him use his own discretion, judgment, to handle it for J. P. Allen & Company?” “Yes, he was not handling it for me.” . . “You just left that for Young?” “I left it for the association, Mr. Fitzgerald [general manager of the Retail Merchants Association], and Mr. Young, and all those people handling those kind of matters, and they'did not need to consult me about it.”
   Broyles, O. J.

Under tlie facts of the case the court did not err in awarding a nonsuit. See, in this connection, Isaac Silver & Brothers Co. v. Humphries, 29 Ga. App. 524 (1) (116 S. E. 54).

Judgment affirmed.

Luke and Bloodioorth, JJ., concur.

J. V. Poole, for plaintiff.

Dorsey, Brewster, Howell & Hey man, Mark Bolding, for defendant.


text:
    16004.
    YELLOW CAB COMPANY OF ATLANTA v. CARMICHAEL.
    A cause of action against the cab company for damages on account of injuries inflicted by others upon the plaintiff, a passenger, was stated in his petition, from which it appeared that through a named person he made a contract with the defendant, through its agent and servant, the driver of art automobile cab, to transport him safely to certain railroad-shops by turning in at a designated entrance; that the driver was warned that if he did not turn in at that entrance, but continued driving on the highway past the entrance, the probability was that his passengers would be attacked and injured by a band of strikers; that when the cab arrived at the point on the highway where it was neees■sary to turn off in order to arrive at the designated entrance, the driver was so informed and was told to turn in, but knowingly and wilfully refused to do so, and drove on past the entrance at a high rate of speed until he came in contact with the strikers, who forced the plaintiff to' disembark from the cab, and after they had carried him 'two miles up the highway, inflicted the injuries in question. The demurrer was properly overruled.
    Decided January 15, 1925.

      . Damages; from city court of Atlanta—Judge Eeid. October 1, 1934.
    This is a suit to recover damages for alleged personal injuries. A demurrer to the petition was overruled, and the defendant excepted. The petition alleges:
    “1. That Yellow Cab Company of Atlanta is a corporation doing business in City of Atlanta, said State and county; that such company owns, operates and runs for hire certain automobile cabs with drivers for the convenience of passengers arriving Atlanta from distant points; that the cab company is a common carrier of passengers and has an office and agent in the county of Fulton upon whom process may be served.
    “3. That plaintiff arrived at the Terminal Station in Atlanta, Georgia, on or about July 17, 1933, in company with three other men, for the purpose of accepting work for Seaboard Air-Line Eailroad Company, as machinists, at its shops out near Atlanta water-works; that he was in, charge of one Eogers; his employment was to be that of machinist at said shops.
    “3. That on said date there was a strike, or lockout, among the regular mechanics at said railroad-shops; that said Eogers, upon arrival in Atlanta, and before engaging transportation from the depot to the shops, a distance of six miles, talked to, explained and gave explicit instructions and directions to an agent and cabdriver of the Yellow Cab Company, at the Terminal Station, Atlanta, which directions and instructions said driver, whose name is unknown to petitioner, said he -understood and agreed upon, and thereupon was employed and engaged to make the trip; that it was the purpose of Eogers and those in charge to drive out to said shops, and to begin work as machinists for said railroad, and, when reaching the described point, for the driver of the cab company to turn in (which was detailed in the contract of employment) from the highways onto the property of the railroad company, there being no strikers at said point, which at that time was protected' both by an injunction from the United States district court and armed guards, and that said Eogers did not want to drive past said entrance, because there were banks [bands ?] of strikers further up the road who would’do violence to them if said Eogers and the men with them were brought into contact with said strikers.
    “4. That all of these facts were explained to said driver, and he was then asked if he could carry Eogers and his men, including petitioner, safely to the entrance heretofore mentioned; that said driver for and on account of the cab company, there being no other agent of the cab company present, stated and agreed to transport said men from the depot safely to the shops, and agreed to turn in at the entrance designated and agreed upon.

      “5. Thereupon the price for carriage was asked, and the driver informed said Eogers that the register would mark the amount of fare at the end of the trip; that Eogers and petitioner, in company with the other men, boarded the cab and were transported towards the shops.
    “6. That just before reaching the entrance agreed upon, said Eogers spoke to the driver and informed him where to turn oif the highway; that when the entrance was reached the driver was told to Turn in’ at said point, but he refused to so turn the cab off the highway, and kept same going up the road at a fast rate of speed ; that in so traveling the cab approached and reached the second, or main, entrance of the shops, and said driver was again told to turn into the shop property and oif the main highway; that said driver refused and failed to do as directed, and kept the machine, which was a closed cab, going up the road, past the shops, in the direction of the high bridge, 250 yards beyond the second entrance, where the cab was slowed down and boarded by four "or five strikers, or their sympathizers; the cab then stopped, and the occupants, or passengers, ordered to disembark from the cab to the ground.

      “7. That immediately the passengers alighted from the cab, the strikers, by mob violence, threatened the lives of .petitioner and those that had ridden out to the shops in the jrellow cab; that petitioner was forced to enter an automobile awaiting alongside; that just after, he, with the other occupants of the cab, entered the waiting automobile, and were hastily driven two miles up the road; that the car was then stopped and petitioner ordered out of the car; that when he got upon the ground one of the mob struck him a severe blow over the face with a stick that broke the bridge of his nose and knocked him to the ground in an unconscious condition; that thereafter he does not know what was done with him until the next morning he came to, while lying in a deep ditch alongside the highway, close to where he had been first struck.
    “8. That he then discovered he had a broken leg and could not walk; that within a little while some stranger came along on the way to Atlanta, picked him up and carried him to a hospital.”
    (The 9th, 10th, and 14th paragraphs of the petition set forth in detail the alleged injuries sued for.)
    “11. It is alleged that defendant’s agent, at the time he accepted the employment to transfer petitioner and others to said shops, knew the conditions surrounding the passage to same; knew that if the strikers came into contact with his passengers, who were intended machinists for said railroad, that the strikers would attempt to beat and otherwise injure his passengers; that he knew this when he contracted with Rogers for the safe passage; that he, the cab-driver, also knew that if he did not follow, but refused to follow, the directions given him as to where to turn in off the highway onto the property of the railroad company, and that if he would drive past the entrance, as he did, that he would run into the strikers camped above said shops and thus cause the passengers in his car to come into contact with the strikers and be injured.
    “12. That said driver was a sympathizer of the strikers, and, as the agent and driver of defendant’s cab, he being the only agent of defendant on the spot, at the time of employment with whom Rogers could and did contract, and said defendant and its agent received the benefit of the contract of carriage^ to wit, the fare paid said cab company; and defendant’s servant, while acting within his scope of authority as servant, and agent for said cab company, contracted for said passage to a designated point, and defendant and its agent negligently failed and refused to deliver Rogers, petitioner, and others to the point contracted for delivery, and negligently, by its conduct, in failing and in refusing to follow directions and in carrying petitioner beyond his destination, knowingly placed and carried petitioner, against his will, amidst a mob of strikers at the bridge above the shops of said railroad; and it is alleged that defendant’s agent knew [they] would fall in among said strikers, and that petitioner would be hauled out of the cab and beaten and otherwise severely injured; that it was the duty of defendant and its agent, after contracting for delivery at a certain point, to deliver petitioner there and not pass the same; that such conduct on the part of defendant and its agent, acting within the scope of his authority, was aggravating circumstances in the acts and intentions; further, that same was malicious, wilful, and wanton in the extreme.
    “13. It is alleged that at the time and place of assault petitioner did nothing to cause an attack upon his person, either by expression or conduct.”
    The demurrer to the petition was on the following grounds:
    “1. That plaintiffs petition sets forth no cause of action against defendant, because: (a) It appears that the alleged act of defendant’s servant was not the proximate cause of the alleged injury to plaintiff, but, if any injury occurred to plaintiff, it was the intervening acts of third persons. (5) It appears that the consequences that flowed from the alleged act o£ defendant’s servant could not have been expected to occur naturally, (c) It appears that the alleged injury, if any, inflicted upon plaintiff, was not the reasonable and natural result of the alleged wrongful act of defendant’s servant, but the injury, if any, was caused by the intervening criminal acts, if any, of third persons which defendant had no reason to apprehend. (d) It appears that the connection between the original wrong, if any, of defendant, and the resulting injury to plaintiff was broken by intervening acts of third persons.”

      Hewlett '& Dennis, for plaintiff in error.

      0. P. Goree, George & John L. Westmoreland, C. G. Reynolds, contra.
   Broyles, C. J.

(After stating the foregoing facts.) A common carrier of passengers for hire is bound to use extraordinary care and diligence to protect them, in transit, from violence or injury by third persons; and whenever a carrier, through its agents and servants, knows, or has opportunity to know, of a threatened injury to a passenger from third persons, whether such persons are passengers or not, or when the circumstances are such that injury to a passenger from such a source might reasonably be anticipated, and proper precautions are not taken to prevent the injury, the carrier is liable for damages resulting therefrom. Brunswick & Western R. Co. v. Ponder, 117 Ga. 63 (1) (43 S. E. 430, 60 L. R. A. 713, 97 Am. St. Rep. 152); Savannah, Florida & Western Ry. Co. v. Boyle, 115 Ga. 836 (1) (42 S. E. 242, 59 L. R. A. 104); Hillman v. Georgia R. &c. Co., 126 Ga. 814 (56 S. E. 68, 8 Ann. Cas. 222); Grimsley v. Atlantic Coast Line R. Co., 1 Ga. App. 557 (1) (57 S. E. 943).

A carrier is liable in damages for injuries to a passenger caused by the wilful and wanton acts of its employees, even though the purpose of the employees was not to serve their employer by such acts. Savannah, Florida & Western Ry. Co. v. Quo, 103 Ga. 125 (1), 126 (29 S. E. 607, 40 L. R. A. 483, 68 Am. St. Rep. 85), and citations; Wolfe v. Georgia Ry. & Electric Co., 2 Ga. App. 499 (1) (58 S. E. 899).

‘‘Damages recoverable for a breach of contract are such as arise naturally and according to the usual course of things from such breach, and such as the parties contemplated, when the contract was made, as the probable result of its breach” (italics ours). .Civil Code (1910), § 4395. In the instant case it is alleged in the petition that the plaintiff, through Rogers, made an express contract with the defendant, through its agent and servant, the driver of the automobile cab, to transport him safely to the railroad-shops by turning in at a designated entrance; that said agent was notified and warned that if he did not turn in at that entrance, but continued driving on the highway past the entrance, the probability was that his passengers would be attacked and injured by a band of strikers; that when the cab arrived at the point on the highway where it was necessary to turn off in order to arrive at the des: ignated entrance, the driver was so informed by Rogers and was told to turn in, but the driver knowingly and wilfully refused to so turn in, and drove on past the entrance at a high rate of speed until he came in contact with the strikers, who inflicted the injuries upon the plaintiff sued for. Under these allegations in the petition, and the decisions cited above, the petition was not subject to the demurrer interposed. This ruling is not affected by the fact that the injuries to the plaintiff were inflicted after he had been forced by the strikers to disembark from the defendant’s cab, and after the strikers had carried him some two miles up the highway.

The decisions cited by counsel for the plaintiff in error, holding that a defendant is not liable where there intervenes, between its wrongful act and the injuries sued for, a wilful, malicious, and criminal act of a third person, do not apply in a case like this, where the defendant had reason to apprehend that its original wrongful act would probably result in its passenger being criminally assaulted by the third person.

The court properly overruled the demurrer 'interposed.

Judgment affirmed.

Luke and Bloodworlh, JJ., concur.


text:
    16006.
    Tribble v. The State.
    Decided January 15, 1925.
    Certiorari; from Fulton superior court—Judge Bell.. October 20, 1924.

      B. B. Jackson, T. L. Lanford, for plaintiff in error.

      John A. Boykin,- solicitor-general, Boy Dorsey, solicitor, contra.
   Broyles, C. J.

1. Whore a debtor who is the head of a family files a schedule of personal property which he claims to be exempt from levy and sale, under § 3416 of the Civil Code (1910), a burden or incumbrance is thereby imposed upon the property. Gresham v. Johnson, 70 Ga. 631 (1); Rutledge v. McFarland, 75 Ga. 774 (1); Crowley v. Freeman, 9 Ga. App. 1, 5 (70 S. E. 349). See also Civil Code (1910), § 3421.

{a) While the receiving and recording of such a schedule by the ordinary is a ministerial act, yet where the claim of exemption was filed in accordance with the statute, it will be presumed, until otherwise shown, that the homestead thus set apart is a valid one.

2. In a prosecution for cheating and swindling, where the accusation charged that the accused defrauded named persons out of a certain sum of money which they lent to him on his representations that specified personal property belonged to him and was free from any lien or incumbrance (the accused also executing to them a bill of sale for the property), and where the State shows that the money was lent to the accused upon such representations, and that the representation that the property was free from any lien or incumbrance was false, and was known to be so by the accused when he made it, it is not incumbent upon the State to prove how, or to what extent, the lenders of the money were damaged thereby. The incumbrance upon the property is in itself proof of damage. French v. State, 4 Ga. App. 462 (61 S. E. 836).

3. The petition for certiorari fails to disclose any material error upon the trial of the case, and the judge of the superior court did not err in overruling the certiorari.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    16021.
    Beavers v. The State.
   Broyles, C. J.

1. In the light of the entire charge of the court and the 'facts of .the case, the two excerpts from the charge, complained of in the motion for a new trial, show no reversible error..

2.' Under the repeated rulings of the Supreme Court and of this court, each special ground of a motion for a new trial must bo complete and understandable within itself; and when so incomplete as to require a reference to the brief of the evidence, or to some other portion of the record, in order to determine either what was the alleged error or whether the error was material, the ground will not be considered by the reviewing court. Franklin v. State, 28 Ga. App. 460 (1 b, c) (112 S. E. 170), and citations. Under this ruling, where a ground of a motion for a new trial complains of the failure of the judge to charge certain principles of law (which the ground alleges should have been charged under the evidence adduced upon the trial), but where no evidence whatsoever is set forth in the ground, the ground is not complete and understandable within itself, and this court will not search through the brief of the evidence to discover whether there was any evidence requiring such instructions. This ruling disposes of grounds 2 and 3 of the amendment to the motion for a new trial.

Decided January 15, 1925.

Conviction of manslaughter; from Coweta superior court—Judge Eoop. October 15, 1924.

Terrell & Terrell, Post & Arnold, and Hall & Jones, for plaintiff'in error.

W. Y. Ailcinson, solicitor-general, W. L. Stallings, T. O. Parmer Jr., contra.

(a) However, these grounds, considered upon their merits, do not require a reversal of the judgment below. The grounds complained respectively of the failure of the judge to charge, without any request, the law of an assault with intent to murder, and the law of an assault and battery. The accused was tried for murder and was convicted of involuntary manslaughter in-the commission of an unlawful act. The evidence amply authorized his conviction of the crime charged in the indictment, and likewise authorized the verdict returned. “Where a charge of an offense of graver character includes . . a minor offense, it is the duty of the trial judge to instruct the jury upon the law applicable to the lesser offense, where the evidence, under any view thereof, will authorize a conviction of the lesser offense. Where, however, the evidence, if credible, proves the complete offense as charged in the indictment, the failure of the judge, without appropriate request, to instruct the jury upon the law applicable to the lesser offense is not cause for new trial, though the jury would have been authorized to convict of the lesser offense in view of the defendant’s statement.” Moore v. State, 151 Ga. 648 (5) (108 S. E. 47). '

3. The defendant had a fair trial, under a full and fair charge of the court; the evidence amply authorized his conviction of murder; a lenient jury returned a verdict for a much less serious offense, and the accused should be satisfied.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    16038.
    Fuller v. The State.
    Decided January 15, 1925.
    Accusation of misdemeanor; from city court of Baxley—Judge Speer. October 6, 1924:.

    The accusation charged Fuller with having, using, and operating an automobile, “being motor-vehicle,” on a described public road “without having said car and motor equipped with two front lamp lights, throwing lights in a reasonable distance in the direction hi which the vehicle was proceeding, and without having such lamps and lights burning while such vehicle was in operation upon said highway during the period from one hour after sunset and before one hour before sunrise, contrary to the laws,” etc.
    On the trial it was testified that on the public road described in the accusation the defendant, after dark and more than an hour after sunset,—between eight and nine o’clock at night,—-was driving a motor-vehicle—an automobile—which “had no lights on it— that is, the lights or lamps were not lighted;” “the car was not lighted;” “it did not have any lights burning.”
   Broyles, O. J.

1. The overruling of the demurrer to the accusation was not error.

2. A ground of the amendment to the motion for a new trial complains of the admission, over the defendant’s objections, of the following testimony: “It was being run over the public roads that go to Lane’s bridge when he first saw them, but when we chased them they turned, and he drove over the public road that leads from Veal’s still to Baxley.” This ground does not disclose what sort of vehicle was being run over the public roads, or who was driving it. The ground therefore is not complete and understandable within itself, and, under repeated rulings of the Supreme Court and of this court, can not be considered.

3. Under the facts of the case the court did not err in charging, in substance, that, the act of 1921 (Ga. L. 1921, p. 256, sec. 1; Park’s Code Supp., vol. 8, § 828 (ec) ), it is a criminal offense for a person to operate a motor-vehicle on a public highway of this State during the period between one hour after sunset and one hour before sunrise without having any lights burning on the vehicle, whether or not the vehicle was equipped with such lamps as is required by the statute.

4. Upon the trial the evidence amply authorized the jury to find that the accused was operating a motor-vehicle upon a highway of this State during the period of time charged, and that no lights were burning upon the vehicle. There was no evidence that the vehicle was not properly equipped with lamps, and the presumption is that the jury disregarded this charge in the accusation, and that their verdict was founded upon the charge which was sustained by the evidence. See, in this connection, Hayes v. State, 11 Ga. App. 380 (5) (75 S. E. 523). The verdict was authorized by the evidence.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

The defendant, in his statement at the trial, said: “The car had lights and they were lighted; they were not good; they would sometimes go out and would not burn all the time. They were short-circuited, and I could not keep them burning good. Sometimes I would run a considerable distance without them burning at all, and then they would catch up and burn again.” Witnesses for the defendant testified to the same effect.

J. B. Moore, for plaintiff in error.

Wade H. Watson, solicitor, contra.


text:
    16041.
    Tucker v. The State.
    Decided January 15, 1925.
    Conviction of assault with intent to rape; from Wilkes superior court—Judge Shurley. October 10, 1924.

      Hugh E. Combs, for plaintiff in error.

      M. L. Felts, solicitor-general, contra.
   Broyles, C. J.

Tlie amendment to tlie motion for a new trial was dis approved by tlie court; the verdict was amply authorized by the evidence, and tlie refusal to grant a new trial was not error.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


author: Jenkins, P. J.

text:
    15072.
    Order of Railway Conductors of America v. Clark.
   Jenkins, P. J.

1. Under tlie answers of the Supreme Court to controlling questions in this case, certified to it by this court, the trial judge properly overruled the amended demurrers to the petition. Order of Railway Conductors v. Clark, 159 Ga. 390 (125 S. E. 841).

2. The grounds of special demurrer which are not determined under the answers of the Supreme Court, and which complain of the failure to set forth the rules, regulations, and by-laws of the defendant order, the proceedings expelling the plaintiff therefrom, and his objections to the same, are without merit. The petition being for the recovery of moneys paid in obtaining and continuing a certificate in the nature of a contract of life-insurance, on account of the alleged repudiation of the contract, a copy of which is attached to the petition, it does not appear from the pleadings as made that the additional data sought is vital to the plaintiff’s ease, or is such information as the defendant should have and does' not already possess in order to make proper defense.

Decided January 17, 1925.

Breach of contract; from city court of Amerieus—Judge Greer presiding. September 11, 1923.

Wallis & Fori, for plaintiff in error.

J. A. Exxon, contra.

Judgment affirmed.

Stephens and Bell, JJ., concur.


author: Stephens, J.

text:
    15326.
    Estroff v. Kaplin.
    Decided January 17, 1925.
    Affidavit of .illegality of execution; from Toombs superior court —Judge Hardeman. November 27, 1923.

      A. 0. Saffold, for plaintiff in error.

      D. G. Patiillo, contra.
   Stephens, J.

A process beginning “State of Georgia, Toombs and Treutlen counties: To the sheriff of said county—Greetings:” contains a direction to the sheriff of Treutlen county, Georgia; and where such process is regularly issued and is attached to a second original of a suit brought in the superior court of Toombs county, Georgia, service of the petition and process may legally be perfected in'Treutlen county by the sheriff of that county. See, in' this connection, Civil Code (1910), § 5567. The affidavit of illegality was properly dismissed.

Judgment affirmed.

Jenkins, B. J., and Bell, J., concur.


text:
    15334.
    Sommer v. New York Mill End Pants Co.
   Stephens, J.

1. Tile assets of a dissolved corporation are primarily liable for the payment of its debts, before distribution among the stockholders. Civil Code (1910), § 2245; Beck v. Henderson, 76 Ga. 360. A stockholder acquiring assets of a corporation as his share of the corporate property upon dissolution acquires no title thereto which can be asserted by .him against a levy thereon based upon a judgment after-wards obtained by a creditor of the corporation.

2. Where a judgment against a corporation was levied upon property formerly belonging to the corporate assets, and the evidence authorized the inference that the person filing a claim thereto was a member of the corporation and had acquired the’ property without purchase from the corporation, but as his share of the corporate assets upon dissolution, a judgment finding the property subject to the levy was authorized. . . .

3. The only assignment of error appearing in the bill of exceptions being an exception to an order" overruling a motion for a new trial, and it not appearing from tlie record what grounds were urged in tlie motion for a new trial, and the motion for a new trial not being specified in the bill of exceptions as a material part of the record, no question is presented to this court for determination. Holcomb v. Finch, 25 Ga. App. 261 (103 S. E. 240). Since, however, it appears from the record that the verdict and judgment are supported by the evidence, this court will affirm the judgment on the record as here presented, rather than dismiss the writ of error. •

Decided January 17, 1925.

Claim; from Pulaski superior court—Judge Graham. December 10, 1923.

Lawson & Ware, for plaintiff in error.

W. A. Moore, contra.

Judgment affirmed.

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