author: Bloodworth, J.

text:
    16309.
    Barrett v. Georgia National Bank.
    Decided June 9, 1925.
    Complaint; from city court of Athens—Judge Bradwell. January 7, 1925.

      Shackelford & Shackelford, for plaintiff in error.

      Erwin, Erwin & Nix, contra.
   Bloodworth, J.

1. The judge did not err in his rulings on the demurrers, nor in striking all the pleas of the defendant.

2. A judgment was properly awarded to the plaintiff for the principal, interest, and attorney’s fees on the note upon which suit was brought.

3. Not being fully convinced that this case was brought to this court for delay only, the request by defendant in error that damages be awarded as provided by section 6213 of the Civil Code of 1910 is denied.

Judgment affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    16313.
    Blakely Milling & Trading Co. v. Thompson.
   Bloodworth, J.

1. An attachment was levied upon certain personal property; the defendant gave bond as provided by § 5113 of the Civil Code of 1910; the officer who took the bond returned it to court; the plaintiff filed his-declaration in attachment; and the defendant filed a traverse to the affidavit in relation to the ground upon which the attachment issued.

(а) A traverse of the plaintiff’s affidavit should not delay judgment on the declaration in attachment. Civil Code (1910), § 5107. The defendant was entitled to a hearing on his traverse, because both the cost and the lien of the attachment were involved. Parker v. Brady, 56 Ga. 373, 375. When an issue on a traverse is found in favor of the defendant, all he gains is that the levy falls, and if a judgment is obtained on the merits it does not date from the time of the levy as provided by § 5124 of the Civil Code of 1910, but it “would take lien on the property attached as well as on other property, from the date of the judgment only.” (Italics ours.) Parker v. Brady, supra.

(б) Under section 5121 of the Civil Code of 1910, when a replevy bond is given in an attachment case “the judgment rendered against . . [the defendant] in such case shall bind all his property and shall have the same force and effect as when there has been personal service.” “The giving of a replevy bond by the defendant in attachment converted the suit from an. action in rem to an action in personam, and as completely authorized the rendition of a- common law judgment against the defendant in attachment as if the action had been begun in the usual form, followed by personal service.” Philip Carey Co. v. Sheppard, 19 Ga. App. 368 (91 S. E. 444). See Civil Code (1910), § 5113; Cincinnati Ry. Co. v. Pless, 3 Ga. App. 400 (1), 463 (60 S. E. 8), and cases cited; Mitchell v. Perry, 145 Ga. 233 (88 S. E. 930).

Decided June 9, 1925.

Attachment; from city court of Blakely—Judge Sheffield. February 16, 1925.

(0) Where, in an attachment ease, by the giving of a replevy bond the action has been converted from a suit in rem into an action in personam, though the attachment itself may fall the suit on the declaration is still maintainable. Duke v. Automobile Supply Co., 21 Ga. App. 608 (94 S. E. 915), and citations; Cowart v. Caldwell Co., 134 Ga. 550 (68 S. E. 500, 30 L. R. A. (N. S.) 720). Even though “an attachment be absolutely void this is no ground for dismissing a declaration thereon praying for judgment in personam where the declaration has been properly filed and the defendant duly cited to appear and general appearance has been made therein.” Falligant v. Blitch, 19 Ga. App. 675 (2) (91 S. E. 1057). “The giving of a replevy bond is a judicial admission of notice equivalent in effect to an acknowledgment or waiver of personal service. Camp v. Cahn, 53 Ga. 558; DeLeon v. Heller, 77 Ga. 742.” Cincinnati Ry. Co. v. Pless, supra.

(d) “Where an attachment has been dissolved by the giving of a replevy bond, and on the trial a judgment is rendered in favor of the plaintiff for the amount of his claim, it is lawful for the plaintiff to take judgment against the surety upon the replevy bond. Civil Code (1910), § 5113; Watters v. Southern Fixture &c. Co., 13 Ga. App. 468 (79 S. E. 360).” Rutland v. Hill, 19 Ga. App. 528 (91 S. E. 922); McDonald v. Kimball Co., 144 Ga. 106 (1) (86 S. E. 234) ; Wilson v. Sims, 144 Ga. 685 (87 S. E. 890). In the brief of counsel for the defendant in error attention is called to the fact that in the opinion in Cincinnati Ry. Co. v. Pless, supra, Judge Powell said: “If the attachment is for any reason subject to dismissal, the lien acquired by the levy falls and the surety on the replevy bond is discharged.” The words “and the surety, on the replevy bond is discharged” are obiter.

2. Conceding that the judge did not err in hearing the issue on the traverse to the attachment, nor in dismissing the attachment, under the rulings in the foregoing cases it was error to hold that “the burden rested on the plaintiff to prove the truth of the ground on which the attachment issued before the plaintiff would be entitled to any judgment against the defendant and the surety on the replevy bond;” and it was error also, after a verdict had been directed against the defendant, to refuse to allow a judgment to be entered against the surety on the replevy bond.

Judgment reversed.

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

Application for certiorari was denied by the Supreme Court'.

G. L. Glessner, for plaintiff. A. H. Gray, for defendant.


author: Luke, J.

text:
    16315.
    Paine Hardware Co. et al. v. Lenox et al.

    Decided June 9, 1925.
    Appeal; from Berrien superior court—Judge Eve presiding. January 31, 1925.

      Crawford & Crawford, Hendricks & Hendricks-, for plaintiffs in error.

      Jeff 8. Story, contra.
   Luke, J.

It was illegal to set aside a year’s support for the widow and minor child in this case, since the evidence showed that the child, at the time of the death of the father, was a married woman, and that her husband was an able-bodied man, able, to support her; and this is true although she was separated from her husband. There being no legal duty on the father to support his married daughter, and the year’s support for the widow and the minor child being illegally’ set aside, a new trial should have been granted. See Goss v. Harris, 117 Ga. 345 (43 S. E. 734).

Judgment reversed.

Broyles, O. J., and Bloodioorth, J., eoneur.


text:
    16316.
    SCRUGGS v. BENNETT et al.

    Where an execution has been levied, a claim filed, and a forthcoming bond given, and the bond has been breached by failure to deliver at the time and place of sale the property levied upon, it is no defense to a suit on the bond that the property was “cumbersome,” or that on the day of sale it was tendered to the levying officer as being at the place of levy.
    Decided June 9, 1925.
    Complaint; from city court of Nashville—Judge W. R. Smith. .January 24, 1925.
    An execution was levied on a sawmill and fixtures, an automobile, several mules, and ten head of cattle, all of which were seized by the levying officer. A claim was filed, a forthcoming bond given, and the property released. The papers were returned to court and the claim was finally withdrawn. The brief of evidence shows that at the trial “it was admitted by counsel representing the plaintiff and the defendants that the property was duly and legally advertised to be sold the first Tuesday in August, 1923, before the court-house door in Nashville, Georgia, where the property was to be delivered and sold.” None of the property was delivered at the time and place of sale. Suit was brought on the forthcoming bond. On the trial there was conflicting evidence as to whether the sawmill was at the place of levy or in another county. Under the advice of counsel for the plaintiff the property was not sold. The trial of the suit on the bond resulted in a verdict in favor, of the defendants. The plaintiff filed a motion for a new trial, which was overruled, and he excepted.

      Hendriclcs & Hendriclcs, for'plaintiff.

      Jef S. Siory, for defendants.
   Bloodworth, J.

(After stating the foregoing facts.) The forthcoming bond upon which this suit was brought provided that the property levied upon should be delivered to the levying officer “at the time and place of sale.” It was undisputed that the property levied upon was worth more than the amount of the execution. At the trial the property described in the bond was not forthcoming as provided for therein. Counsel for the defendants in error insists that his clients did not breach the bond, because “property that is cumbersome, like a sawmill, can not be delivered at the place of levy,” and that “the property was at the same point on the day of sale that it was on the day of the levy, and had not been moved, and the same was tendered to the officer.” To support his contention he cites the case of Grace v. Finleyson, 10 Ga. App. 480 (2) (73 S. E. 689). As was aptly said by Judge.Powell in that case, “a tender of property can not be constituted by mere words.” The case just referred to is easily differentiated from the case now under consideration. In that case the levying officer, as provided by section 6060 of the Civil Code of 1910, advertised that on the day of sale the property would be situated at the place where it was levied on. That was not done in the present case. The ruling in that case will not be extended. In King v. Castlen, 91 Ga. 488 (2) (18 S. E. 313), it was held that “the provisions of section 3646 of the code [§ 6060 of the Civil Code of 1910], relieving levjdng officers in certain instances from removing heavy property to the court-house door, were made for the benefit of the •officers and the parties to processes levied by them, and not for the benefit of other persons who may voluntarily contract in writing by a statutory bond to deliver such property at the court-house door.” Conceding that the sawmill levied on was cumbersome, was “difficult and expensive to transport,” we are shown -that under the facts of this case the officer could not legally have sold it unless it had been brought to the court-house door. But it is not even insisted that the other property was difficult and expensive to transport, and none of the property levied upon was delivered to the officer at the time and place of sale. In an action on a bond the burden is upon the defendant to account for all the property levied upon. Young v. Waldrip, 91 Ga. 765 (18 S. E. 23); Carr v. Houston Guano and Warehouse Co., 105 Ga. 268 (31 S. E. 178) ; Wall v. Finney, 136 Ga. 114 (3) (70 S. E. 658).

As no legal reason was shown why the provision of the bond that the property should be delivered at the time and place of sale was not complied with, and as it is undisputed that none of it was there, the verdict is without evidence to support it, and the court erred in overruling the motion for a new trial.

Judgment reversed.

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


text:
    16367, 16411.
    Marshall v. Smith; and vice versa.

    Decided June 9, 1925.
    Action for damages; from Bibb superior court—Judge Malcolm D. Jones. February 5, 1925.

      J. P. Burnett, H. F. Btrohecher, for plaintiff.

      Gillon & Ghurchwell, for defendant.
   Luke, J.

Tlie evidence of the plaintiff did not sustain the material allegations of her petition, and the court properly granted a nonsuit.

Judgment on main Mil of exceptions affirmed; cross-MU dismissed.

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


author: Broyles, O. J.

text:
    16369.
    Carpenter v. The State.
   Broyles, O. J.

1. A portion of the defendant’s statement to the jury authorized the charge upon the law of voluntary manslaughter.

2. The fact that the wife of a juror in a criminal case is related to the wife of the prosecutor is no ground for a new trial.

Decided June 9, 1925.

Conviction of manslaughter; from Telfair superior court—Judge Graham. February 23, 1925.

L. G. Harrell, B. W. Cooper, W. 8. Mann, for plaintiff in error.

M. H. Boyer, solicitor-general, contra.

“The groom and bride each comes within The circle of the other’s kin; But kin and kin are still no more Related than they were before.”

Bleckley, C. J., in Central Railroad Co. v. Roberts, 91 Ga. 517 (18 S. E. 315).

3. The remaining grounds of the amendment to the motion for a new trial show no cause for a reversal of the judgment below, and the verdict was authorized by the evidence.

Judgment affirmed.

Lulce and Bloodworth, JJ., concur.


text:
    16371.
    Pruett v. The State.
    Decided June 9, 1925.
    Indictment for selling liquor; from Milton superior court— Judge Blair. March 14, 1925.

      George F. Gober, J. P. Brooke, for plaintiff in error.

      John 8. Wood, solicitor-general, contra.
   Luke, J.

Pruett was convicted of violating the prohibition law; and his ■ motion for a new trial assigns error upon the grounds (a) that his conviction was not authorized by the evidence; (&) that the venue was not proved; and- (c) upon the ground of newly discovered evidence. No ground of the motion for a new trial is meritorious.

Judgment affirmed.

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


author: Bmodworti-i, J.

text:
    16372.
    Hatchett v. The State.
   Bmodworti-i, J.

1. Under the facts as shown by the record, this court can not say that the judge who tried this case abused his discretion in refusing the continuance.

2. The indictment contained two counts, the first charging the defendant with selling, and the second with possessing, intoxicating liquor. The evidence showed all the essentials of a sale,—an identification of the thing sold^ an agreement as to the price to be paid, and consent of parties. Civil Code (1910), § 4106. The liquor was delivered to the purchasers, and the fact that it was not then and there paid for does not relieve the accused. Finch v. State, 6 Ga. App. 338 (1) (64 S. E. 1007) ; Cook v. State, 124 Ga. 653 (2), 654 (2) (53 S. E. 104) ; Lupo v. State, 118 Ga. 759 (45 S. E. 602). The evidence authorized a conviction on the first count, and the accused admitted the possession of the liquor; therefore the jury properly returned a verdict against the accused on both counts.

Decided June 9, 1925.

Selling liquor; from Pike superior court—Judge Searcy. March 14, 1935.

E. 0. Johnson Jr., for plaintiff in error.

E. M. Owen, solicitor-general, contra.

Judgment affirmed.

Broyles, 6. J., and Luke, J., concur.


text:
    16363.
    QUILLIAN & BROTHERS v. WALES ADDING MACHINE COMPANY.
    Where the authority of a special agent to sell is limited by a writing to which the purchaser is a party, the seller is not bound by any agreement between the agent and the purchaser which is not contained in the writing.
    The court did not err in directing a verdict for the plaintiff.
    Decided June 9, 1925.
    Complaint; from city court of Hall county—Judge Sloan. ' February 16, 1935.
    The Wales _Adding Machine Company brought suit against Quillian & Brothers, alleging an indebtedness of $135 and interest thereon, the balance due under a written contract for the purchase price of an adding machine. The defendants filed an answer denying the indebtedness and alleging that they had traded machines with one Ckr}', an agent of the plaintiff, trading in .their old machine at $135 and later paying $300 in cash in full payment of the purchase price of the old machine. On the trial the plaintiff introduced in evidence the original contract, showing that the consideration for the machine was $335, with provision for a discount of 3% for cash within ten days from the date of invoice. The contract further provided in part as follows: “Nothing but acceptance in writing from vendor’s home office, Wilkes-Barre, Pa., shall constitute an acceptance of this contract. . . It is agreed this order shall not be subject to countermand or rescission by vendee, and that it covers all agreements concerning this transaction of every name and nature, and no representations or agreements made by an agent or any other person, not included herein, shall be binding. . . It is expressly understood that all payments hereunder are to be made by check, draft, or money order, payable to Wales Adding Machine Company, Wilkes-Barre, Pa.” At the conclusion of the evidence the court, on motion of counsel for the plaintiff, directed a verdict for the plaintiff. The defendants excepted.

      Ed. Quillian, for plaintiff in error.

      J. M. McClure; G. F. Kelley, contra.
   Bloodworth, J.

(After stating the foregoing facts.) While the defendants alleged in their plea that Clary was the agent of the plaintiff, there is no evidence that in this transaction he was anything more than an agent to sell, a special agent. Indeed, D. T. Quillian, a member of the defendant firm, swore that “this man Clary came to us because I called the Wales Adding Machine Company and told them to send a man to fix the machine we had.” The question of the sale arose after the arrival of Clary. “Agency to sell does not necessarily carry with it agency and authority to collect.” Collins v. Crews, 3 Ga. App. 238 (1) (59 S. E. 727). It is a well-recognized principle of law that when a contract made by an agent is relied on, the authority of the agent must be shown. Not only did the law put the purchaser on notice that “in special agencies for a particular purpose, persons dealing-with the agent should examine his authority” (Civil Code of 1910, § 3595; Baldwin Fertilizer Co. v. Thompson, 106 Ga. 480 (1) (32 S. E. 591) ; Americus Oil Co. v. Gurr, 114 Ga. 624 (3) (40 S. E. 780); Southern Ry. Co. v. Grant, 136 Ga. 303 (2, 2a) (71 S. E. 422, Ann. Cas. 1912C, 472)), but the very contract which the defendants signed expressly provided that “no representations or agreements made by an agent or any other person, not included herein, shall be binding.” In Littleton v. Loan &c. Asso., 97 Ga. 172 (25 S. E. 826), the 1st headnote is as follows: “One who deals with a special agent, knowing at the time the limits within which the agent, under the terms of his appointment, has authority to bind his principal, is bound to act with reference to this knowledge, 'and can not hold the principal liable for loss occasioned by acts 'of the agent in excess of, or contrary to, the latter’s authority in the premises.” See Inman v. Crawford, 116 Ga. 63 (2) (42 S. E. 473). Should we concede that the alleged agent was authorized to collect for his principal (which we do not), he would not, without express authority to do so, be authorized to accept articles of merchandise in settlement of the account of his principal. Citing a number of cases to support the proposition, Mr. Justice Lewis, in Walton Guano Co. v. McCall, 111 Ga. 116 (36 S. E. 470), said: “As a general rule a special agent or attorney to collect a debt is not authorized to receive anything as a payment thereon except actual cash.” See Murray v. Walker, 44 Ga. 58 (1). It can not be seriously insisted that the plaintiff, by retaining the old machine, ratified the act of Clary, for'there is no evidence that the plaintiff knew that Clary had taken possession of it. It seems to us that it is clearly established by the evidence that Clary exceeded his authority in making the alleged agreement to take the old adding machine as a part payment on the new one, and that the writing signed by the defendants put them on notice that he had no such authority; and therefore the plaintiff company was not bound by his alleged agreement to take the old machine.

Judgment affirmed.

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


text:
    16373.
    Leach v. The State.
    Decided June 9, 1925.
    Conviction of manslaughter; from Pike superior court—Judge Searcy. February 28, 1925.

      B. F. Dupree, for plaintiff in error.

      B. M. Owen, solicitor-general, contra.
   Broyles, O. J.

1. It does not appear that the judge abused his discretion in overruling the grounds of the motion for a new trial based upon alleged newly discovered evidence.

2. The remaining grounds of the motion for a new trial are the usual general ones; the verdict was authorized by the evidence, and the refusal to grant the motion was not error.

Judgment affirmed.

Lulce and Bloodworfh, JJ., concur.


author: Bloodwortii, J.

text:
    16374.
    Dimond v. Shackelford.
   Bloodwortii, J.

1. The court did not err in any of the rulings relating to the pleadings, of which error is alleged in the exceptions pendente lite.

Decided June 9, 1925.

Rehearing denied July 14, 1925.

Attachment; from city court of Baiubridge—Judge Spooner. March 2, 1925.

W. I. & P. Z. Geer, for plaintiff in error.

J. Q. Hale, contra.

2. None of fclie special grounds of the motion for a new trial shows any reason why. the judgment of the trial court should be reversed.

3'. A verdict for the full amount sued for was properly directed.

Judgment affirmed.

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


author: Duke, J.

text:
    16376.
    Jackson et al. v. Smith.
    Decided June 9, 1925.
    Certiorari; from 'Fulton superior court—Judge E. D. Thomas. February 2, 1925.

      B. B. Jaclcson, for plaintiff in error.

      Billie B. Bush,, contra.
   Duke, J.

1. Under repeated rulings of the Supreme Court and of this, court a failure by counsel for the plaintiff in error to serve a copy of his brief on opposing counsel is no ground for a dismissal of the bill of exceptions. ■ .

2. Por no reason assigned did the judge of the superior court err in denying and overruling the certiorari.

3. This court not being satisfied that the writ of error was prosecuted for the purpose of delay only, the request for the award of damages against the plaintiff in error is denied.

Judgment affirmed.

Broyles, O. J., and Blood/worth, J., concur.


text:
    16377.
    LICHTENSTEIN v. THE STATE.
    'Where, under the provisions of the act approved Aug. 15, 1923, and the act amendatory thereof approved Aug. 16, 1924, which provide for the levy of a tax upon dealers in cigars and cigarettes, a person is indicted .for selling cigarettes at retail without paying the tax required by these acts, and where the evidence shows only one sale, and there is no evidence that the accused at any other time ever offered to sell at retail, or that he intended to engage in selling at retail, the evidence is not sufficient to support a conviction.
    Decided June 9, 1925.

      Violating cigarette-stamp tax law; from Fulton superior court— Judge E. D. Thomas. February 28, 1925.

      Samuel L. Bplan, Morris Macks, G. B. Tidwell, for plaintiff in error.

      John A. Boykim,, solicitor-general, B. A. Stephens, Ralph H. Phan-, contra.
   Bloodworth, J.

The defendant and Mrs. E. Lichtenstein and A. Lichtenstein were indicted for a violation of the act approved August 15, 1923, and the act amendatory thereof approved August 16, 1924, in that they “did sell at .retail one carton Chesterfield cigarettes without having attached to said carton and to the package contained therein the revenue stamp as provided by” the aforesaid acts, the payment of which tax “is required by law to be evidenced by the attachment to the carton, package and other containers the stamps herein referred to.” The indictment alleges also that “Mrs. E. Lichtenstein and A. Lichtenstein are the owners and proprietors' of the business doing business under the firm name of E. Lichtenstein & Company, and Bennie Lichtenstein being employed as clerk for said firm, and having actually made the sale.” A. Lichtenstein was convicted, a motion for a new trial was overruled, and he excepted.

Section 1 (a) of the act approved Aug. 15, 1923 (Ga. L. 1923, p. 39), is as follows: “There shall be levied upon and collected from each person, firm or corporation, engaged in selling cigarettes and cigars at retail, a tax of ten per centum of the sales price at retail of each package of cigarettes and each cigar sold by such dealer.” It will be noted that this section imposes a tax upon “each person, firm or corporation engaged in selling cigarettes and cigars at retail.” The act approved August 16, 1924 (Ga. L. 1924, p. 26, see. 1), defines a dealer at retail “to be any person, firm or corporation engaged in the business of selling such articles directly to the consumer or for any other purpose than that of resale irrespective of the quantity that may be sold.” Before .a person can be legally convicted under the indictment charging the violation of these statutes two things must be shown: (1) that the accused was engaged in the business of selling cigarettes and cigars “directly to the consumer or for any other purpose than that of resale;” (2) that he has not paid the tax as required by the act of 1923 and complied with section 1-b of said act as to the stamps named therein. The accused insists that he was not engaged in the business of selling at retail. The evidence reveals a single sale only, and it is really not necessary to look beyond the charge of the court to determine whether or not a single sale would be engaging in the business of selling at retail. The court charged the jury that “the doing of a single act pertaining to a particular business will not be considered engaging in or carrying on the business; yet a series of such acts would be so considered.” This court in Williams v. City of Tifton, 3 Ga. App. 445 (2) (60 S. E. 113), held: “Ordinarily it takes more than a single transaction to constitute the carrying on of business.” See Kimmel v. Mayor &c. of Americus, 105 Ga. 694 (2), 697 (2) (31 S. E. 623). Among the cases in other jurisdictions which support the conclusion we have reached are the following: La Norris v. State, 13 Tex. App. 43 (44 Am. Rep. 699); Keller v. State, 123 Ala. 94 (2) (26 So. 323); State v. Morehead, 42 S. C. 215 (20 S. E. 544, 26 L. R. A. 585, 46 Am. St. Rep. 719); State v. Ray, 109 N. C. 736 (14 S. E. 83, 24 L. R. A. 529); U. S. v. Feigelstock, 14 Blatch. 322. See also Words & Phrases, Vol. 1, pp. 979-81.

As only one sale was shown, and this was an unbroken carton •of cigarettes which was sold at the wholesale price, and there was no evidence that at any other time the accused offered to sell at retail, or that he intended to engage in the business of selling at retail, the evidence failed to show a violation of the law. As a new trial must result from this ruling, it is unnecessary to consider the other allegations of error.

Judgment reversed.

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


author: Broyles, C. J.

text:
    16379.
    Miller v. The State.
   Broyles, C. J.

1. There is a written motion by the State to dismiss the bill of exceptions upon the ground that “no certificate was filed in the court below upon the filing of the bill of exceptions in this case as required by rule 60 (a.), par. 6318, of. the rules of superior court.” The motion is not sworn to, and no proof (by certificate of the clerk of the trial court or otherwise) is submitted to sustain the averment in the motion. Held: Conceding (but not deciding) that a bill of exceptions should be dismissed when it is established by proof that the required certificate has not been filed, the motion in the instant case is palpably without merit and is denied.

Decided June 9, 1925.

Indictment for violating labor-contract law; from city court of Cairo—Judge Rigsby. March 7, 1925.

W. H. Duckworth, for plaintiff in error.

Jeff. A. Pope, solicitor, contra.

2. “The burden of proving that one accused of a violation of section 715 of the Penal Code did not have good cause for quitting the hirer rests upon the prosecution (Thorn v. State, 13 Ga. App. 10, 78 S. E. 853); and in the present ease this essential proof was not furnished by the hirer’s testimony that the accused ‘did not have any reason for not returning the money or picking the cotton.’ This statement was a mere opinion or conclusion, not supported by proof of sufficient facts to give it probative value. Swilley v. State, 14 Ga. App. 15 (80 S. E. 31); Mobley v. State, 31 Ga. App. 730 (79 S. E. 907).” Simmons v. State, 18 Ga. App. 65 (2) (88 S. E. 800). Under this ruling, and the facts of the instant ease, the conviction of the defendant was unauthorized, and the court erred in refusing the grant of a new trial.

Judgment reversed.

Lulce and Bloodworth, JJ., coneur.


text:
    16380.
    Tarpley v. The State.
    Decided June 9, 1925.
    Accusation of gaming; from city court of Cairo—Judge Rigsby. January 27, 1925.

      W. PL. Duckworth, for plaintiff in error.

      Jeff. A. Pope, solicitor, contra.
   Luke, J.

It appearing that the bill of exceptions was tendered more than twenty days after the judgment complained of, the writ of error must be dismissed.

Writ of error dismissed.

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


text:
    16381.
    WIMS, alias WEEMS, v. THE STATE.
    A verdict' approved by the trial judge will not be disturbed by this court because of alleged insufficiency of evidence, when supported by any ■ evidence.
    Decided June 9, 1925.
    Conviction of assault with intent to murder; from Calhoun superior court—Judge Custer. February 28, 1925.

      A. L. Miller, for plaintiff in error.

      B. C. Gardner, solicitor-general, G. E. Grow, Billie B. Bush, contra.
   Bloodworth, J.

The motion for a new trial in this case contains no special grounds. The verdict has the approval of the trial judge, and we can not say that there is no evidence to support it. Applications for new trial on the ground that the verdict is contrary to the evidence are addressed to a sound legal discretion to be exercised by the trial judge. When this discretion has been exercised and the motion for a new trial overruled, this court will not interfere, if there is any evidence which would justify the jury in reaching the conclusion set forth in the verdict. ■ This is true even in cases where the evidence might be described as weak, unsatisfactory, and doubtful. The wisdom and discretion of the trial judge is sufficient for this court to endorse his judgment in cases of this character. Terrell v. State, 29 Ga. App. 285 (114 S. E. 909).

Judgment affirmed.

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


text:
    16382.
    Foster et al. v. The State.
    Decided June 9, 1925.
    Indictment for forgery; from Fayette superior court—Judge Searcy. March 5, 1925.

      Louis A. Burton, for plaintiffs in error:

      E. M. Owen, solicitor-general, Lester G. Dickson, contra.
   Broyles, O. J.

The verdict was amply authorized by the evidence, and there is no merit in any of the grounds of the amendment to the motion for a new trial.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    16383.
    Curtis v. The State.
    Decided June 9, 1925.
   Luke, J.

The evidence amply authorized the defendant’s conviction, the conviction has the approval of the trial judge, and none of the special grounds of the motion for a new trial is meritorious. The court properly overruled the motion for a new trial.

Judgment affirmed.

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

Conviction of assault with intent to rape; from Bibb superior court—Judge Mathews. March 14, 1925.

W. O. Cooper Jr., II. B. Bell, for plaintiff in error.

Charles H. Garrett, solicitor-general, contra.


text:
    16384.
    Freeman v. Stedham.
   Bloodworth, J.

1. Section 5701 of the Civil Code of 1910 is as follows: “If the sheriff or other executing officer shall fail to make an official return which by law he should have made, such entry or return may be made nunc pro tunc, by order of the court, so as to make the proceedings conform to the facts at the time the entry should have been made.” Under this statute and the proof submitted, which showed service as to one of the defendants, the court did not err in allowing by order an entry of service nunc pro tune as to this defendant. Jones v. Bibb Brick Co., 120 Ga. 325 (48 S. E. 25).

2. Section 4130 of the Civil Code of 1910 is as follows: “Unless credit is specifically agreed on, or is the custom of the trade, the purchase money is due immediately, and the seller may demand payment upon delivering the goods.” In the present case there was no evidence as to the time the account was to be paid, nor was there any evidence of any custom regulating the matter, hence the purchase price was due when the goods were delivered. Curtis v. College Park Lumber Co., 145 Ga. 601 (3) (89 S. E. 680) ; McCarthy v. Nixon Grocery Co., 126 Ga. 762 (56 S. E. 72).

3. All actions upon open accounts shall be brought within four years after the right of action accrues. Civil Code (1910), § 4632; Curtis v. College Park Lumber Co., supra.

4. Where a tenant and his landlord were sued on an account for guano purchased from a merchant, and on the trial the merchant swore that “the tenant alone bought and contracted for the guano sued for,” and that the landlord made no contract whatever with him for the sale of the guano sued for, and where the tenant alone was served, and thereafter the suit was dismissed, and after the dismissal the statute of limitations ran against the account, a second suit would not revive it against the landlord, though brought within six months from the dismissal of the former one. As the landlord was not served in the original suit, there was, as to him, no suit pending to be dismissed. The mere filing of a petition, without service, is not sufficient to constitute a pending suit. McClendon v. Hernando Phosphate Co., 100 Ga. 219 (2), 221 (2) (28 S. E. 152); Nicholas v. British America Assurance Co., 109 Ga. 621, 623, 624 (34 S. E. 1004). On the face of the pleadings it appears that the suit as to the plaintiff in error is barred by the statute of limitations, and the court erred in overruling the demurrer to the petition, which alleged this fact. Lang v. Camp Phosphate Co., 113 Ga. 1011 (39 S. E. 474).

Decided June 9, 1925.

Complaint; from city court of Carrollton—Judge Hood. March 11, 1935.

Boylcin & Boylcin, for plaintiff in error.

Beall & Bmith, contra.

5. The error pointed out in the preceding paragraph rendered the further proceeding's nugatory, and a new trial should have been ordered.

Judgment reversed.

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


text:
    16364.
    Crawford v. Crawford.
    Decided June 9, 1925.
    Action of slander; from Dawson superior court—Judge J. B. Jones. 'January 3, 1935.

      A. G. Liles, John I. Kelley, for plaintiff.

      B. E. Baker, B. P. Gaillard Jr., for defendant.
   Broyles, C. J.

The motion for a new trial contained only the usual general grounds, the verdict was amply authorized by the evidence, and the refusal to grant the motion was not error.

Judgment affirmed.

Luke and Blood/worth, JJ., concur.


author: Bloodworth, J. Per Curiam.

text:
    16385.
    ADAMS v. THE STATE.
   Bloodworth, J.

1. While the right to a thorough and sifting cross-examination should not be abridged, yet where a person is on trial and a witness for the State uses a private memorandum book to refresh his memory, no error harmful to the accused is pointed out in the ground of the motion for a new. trial which alleges that the court “refused to allow counsel for defendant to see it (the book) or cross-examine the witness about the paper.” See, in this connection, Park’s Penal Code, § 1046; Schall v. Eisner, 58 Ga. 191 (2) ; Smith v. State, 17 Ga. App. 298 (1) (86 S. E. 660).

2. “A ground of a motion for a new trial, complaining of the court’s ruling upon the admissibility of specified testimony, which does not state the name of the witness whose testimony was admitted or excluded, is too incomplete to be considered. Hunter v. State, 148 Ga. 566 (1) (97 S. E. 523) ; Adams v. State, 22 Ga. App. 252 (1) (95 S. E. 877), and citations.” Palmer v. State, 28 Ga. App. 567 (1) (112 S. E. 154). “Grounds of a motion for a new trial should be complete within themselves; and when a particular ground is under consideration, reference to other grounds should not be required in order to understand the assignments of error. Bowen v. Smith-Hall Grocery Co., 146 Ga. 157 (4) (91 S. E. 32); Powell v. State, 25 Ga. App. 329 (3) (103 S. E. 174).” Moore v. State, 27 Ga. App. 781 (110 S. E. 55). Under the rulings in the foregoing eases, even if special ground 3 of the motion could be considered by this court, special ground 2 could not. However, neither of these grounds shows error. See, in this connection, H 68 S. E. 504).

Decided June 9, 1925.

Rehearing denied July 14, 1925.

Indictment for larceny of automobile, etc.; from Fulton superior court—Judge Humphries. March 5, 1925.

Thomas J. Lewis, for plaintiff in error.

John A. BoyTcin, solicitor-general, E. A. Stephens, Ralph H. Pharr, contra.

3. Section 1010 of the Penal Code of 1910 is as follows: “T<? warrant a conviction on circumstantial evidence, the proved facts must not only be consistent with the hypothesis of guilt, but must exclude every other reasonable hypothesis save that of the guilt of ihe accused.” In charging this section the trial judge inadvertently used the word “should” where the statute has “must,” in the last clause of the section. This slip of the tongue was not an error likely to mislead' the jury and cause them to return a verdict different from what they would have done had the judge used the exact word of the statute, and the error is not of such materiality as to require the grant of a new trial. See Griffin v. State, 24 Ga. App. 656 (1) (101 S. E. 767) ; Reynolds v. State, 23 Ga. App. 369 (98 S. E. 246); Owens v. State, 139 Ga. 92 (1) (76 S. E. 860).

4. When considered in connection with the remainder of the charge, the instructions of which complaint is made in ground 5 of the amendment to the motion for a new trial do not require a reversal of the judgment.

5. Questions of fact are peculiarly for the jury, and where there is any evidence, as there is in this case, that supports a verdict which has the approval of the trial judge, this court can not interfere.

Judgment affirmed.

Broyles, O. J., and Luke, J., eoneur.

ON MOTION ROE REHEARING.

Per Curiam.

It is well settled by repeated rulings of the Supreme Court and of this court that an excerpt from a charge, wherein a complete proposition is stated, is not erroneous merely because it fails to embrace an instruction which would have been appropriate in connection with that proposition. To reach the failure so to charge, a direct and independent assignment of error, complaining of such failure, is necessary. See Rawlins v. State, 124 Ga. 31 (16) (52 S. E. 1). This ruling shows that there is no merit in ground 5 of the amendment to the motion for a new trial. In Mayfield v. State, 17 Ga. App. 115 (86 S. E. 284), relied upon by counsel for the plaintiff in error in' his motion for a rehearing of this case, the assignment of error was not based (as in the instant case) upon a lengthy excerpt from the charge of the court, but was based solely and directly upon the failure of the court to charge the principle of law set forth in the ground. Moreover, the' evidence in the May field case, tending to connect the accused with the offense charged, was extremely meager, while in this case the flight of the defendant from the State, and vaiious other suspicious circumstances, amply authorized his conviction. The motion for a rehearing is denied.


text:
    16386.
    Daniel v. The State.
    Decided June 9, 1925.
    Conviction of shooting at another; from Fulton superior court— Judge Humphries. March 7, 1925.

      G. G. Battle, for plaintiff in error.

      John A. Boylcin, solicitor-general, E. A. Steph.eñs, Ralph- II Pharr, contra.
   Broyles, C. J.

1. Ground 1 of the amendment to the motion for a new trial, complaining of the admission of certain evidence, is without merit, since at least a portion of the evidence objected to was admissible, and the objection was to all of it. Furthermore, the ground is not complete and understandable within itself.

2. Upon the cross-examination of a witness for the defense, it was no! error, for any reason assigned, for the court to allow the solicitor-general to ask the witness: “What was it you were convicted of the last time you were convicted?” or “How many times have you been convicted ?”

3. The accused having been convicted of the offense of shooting at another, it is immaterial whether the court erred in charging, or in failing to charge, upon the law of malice, or upon the law of an assault with intent to murder.

4. The verdict was authorized by the evidence, and the refusal to grant a new trial was not error.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    16387.
    Sudan v. The State.
   Bloodworth, J.

In this State there are no accessories in misdemeanor eases, but each person who knowingly participates in a criminal act which is a misdemeanor is guilty as a principal. Littlefield v. State, 22 Ga. App. 782 (1) (97 S. E. 259). - There is some evidence which would authorize the jury to reach the conclusion that the accused was aiding and abetting another who was violating the law which prohibits a person from having, controlling and possessing intoxicating liquor. Hanson v. State, 32 Ga. App. 58 (122 S. E. 629); Rogers v. State, 101 Ga. 562 (28 S. E. 978). The court did not err in overruling the motion for a new trial.

Decided June 9, 1925.

Possessing intoxicating liquor; from Cherokee superior court-judge Blair. March 14, 1925.

Arthur W. Powell, for plaintiff in error.

John 8. Wood, solicitor-general, contra.

Judgment affirmed.

Broyles, O. J., and Luke, J., eoneur.


author: Bboyles, C. J.

text:
    16403.
    Still v. The State.
    Decided June 9, 1925.
    Indictment for larceny from house; from Fulton superior court —Judge Howard. March 16, 1925.

      Smith & Watson, for plaintiff in error.

      John A. Boykin, solicitor-general, E. A. Stephens, Ralph H. Pharr, contra.
   Bboyles, C. J.

The motion for a new trial contained the usual general grounds only; the verdict, was authorized by the evidence, and the refusal to grant a new” trial was not error.

Judgment affirmed.

Luke and Bloodworth, JJ., eoneur.


text:
    16406.
    Irvin v. The State.
    Decided June 9, 1925.
    Conviction of assault and battery; from Pike superior court— Judge Searcy. March 14, 1925;

      E. F. Dupree, for plaintiff in error.

      E. M. Owen, solicitor-general, contra.
   Luke, J.

The evidence amply authorized his conviction, and for no reason pointed out in the record did the court err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Bloodioorth, J., eoneur.


text:
    16407.
    Irvin v. The State.
    Decided June 9, 1925.
    Indictment for breaking pound; from Pike superior court— Judge Searcy. March 14, 1925.

      E. E. Dupree, for plaintiff in error.

      E. M. Owen, solicitor-general, contra.
   Luke, J.

Henry Irvin was convicted of a misdemeanor. In liis motion for a new trial he complains: (a) that the evidence did not authorize his conviction; (6) that the sentence imposed by the court (eight months in the chain-gang) was too severe. The evidence amply authorized the conviction, and the special ground of the motion for a new trial is without merit.

Judgment affirmed.

Broyles, O. J., and Bloodworth,-J., eoncw.


text:
    16410.
    Couch v. The State.
    Decided June 9, 1925.
    Motion to reinstate; from Murray superior court—Judge Tarver. March 11, 1925.

      J. M. Lang, F. A. Henderson, for plaintiff in error.

      G, G. Pittman, solicitor-general, contra.
   Broyles, C. J.

Where a motion for a new trial was dismissed at the time and place set for the hearing, for failure to prosecute the same, a judgment refusing to reinstate the motion, or a judgment refusing to grant a rule nisi’ on a second motion for a new trial (although this motion was presented to the judge within thirty days of the date of the verdict and at the same term of court), will' not he reversed, where it appears that the failure to prosecute the first motion was due solely to the negligence of counsel for the movant. See, in this connection, Langford v. State, 30 Ga. App. 278 (117 S. E. 659), and citations; Collins v. State, 30 Ga. App. 668 (118 S. E. 761).

Judgment affirmed.

Luke and Bloodworth, JJ., coneur.


text:
    16412.
    Sharpe v. The State.
   Luke, J.

Sharpe was convicted of the offense of seduction. He com-

plains: (a) that the verdict was not authorized by the evidence, and (6) that the venue was not proved. The evidence authorized the conviction, and the conviction has the approval of the trial judge. There was evidence that the crime was committed in the county alleged in the indictment and in which the defendant was being tried. Eor no reason pointed out did the court err in overruling the motion for a new trial.

Decided June 9, 1925.

Conviction of seduction; from Toombs superior court—Judge Strange. March 3, 1925.

Enoch J. Giles, for plaintiff , in error.

Walter F. Grey, solicitor-general, Saffold & Stallings, Lankford & Rogers, contra.

Judgment affirmed.

Broyles, O. J., and Blood/worth, J., concur.


text:
    16413.
    Vanlandingham v. The State.
    Decided June 9, 1925.
    Rehearing denied July 14, 1925.
    Conviction of shooting at another; from Wilkinson superior court —Judge Park. February 28, 1925.

      Eli B. Hubbard, Victor Davidson, for plaintiff in error.

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

1. In the brief of counsel for the plaintiff in error it is insisted that a new trial should be granted because the court refused to rule out the evidence embodied in ground 1 of the motion for a new trial, which shows two different and distinct offenses from the one for which the accused was on trial. No such question is raised in the motion for a new trial, but the only ground upon which the court was asked to exclude this evidence was “that it put in issue the character of the movant.” The evidence referred to did not put in issue the character of the defendant. Counsel for plaintiff in error did not insist in his brief that it did.

2. Eor no reason assigned was the excerpt from the charge, which is embraced in the 2d special ground of the motion for a new trial, erroneous. (See record for corrected copy of this excerpt.)

3. None of the other grounds of the motion for a new trial shows any reason wliy the judgment of the trial court should be reversed.

4. There is evidence to support the verdict, and the judgment is

Affirmed.

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


text:
    16375.
    Carter v. Cross.
   Broyles, C. J.

1. No ground .of the motion to. dismiss the certiorari was meritorious, and the court properly overruled the motion.

(o) While a failure to serve a writ of certiorari upon the judge whose decision is sought to be reviewed, fifteen days previous to the court to which-the return is to be made, is cause for dismissing the certiorari, unless it clearly appears that the failure to serve was not the fault of the plaintiff in certiorari (Zachery v. State, 106 Ga. 123, 32 S. E. 22), yet the certiorari will not be dismissed unless it is first made clearly to appear that there actually was such a failure to serve, and it was not so made to appear in the instant case.

Decided June 9, 1925.

Certiorari; from Fulton superior court—Judge E. D. Thomas. February 3, 1925.

Noah J. Stone, for plaintiff.

Homer G. Denton, for defendant.

(6) The failure of a judge, whose decision is sought to be reviewed by a writ of certiorari, to file his answer five days before the first day of the term to which it is returnable may subject him to punishment for contempt,’ but will not authorize a dismissal of the certiorari, where the answer is filed during the first term and before a motion to dismiss the certiorari is filed. Sutton v. State, 120 Ga. 865 (48 S. E. 342).

(c) The petition for certiorari plainly set' forth the errors complained of and the assignments of error therein were sufficiently specific.

(d) The fourth ground of the motion to dismiss is not argued or insisted upon in the brief of counsel for the plaintiff in error, and is treated as abandoned.

(e) The oral motion to dismiss the certiorari, upon the ground that the alleged assignments of error were not “denied” by the answer of the trial judge, was palpably without merit.

2. Under the facts of the case the judge of the superior court did not err in sustaining the certiorari and in remanding the ease for another trial.

Judgment affirmed.

Luke and Bloodworih, JJ., concur.


text:
    16494. 16495. 16496. 16497.
    Avera v. The State. Brown v. The State. Brown v. The State. Hallman v. The State.
    Decided June 9, 1925.
   Luke, J.

1. Where the motion to change the venue in a criminal case is based solely upon the ground that an impartial jury can not be obtained in the county where the alleged crime was committed, and the motion is denied by the trial judge, a direct bill of exceptions to that judgment will not lie. Coleman v. George, 140 Ga. 619 (2) (79 S. E. 543); Brannon v. State, 147 Ga. 499 (1) (94 S. E. 759).

2. Under the above ruling the bills of exceptions in these four eases must be dismissed.

Writs of error dismissed.

Broyles, O. J., and Bloodworih, J., concur.

Indictment for false imprisonment; from Houston superior court —Judge Mathews. April 23, 1925.

W. A. McClellan, W. 0. Cooper Jr., J. W. Bloodworth, for plaintiffs in error.

Charles H. Garrett, solicitor-general, contra.


author: Bboyx.es, C. J.

text:
    16366.
    Alvaton Mercantile Company v. Caldwell et al.

   Bboyx.es, C. J.

1. This was a suit in attachment, where a replevy bond had been given, and a traverse filed to the grounds of the attachment. When the ease was called it was not error for the judge, over the objection of the plaintiff in attachment, to order that the trial proceed on the traverse alone. While section 5107 of the Civil Code provides that' no traverse of the attachment proceedings shall delay judgment on the declaration where personal service has been perfected, yet. a traverse to the grounds of attachment should be first disposed of, unless it be continued for cause. This provision of the code section simply “means that nothing that works a continuance of the traverse only shall postpone the main case.” Parker v. Brady, 56 Ga. 373, 376. Moreover, the special ground of the motion for a new trial, complaining of the above-stated ruling, does not show, or even allege, that the instant case is not an ordinary attachment case, and does not point out wherein the court errgd in refusing to try the whole case together.

2. “Where . . design or intent is relevant to an issue, it may be proved by the evidence of the person himself testifying directly as to what his intention was in the given instance. Although such evidence is not conclusive, it is to be considered with all the facts and circumstances of the ease in determining the real intention.” Nichols v. Ward, 27 Ga. App. 501 (2) (108 S. E. 832), and citations.

3. In the trial of a traverse to an attachment sued out on the ground that the defendant was about to remove beyond the limits of the county, evidence of his declarations that he had no intention of so removing is admissible, where it appears that they were made, before he knew that the attachment had been issued. Perryman v. Pope, 102 Ga. 502 (3) (31 S. E. 37).

4. “When, in a legal investigation, information, conversations, letters and replies, and similar evidence, are facts to explain conduct and ascertain motives, they are admitted in evidence, not as hearsay, .but as original evidence.” 'Civil Code (1910), § 5763.'

5. “The circumstances, acts, and declarations which grow out of the main fact, are contemporaneous with it, and serve to illustrate it, are part of the res gestae.

(a) The ground of attachment being that the defendant absconds, and on the trial of an issue formed thereon, it having been shown that the defendant was absent from home when the attachment was sued out, it was competent to prove that in connection with his departure, and just before it, he stated that he was going to Alabama after certain property, and sought to borrow money to pay his expenses there and back, and that he did return.” Brady v. Parker, 67 Ga. 636.

6. “Where an attachment was issued on the ground of non-residence, and this ground was traversed by the defendant, it was not erroneous to allow him to testify that he was only temporarily absent from the State on business, and that he intended to come back to Georgia to live. The fact of actual residence is to be determined by the ordinary and obvious indicia of residence; and where one leaves the State of his residence, his declaration that he intended his absence to be only temporary, and that he intended to return to the State of his residence, is explanatory of his conduct and is competent.” . Flemister Grocery Co. v. Wright Mercantile & Lumber Co., 10 Ga. App. 702 (2) (73 S. E. 1077).

7. “The rule contemplates that all the res gestae, including declarations forming part thereof, must transpire within the present time of the transaction. But that time, while it can not be less, may be more extended than the present of the principal fact, in some instances a little, in others much, and in others very much more. Usually if they can all be ascertained, some of the res gestae will be found simultaneous with, and some anterior and others posterior to the principal fact.” Travelers Insurance Co. v. Sheppard, 85 Ga. 751, 776 (12 S. E. 18).

8. “These surrounding circumstances constituting a part of the res gestae may always be shown to the jury along with the principal fact; and their admission is determined by the judge, according to the degree of their relation to that fact, and in the exercise of his sound discretion, it being extremely difficult, if- not impossible, to bring this class of cases within the limits of a more particular description.” 1 Green-leaf on Evidence, § 108. See also Hart v. Powell, 18 Ga. 635, 639.

9. “The domicile of a man having a family is, under section 1824 of the Civil Code, the place where his family ‘shall permanently reside, if in this State,’ the word ‘permanently’ being here used in contradistinction from the word ‘temporarily.’ 2. It follows that the mere removal by a married man of his wife and children to a city not within the county of his residence, and the occupancy by the family of a rented house in such city, did not effect a change of his domicile, when it affirmatively appeared that his sole purpose in making such removal was to send his children to school for a limited period, that he kept the home from which he had thus temporarily removed his family furnished and spent much of his own time therein, that he continued to discharge the duties of citizenship incident to residence by him in the county wherein that home was located, and that there was at no time any intention on his part to provide, either for himself or his family, a fixed place of abode in the city referred to, or that he or any of them should permanently reside there.” Peacock v. Collins, 110 Ga. 281, (1, 2) (34 S. E. 611).

10. A ground of the motion for a new trial complains of the following ruling: A witness for the defendant, on cross-examination, was asked this question: “Mr. L. A. Caldwell has been living in Atlanta with his wife for the last ten years, has he not?” The answer was: “Tes.” Counsel for the defendant objected to the evidence, on the ground that it was irrelevant and immaterial, as it related to what happened two and a half years after the alleged removal of the defendant from the county and could not illustrate any issue in the ease. The judge sustained the objection and ruled out the evidence, stating, however, that he would let in what the defendant did shortly after the levy of the attachment. Held: Under the facts of the case the ruling was not error. This ruling disposes also of ground 3 of the amendment to the motion for a new trial.

Decided June 11, 1925.

Attachment; from city court of Greenville—Judge Eevill. March 10, 1925.

Jones & Strother, Hall & Jones, for plaintiff.

N. F. Culpepper, J. F. Hatchett, for defendants.

11. Under the facts of the case it was not error for the judge to instruct the jury to disregard the argument of the plaintiff’s counsel “that the. defendant had been adjudicated a bankrupt and been discharged from his debts, and his motive in insisting on the traverse was to relieve his bondsmen who signed the replevy bond, and, should the traverse be sustained, it would be insisted by epunsel for defendant that plaintiff could not collect its debt out of the sureties on said bond.”

12. The grounds of the amendment to the motion for a new trial, not disposed of by the foregoing rulings, are without substantial merit.

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

Judgment affirmed.

Luke and Bloodworth, JJ., eoneur.


text:
    16388.
    PALMER-MURPHEY COMPANY v. FRUIT HAVEN FARM.
    Although A, an agent of B (a corporation), may have no authority to make binding contracts for and in behalf of B, yet if A executes with 0 a contract for B, and the goods—the subject-matter of the contract —are delivered by 0, the seller, to B, the purchaser, and B treats the contract as a valid and binding one by accepting the goods and paying for them, then where subsequently A, as agent for B, executes another contract with O, B is estopped from denying that A had authority to execute the second contract, these two transactions being the only ones between B and C, and C having never been notified by B, or by anyone else, until after the execution by A of the contract sued on and its acceptance by C, that A was without authority to execute binding contracts for B.
    Decided June 11, 1925.
    Complaint; from city court of Greenville—Judge Revill. March 10, 1925.

      George P. Whitman, N. F. Culpepper, for plaintiff.

      J. F. Hatchett, Terrell & Terrell, for defendant.
   Broyles, C. J.

Palmer-Murphey Company brought suit against Fruit Haven Farm (a corporation) for damages for the alleged breach of an alleged written contract for the purchase of 100 tons of nitrate of soda, plaintiff being the seller and defendant the buyer. The damages sought to be recovered were the difference between the contract-price and the market price at the time and place of delivery, the time being December, 1920, and the place. Savannah, Ga. The alleged contract was signed on behalf of the defendant (at least this was the contention of the plaintiff, although denied by the defendant) as follows; “Fruit Haven Farm by J. 0. Langdon,” and was accepted by the plaintiff. Subsequent thereto, and before the date for shipment of the goods, the plaintiff was notified by the defendant that Langdon was merely a bookkeeper for the defendant, and had no authority to execute the contract in question, and that it was repudiated by the defendant. Upon the trial the evidence authorized a finding that Langdon had no authority to execute contracts for the defendant. However, the undisputed evidence disclosed that prior to the execution of the contract sued on, and in December, 1919, the plaintiff had sold the defendant 60 tons of acid phosphate, and that, the phosphate was received by the defendant and paid for by it, and that the written contract under which it was sold was executed on behalf of the defendant just as was the contract sued on, to wit, “Fruit Haven Farm by J. O. Langdon.” It is true that some portions of the testimony of J. 0. Langdon (the principal witness for the defendant) tended to show that perhaps this phosphate was ordered for Betts (the president of the defendant corporation) personally, and not for the defendant; but when Langdon’s testimony is properly construed as a whole, these portions of his testimony are without probative value. It is well settled that when the testimony of a principal witness is vague, equivocal and self-contradictory, it should be cons'trued most strongly against the cause that he is testifying for. The portions of Langdon’s testimony referred to were exceedingly vague and equivocal and were contradicted by other parts of his testimony and by the documentary evidence introduced. And in this connection a most significant and compelling fact is that in the voluminous testimony of Betts himself there is not a line or a word tending to corroborate in the slightest degree the vague, equivocal and self-contradictory testimony' of Langdon that perhaps the phosphate (the subject-matter of the first contract) was ordered for Betts personally, and not for the defendant corporation. Hence, it is our opinion, and is so adjudged, that the evidence demanded a finding that the phosphate was bought, received, and paid for by the defendant corporation. This being true, the defendant was estopped, legally and morally, from denying the authority of Langdon to execute the contract sued on, the evidence being undisputed that there were no dealings between the parties except the two transactions referred to, and that no notice of any kind or character had been given to the plaintiff, prior to the execution of the contract sued' on, that Langdon was without authority to execute' contracts for the defendant. See, in this connection, Fitzgerald Oil Co. v. Farmers Oil Co., 3 Ga. App. 215 (59 S. E. 713); Germain Co. v. Bank, 14 Ga. App. 88 (1), 93, 94 (80 S. E. 302); Bacon v. Dannenberg, 24 Ga. App. 540 (4) (101 S. E. 699). The evidence also demanded a finding that the defendant had breached the contract sued on, without legal cause, and that the plaintiff had been damaged in a substantial amount by such breach.

It follows that a verdict for the plaintiff was demanded; that the verdict in favor of the defendant was contrary to law and the evidence', and that the court should have granted a new trial on the general grounds of the motion for a new trial. This ruling being controlling in the ease, it is unnecessary to consider the special assignments of-error.

Judgment reversed.

Imke and Bloodworth, JJ., concur.


author: Bkovxes, C. J.

text:
    16414.
    Buchanan v. The State.
   Bkovxes, C. J.

In this State the husband is recognized by law as the head of the family, and where intoxicating liquors are kept in the house occupied by himself and his family, he is guilty of aiding and abetting in the commission of a misdemeanor, if he knowingly allows such liquors to remain there, irrespective of who owns them or who put them there. And this is true although the husband may have previously deeded the premises to his wife, for a consideration of “natural love and affection.” See, in this connection, Isom v. State, 32 Ga. App. 75 (1) (122 S. E. 722) ; Basil v. State, 22 Ga. App. 765 (1) (97 S. E. 259) ; Norman v. State, 26 Ga. App. 62 (105 S. E. 450).

Decided June 11, 1925.

Conviction of possessing liquor; from city court of Carrollton— Judge Hood. April 3, 1925.

Smith & Taylor, for plaintiff in error.

Emmett Smith, solicitor, contra.

(a) Where, however (as in the instant case), the undisputed evidence showed that the house, and everything in it, except the whisky therein, was owned by the defendant’s wife, the presumption that the whisky found in the house belonged to the husband as the head of the family was rebutted; and, without this presumption, the evidence (which was wholly circumstantial) adduced upon the trial was insufficient to show that the whisky was put or kept there with the defendant’s consent or knowledge. In other words, the circumstantial evidence was insufficient to establish the defendant’s guilt, to the exclusion of every other reasonable hypothesis. It follows that the defendant’s conviction was contrary to law and that the refusal to grant a new trial was error.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


text:
    16299.
    GEORGIA RAILWAY & POWER COMPANY v. MIDDLEBROOKS.
    The relation of the defendant company to the decedent, for whose homicide a recovery was sought, was not that of master, under the workmen’s compensation act, the service which he was performing at the time of his death being rendered when he was in the employ of another company, and there being no payment of wages or liability for wages to him by the defendant. Payment of wages, although not necessary to render one a master, is necessary to bring one within the workmen’s compensation act, which contemplates that compensation shall be fixed in proportion to the employee’s wages as applied to the particular injury.
    There was no reversible error in the overruling of the demurrer to the amendment to the petition, or in sustaining the demurrer to the amendment to the answer, or in overruling the motion for a new trial.
    The evidence authorized the verdict.
    Decided June 12, 1925.
    Damages; from Fulton superior court—Judge E. D. Thomas. February 5, 1925.

      Application for certiorari was denied by the Supreme Court.
    Mrs. W. P. Middlebrooks brought suit against the Georgia Kailway & Power Company for the homicide of her son, alleging that he “was working for the Central Georgia Power Company” at its substation or power-house; that in pursuance of an arrangement between these two companies the defendant company erected and maintained a switch on the property of the other company for the-purpose of interchanging current, by which switch “the defendant’s wires could be connected with the wires of the Central Georgia Power Company at the request of said defendant;” that, “while [plaintiff’s] son was in the performance of his duty as an employee of the Central Georgia Power Company, he was requested by the defendant, through one of its employees, to turn said switch hereinbefore described, and that her son, acting on the request of said defendant, undertook to turn said switch,” and was killed because of a defect in it; that the defendant was negligent in maintaining the switch in an unsafe and defective condition, and that as a result of said negligence her son was killed. By amendment the plaintiff set out more in detail the negligence alleged in the petition, the defects in the switch, and alleged that the defendant was negligent in failing to have connected with the said, switch a safety appliance known as a surge-arrester. A demurrer to this amendment was overruled. The defendant- answered, denying negligence and liability, and by amendment to its answer set up that the decedent was subject to the workmen’s compensation act, and was in the employment of the defendant at the time of his death. This amendment was allowed and ordered filed, but on oral demurrer was, by order of the court, stricken from the file, “on the ground that the same does not set forth any defense in law to plaintiff’s action.” The defendant excepted pendente lite to the rulings stated above. A verdict was rendered for the plaintiff, the defendant’s motion-for a new trial was overruled, and the defendant excepted, assigning error upon its exceptions pendente lite and upon the refusal of a new trial.

      Colquitt & Conyers, for plaintiff in error.

      Branch & Howard, contra.
   Luke, J.

(After stating the foregoing facts.) We have considered carefully the demurrers to the amendment to the petition, and to the amendment to the answer (both subjects of the pendente lite exceptions), and also the'various grounds of the motion for a new trial. A seriatim discussion of each of these would render this decision unnecessarily voluminous. The amendment to the petition amplified and made more specific the petition and the allegations of negligence. The allegation as to the surge-arrester was material and relevant under the original pleading, this, as shown by the statement of facts, being a safety appliance. It suffices to say that the demurrer to the amendment to the petition was properly overruled; and the motion for a new trial contains no reversible error. The controlling question before us and the only one necessary for us to discuss is: Did the amendment to the defendant’s answer set up a good defense in law to the action, and could the defendant, under the pleadings, be considered the master of the decedent at the time of his death?

In this case we have what, prior to the passage of the workmen’s compensation act, would have been an anomalous situation, viz., the defendant seeking to be regarded as the master of the deceased who is alleged to have been negligently killed. The reason, however,' is obvious. Such a relation would bring the defendant under the workmen’s compensation act, thereby greatly reducing its liability, if not discharging it altogether, under the particular facts of this case. Several eases are cited in support of the proposition that, the Georgia Railway & Power Company was the master of the deceased at the time of his death; some of which we will discuss briefly. In the case of Brown v. Smith & Kelly, 86 Ga. 274 (12 S. E. 411, 22 Am. St. Rep. 456), Smith & Kelly were the general masters of the plaintiff, and one Dixon was the man for whom the plaintiff was working when he was injured by the negligence of a driver and fellow servant, and the court held that the driver was the special servant of Dixon for that occasion. In the opinion the court said: “We have seen from the evidence above quoted that Dixon had the exclusive- right to discharge this driver and employ another in his place. He had the right absolutely to control and direct the drivér. He had the right to iake-him from the mules and, put him at other work. In other words he had as ample and complete control over the driver as if he had originally hired him.” (Italics ours.) For the hirer to become the master of a servant under circumstances such as are now under consideration, the headnote of the Brown case states that the hirer (1) must have “complete control and direction” of the servant for the occasion; (2) the general master must have “no such control,” or, in other words, must relinquish all control of the servant; (3) the hirer must have the “exclusive right to discharge him,” (4) “and put another in his place,” (5) “or put him about other work.” Such are the requisites laid down in the Brown case, which, so far as we have been able to ascertain, has never been overruled, and is the oldest Supreme Court decision on this particular state of facts, and therefore the controlling one. It was followed by this court in Greenberg v. Yarbrough, 26 Ga. App. 544 (106 S. E. 624), and Reaves v. Columbus Electric & Power Co., 32 Ga. App. 140 (1) (122 S. E. 824). The pleadings in the instant case, when fairly and reasonably construed, show that the Georgia Railway & Power Company did not, under the rule stated above, have such authority over the deceased as to make it his master. The real truth, as shown by the entire record in the ease, is that he was employed by the Central Georgia Power Company, and that that company, by virtue of its control over him, ordered him to turn the switch when requested to do so by the defendant company. It is true that mere hiring and paying by the master are not sufficient in certain instances to prevent the employee from becoming the servant of another, but in the instant ease the deceased was employed by the Central Georgia Power Company, paid by that company, controlled by it and working on its land, and was subject to be discharged by it. The petition alleged that he was “working for the Central Georgia Power Company,” and the industrial commission of Georgia determined that the Central Georgia Power Company was his master. Wood, in his work on Master & Servant, says that the real test is whether the servant “was subject to such person’s orders and control, and was liable to-be discharged by him for disobedience.of orders or misconduct.” And in Sherman & Redfield on Negligence (par.' 162) it is said: “If the hirer is vested for the time with the exclusive right to discharge the servants and employ others he alone is responsible for their defaults.” It will be seen from the foregoing that mere control is not sufficient to render the hirer a master. We do not think that the defendant company in the instant ease had control over the deceased, but, assuming for the sake of argument that it did, there is nothing to show that it had a right to “discharge him,” or to “put him at other work,” or to “put another in his place,” or that the general master, the Central Georgia Power Company, had relinquished control of him, and the amendment to the answer does not set up all these essentials which are necessary to bring the case under the decision in the Brown case and those decisions of the Court of Appeals which are based thereon.

The Georgia Railway & Power Company paid the deceased nothing and was not liable to him for wages. While paying is not necessary to render one a master, paying is necessary to bring one within the workmen’s compensation act. The entire act contemplates that the compensation of the injured employee shall be fixed in proportion to his wages as applied to the particular injury. In the case of joint employers the act provides that “such employers shall contribute to the payment of such compensation in proportion to their wage liability to such employee.” If the defendant’s contention that it was the master of the deceased were correct, the defendant would be in position to say: “I am the master, and therefore not subject to suit at common law, because I am within the workmen’s compensation act; but since the Central Georgia Power Company hired and paid the deceased his wages, I have no wage liability, and am therefore immune from payment under the workmen’s compensation act also, even though my negligence resulted in his death.” In the case of Dale v. Saunders, 218 N Y. 59 (112 N E. 571, Ann. Cas. 1918B, 703), the court said: “Where an employer hires the services of his team and employee to another to haul sand, the employee is still working for the original employer when he is loading sand in a pit for the purpose of hauling it, and therefore is entitled to compensation from the employer.” In ofher words, the person for whom he is temporarily working is not the master under the New York workmen’s compensation act, which is similar to that of our State. Under the New York compensation act, as under our compensation act, there must be a contract of hiring and a provision for payment for services of the employee by the employer. See, in this connection, Chicago & Interurban Traction Company v. Industrial Commission, 282 Ill. 230 (118 N. E. 464); Moore v. Taylor, 97 Okl. 193 (223 Pac. 611); Skeels v. Hotel Co., 195 App. Div. 39 (185 N. Y. S. 665); Western Indemnity Co. v. Pillsbury, 172 Cal. 807 (159 Pac. 721).

In the case of Postell v. Brunswick & Western R. Co., 112 Ga. 602 (37 S. E. 869), the plaintiff alleged that the Brunswick and Western Railroad Company was h’is master and that he was in its employ. The proof showed that the Central of Georgia Railway Company was his master and employer, and that the Brunswick & Western was the company for which he was working at the time of the injury; and it was this variance between the allegata and probata that caused the plaintiff’s case to fall. In that ease the plaintiE “got his pay through the Central, but any instructions they gave him at the Brunswick & Western office he had to follow,” and the Supreme Court held that the Brunswick & Western was not his master, “notwithstanding the fact that he was, when injured, doing the work of the defendant company,” the Brunswick & Western. 'As stated by the Supreme Court, the master (the original employer) “furnished him, as its servant, to the defendant company.” So it was in the ease under consideration; the Central Georgia Power Company furnished the decedent as “its” servant. There was no contractual relation between the decedent and the defendant company. The contract was between the defendant company and the Central Georgia Power Company, and under this contract the Central Georgia Power Company’s servant was to turn the switch. The facts in that case and the facts in the one under consideration are quite similar, and, under the ruling in that ease, the Georgia Railway & Power Company could not be considered the master in the instant .casé. The Postell ease is controlling also as to the liability of the defendant company in the instant case. In that case the court said:. “Relatively to the defendant company he was, while engaged in the work of coupling and uncoupling its cars, a licensee. He had the right, and it was his duty, under his contract with the’ Central company, to do this work for the defendant company [the Brunswick & Western], but he was employed to do it by the Central company, which furnished him, as its servant, to the defendant company for this purpose. Had he sued the defendant for injuries which he, as a licensee, received while attempting to couple cars forming a part of its train, his proof and his allegations would have corresponded, and if he showed that his injuries were caused by the defendant’s negligence, he could have recovered.” (Italics ours.) In the instant case the plaintiff did not make the mistake of alleging that her son was employed by the Georgia Railway & Power Company, the defendant. On the contrary she plainly alleged that “Petitioner’s son was working for the Central Georgia Power Company;” and other portions of the petition and the evidence show that her son was a licensee to do this work for the defendant company, and that he was in the performance of his duty when he was killed by the negligence of the defendant company. In other words, he was not only licensed to handle the switch of the defendant, but it was his duty, under orders of his employer, the Central Georgia Power Company, to do so; and the entire record shows that the plaintiff was proceeding on the claim that her son was a licensee and was killed in the performance of his duty as such.

In the light of all the elements necessary to make the defendant company the master in the instant case, the amendment to the answer did not constitute a legal defense to the plaintiff’s cause of action; and since, under the pleadings and the evidence, it could not have availed the defendant anything, its rejection by the court, even if error, was harmless. Carolina Portland Cement Co. v. Zuber, 39 Ga. App. 96 (113 S. E. 813).

The evidence authorized the verdict.

Judgment affirmed.

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


text:
    16390.
    Koch v. Thompson.
    Decided June 12, 1925.
    Action of trespass; from Pulton superior court—Judge E. D. Thomas. January 33, 1935.
    The action was for damages because of the cutting of trees on land alleged to be the property of the plaintiffs in fee simple. The judgment excepted to was as follows: “This ease coming on for trial, the jury stricken, and testimony offered by plaintiff Elizabeth Koch, and it appearing that plaintiff conveyed a bond-for-title interest to one McCurdy and the same was outstanding at the time of alleged trespass, a nonsuit in said case is hereby granted.” The testimony of Elizabeth Koch was, that the plaintiffs had a fee-simple title to the tract of land described in the petition, on December 19, 1919, and on that day gave W. M. McCurdy and H. M. Stone a bond for title to it and possession of the property; that after McCurdy and Stone took possession they leased to the defendant a part of the property, to be used as pasturage; that the part used by the defendant was covered with trees at the time he began using it, and that, without authority from the plaintiffs, he cut down and destroyed about one hundred trees, of a stated value; that in 1921 Stone transferred his interest in the bond and in the property to McCurdy, and in 1923 McCurdy transferred the bond for title back to the plaintiffs and surrendered possession to them, and they subsequently filed the suit.
   Luke, J.

This ease arises by reason of a judgment of nonsuit to a petition for the recovery of damages because of an alleged trespass in the cutting of timber. The evidence did not make the case alleged in the petition, and the court properly sustained a motion for a non-suit.

Judgment ajjb'med.

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

F. F. Radensleben, for plaintiffs, cited: 29 Ga. 485; 21 -Ga. 504; 91 Cal. 377 (13 L. E. A. 680); 128 Mass. 304; 82 Maine, 231; 51 Maine, 407; 34 111. 522;' 132 Penn. 363; 70 Wis. 96; 71 Md. 149; 149 Mass. 581;. Civil Code (1910), § 3695; 80 Ga. 74; 105 Ga. 253; 56 Ga. 166; 38 Ga. 191.

Spence & Spence, for defendant, cited 6 Ga. App. 484-7.


author: Bloodworti-i, J.

text:
    16408.
    SIMMONS v. THE STATE.
    1. Whether the court erred in allowing a witness to testify to certain facts over objection is immaterial where later the same witness testified to the same facts without objection.
    2. “A correct statement of law embraced in a charge to the jury is not erroneous because the court failed in the same connection to give to the jury other appropriate instructions.”
    3. The verdict was amply authorized by the evidence.
    Decided June 12, 1925.
    Conviction of manslaughter; from Jenkins superior court— Judge Strange. March 11, 1925.

      G. G. Delde, for plaintiff in error.

      John O. Hollingsworth, solicitor-general, contra.
   Bloodworti-i, J.

While the accused was being tried on a charge of murder a motion to rule out specified evidence of two witnesses, Reynolds and Laster, relative to the defendant being in possession of and selling liquor, upon the ground that “said evidence was irrelevant and incompetent,” its effect being “to establish a crime other than the one for which the defendant was then on trial,” was denied. Reynolds did not testify either that the accused had liquor in his possession or that he sold liquor; so his evidence was not subject to the objection urged against it. Laster did testify that the defendant had and sold liquor on the night of the homicide. The motion, the overruling of which was made a ground of a motion for a new trial, was to rule out specified evidence of this witness as to the possession and selling of whisky.. There was no motion to rule out substantially the same and perhaps stronger testimony as to the defendant having and selling liquor, given by this same witness on cross-examination. Therefore, under repeated rulings of this court and of the Supreme Court, the refusal to rule out the evidence offered on direct examination was not' reversible error. Mathews v. Richards, 19 Ga. App. 489 (2) (91 S. E. 914), and citations; Louisville & Nashville Railroad Co. v. Lovelace, 26 Ga. App. 287 (3) (106 S. E. 6), and citations.

The court charged the jury that “provocation by words, threats, menaces, or contemptuous gestures, shall in no case be sufficient to free the person killing from the guilt and crime of murder.” This excerpt from the charge is alleged to be error because the court did not call the attention of the jury to the fact that while words, threats, or menaces will not mitigate the offense, nevertheless words, threats or menaces may justify a killing if the circumstances be such as- to reasonably arouse the fears of a reasonable man that a felony is about to be committed upon him. It is well settled that “a correct statement of law embraced in a charge to the jury is not erroneous because the court failed in the same connection to give to the jury other appropriate instructions.” Western & Atlantic R. Co. v. Bowen, 31 Ga. App. 32 (1) (119 S. E. 426). Eor a case where substantially the same point was made as in the ground of the motion now under consideration, and decided adversely to the contention of the plaintiff in error, see Deal v. State, 145 Ga. 33 (88 S. E. 573).

Judgment affirmed.

Broyles, O. J., and Lulce, J., concur.


author: Jenkins, R. J.

text:
    15464.
    Mosely, for use, etc., v. First National Bank of McDonough.
    Decided June 15, 1925.
    Garnishment; from Henry superior court—Judge Persons. February 9, 1924.

      Reagan & Reagan, fof plaintiff. E. M. Smith, for defendant.
   Jenkins, R. J.

Under the answers of the Supreme Court to the, controlling questions in this case, certified to it by this court, relating to alleged errors in the charge of the trial court, it was error to refuse a new trial to the plaintiff in the court below. See Mosely v. First Nat. Bank of McDonough, 160 Ga. 394 (128 S. E. 192).

Judgment reversed.

Stephens and Bell, JJ., concur.


author: Bell, J.

text:
    16201.
    Cleveland & Sons v. Evans.
    Decided June 15, 1925.
   Bell, J.

1. After acceptance of goods purchased, the presumption is that they are of the quality ordered, and the burden is on the buyer to prove the contrary. Civil Code (1910), § 4137.

2. In this action by the purchaser against the sellers to recover damages for an alleged breach of an implied warranty in the sale of personalty, the evidence did not demand the inference that the property was wholly worthless as alleged, nor did it furnish such data as required a finding in the plaintiff’s favor for a larger amount than that awarded, as for a partial failure of consideration. In these circumstances it can not be said that the verdict was contrary to law or unsupported by the evidence. Pidcock v. Crouch, 7 Ga. App. 299 (2 d) (66 S. E. 971); Krauss v. Flournoy, 7 Ga. App. 332 (66 S. E. 805); Brown Shoe Co. v. Crosby, 30 Ga. App. 534 (4, 5) (118 S. E. 446); Cofee v. Worsham, 31 Ga. App. 62 (2) (119 S. E. 665); Kiser Co. v. Branan, 31 Ga. App. 241 (120 S. E. 427).

3. The jury found in the plaintiffs’ favor for a small sum. They could not, under the record, have found for the plaintiffs in any amount unless they upheld the plaintiffs’ contentions with reference to the existence and scope of a certain custom of trade. It thus appears that if the court erred in ruling upon the admissibility of testimony relating to these matters the plaintiffs were not harmed thereby.

4. This court will not reverse the trial judge for refusing written requests to charge, unless it affirmatively appears that they were submitted before the jury retired “to consider of their verdict.” In the present ease it does not appear when they were presented. Civil Code (1910), § 6084; Van Dyke v. Van Dyke, 31 Ga. App. 67 (3) (119 S. E. 436); Dixon v. Sol Loeb Co., 31 Ga. App. 165 (12) (120 S. E. 31) ; Byfield v. Candler, 33 Ga. App. 275 (125 S. E. 905).

5. The court did not err in overruling the plaintiffs’ motion for a new trial.

Judgment affirmed.

Jenkins, P. J., amd Stephens, J., concur.

Complaint; from city court of Houston county—Judge Eiley. December 29, 1924 .

Brown & Brown, for plaintiffs.

G. L. Shepard, for defendant.


text:
    16248.
    Kennedy & Pike v. Phillips.
   Bell, J.

1. In an action for the purchase-price of standing timber sold at so much “per 1000 feet cut therefrom” in which the complaint alleged and the answer admitted that it was agreed in the contract of sale “that the checking of the sawyer who manufactured said timber into lumber and the cheeking from the office of the said defendants were to be used in arriving at the amount due petitioner at each day of settlement,” and in the trial of which action the evidence authorized the inference that the defendants had kept no “cheeking” as required by the agreement, it was permissible for the plaintiff to prove the quantity of lumber cut, by any evidence which tended to establish the amount with reasonable certainty and which otherwise conformed to the rules of evidence.

2. Where in such a case the plaintiff, after showing the number and dimensions of the trees cut and removed, introduced "a rule or stick about six feet in length and having the words ‘Doyle’s Scale’ carved thereon, together with certain figures and numbers thereon, the same purporting to give the number of feet in board measure in a log of given dimensions and length,” which the court admitted in evidence over the objection that the scale or stick was hearsay and not admissible “without being accompanied by ‘Doyle’s Rule Book’ to show how said figures on said stick were arrived at, and that ‘Doyle’s Rule Book’ itself would be the highest and best evidence of what the rule actually was, and not the stick with the figures thereon,” held: There being some evidence to the effect that the above-described instrument, known as “Doyle’s Scale,” was a method of measurement by which the quantity of lumber manufactured from trees of given dimensions might be easily and accurately arrived at, independently of the rule-book,’ referred to by one or more of the witnesses, the court did not err in admitting it in evidence merely because it was unaccompanied by the rule-book. Compare Brenard Mfg. Co. v. Winn-Wilkes Drug Co., 31 Ga. App. 200 (2) (120 S. E. 446). This ruling, referring to special ground 1, will likewise dispose of special grounds 2 and 6 of the motion for new trial.

3. Since a ground of a motion for a new trial must be complete within itself, without reference to the brief of evidence or other parts of the record (Ward-Truitt Co. v. Nicholson, 23 Ga. App. 672 (2), 99 S. E. 153; Daniel v. Schwarzweiss, 144 Ga. 81 (1), 86 S. E. 239), where a ground of a motion for a new trial excepts to the rejection of testimony in the nature of an opinion, it is incomplete and presents no question for decision, unless within itself it discloses such a state of facts as renders the evidence admissible under one of the exceptions to the general rule that opinionative evidence is inadmissible. Thus, grounds 3 and 4 of the amendment to the motion for a new trial complaining of the exclusion of a witness’s opinion, can not be considered, since neither of these grounds shows that the witness was an expert in the matter under investigation, or included a statement of the reasons or facts upon which the opinion was predicated. Owens v. Nichols, 139 Ga. 475 (5) (77 S. E. 635); Louisville & Nashville R. Co. v. Ogles, 146 Ga. 20 (1) (90 S. E. 476).

Decided June 15, 1925.

Complaint; from city court of Quitman—Judge Baum. December 27, 1924.

Sam T. Harrell, for plaintiffs in error.

John E. Morris Jr., contra.

4. Assuming that the above ruling does not dispose of special ground 5 of - the motion, in which complaint is made that the court erred in -excluding evidence that it would require five trees, of specified dimensions, to produce one thousand feet of lumber, this ground is not a cause for a new trial, in the absence of proof that such five trees constituted an average of the trees in question or that any of the trees were of the dimensions stated.

5. No foundation for their admission having been laid as required by § 5769 of the Civil Code, the court did not err in refusing to admit in evidence certain pages from the defendants’ ledger.

6. The court did not err in overruling those grounds of the motion for a new trial based on alleged newly discovered evidence, to wit, that the defendants have discovered that certain persons, since the trial, have made actual tests showing that “Doyle’s Scale” is inaccurate. Mitchell v. State, 154 Ga. 697 (2) (115 S. E. 75), and cases cited.

7. There is no material error in any of the excerpts from the charge of the court complained of. The evidence authorized the' verdict. The court did not err in refusing a new trial.

Judgment affirmed.

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


text:
    16251.
    COX v. CENTRAL OF GEORGIA RAILWAY CO.
    In this action against a railroad company to recover damages for an injury to the plaintiff’s cow, the presumption of negligence which arose against the company upon proof of the damage by the running of its train not having been conclusively rebutted, the court erred in directing a verdict in favor of the defendant.
    Decided June 15, 1925.
    Action for damages; from city court of Springfield—Judge Shearouse. January 12, 1925.

      H. P. Cobb, for plaintiff.

      Q. T. Guyton, for defendant.
   Bell, J.

When this case was here upon a former occasion

(Central of Georgia Ry. Co. v. Cox, 32 Ga. App. 49, 122 S. E. 647), it was held that the presumption of negligence which arose from proof of the damage by the running of defendant’s train was satisfactorily met, and it was ordered that the verdict finding for the plaintiff be set aside as being contrary to the evidence. TJpon the next trial the court directed a verdict in favor of the defendant, and the plaintiff excepted. The evidence adduced upon the second trial was materially different from that appearing in the record of the first trial, in that the engineer testified at the second trial as follows: “I saw the cows about two or three hundred yards before I reached them. I realized that they were on or near the track when I saw them. I was going about twenty miles an hour. I can stop my locomotive in'about a hundred yards if I am going about thirty miles an hour. . . I didn’t stop it or try to stop it on this day.” In view of this testimony, although in other respects the evidence was substantially the same on both trials, the present record makes a substantially different case from that presented for decision under the former record, and the plaintiff is not concluded by the previous decision, either as the “law of the case” or as a precedent. The presumption of the defendant’s negligence was not conclusively overcome by the evidence, and the court erred in directing a verdict in the defendant’s favor. This is true notwithstanding the engineer and the fireman each testified that he did not see the particular cow in question, since it was inferable, under the evidence, that this animal was one of a herd of cattle, all of which were on or near the railroad track and in a cut, and that the servants of the company failed to exercise proper care and diligence as to the herd. Western & Atlantic R. Co. v. Smith, 15 Ga. App. 289 (2) (82 S. E. 906); Louisville & Nashville R. Co. v. Ernest, 31 Ga. App. 810 (1) (122 S. E. 260); Atlantic Coast Line R. Co. v. Paulk, 33 Ga. App. 293 (125 S. E. 865).

Judgment reversed.

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


text:
    16447, 16541.
    McLean v. Atlantic Coast Line Railroad Company; and vice versa.

    Decided June 12, 1925.
    Action for damages; from city court of Waycross—Judge Crawley. March 19, 1925.

      I. J. Bussell, Parks & Garrett, for plaintiff.

      Bennet, Twitty & Reese, Wilson, Bennett & Pedrick, for defendant.
   Broyles, C. J.

This was a suit for damages against a railroad company. The general and special demurrers to the petition were overruled, and to this judgment the defendant excepted pendente lite. After the plaintiff had submitted his evidence the court, on motion of the defendant, awarded a nonsuit and dismissed the case, and the plaintiff sued out a bill of exceptions complaining of that judgment; and the defendant, by a cross-bill, excepted to the judgment overruling its demurrers to the petition. When the case was called in this court, counsel for the plaintiff in error in the main bill of exceptions filed with the clerk of this court a written notice of the withdrawal of the main bill of exceptions. Counsel for the railroad company objected to such withdrawal. Held, that the withdrawal of the main bill of exceptions is allowed, and the cross-bill of exceptions is dismissed. See, in this connection, Hammond v. Conyers, 118 Ga. 539 (45 S. E. 417). The dismissal of the cross-bill, however, is not to operate as an affirmance of the judgment excepted to therein.

Main .hill of exceptions allowed withdrawn; cross-hill dismissed.

Lwhe and Bloodworth, JJ., concur.


author: Luios, J.

text:
    16289.
    Atlanta & Lowry National Bank v. Goodwin et al.

   Luios, J.

“Within fifteen days from the date of the certificate of the judge, the bill of exceptions shall be filed in the office of the clerk of the court where the ease was tried; and in ten days from the date of such filing, it shall be the duty of the clerk to make out a copy of such bill, together with a complete transcript of the record in such cause. Such transcript, together with the original bill of exceptions, the clerk shall transmit, together with a certificate that the same is the true original bill of exceptions, and a true and complete transcript of the record in such ease, to the next term of the Supreme Court, as required in the judge’s certificate, directing the same to the clerk of the said court.” Civil Code (1910), § 6167. It appearing from the certificate of the clerk of the trial court that the above statute was not complied with, and that counsel for plaintiff in error was the cause of such failure, the writ of error must be dismissed. See Smith v. Watson, 14 Ga. App. 322 (80 S. E. 862); Wheeler v. Crawford, 135 Ga. 148 (69 S. E. 22); Lang v. Montgomery, 140 Ga. 690 (79 S. E. 840).

Decided June 20, 1925.

Complaint; from city court of Sandersville—Judge Sturgis presiding. December 31, 1924.

Evans & Evans, for plaintiff.

T. J. Bwint, A. B. Wright, E. W. Jordan, for defendants.

Writ of error dismissed.

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


text:
    16435.
    Baugh v. The State.
    Decided June 20, 1925.
    Conviction of possessing liquor; from city court of Floyd county —Judge Bale. April 6, 1925.

      Nunnally & Featherston, for plaintiff in error.

      Alec Harris, solicitor, contra.
   Broyles, C. J.

The motion for a new trial contained the usual general grounds only; the verdict was authorized by the evidence, and the refusal to grant a new trial was not error.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    16437.
    Williams v. The State.
    Decided June 20, 1925.
    Indictment for larceny (hog-stealing); from Candler superior court—Judge Hardeman. March 17, 1925.

      A. M. Deal, Leroy Cowart, W. H. Lanier, for plaintiff in error.

      Walter F. Grey, solicitor-general, L. C. Anderson, contra.
   Luke, J.

This case is before us upon the sole assignment of error that the verdict is not authorized by the evidence. There being some evidence to authorize the defendant’s conviction, which conviction has the approval of the trial judge, it was not error to overrule the motion for a new trial.

Judgment affirmed.

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


text:
    16441.
    Roberts v. Selman.
    Decided June 20, 1925.
    Certiorari; from Fulton superior court—Judge Bell. April 7, 1925.

      Louis H. Foster, for plaintiff in error.

      Scott, Hornbuchle & Moore, contra.
   Broyles, C. J.

The pauper’s affidavit made to obtain the writ of certiorari should allege that owing to his poverty the affiant is unable to give the required security; and where the allegation is merely that the affiant “is unable to give the security, as required by law,” the writ of certiorari (if issued) is void, the affidavit not being amendable, and the certiorari proceedings should be dismissed. Civil Code (1910), § 5187; Hackett v. Tate, 18 Ga. App. 453 (89 S. E. 535), and citations; Belk v. Cannon, 19 Ga. App. 487 (2) (91 S. E. 790), and citation.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.