text:
    15414.
    STRANGE v. BOATRIGHT.
    “The jury can not be expected, to select one part of a charge to the exclusion of another, nor to decide between conflicts therein, nor to determine whether one part cures a previous error, without having their attention called specially thereto, and being instructed accordingly.” Morrison v. Dickey, 119 Qa. 698 (2) (46 S. E. 863) ; B., F. & W. Ry. Go. v. Batcher, 118 Qa. 273 (45 S. E. 239); Bennett v. Atlantic Coast

      Line It. Co., 126 Qa. 411 (1) (55 S. E. 177); Western é Atlantic B. Co. v. Sellers, 15 Qa. App. 369 (1) (83 S. E. 445). Grounds 8 and 10 of the amendment to the motion for a new trial, complaining of the charge of the court, are controlled by the decisions cited, and the judgment overruling the motion is reversed on those grounds.
    Decided November 14, 1924.
    Distraint; from city court of Swainsboro—Judge Kirkland. January 18, 1924.

      I. W. Rountree, for plaintiff in error.

      J. Alex. Smith & Sons, Arthur TF. Jordan, contra.
   Luke, J.

Mrs. Boatright sued out a distress warrant for rent against her tenant, Strange, for $615.50. By his counter-affidavit the defendant set up substantially the following defense: He leased the rented premises for the years 1918, 1919, 1920, 1921, and 1922, for $1000 annual • rental; said lease being a renewal of, and having the same provisions as, a previous five-year lease of the same premises. In the year 1918 plaintiff and defendant had a complete settlement for rent up to and including the year 1918, and on January 1, 1919, neither owed the other anything.. In 1921 the plaintiff, through her husband as agent, contended that rent for the year 1920 had not been paid. The defendant paid the rent for 1921 in two payments, one of $200 on August 31, and the other of $800 on October 3, of that year. Being unable to find his receipt for 1.920 rent, the defendant, on November 26, 1921, paid the defendant $400 upon the distinct understanding and agree'ment that the plaintiff would repay said sum if the defendant could later show payment of rent for 1920. Afterwards the defendant did find that he had, on October 16, 1920, paid plaintiff by check $1000 for rent for 1920. Under said rental contract the defendant was to make needed repairs on the rented premises, and the plaintiff was to furnish all necessary material for so doing. At plaintiff’s instance and request, defendant himself paid for said material $490.30. Defendant owed plaintiff no rent, but, on the contrary, plaintiff owed defendant $890.30, made up of said $40.0, which has never been returned to defendant as agreed, and the $490.30 expended by defendant for material for making repairs. The defendant’s evidence tended to substantiate his version of the transaction, while the plaintiff’s evidence tended to show that the $200 and $800 paid in the fall of 1921 were due and owing for some back year, and that defendant was indebted to her for 1921 rent xess the $400 payment made to her. There was sharp conflict as to the item for repairs. On September 1, 1923, the jury found a verdict for plaintiff, for $85.30, and the court entered up a judgment for that amount, with future interest and costs. From this verdict, it would be reasonable to conclude that the jury found that defendant owed rent for 1921, less the $400 credit admitted by plaintiff and the $490.30 claim for repair material; in other words, that the defendant owed the amount he was sued for, but should be credited with his repair bill. Just how they arrived at the amount of the verdict we are unable to say, unless they allowed interest on the account for materials. But however this may be, we leave that as the jury’s business. The length of time covered by the transactions involved in this case, the indefiniteness of much of the evidence, and the sharp conflict in the testimony, all make this peculiarly a matter for the jury to unravel, and we do not deem it proper for us to impeach the jury’s finding by sustaining any of the general grounds of the motion for a new trial.

There were eleven grounds of exception to the charge of the court. Many of them were without xner.it. Some of the excerpts criticised, though somewhat confused and inaccurate, were not harmful to the defendant, and, therefore, not reversible error. We think, however, that the following excerpt from the charge of the court was reversible error: “If you should find there was no back rent due, as I have charged you, then, of course, she would be entitled to recover $615.59 and interest thereon, as I have already instructed you, as rent for the year 1921.” This was alleged to be “an erroneous and misleading statexnent of the law as applicable to the facts, because under the contentions and pleadings of both parties, if there was no back rent due by movant, the verdict could only be for the defendant, or for the defendant for some amount against plaintiff. But the court charged that if there was no back rent due by Strange, the jury would be entitled to find for the plaintiff $615.59.” This charge was alleged to be especially harmful and prejudicial “because, as hereinafter set out in paragraph 10, said statement was repeated in said charge.” It is unnecessary to cumber the case with a recitation of the excerpt complained of in ground. 10. It did contain practically the same language above quoted, and a similar exception was taken to it. Patently, if there was no back rent due as claimed by plaintiff, the payment by defendant to plaintiff of $1000 in the fall of 1921 could not have been applied to the payment of back rent, and the plaintiff would not have been entitled to recover $615.59. Let it be granted that other portions of the charge contained accurate rules for plaintiff’s recovery, should she be entitled to a recovery, yet we can not escape the conclusion that the inherent error in the excerpt quoted above might have been harmful to the defendant, especially when it was repeated.

Judgment reversed.

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


source: Caselaw Access Project

author: Luke, J.

license: Public Domain

text:
    15512.
    Continental Insurance Co. v. Binford-Sutton Drug Co.
    Decided November 14, 1924.
    Action on fire-insurance policy; from Wilkes superior court— Judge Shurley. March 7, 1924.
    Application for certiorari was denied by the Supreme Court. '

      Spalding,'MacDougaid & Sibley, W. A. Slaton, for plaintiff in error.

      Clement E. Sutton, contra.
   Luke, J.

The policy of insurance sued upon in this case contained a provision that “the assured will keep a set of books which shall clearly and plainly present a complete record of business transacted, including all picrchases, sales, and shipments, both for cash and credit, from date of inventory, as provided for in first section of this clause, and during' the continuance of this policy, [italics ours.] In the event of failure to produce such set of books and inventories for the inspection of this company, this policy shall become null and void, and such failure shall constitute a perpetual bar to any recovery thereon.” It clearly appearing, from the evidence, that the assured did not keep such a set of books, the verdict in favor of the plaintiff was contrary to law and the evidence.

Judgment reversed.

Broyles, G. J., and Bloodworth, J., aoncu/r.


author: Bloodworth, J.

text:
    15513.
    RAGAN-MALONE CO. v. PADGETT.
    1. Where service of process is effected by one who assumes to act as an officer having authority to make such service, the service is good even though the appointment or qualification of the person purporting to act as such officer be irregular; since his acts are those of a de facto officer.
    2. Where a defendant has been served with process issuing from a court of competent jurisdiction, and lias had, or could have had his day in court, he is concluded by the judgment. He can not by affidavit of illegality attaék the judgment and set up defenses which existed and could have been pleaded before it was rendered.
    3. The court erred in vacating the judgment dismissing the affidavit of illegality and in reinstating the affidavit of illegality.
    Decided November 14, 1924.
    Illegality of execution; from city court of Baxley—Judge Speer. March 6, 1924.
    In October, 1912, Ragan-Malone Company filed suit in the city court of Baxlpy against Y. E. Padgett, surety. On October 9, 1912, Bryant Williams, as deputy sheriff of that court, made a return of service upon Padgett. At the February term, 1913, judgment was taken against Padgett. Execution was issued thereon, and on January 27, 1920, was levied on certain property belonging to Padgett. On March 3, 1920, Padgett filed an affidavit of illegality, on the ground that the service made upon him in the original suit was made by a person not authorized to make service of the petition and process, in that the said Bryant Williams was never a deputy sheriff of the city court of Baxley. On November 27, 1922, the trial judge dismissed the affidavit of illegality. In the order of dismissal it was stated that a motion to dismiss the affidavit of illegality was made, upon the ground that no traverse to the officer’s return was filed at the first term after notice of such return, and that the deputy sheriff and the sheriff were not made parties; and that it appeared that a return of service was made upon Padgett by Bryant Williams, deputy sheriff of said court. On December 15, 1922, during the same term that his affidavit of illegality was dismissed, Padgett filed a motion to set aside the judgment dismissing it, and stated in this motion that he had in fact filed a traverse to the return of service made by Williams as deputy sheriff, and had made the officers of court parties to that traverse, at the time that he filed his affidavit of illegality on March 3, 1920; and that his traverse to the return had been lost, and he made a motion to establish it. Proceedings relative to the establishment of the lost traverse of the officer’s return resulted in a jury finding in favor of establishing the lost papers, and on February 16, 1924, the court rendered judgment establishing the lost traverse. On March 6, 1924, the trial judge granted the motion to set aside the judgment dismissing the affidavit of illegality, and reinstated it. To this judgment RaganMalone Company excepted, assigning error thereon because: (a) The return in question shows “personal service” upon Padgett on October 9, 1912, and Padgett “filed no plea in abatement at the first term of the court, nor . . any in April, 1915, when he was writing about said judgment, nor . . any until March 3, 1920.” (h) The contention by Padgett that the officer who served him was not a legal deputy “is not a defense which could be availed of by illegalitjq but he should have appeared at the appearance term of said court and filed a plea in abatement to the return of service which he knew had been made and entered upon him.”

      Jones, Parle & Johnston, for plaintiff.

      Wade H. Watson, J. B. Moore, for defendant.
   Bloodworth, J.

(After stating the foregoing facts.) The record unquestionably discloses that the order dismissing the affidavit of illegality was granted by the court under an erroneous impression as to the facts. It was based upon the ground that no traverse to the officer’s return had been filed and no officers made parties; and the finding of the jury against this ground conclusively settled this question of fact in favor of the defendant. The record discloses also that the motion to set aside the judgment dismissing the affidavit of illegality was made during the same term that the judgment of dismissal was rendered; and, the city court of Baxley being a court of record, the trial judge had a right to vacate the judgment of dismissal, provided he did so in the exercise of a sound legal discretion. The question, therefore, presents itself: Did the trial judge abuse this discretion in setting aside the judgment of dismissal and reinstating the affidavit of illegality?

The judgment dismissing the affidavit of illegality (after setting out that a motion was made to dismiss the affidavit of illegality on the ground that there had been no traverse to the officer’s return, and that the officers had not been made parties) contained the following clause: “And it further appearing that a return of service was made upon V. E. Padgett by Bryant Williams, deputy sheriff of the city court of Baxley.” Prom this we conclude that the tidal judge, in dismissing the affidavit of illegality, had before him satisfactory evidence that the defendant had been served in some way. The defendant himself showed that this service was personal, because, in establishing the lost papers, he introduced in evidence the traverse, which contained the following entry: “ State of Georgia, Appling County. I have this day served the defendant V.'E. Padgett and D. C. Rosier personally with a true copy of the within petition and process. This the 9th day of October, 1912. Bryant Williams, deputy sheriff.” The plaintiff introduced in evidence the original suit showing the above return of service; and also introduced in evidence the following letter from the defendant Padgett to counsel for Ragan-Malone Company, dated April 9, 1915: “I wish you would take this matter uj) with? your people and advise me what is the least penny that they will charge me to release me from this judgment. [Signed] Y. E. Padgett.” It therefore appears that the trial judge, at the time that he vacated the judgment of dismissal and reinstated the affidavit of illegality, had before him this evidence showing that the defendant was served personally in 1912, knew of the judgment in 1915, and did not file his traverse to the officer’s return until 1920, at which time he filed his affidavit of illegality.

The Civil Code (1910), § 5311, provides, that “If the defendant has not been served, and does not appear, he may take advantage of the defect by affidavit of illegality; but if he has had his day in court, he can not go behind the judgment by an affidavit of illegality." And “a defendant against whom a judgment was rendered after he had been duly served has, in legal contemplation, had his day in court, and can not go behind the judgment by an affidavit of illegality.” Southern Ry. Co. v. Daniels, 103 Ga. 541 (29 S. E. 761). “Where service of process -is effected or a levy is made by one who assumes to act as an officer having authority to make such service or levy, the service or levy is good even though the appointment or qualification of the person purporting to act as such officer be irregular; since his acts would be those of a de facto officer.” Southern States Phosphate &c. Co. v. Clark, 19 Ga. App. 380 (1) (91 S. E. 573), and cases cited. The fact that Williams made the service, made the return, and signed his name thereto as “deputy sheriff,” shows that he “assumed to act as an officer having authority to make such service.” In the instant case judgment was rendered against the defendant at the February term, 1913, and he did not seek to set it aside until March, 1920. In Twiggs v. Hardwick, 61 Ga. 275 (2), the Supreme Court said: “Besides, the defendant was personally served with process by one who was acting as deputy sheriff in making that service, but failed to appear at court and make any objection to the service, and laid by until after judgment was rendered against him, and now seeks to set that judgment aside on the ground that he was not served with process. The courts do not and should not favor such tardy applications.” In Harbig v. Freund, 69 Ga. 180 (1), the Supreme Court held that “Where a defendant has been served with process issuing from a court of competent jurisdiction, and has had, or could have had his day in court, he is concluded by the judgment. Tie can not by affidavit of illegality attack such judgment and set up defences which existed and could have been pleaded before it was rendered.”

In the instant case the defendant, having been served personally, according to evidence introduced by himself, could have come into court before judgment was rendered against him, and set up that the service was illegal; but he failed to do this; judgment was rendered against him, and the execution followed the judgment. This execution can not be attacked by affidavit of illegality, since the court has jurisdiction of the subject-matter and the defendant was served personally. “As the subject-matter was such that the court could deal with, . . and as the defendants were personally served, affidavit of illegality is not available in resistance to a levy of the execution upon their property.” Hartsfield v. Morris, 89 Ga. 255 (15 S. E. 363). The defendant filed no traverse to the officer’s return until five years after he was writing to plaintiff’s counsel about this judgment, and until about eight years after he had been personally served. Regardless of the legality of the service, the defendant had actual knowledge of the proceedings against him, and, as a reasonable man, he would necessarily reach the conclusion that the entry of the sheriff would be made after the service. The Supreme Court, in the case of Johnson v. Johnson, 52 Ga. 452, in speaking of the sheriff’s entry, said: “Any reasonable man . . would have come to the conclusion that the entry would be made. Whether rightly made or not is immaterial, so far as this question of notice of it is concerned. Tie knew that the sheriff thought he had done all the law required. . . This put him upon notice of it. A man is not allowed to shut his eyes to self-evident things.” The Civil Code (1910), § 5566, provides that the entry of the sheriff or deputy sheriff may be traversed by the defendant “at the first term after notice of such entry is had by him.” See Evans v. Smith, 101 Ga. 86 (38 S. E. 617). In the case under consideration the defendant, in order to sustain his affidavit of illegality, would have to prove both that he had not been served and that he did not plead to the merits. LeMaster v. Orr, 101 Ga. 763 (39 S. E. 32). His traverse which he himself established showed that he had been served personally in 1913, and thereby given actual notice of the suit against him. In other words, if the defendant had not introduced the traverse his affidavit of illegalitj' would not have been reinstated; and as he did introduce the traverse, his affidavit of illegality .must fail, because it shows he had notice of the suit and of the officer’s entry approximately seven years before the traverse was filed.

Summing up some of the legal principles announced in the foregoing authorities, we find that if the defendant “has had or could have had his day in court” he can not go behind the judgment by an affidavit of illegality; that if he has been “duly served” he has had his day in court; that the “service or levy is good,” or, in other words, he is “duly served,” when served by one who assumes to act with due authority; that whether he was rightly served or not “is immaterial” so far as notice of it is concerned; and that the entry of the officer should be traversed “at the first term after notice.” Applying to the facts of this case these and the other principles of law in the cases cited, the affidavit of illegality could not stand. As heretofore stated, the trial judge, at the time of reinstating the affidavit of illegality, had before him this evidence showing that the traverse to the officer’s return was not filed until about eight years after notice of the service. Since the only legal judgment that could be rendered on the trial of the affidavit of illegality would be to again dismiss it, the reinstatement of the affidavit of illegality would be of no avail.

We therefore hold that the trial judge erred in vacating and annulling the judgment dismissing the affidavit.of illegality, and in reinstating the affidavit of illegality.

Judgment reversed.

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


text:
    15699, 15700.
    Bank of Lumpkin et al. v. Farmers State Bank et al.; and vice versa.

    Decided November 14, 1924.
    Complaint; from Stewart 'superior court—Judge Littlejohn. May 17, 1924.
    Certiorari was granted by the Supreme Court.
    The main contention of the plaintiffs in error was that the notes sued upon were given as part of a usurious contract. From the record it appears that in February, 1921, the Bank of Lumpkin entered into a contract with the Farmers State Bank for the liquidation of the affairs of the Bank of Lumpkin. The Farmers State Bank agreed to lend the Bank of Lumpkin a stated sum necessary to pay off the liabilities of the Bank of Lumpkin; and for that sum and interest thereon from date at the rate of 8 per cent, per annum the latter bank signed notes to the other bank, indorsed by directors of the Bank of Lumpkin, and containing the usual provision for the payment of attorney’s fees of ten per cent, for collection. The notes sued on are renewals of these notes. The sum for which the notes were given was not paid over to the Bank of Lumpkin but was paid on its liabilities, some of which did not mature aucl were not paid until long after the notes were signed. In the contract it was provided that the Bank of Lumpkin should bear, out of its assets, all the necessary expenses, attorney’s fees, court costs, etc., incurred in collecting its notes and converting its assets into cash, and should furnish at its expense the services of an acceptable man to assist the Farmers State Bank in the handling of its assets, under the direction of the Farmers State Bank, and to assist that bank generally while the loan made by it to tire Bank of Lumpkin remained unpaid; and the Bank of Lumpkin agreed to pay and authorized the Farmers State Bank to pay out of the assets of the Bank of Lumpkin in its hands an additional service charge of a stated sum per month to cover extra help and •expense during the same period, and to save the Farmers State Bank harmless from all loss, damage, cost, or unusual expense that might be incurred by it by reason of the carrying out of the agreement.
   Luke, J.

Farmers State Bank bronglit suit against the Bank of Lump-kin as maker, and several others as indorsers, upon promissory notes, praying for a judgment for principal, interest, and attorney’s fees of 10 per cent, thereon for collection, as provided for in the notes. The defendants demurred to the suit, both generally and specially, and the demurrers were overruled. The defendants filed a plea in abatement, which was stricken on demurrer; and they filed a plea of usury, which was also stricken on demurrer. The defendants pleaded that they were not liable for ten per cent, attorney’s fees, for the reason that the plaintiff had not contracted with its attorney to pay ten per cent., but had contracted to pay a less sum than ten per cent. A verdict was rendered in favor of the plaintiff, for principal, interest, and ten peícent. attorney’s fees as contracted for in the notes. Motion for a new-trial was overruled. Held: The court did not err in sustaining the demurrers of the plaintiff to the plea in abatement and the plea of usury in the transaction; nor did the court err in overruling the defendant’s demurrer to the petition upon the ground that the action was improperly brought in two counts. There was no error of law upon the trial of the cause, and the evidence demanded a verdict in favor of the plaintiff; the court therefore properly overruled the motion for a new trial.

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

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

G. 7. Harrell, B. S. Wimberly, for Bank of Lumpkin et al.

Wallis & Fort, Smith, Hammond & Smith, contra.


text:
    15799.
    Claxton Hardware Co. v. Odum et al.

    Decided November 14, 1924.
    Money rule; from city court of Reidsville—Judge Cowart. June 9, 1924.

      Henry H. Durrence, for plaintiff in error.

      W. M. Smiley, J. T. Grice, M. Price, contra.
   Luke, J.

It being made to appear to this court that the judgment and execution upon which this action is founded have been fully paid and satisfied, there is no question for decision by this court, and the writ of error must be dismissed.

Writ of error dismissed.

Broyles, O. J., and Bloockoorlh, J., concur.


author: Broyees, O. J.

text:
    15839.
    Simmons v. Simmons.
   Broyees, O. J.

1. When this case was here before (32 Ga. App. 69, 122 S. E. 644), this court ruled that those portions of the defendant’s plea which referred to alleged transactions between the plaintiff and a person not a party to the suit should have been stricken on the special demurrer interposed, and the judgment was reversed because the demurrer was overruled by the trial court. Upon the trial now under review the objectionable portions of the plea were stricken, but evidence tending to support the stricken portions was admitted, over timely and appropriate objections of the plaintiff, as shown by grounds 6 and 7 of the amendment to the motion for a new trial. Under the facts of the case this error requires a reversal of the judgment below.

Decided November 14, 1924.

Action for breach of contract; from Bulloch superior court— Judge Strange. July 16, 1924.

Anderson & Jones, F. B. Hunter, Howell Cone, for plaintiff.

Hinton Booth, Fred T. Lanier, for defendant.

2. The other alleged errors are not likely to recur upon another trial of the ease.

Judgment reversed.

Luke and Blooclworth, JJ., concur.


author: Broyles, C. J. Bloodworth, J.,

text:
    15281.
    CITY OF BLAKELY v. FUNDERBURK.
    Decided November 15, 1924.
    Action for damages; from Early superior court—Judge Yeomans. December 15, 1923.

      Glessner & Collins, for plaintiff in error.

      J. T. Goree, W. G. Parle, contra.
   Broyles, C. J.

1. A city has the undoubted right to close temporarily one or more of its streets (for the purpose of making repairs thereon, or for the safety and convenience of the public) by placing obstructions therein; and where it has so closed one of its streets, and the obstructions are temporary and reasonable in their character, the city will not be liable for personal injuries resulting from a person driving against such obstructions, unless it further appears that the city failed to exercise ordinary care and diligence in safeguarding the obstructions. Simon v. Atlanta, 67 Ga. 618 (2); Holliday v. Mayor &c. of Athens, 10 Ga. App. 709 (2) (74 S. E. 67).

2. In the instant case the sole allegation of negligence in the petition is the bald statement that the city was negligent in placing the obstructions in the street. The petition clearly shows that the obstructions were temporary and reasonable in their character, and it fails to allege, literally or in substance, that the city did not take such precautionary measures for the protection of the persons using the street as ordinary care and diligence would require. Therefore, under the ruling enunciated in the preceding paragraph, the petition failed to set out a cause of action, and the court erred in overruling the general demurrer interposed.

Judgment reversed.

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

Bloodworth, J.,

dissenting. The 10th paragraph of the petition is as follows: Plaintiff shows further that the defendant, through its officers and agents, had obstructed said street by placing on and across said street near the northwest corner of the place known as the Wade Grove, logs and cross-ties, making it impossible to pass along said street without striking said obstruction.” This is alleged to be gross negligence. The petition was amended as follows: “Petitioner alleges that obstructions placed in said street, either by the City of Blakely acting through its proper officers or by some other person, were and remained in said street from about Tuesday, November 7th, 1922, until the following Monday, November 13th, 1922; that said obstructions were known to have been in said street by defendant, City of Blakely, and petitioner charges that they remained in said street for a sufficient time, prior to the time of injury of plaintiff, that said City of Blakely, by the exercise of reasonable diligence in the performance of its duties, had the means of knowledge of said obstruction, and it ought to have known of said obstruction.” The court did not err in allowing this and the other amendments. To the petition demurrers, general and special, were filed, and upon these being overruled, exceptions pendente lite were taken. As I construe the petition the plaintiff planted her case squarely upon the general and well-recognized principle that “a municipal corporation is bound to keep its streets and sidewalks in a safe condition for travel in the ordinary modes, by night as well as by day, and in case of failure to do so, it is liable for damages resulting therefrom.” Mayor &c. of Milledgeville v. Cooley, 55 Ga. 18 (1). Citing Simon v. Atlanta, 67 Ga. 618 (44 Am. R. 739), and Robins v. McGehee, 127 Ga. 431 (2) (56 S. E. 461), this court held, in City Council of Augusta v. Jackson, 20 Ga. App. 710 (1) (93 S. E. 304) : “The primary purpose of a street is for passage and travel, and any unauthorized and illegal obstruction of its free use comes within the definition of a nuisance; and such obstruction as would leave the street, or way in an unsafe condition or impair its use in an unreasonable manner or for an unreasonable time would render the city liable for any damage resulting therefrom.” In Brown v. Mayor &c. of Milledgeville, 20 Ga. App. 392 (93 S. E. 25), this court held: “The general rule of law is that a municipal corporation is bound to keep its streets and sidewalks in a reasonably safe condition for travel in the ordinary modes, by night as well as by day; and if it fails to do so, it is liable for damages for injuries sustained in consequence of such failure.. Mayor &c. of Atlanta v. Perdue, 53 Ga. 607, 608; Parker v. Macon, 55 Ga. 566, 568. . . A municipal corporation is liable for injuries caused by its neglect or omission to keep its streets and sidewalks in a reasonably safe condition for travel in the ordinary modes; and it is also liable for such injuries caused by its neglect or omission to remedy defects in its public streets or sidewalks, occasioned by the wrongful acts of another. In the latter class of cases the foundation of the action is negligence in failing to remedy the defect, and in the absence of actual knowledge the municipality is not liable unless the defect occasioned by the wrongful act of another has existed for such a.length of time as to charge the municipality with notice of its existence. See Mayor &c. of Atlanta v. Perdue, supra.” See also Mayor &c. of Rome v. Dodd, 58 Ga. 238 (1); Town of Belton v. Vinton, 73 Ga. 99; Idlett v. Atlanta, 123 Ga. 821 (51 S. E. 709). It is provided in section 3652 of the Civil Code of 1910 that, “for every injury done by another to person or property, the law gives a right to recover and a remedy to enforce it.” In Ellison v. Ga. Railroad. Co., 87 Ga. 699 (4) (13 S. E. 811), Chief Justice Bleckley said: “Relatively to the law of pleading a cause of action is some particular legal duty of the defendant to the plaintiff, together with some breach of that duty which occasions loss or damage.” In Stafford v. Maddox, 87 Ga. 540 (13 S. E. 560), the same learned jurist, citing certain sections of the code and Sedgwick on Damages, said: “Nothing is needed but a right in the plaintiff and some invasion of that right by the defendant.”

What legal duty did the City of Blakely owe to the plaintiff in this case ? The duty of keeping its streets in a “reasonably safe condition for travel in the ordinary modes by night as well as by day.” Relatively to the City of Blakely, what right had the plaintiff ? The right to travel its streets without their being obstructed in such a way as would make it unsafe to use them in the ordinary modes of travel. By obstructing, as it did, one of its streets, the city invaded this right of the plaintiff, breached its duty to her, and she was injured as a result thereof. Under the rulings in the foregoing cases a right of action accrued to the plaintiff, and'this right was sufficiently set out in the petition, and the demurrers thereto were properly overruled.

The facts in the cases cited and relied on by plaintiff in error easily differentiate those cases from the one now under consideration.


author: Broyles, O. J.

text:
    15741.
    Cowart v. The State.
    Decided November 15, 1924.
    Rehearing denied December 9, 1924.
    Conviction of possessing liquor; from city court of Dublin— Judge Sturgis. May 27, 1924.
    In his statement to the jury the defendant said: “I have never fooled with whisky . . I have tried to live right.”

      W. A. D ampler, for plaintiff in error.

      William Brunson, solicitor, contra.
   Broyles, O. J.

1. Although in a criminal ease the accused alone can put his general character in issue, yet he can do so as effectively by his statement to the jury as by introducing sworn testimony on that subject. Barnes v. State, 24 Ga. App. 372 (3), (4). Under this ruling and the facts of the instant case, this court can not hold, as a matter of law, that the trial judge erred in ruling that the accused, by his statement to the jury, had put his general character in issue, and in permitting the State thereafter to introduce evidence as to his bad character.

2.’ The other grounds of the motion for a new trial, not being referred to in the brief of counsel for the plaintiff in error, are treated as abandoned.

Judgment affirmed.

Lulce and Bloodworth, JJ., concur.


author: Broyles, C. J.

text:
    15804.
    FULTON NATIONAL BANK v. REDMOND.
    Where the holder of negotiable paper received after its maturity sues the maker thereon, the maker may set off damages, although unliquidated, for a breach of a contract by the original payee.
    Decided November 15, 1924.
    Mortgage foreclosure; from Fulton superior court—Judge Ellis. May 2, 1924.
    Certiorari was granted by the Supreme Court.

      Little, Powell, Smith & Goldstein, William Matthews, for plaintiff. •

      McDaniel & Neely, for defendant.
   Broyles, C. J.

This was a mortgage foreclosure by the Fulton National Bank upon a steam-shovel in the possession of W. J. Bedmond. It appears that the shovel was sold under a written contract of conditional sale to Bedmond by the Thew Automatic Shovel Company. The promissory notes executed by Bedmond, and representing the balance due under the contract, together with the contract, were transferred by the Shovel Company to the Graves Machinery Company, and subsequently, and after the maturity of the notes, the Fulton National Bank received the notes, together with the contract of conditional sale, as collateral security from the Graves Machinery Company. Bedmond filed a counter-affidavit, and an amendment thereto, alleging: that the shovel had been paid for in full before the plaintiff bank had received the notes, and that the Graves Machinery Company was indebted to him under certain contracts involving the use of the shovel and other equipment used in road building; that lie had paid to the Graves Machinery Company, before the notes were transferred to the bank, the sum of $10,800.60; that the deduction of this amount from the purchase price of the shovel left a balance due thereon to the Graves Machinery Company of $1916.30, plus the accrued interest; that the Graves Machinery Company, however, was indebted to him in the sum of $14,397.65; and that, as the notes in question were acquired by the plaintiff bank after maturity, all the defenses good against the machinery company were available against the plaintiff bank, and, therefore, he is not indebted to the plaintiff in any amount. It appeared from Bedmond’s counter-affidavit that the $14,397.65 was the amount he claimed to be due him from the Graves Machinery Company for his services, equipment, etc., including the use of the steam-shovel involved, in connection with work done on what was known as “Federal aid project No. 9, in Babun county, Ga.” It was also set up, in substance, in the counter-affidavit that although the contract for the Babun county work was taken in the name of George B. Graves, it was really the contract of the Graves Machinery Company, that the company got the benefit of the work done on the project by Bedmond, and that he is entitled to a credit for the value of such work on the purchase price of the steam-shovel.

Upon the trial, after the plaintiff had introduced its evidence, the defendant introduced evidence sufficient (as is admitted in the record by the plaintiff in error) to sustain his contention as set out on page 1 of his counter-affidavit. Counsel for the defendant then offered the oral testimony of Redmond himself to sustain his contention as set out on page 3 of his counter-affidavit, which pertained entirely to the work done on the Federal aid project No. 9, in Rabun county, Ga. The plaintiff objected to and moved to rule out all of the testimony of Redmond as to this work, on the sole ground that none of the evidence concerning Project No. 9 showed a liquidated claim against the Graves Machinery Company, and, therefore, even if true, was not a defense against the notes in the hands of a bona fide purchaser after maturity. The court overruled this objection and admitted the evidence.

The defendant offered also the testimony of a witness in regard to a dispute between the State Highway Commission and George B. Graves as to the amount due Graves on the contract for Project No. 9. Plaintiff objected to this testimony, on the ground that it was irrelevant and immaterial as to the merits of the case. The court overruled the objection and admitted the evidence. The jury returned a verdict for the defendant, and the plaintiff brought the case to this court by a direct bill of exceptions, and assigned error upon the admission of the testimony of Redmond regarding the set-off arising from Project No. 9, and upon the admission of the testimony regarding the dispute between the Highway Commission and George B. Graves. The bill of exceptions assigned also as error the verdict and judgment, but solely because of the preceding alleged erroneous rulings upon the admissibility of the evidence as above stated.

In our view the ease the court did not err in overruling the objection made to the admission of the testimony of Redmond as to Project No. 9, and in admitting the testimony. The evidence was sufficient to authorize a finding that although the contract for Project No. 9 was in the name of George B. Graves, it was really the contract of the Graves Machinery Company, and that the com pany, in connection therewith, breached a contract which.it had made with Redmond, to his damage.

It is well settled that “unliquidated damages for the breach of a contract may be set off the same as liquidated damages.” Fontaine v. Baxley, 90 Ga. 416, 427 (3) (17 S. E. 1015); Pickett v. Andrews, 135 Ga. 399, 300 (69 S. E. 478). In passing upon the question whether the trial judge erred in admitting this eviden.ee, this court can not consider any objection thereto except that stated to the trial court at the time of its admission. It is true that the bill of exceptions recites that “plaintiff in error contended at the time, and contends here, that the only items that could be set off against it were matters connected with the transaction for which the notes were given, and as the matters and things set up on page 2, to wit, Project No. 9, were matters arising out of another and different transaction than that covered by the notes which the mortgage was given to secure, the defendant was not entitled to sustain such a set-off against the plaintiff.” The brief of the evidence, however (which contains the objections made to this evidence and the ruling of the court thereon), clearly shows that the only objection made to the evidence at the time it was offered, and the only objection ruled on by the trial court, was that it disclosed that the claim of the defendant was not a liquidated one, and therefore was no defense against the notes in the hands of a bona fide purchaser after maturity. The brief of the evidence is attached as an exhibit to the bill of exceptions, and thus is technically a part thereof. When, therefore, the bill of exceptions is properly construed as a whole, it clearly appears that the only objection made to the evidence at the time of its admission, and the only objection ruled upon, was as above stated.

In our opinion the court did not err in admitting the evidence as to Project No. 9, or the other evidence complained of in the bill of exceptions.

It follows that the assignment of error upon the verdict and judgment is without merit.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


author: Bboyles, O. J.

text:
    15815.
    Fields v. The State.
   Bboyles, O. J.

1. In a prosecution for seduction, wliere it appeared that the accused had married the female alleged to have been seduced by him, but had not given the bond required by the statute, and where it failed to appear that he was unable to give the bond, the wife was a competent witness to testify against him, whether the marriage to suspend the prosecution for seduction occurred before or after he was indicted. Penal Code (1910), §-379, as amended (Ga. L. 1911, p. 68).

(a) The jury were authorized to find, from the evidence, that the accused married, tlie female for tlie purpose of suspending a prosecution for seduction.

Decided November 15, 1924.

Seduction; from Wayne superior court—Judge Summerall. ■ June 28, 1924.

Jamos B. Thomas Son, for plaintiff in error.

Alvin V. Sellers, solicitor-general, contra.

2. The verdict was authorized by the evidence, and none of the grounds of the motion for a new trial requires another hearing of the case.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    15300.
    KENNEY v. ARMOUR FERTILIZER WORKS.
    1. i‘lt is only when the discharge of a surety is claimed upon the ground that the act of the creditor has injured him that proof of loss on the part of the surety is required (and in some such eases it might not be necessary). Proof of a loss by the surety is not required where his discharge is dependent upon an act of the creditor which has increased his risk, nor where it is claimed that the act of the creditor has operated to discharge the surety by exposing him to greater liability.”
    2. The defendant, being released from liability on the note because of his risk being increased by the failure of the creditor to keep the cotton insured in accordance with agreement, had a legal right to prosecute his claim for the value of his cotton held as collateral by the plaintiff after such release; and any part of the charge of the court which abridged this right was error.
    Decided December 9, 1924.
    Complaint; from city court of Blakely—Judge Gray. January 7, 1924.
    Application for certiorari was made to the Supreme Court.

      W. G. Parle, Glessner & Collins, for plaintiff in error.

      Pope & Bennei, Lowrey Slone, contra.
   Bloodworth, J.

Suit on a promissory note was brought by Armour Fertilizer Works against T. B. Kenney and the administratrix of the estate of J. C. Hudspeth. On demurrer the administratrix was dismissed as a party defendant, and the case proceeded against Kenney alone. He admitted a prima facie case and assumed the burden. The note sued on was signed, “ J. B. Kenney,” and “Est. J. C. Hudspeth, by J. 0. Bridges, executor,” and was given for fertilizer. In his answer Kenney alleged, in substance, that he was the tenant of Martha J. Hudspeth, who had a life estate in the land he rented; that she bought the fertilizer and sold it to him; that he signed the note only as surety, and for the purpose of showing what amount of fertilizer he got in distinction from that of other tenants; that he did not buy or receive any fertilizer from the plaintiff; that upon maturity of the note on October 1, 1920, Martha J. Hudspeth was without funds to pay the same; that the plaintiff extended the time for payment upon her turning over to it, as collateral, warehouse receipts representing eight bales of cotton belonging to her, “on condition that the company would not only extend the time of payment of her noto as aforesaid, but would also (at its own expense) keep the cotton so pledged to it insured up to its full market value;” that the plaintiff failed to keep the eight bales of cotton insured in accordance with its contract, and, “by reason of said breach by the plaintiff of its covenant to keep said cotton fully insured, the risk of this defendant as surety on the note sued on was materially increased, and he was thereby, as matter of law, thenceforth discharged and released from all liability to the plaintiff on said note;” that this risk resulted in actual loss by fire on September 7, 1921, of some of the cotton pledged by Mrs. Hudspeth as collateral on this note. Defendant alleged also in his answer that on the same date, to wit, October 20, 1920, Mrs. Hudspeth turned over to the plaintiff the eight bales of cotton as collateral on said note; that the plaintiff “induced him, as surety on said note, to likewise pledge to the company as collateral security for its ultimate payment, on like terms and conditions, the warehouse receipts representing fifteen bales of cotton belonging to this defendant;’? that notwithstanding he was, prior to September 7, 1921, released from all liability as surety on said note, because of the plaintiff’s failure to keep said cotton insured, the plaintiff retained the fifteen bales of cotton put up as collateral by defendant, and that said “plaintiff corporation, on or aboirt the 22d day of April, 1922, wrongfully and without any color of authority converted all of said cotton to its own use by selling the same, without this defendant’s consent or knowledge, at private sale;” and he alleged, by way of a cross-action, that he was “entitled to recoup and recover of the plaintiff in this action the market value of said cotton at the time of said sale.” Plaintiff filed no demurrer to this plea.

The defendant introduced evidence showing that no guano was shipped to him; that it was shipped to the Hudspeth estate, and that he purchased it from Mrs. Martha J. Hudspeth and paid her for it. There is ample evidence to show that there was no consideration to the defendant Kenney, except as surety. Furthermore, since he based his defense to the note on the fact that he was released by the plaintiff’s increasing his risk as a surety, and the jury found that he was so released, their finding could have been based on the increased risk, because he showed by competent evidence that the plaintiff did agree to keep said collateral cotton insured, and did fail to comply with this agreement. Plaintiff introduced no evidence to show that it did not make such an agreement, or that it complied with such agreement. In fact the plaintiff introduced no • ¡evidence at all in rebuttal of the defense set up by the defendant surety. The verdict was, “We, the jury, find in favor of the defendant T. B. Kenney; ” and upon this verdict judgment was entered against the plaintiff for the cost of suit.

Kenney filed a motion for a new trial (because of his failure to recover on his cross-action), which was overruled; to which ruling he excepted.

The 4th ground (1st special ground) of the motion for a new trial alleges that the court erred in charging the jury that if they believed “that in consideration of the depositing of such security with it, the plaintiff agreed to keep such cotton insured against loss by fire; that it failed to carry out this agreement; that such cotton was wholty or partially destroyed while in the custody o(: the plaintiff, resulting in loss to the maker of the note sued on, Mrs. Hudspeth; that the risk of the surety, Kenney, was increased to the extent of such loss, that he would be relieved of liability as a surety upon such note to the extent of the loss occasioned by the loss of such cotton. If you should find this to be true, under the evidence, then it would be your duty to find in favor of the defendant Kenney the amount of such loss, as you ascertain it to be from the evidence produced to you.” This charge was error, because the increasing of the surety’s risk released him from all liability on the note, under the pleadings and the evidence. It might be contended that it was harmless error, since the jury did release him from all liability on the note. It is true the jury by their verdict released the defendant from liability on the note, but they failed to find in favor of the defendant on his cross-action, and it is not certain what evidence they took into consideration in arriving at this verdict. It may have been a compromise verdict, or they may have offset the claim of the defendant for his fifteen bales of cotton against the claim of the plaintiff on the note. Defendant contends that he was totally released by virtue of his risk being increased, and that, after being so released, he was entitled to recover his fifteen bales put up as collateral, and the plaintiff had no claim thereon.

The statute is perfectly plain-on this subject. Section 3544 of the Civil Code (1910) provides that “Any act of the creditor, either before or after judgment against the principal, which injures the surety, or increases his rislc} or exposes him to greater liability, will discharge him.” (Italics ours.) The use of the disjunctive “or” shows that injury to the surety or loss is not the only thing which will discharge the surety. It may be loss, or increase of risk, or exposure to greater liability. Any one of these three, according to the words of the statute, will discharge the surety; and there was evidence that the surety’s risk was increased and lie was exposed to greater liability by the plaintiff. Section 3540 of the Civil Code provides that “The contract of suretyship is one of strict laAV, and his liability will not be extended by implication or interpretation.” Kenney is in the position of an accommodation indorser. No consideration flowed direct to him. His only consideration was that extended to his principal. It is for this reason that our law throws unusual protection around a surety. As stated by Judge Lumpkin in the case of Bethune v. Dozier, 10 Ga. 235, “In this State . . everything has been done which the ingenuity of the legislature could devise to protect sureties.” The court says also in that opinion that “no principle of law is better settled at this day than that the undertaking of the surety being one strict i juris, he can not, either at law or in equity, be bound farther or otherwise than he is by the very terms of his contract” (italics ours); and “he is either bound in toto or not at all.” And in discussing the opinion in a case there cited the court said that the judge “very properly adds that it places in a strong point of view the inflexibility of purpose with which the rule that no chmge shall be made in the terms or mode of performance of a contract, without consent of the surety, is adhered to by the courts.” (Italics ours.) Part of the terms and mode of performance in the instant case was that the collateral cotton should be kept insured by the plaintiff. The opinion in Bethune v. Dozier, supra, quotes approvingly from the Supreme Court of Alabama to the effect that “It is uot, however, necessary that it should appear that the surety has been injured necessarily by the alteration, nor would it make any difference if it was evident that he was benefited by it. It is a sufficient answer that it is not the contract for the performance of which he was surety.”

While the defendant in this case did allege that the plaintiff’s failure to insure the cotton as per agreement resulted in actual loss, he did not base his discharge from liability upon this loss, but based it strictly on the plaintiff’s increasing his risk by failure to insure the cotton as per agreement. The allegations of the answer in tin's regard are that "by reason of said breach by the plaintiff of its covenant to keep said cotton fully insured, the risk of this defendant as surety on the note sued on was materially increased, and he was thereby, as a matter of law, thenceforth discharged and released from all liability to the plaintiff on said note.” This brings the case squarely under the decision-in Cloud v. Scarborough, 3 Ga. App. 7 (59 S. E. 202), the second headnote of which is as follows: “It is only when the discharge of a surety is claimed upon the ground that the act of the creditor has injured him that proof of loss on the part of the surety is required (and in some siich cases it might not be necessary). Proof of a loss by the surety is not required where his discharge is dependent upon an act of the creditor which has increased his risk, nor where it is claimed that the act of the creditor has operated to discharge the surety by exposing him to greater liability.” (Italics ours.) In discussing the three things laid down in code section 3544 that would release the surety, the court said (p. 9) : “It need not be shown that the act of the creditor, relied upon as a discharge, not only injured the surety, but also increased his risk and exposed him to greater liability. On the contrary, the acts which may effect the discharge of the surety are divided into three distinct classes, not necessarily related to or affecting each other; and proof of any act coming within either class—either an act which injures the surety or an act of the creditor which increases his risk, or an act which exposes the surety to a greater liability—will discharge the surety. It is only when the act complained of falls in the first class—when it is claimed that the surety has been injured—that proof of loss is necessary. Loss or proof of loss is not essential, to discharge a surety, either in a case where the act of the creditor increases the risk of the surety, or where he seeks to be released because the act of the creditor has exposed him to greater liability.” The court said also (p. 8) that our code section was merely an incorporation of the principles asserted in Brown v. Executors of Riggins, 3 Ga. 405, and Jones v. Whitehead, 4 Ga. 401. Referring to these early decisions, we find in the latter decision the following: “Wherever the creditor does an act whereby injury or loss, or liability to loss, or increased risk accrues to the surety without his assent, . . he is entitled to be discharged; and the courts uniformly refuse to require of the surety to show that-he has in fact been damnified.” And the court states that this rule is the “sum and substance of the English and American adjudications upon this subject.” We thus see that this rule of ancient origin—nearly a century old—is the same one under which we operate to-day, upon which our present code section is based, and under which a surety is discharged because of increased risk or exposure to greater liability. The endurance of the rule during all these years is the best evidence of its strength and worth.

In the case of Toomer v. Dickerson, 37 Ga. 428, the security claimed a discharge because of the creditor’s failure to record a mortgage. “It was insisted in the argument of this case that the security had suffered no injury from the failure of the creditor to record the mortgage. IJpon that point the record is silent.” And the court said (p. 440) : “We know nothing upon that point fin the case, except what the record discloses. The record discloses the fact that in consequence of the failure to record the mortgage, as required by law, the risk of the security was increased, and that he has been exposed to greater liability; at least such is necessarily the legal effect from the facts proved in the record.” On page 439 it is said: “The language of the code is cAny act of the creditor,’ which may as well be an act of omission as any other act, whereby the risk of the security is increased, or exposes him to greater liability.” This is peculiarly applicable to the case under consideration, because it was the plaintiff’s “act of omission,” in failing to insure the cotton as per his agreement, that released the surety on his note. In Atlanta National Bank v. Douglass, 51 Ga. 206, where the creditor failed to record a mortgage and cancelled it and took another, it was held that “the security is discharged, notwithstanding it may be affirmatively shown that the mortgage, though duly recorded and not canceled, would have been no protection to the security by reason of older liens.” In the opinion it was said: “It is contended in this case that as there was evidence going to show that the surety was not in fact hurt by this act of the plaintiff, the judge should have charged the jury that the surety was not discharged if he was not injured, or at any rate, that he was only discharged pro rata, according to the amount of injury. But the code very certainly means more than this; it does not stop at the words ‘injures the security/ it adds ‘increases his risk or exposes him to greater liability/ ” In the instant case the collateral was given at the time the note was extended and the promise of insurance was made. An extension of a note could easily prove detrimental to a surety and loss accrue to him which would not have occurred had the note been collected at maturity. Therefore the assent of the surety to an extension is a valuable consideration, and any inducement offered for such assent is likewise valuable.

In the case of White v. Ault, 19 Ga. 553, White was security, and the Supreme Court said that “if time of payment was given by Ault to Stafford, beyond that specified in the notes, without the consent of White, either express or implied, so that Ault himself could not coerce payment within that period, nor be compelled to do so by White the security, nor the security himself do so by paying up the debt and getting the control, . . the surety is absolutely discharged.” In the case of Harrington v. Findley, 89 Ga. 385 (15 S. E. 483), the Supreme Court, referring to a usurious note, said the sureties could take advantage of the usury as a ground of discharge, and that “their discharge does not depend upon actual loss, but upon the risk of loss to which they were exposed by reason of the concealed usury in the contract of lending of which the note was the result.” These and numerous other decisions are in harmonj'- with our statute law relative to sureties; for example: section 3540 of the Civil Code, making the strictijuris rule apply; section 3542, providing that the release of one surety discharges a cosurety because it- increases his risk; section 3543, providing that a novation without consent of the surety discharges him; and section 3544, providing that any act of the creditor which increases the surety's risk will discharge him.

To distinguish some apparently, but not in fact, conflicting decisions on this question, we call attention to the following principle s which have been invoked where the facts were applicable: If the surety bases his discharge upon a loss sustained, he must prove such loss, and a charge to the effect that he would be released in proportion to the loss wrongfully occasioned by the creditor would be proper. If the surety was liable for a certain amount, and nothing was- ever done to make him liable for more than this amount, or, in other words, to increase his risk, but the creditor did wrongfully release or dispose of collateral the value of which was less than the amount for which the surety was bound, then the surety would be discharged pro tanto rather than in toto. If at the time of the original undertaking by the principal and the surety the creditor holds no collateral, or a fixed amount of collateral, and subsequently to the original undertaking, and without consideration or inducement to the surety to act, the creditor procures collateral or additional collateral prior to the maturity of the indebtedness, and wrongfully disposes of the additional collateral, the surety would not be discharged in toto, because the risk which he undertook is not increased. None of these three principles is applicable to the case under consideration. In the instant case the> surety did not base his claim for discharge upon any loss sustained, or upon any portion of the collateral being wrongfully disposed of; nor did he or his principal give the collateral without consideration and inducement to act. On the contrary, the note had matured; it maj have been collectible from the principal at maturity, thus releasing the surety; the plaintiff did not collect it, but said to the principal and the defendant surety, “If you will give me this cotton as collateral, I will, as an inducement for such collateral, extend the note and keep the cotton insured at my expense;” the surety assented to an extension of the note upon this inducement; and the defendant claims a discharge as surety because the plaintiff failed to keep the cotton insured as per agreement, thereby increasing the surety’s risk and exposing him to greater liability. So far as the extension, the collateral, and the insurance were concerned, it was a novation in the nature of an original undertaking.

The defendant being released from ‘liability on the note because of his risk being increased by the failure of the creditor to keep the cotton insured as per agreement, he had a legal right to‘prosecute his claim for the value of his cotton held as collateral by the plaintiff after such release; and any charge of the court which abridged this right was error.

Under the above ruling and the evidence in this case, the court erred as alleged in special grounds 4, 5, 6, 7, 8, and 10. The error complained of in ground 9 is harmless, in view of the verdict rendered. The judge erred also as set out in ground 11. The defendant surety admitted a prima facie case, assumed the burden of proof, and introduced his evidence; and the plaintiff introduced no counter evidence. “The party on whom the burden of proof rests has the right to open and conclude the cause before the jury.” Mason v. Croom, 24 Ga. 211 (2).

Judgment reversed.

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


text:
    15382.
    THOMAS v. THE STATE.
    An accusation of drunkenness in a designated public placo can not bo established by proof that the accused, while in an intoxicated condition, was involuntarily and forcibly carried to that place by the arresting officer, no matter what the proof may be touching' the other essential elements of the alleged offense.
    Decided December 9, 1924.
    Accusation of drunkenness on highway; from city court of Daw- , sou—Judge Edwards. January 10, 1924.

      Paries & Paries, for plaintiff in error.
    IF. H. Gurr, solicitor, contra.
   Luke, J.

Aaron Thomas was convicted of being drunk on a certain public highway; and he excepts to the judgment overruling his motion for a new trial. There was evidence tending to show that he traveled the designated highway to a church beside the road, where he was arrested by a deputy sheriff and carried, under custody, along the same road to the county jail. Two witnesses testified (evidently giving their opinion only) that the accused was drunk at and prior to the time of his arrest, but no witness testified to any fact tending to show how such drunkenness was made manifest at any time prior to the arrest of the accused and his involuntary appearance upon that. road. There was evidence, however, tending to show that, after his arrest and while being carried to jail, the accused made his drunken condition manifest by vulgar, profane, and unbecoming language, and in other ways. The court charged as follows: “If the defendant came upon the public highway while under arrest and used vulgar, profane, and unbecoming language, he would be just as guilty of violating the law as if he had not been under arrest. The fact that he was under arrest would not alter the situation.” This charge is excepted to on the ground, among others that it places upon the accused the same criminal responsibility for being involuntarily carried upon a public highway as for voluntarily going upon it while in a drunken condition.

We think the exception is well taken. The accusation was based upon section 442 of the Penal Code (1910), which provides: “If any person shall be and appear in an intoxicated condition on any public street or highway, . . which said drunkenness or intoxication may be caused by the excessive use of intoxicating wines, beers, liquors, or opiates, and must be made manifest by boisterousness, or by indecent condition or acting, or by vulgar, profane or unbecoming language, or loud and violent discourse of the person or persons so intoxicated or drunken, he shall be guilty of a misdemeanor.” Under the plain terms of that statute, especially as construed by the prior decisions of this court, the place where the drunken condition exists is no less essential to the offense than the condition itself, drunkenness becoming an indictable offense only when the drunken person appears at some one or more of the places specified in the statute. Burkes v. State, 7 Ga. App. 39 (65 S. E. 1091); Hutchinson v. State, 8 Ga. App. 684 (2) (70 S. E. 63); James v. State, 28 Ga. App. 713 (113 S. E. 26). And since the union or joint operation of act and intention is an essential element of every crime or misdemeanor, the involuntary presence of a drunken person upon a public road is not an indictable offense.

Since the evidence may not be the same upon another trial, no ruling is now made as to the sufficiency of the'evidence to support the verdict; but see Coleman v. State, 3 Ga. App. 298 (59 S. E. 829).

Judgment reversed.

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


text:
    15515.
    Southern Railway Company v. Lester.
    Decided December 9, 1924.
    Damages; from Paulding superior court—Judge Irwin. February 7, 1924.

      A. J. & L. P. Camp, Maddox, McOamy & McFarland,, for plaintiff in error.

      O. B. McGarity, contra.
   Luke, J.

Where a railway company erects for its track an embankment or closed trestle over the natural basin of a river, creek, or branch, the accumulated waters of which, in times of flood, previously escaped by flowing over the lowland so elevated, but thereafter, because of such structure, overflows the basin and contiguous lands on the upper side of the railroad more than it did before, and thus injures land there situate, the owner has a right of action against the company. O’Connell v. East Tenn. &c. Ry. Co., 87 Ga. 246 (13 S. E. 489, 13 L. R. A. 394, 27 Am. St. Rep. 246); Mayor &c. of Albany v. Sikes, 94 Ga. 30 (20 S. E. 257, 26 L. R. A. 653, 47 Am. St. R. 132); Farkas v. Towns, 103 Ga. 150 (29 S. E. 700); 27 R. C. L. 1140 et seq.

(a) Applying the foregoing principle to the facts of the instant case, the verdict was not without evidence to support it, and the judgment overruling the defendant’s motion for a now trial, which was based upon the usual general grounds only, was not erroneous.

Judgment affirmed.

Broyles, C. J., and Bloodworih, J., eoneu/r.


text:
    15527.
    Griffin v. Nix, sheriff.
   Luke, J.

1. A petition for a rule against the sheriff of a city court will not lie in the superior court, for failure to make proper returns of money received by him from the sale of property under an execution issued from and returnable to the city court, unless there is a prayer, supported by appropriate averments, for special equitable relief. Pyles v. Easterling, 30 Ga. App. 783 (119 S. E. 351); Pound v. Smith, 146 Ga. 431 (2) (91 S. E. 405).

2. Jurisdiction of the subject-matter is given only by law, and can not be conferred by consent or waiver.

{a) But where such a proceeding in the superior court as mentioned above was based upon an execution which was duly levied, and it appeared only from the sheriff’s answer (which was traversed by the plaintiff) that, after the levy of the execution,' the same property was levied upon and sold under a city-court execution, and the funds arising from the Sale were paid out under order of the city court, and the parties were at issue as to all the material facts, it was erroneous for the court to dismiss the proceeding on the defendant’s oral motion, urged first at the trial term, without hearing- any evidence upon the issues made by the pleadings.

Decided December 9, 1924.

Rule; from Berrien superior court—Judge Dickerson. -March 20,-1924.

Hendricks & Hendricks, for plaintiff.

Jeff 8. Story, for defendants.

Judgment reversed.

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


text:
    15749.
    CHANCE v. THE STATE.
    The testimony of one accomplice, if satisfactory to the jury, is sufficient corroboration of the testimony of another accomplice to authorize a conviction of felony.
    Decided December 9, 1924.
    Conviction of manufacture of liquor; from Whitfield superior court—Judge Tarver. May 24, 1924.

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

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

Yirgil Chance was jointly indicted with others for the offense of manufacturing intoxicating liquors, which is a felony under the laws of this State. He was found guilty, upon the testimony of two witnesses, each of whom testified that the accused and the witnesses were jointly engaged in distilling whisky as charged in the bill of indictment. The court gave in charge to the jury section 1017 of the Penal Code (1910), with reference to the weight to be given the testimony of an accomplice in a felony case, and added: “I charge you, as a matter of law, that the witnesses Slaton and Hill, if their evidence be true, were accomplices of the defendant. I charge you that this statute has reference to cases in which the only witness is an accomplice; and if there be two witnesses, both of whom aie accomplices, the rule stated in the statute does not apply. And if from the testimony of such two accomplices the minds of the jury rest satisfied beyond a reasonable doubt as to the guilt of the defendant, they should convict.” The court denied a timely written request for the following charge: “I charge you that under the evidence in this ease both witnesses, Slaton and Hill, are accomplices; and before you would be authorized to convict the defendant Chance, the evidence of the arcomplices must be corroborated by other evidence, and such corroborating evidence must connect the defendant Chance with the offense of manufacturing intoxicating liquor—the offense charged in the indictment.” The defendant moved for a new trial upon the usual general grounds, and also assigned as error the charge and refusal to charge as above set out. He excepts to the judgment overruling that motion.

The same principle of law controls the several grounds of error. “At common law one could be convicted on the uncorroborated testimony of an accomplice.” Stone v. State, 118 Ga. 705 (4) (45 S. E. 630, 98 Am. St. Rep. 145). But the statute law of this State (Penal Code of 1910, § 1017), dealing with the “number of witnesses necessary,” provides that “The testimony of a single witness is generally sufficient to establish a fact. Exceptions to this rule are made . . in any case of felony where the only witness is au accomplice; in these cases . . corroborating circumstances may dispense with another witness.” Tims, the statute, dealing generally with the number of witnesses necessary, deals only with the weight to be given the testimony of a single accomplice, and seemingly leaves of force the prior common-law rule where two or more accomplices testify as witnesses to the same fact. But in Johnson v. State, 92 Ga. 577 (4) (20 S. E. 8), the Supreme Court seemed to have a different opinion, the fourth paragraph of the decision being as follows: “Where there was no evidence connecting the accused with the alleged burglary except the testimony of two witnesses who admitted that they were accomplices in the burglary, and the State sought to corroborate the accomplices by showing that a garment found on the person of the accused recently after the commission of the offense was a part of the goods taken from the broken building by the burglars, evidence which fails to identify the garment as such with reasonable certainty is not sufficient corroboration, the owner of the goods having testified as a witness in behalf of the State, and the record showing no reason or explanation why he failed to testify to the identity or to a description by which the identity might appear. In-consequence of this failure to corroborate the accomplices, the evidence was insufficient to warrant the verdict, and it was error not to grant a new trial.” In the subsequent case of Stone v. State, supra, the Supreme Court, dealing more nearly with the precise question now presented for decision, said: “The practice of the English judges of advising the jury to acquit in all cases where the sole testimony was that of an accomplice was never a rule of law. It grew up after May 14,1776, and was not within the terms of our adopting statute; nor has it been incorporated in the code as to misdemeanor cases, nor as to felonies, except where the only witness to a fact is an accomplice.” In the course of the opinion in that case, delivered by, Mr. Justice Lamar, Johnson’s ease, supra, is referred to, but is not followed. Instead of following the principle apparently ruled in Johnson’s case, it was said: “The point was assumed, but not expressly dealt with, in Johnson v. State, 92 Ga. 578.” Expressly dealing with the precise point now in question, the fifth division of the opinion concludes as follows: “ The statute being silent, the courts have no right to extend the exceptions beyond its terms. Childers v. State, 52 Ga. 117. Nor does the provision in Political Code [1895], § 4, par. 4, that the singular includes the plural, apply when it is apparent that the statute is dealing with the number of witnesses necessary, and expressly declaring that one is sufficient except in specified cases.” See also the decision of this court in Williams v. State, 31 Ga. App. 293 (120 S. E. 550), following the decision in Stone’s case and expressly ruling that “one accomplice can corroborate another.”

It is therefore held that the lower court did not err either in giving the charge complained of or in refusing to give the requested charge. The verdict, having some evidence to support it, and having the approval of the trial judge, can not be disturbed by this court.

Judgment affirmed.

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


author: Bloodwobth, J.

text:
    15764.
    Rivers v. Cox.
   Bloodwobth, J.

1. “The remedy by affidavit of illegality is purely statutory, and is limited to the relief expressly conferred by the statute strictly construed.” McConnell v. Mason, 30 Ga. App. 82 (116 S. E. 658). “A defendant who has been served and who has had her day in court can not go behind the judgment by affidavit of illegality, for the purpose of showing' that she was surety on the note which is the basis of the judgment, and that she is released because of conduct of the creditor prior to the rendition.of the judgment. Civil Code (1910), § 5311; Bird v. Burgsteiner, 108 Ga. 654 (34 S. E. 183); Steele v. Atlanta Co., 91 Ga. 64 (16 S. E. 247).” Cunnard v. Childs, 10 Ga. App. 176 (73 S. E. 20). “Unless a judgment is void, an affidavit of illegality is not the proper mode of setting it aside. If the defects alleged to exist in a judgment or decree amount only to irregularities, they should be corrected by a motion for that purpose made in the court which rendered it.” Brantley v. Greer, 71 Ga. 11. “The court that rendered the judgment having jurisdiction of the person and subject-matter, the defendant could not, by affidavit of illegality, attack the judgment for any cause that he could have set out as a defense in the original suit.” Butler v. Hall, 7 Ga. App. 777 (2) (68 S. E. 331). That the court in this case had jurisdiction of the person and the subject-matter, and that the defendant was properly served, is not questioned. This being true, under the principles announced in the foregoing cases the court did not err in disallowing the proposed amendment to the affidavit of illegality, or in thereafter dismissing the affidavit of illegality.

Decided December 9, 1924.

Affidavit of illegality; from Campbell superior court—Judge Hutcheson. May 27, 1924.

Laivrence S. Gamp, J. Wilson Parker, for plaintiff in error.

Lester 0. Dickson, contra.

2. In our opinion this case was not brought to this court for delay only, and the request that damages be assessed against the plaintiff in error, as provided by § 6213 of the’Civil Code of 1910, is denied.

Judgment affirmed.

Broyles, O. J., and Lulce, J., eoneur.


text:
    15772.
    Carswell, Moxley & Son v. Harrison.
   Bloodwobth, J.

1. The 3d special ground of the motion for a new trial alleges that the court erred in excluding certain testimony given by a witness on a former trial of the case. Even if it should be conceded that the witness was inaccessible, this ground can not be considered, as it is incomplete, in that it does not show that there was present and offered as a witness any one who heard the witness testify and who professed to remember the substance of the entire testimony as to the particular matter about which he testified. Civil Code (1910), § 5773; City of LaGrange v. Cotter, 29 Ga. App. 577 (2) (116 S. E. 204); Odum v. Rutledge, 16 Ga. App. 350 (1) (85 S. E. 361).

2. When the facts of this case and the entire charge are considered, the court did not err in failing to instruct the jury as complained of in the 4th special ground of the motion for a new trial. Under the laws of this State, “until majority, the child remains under the control of the father, who is entitled to his services and the proceeds of his labor. This parental power is lost by voluntary contract, releasing the right to a third person.” Civil Code (1910), § 3021. Under this' statute, when the “parental power” is lost by the parent and passes to one who stands in loco parentis, it remains in thq^ third person until the child reaches majority. See Howard v. Randolph, 134 Ga. 691 (1), 692 (1, 2) (68 S. E. 586); Carter v. Brett, 116 Ga. 114 (1) (42 S. E. 348). Of course, conditions might arise which would authorize the annulment of the contract. Bentley v. Terry, 59 Ga. 555 (3), 557 (3).

Decided December 9, 1924.

Rehearing denied January 13, 1925.

Complaint; from city court of Louisville—Judge Barwiek. May 26, 1924.

Boy V. Harris, for plaintiffs in error.

W. T. Bevell, contra.

3. Eor no reason assigned did the court err in admitting the testimony of Henrietta Eudy which was given on the former trial of the case, it being shown that this witness ivas at the time of the trial living in South Carolina, and therefore beyond the jurisdiction of the State. Civil Code (1910), § 5773; Hunter v. State, 147 Ga. 823 (1) (95 S. E. 668); Brinson Ry. Co. v. Beard, 11 Ga. App. 737 (76 S. E. 76).

4. When considered in connection with the facts of the case and the remainder of the charge of the court, the excerpts complained of contain no error that would require the grant of a new trial.

5. None of the special grounds of the motion for a new trial not hereinbefore referred to shows any cause for a reversal of the judgment.

6. This court can not hold that there is no evidence to support the verdict; and, as the verdict has the approval of the trial judge and no error of law was committed, the judgment is

Affirmed.

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


text:
    15797.
    Brown v. Globe & Rutgers Fire Insurance Co., etc.
   Bloodworth, J.

1. Suit was brought on a fire-insurance policy which on October 8, 1921, was issued to A, covering a certain automobile. Among the warranties in the policy was the following: “Purchased by the assured October, 1921, second hand actual cost including equipment $2300.00. The automobile described is fully paid for by the. assured, and is not mortgaged or otherwise encumbered, except as follows: No exceptions.” On April 6, 1922, A sold the automobile to H. S. Brown, and the following endorsement was entered on the policy: “ The assured under the above numbered policy is now recognized as ‘H. S. Brown,’ and his occupation is % Mays Dry Gleaning Company.' The assured paid $2300.00 for the car. All other conditions remaining:unchanged.” The policy was not otherwise transferred, but after this endorsement the insurance company recognized Brown as the insured. On the trial evidence was offered to show that at the time of the foregoing endorsement 0, the agent of the insurance company, who wrote the policy originally, was informed that A owed a balance of the purchase price of the car to the concern from which he purchased it, and that C telephoned to the seller and ascertained the amount of. this balance. This evidence was properly excluded. To allow it to go to the jury, -as was said by Judge Luke in Conyers v. Yorkshire Ins. Co. Ltd., 30 Ga. App. 8 (117 S. E. 95), “would be to change and alter by parol evidence the unambiguous terms of the written contract of insurance.” The petition alleged compliance with all the terms of the policy, and no waiver of any sort was pleaded.

Decided December 9, 1924.

Rehearing denied January 14, 1925.

Action on insurance policy; from city court of Atlanta—Judge Reid. April 33, 1934.

Certiorari was granted by the Supreme Court.

George & John L. Westmoreland, for plaintiff.

Smith, Hammond & Smith, for defendant.

2. The court did not err in granting a nonsuit. See Globe & Rutgers Fire Ins. Co. v. Smyly, 155 Ga. 547, 549 (117 S. E. 819).

Judgment affirmed.

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


text:
    15816.
    MONTGOMERY v. THE STATE.
    1. While a proper instruction should be given in every case where the accused puts his character in issue, yet, in the absence of a timely request, an omission to give a specific charge on the subject will require a new trial only in exceptional cases. Scolt v. Slate, 137 Ga. 337 (3) (73 S. E. 575). This case falls within the general rule, and not within an exception.
    2. Under the facts of this case, the failure of the court to instruct the jury as to the law of mutual combat was not erroneous.
    3. The evidence authorized the verdict.
    Decided December 9, 1924.
    Conviction of assault with intent to murder; from Wayne superior court—Judge Summerall. June 38, 1934.

      James B. Thomas & Son, for plaintiff in error.

      Alvin V. Sellers, solicitor-general, contra.
   Luke, J.

The accused was convicted of assault with intent to murder the prosecutor, and excepts to the judgment overruling his motion for a new trial. In addition to the usual general grounds, he excepts to the omission of the court to charge on the subjects of good character and mutual combat. There was evidence tending to show that the accused and others were engaging in loud and profane language on a public highway at night, when the prosecutor warned them of the approach of females; that the accused resented- such interference, and responded to the prosecutor with certain opprobrious words; that the prosecutor thereupon struck the accused with his fist, whereupon the accused and his companions all drew -knives and assaulted, stabbed and cut the prosecutor, .inflicting a dangerous wound over the prosecutor’s heart. One witness testified to the previous good character of the accused. There was no request for any instruction other than that given by the court to the jury.

The opinion of the court as announced in the’headnotes needs no further elaboration.

Judgment affirmed.

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


text:
    15818.
    MASSEY v. ROTHSCHILD & COMPANY.
    The direction of a verdict for the plaintiff was not cause for a new trial.
    Decided December 9, 1924.
    Certiorari; from Muscogee superior court—Judge Munro. June 18, 1924.

      McGutchen, Bowden & Gaggstatter, for plaintiff in error.

      Love & Fort, contra.
   Bloodworth, J.

“The mere fact that there are conflicts in the testimony does not render the direction of a verdict in favor of a party erroneous, when it appears that the conflicts are immaterial, and that, giving to the opposite party the benefit of the most favorable view of the evidence as a whole and of all the legitimate inferences therefrom, the verdict against him is demanded.” Sanders Mfg. Co. v. Dollar Savings Bank, 110 Ga. 559 (35 S. E. 777); Crawford v. Citizens &c. Bank, 20 Ga. App. 576 (93 S. E. 173); Shedd v. Standard Sewing Machine Co., 21 Ga. App. 373 (94 S. E. 646); Dorris v. Farmers & Merchants Bank, 22 Ga. App. 514 (95 S. E. 741). “A judgment directing a verdict will not be reversed where the finding directed was demanded by the evidence.” Bowman v. Winn, 16 Ga. App. 546 (85 S. E. 787). “When upon a review of all the evidence, with the reasonable deductions therefrom, it is manifest that there is but one finding which can be legally .supported, it is not reversible error to direct a verdict.” Cleveland-Manning Piano Co. v. Stewart, 15 Ga. App. 657 (84 S. E. 174); Davis v. Kirkland, 1 Ga. App. 5, 10 (58 S. E. 209); McDonald v. Ellis, 17 Ga. App., 471 (87 S. E. 711). Where both parties introduce evidence, and, taken as a whole, it requires a verdict for the defendant, there is no error in the court’s directing such a verdict.” Roland v. Roland, 139 Ga. 825 (78 S. E. 249).

Under the rulings in the foregoing eases and the facts of this ease, a verdict for the plaintiff was properly directed, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

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


text:
    15848.
    Holcombe v. The State.
    Decided December 9, 1924.
    Conviction of embezzlement; from Newton superior court— Judge Hutcheson. August 2, 1924.
    Application for certiorari was denied by the Supreme Court.

      Wallace Miller, for plaintiff in error.

      Claude C. Smith, solicitor-general, contra.
   Luke, J.

It is stated in the brief of counsel for the plaintiff in error that the single issue in this ease is whether the court erred in refusing to direct a verdict for the defendant. Under repeated rulings of the Supreme Court and of this court, it is never error for the judge to refuse to direct a verdict.

The general grounds of the motion for a new trial are not referred to in the brief of plaintiff in error, and are treated as abandoned.

Judgment affirmed.

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


text:
    15900.
    COX v. THE STATE.
    1. An indictment for murder embraces the minor offense of assault with intent to murder, as the whole embraces all of its parts.
    2. The verdict, and not the indictment, determines when a criminal prosecution is a case “of felony not punishable by life imprisonment,” to which the indeterminate sentence act of 1919 is applicable.
    Decided December 9, 1924.
    Conviction.of.assault with intent to murder; from Eulton superior court—Judge Humphries. August 27, 1924.

      Maddox & Maddox, for plaintiff in error.
   Luke, J.

Cox was indicted for murder, it being alleged that the accused, “in the county of Eulton and State of Georgia, on the 10th day of July, 1921, with force and arms, did unlawfully, with malice aforethought, kill and murder one Edward Burkhalter, by then and there shooting him, the said Edward Burkhalter, with a pistol, contrary to the laws of said State, the good order, peace, and dignity thereof.” Upon the trial, on November 6, 1922, he was convicted of assault with intent to murder, the jury in their verdict fixing his penalty at not less than five nor more than ten years in the penitentiary, and he was sentenced accordingly. On August 13, 1924, while serving his sentence, he caused to be presented to the trial judge his motion in arrest of judgment, which was in due course heard and overruled. The grounds of the motion were: (1) that the indictment did not embrace the offense of assault with intent to murder, it not being alleged that the killing was intentional, or that the pistol was loaded or was a weapon likely to produce death, or that any assault was made by the accused upon the deceased; and (2) that, the indictment being for the offense of murder, a capital offense, the jury did not have the power, under the indeterminate sentence act of 1919, to prescribe the penalty. The exception is to the judgment of the lower court overruling that motion.

Under repeated decisions of this court and of the Supreme Court, the indictment sufficiently charged the offense of murder, and was not subject to demurrer, much less to a motion in arrest of judgment. Barnes v. State, 24 Ga. App. 372 (1) (100 S. E. 788), and citations. In Smith v. State, 126 Ga. 544 (55 S. E. 475), the Supreme Court, in dealing with an indictment for murder, substantially the same as the one now under consideration, held that it was sufficient to furnish a basis for a conviction of assault with intent to murder. See also Troup v. State, 17 Ga. App. 387 (87 S. E. 157). Thus, the precise question sought to be raised by the plaintiff in error is settled to -the contrary of his contentions.

His second contention, viz., that the major offense charged in the indictment deprived the jury of their power to fix the penalty for the minor offense found by their verdict, is palpably without merit. Ga. L. 1919, p. 387; Park's Ann. Code, vol. 11, § 1081 (e). In all proceedings prior to the agreement of the jury upon their verdict, the nature of the case is determined by the indictment; but for all subsequent proceedings it is determined by the verdict.

The motion in arrest of judgment was properly overruled.

tJudgment affirmed.

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


author: Beoyles, 0. J.

text:
    15915.
    Cater v. The State.
    Decided December 9, 1924.
    Accusation of possession of liquor; from city court of Carrollton —Judge Hood. August 29, 1924. =

      Smith & Millican, for plaintiff in error.

      Willis Smith, solicitor, contra.
   Beoyles, 0. J.

The verdict was authorized by the evidence, and none, of the grounds of the motion for a new trial shows material error.

Judgment affirmed.

Luke and Bloodnoorth, JJ., concur.


text:
    15916.
    Farlow v. The State.
    Decided December 9, 1924.
    Conviction of sale of liquor; from city court of Carrollton—Judge Ho‘od. August 29, 1924.

      Smith & Millican, for plaintiff in error.

      Willis Smith, solicitor, contra.
   Luke, J.

The evidence amply authorized the defendant’s conviction of violating the prohibition statute. The two special grounds of the motion for a new trial, the one complaining of the court’s refusal to continue the ease, and the other based upon alleged newly discovered evidence, are without merit. The court properly overruled the motion for a new trial.

Judgment affirmed.

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


text:
    15923.
    Abbott v. The State.
   Bloodworth, J.

1. “The eighteenth amendment to the constitution of the United States, and the national prohibition act, known as the Volstead act, do not supersede or abrogate the Georgia prohibition statute of March 28, 1917 (Act Ex. Sess. 1917, p. 7).” Cooley v. State, 152 Ga. 469, 471 (1) (110 S. E. 449). “The national prohibition law known as the Volstead act, when construed, as it must be, in the light of the eighteenth amendment, does not prohibit the possession ofUiquor or other intoxicants for the personal consumption of the .owner thereof, his family, and his bona fide guests; whereas our State prohibition law does prohibit and make penal the mfere possession of liquor, regardless of the purpose for which it is to be used by the owner.” Bryson v. State, 27 Ga. App. 230 (4) (108 S. E. 63). See Wood v. State, 32 Ga. App. 58 (122 S. E. 722 (2) ). Under the rulings in the foregoing cases there is no merit in any of the special grounds of the motion for a new trial.

Decided December 9, 1924.

Conviction of possession of liquor; from Glynn superior court— Judge Highsmith. August 16, 1924.

Krauss & Strong, for plaintiff in error.

Alvin V. Sellers, solicitor-general, contra.

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

Judgment affirmed.

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


text:
    15924.
    Brown v. The State.
    Decided December 9, 1924.
    Conviction of possession of liquor; from Glynn superior court-judge Highsmith. August 16, 1924.

      Farr & Powell, for plaintiff in error.

      Alvin V. Sellers, solicitor-general, contra.
   Broyles, C. J.

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

Judgment affirmed.

Luke and Bloodtoorth, JJ., concur.


text:
    15925.
    Gilder v. The State.
    Decided December 9, 1924.
    Conviction of possession of liquor; from Glynn superior court— Judge Highsmith. August 16, 1924.
    Application for certiorari was denied by the Supreme Court.

      J. T. Colson, for plaintiff in error.

      Alvin 7. Sellers, solicitor-general, contra.
   Luke, J.

The defendant’s conviction of possessing intoxicating liquors was amply authorized. The assignments of error upon the overruling of the motion for a continuance and upon the excerpt from the charge of the court are without merit. For no reason pointed out in the record did the court err in overruling the motion for á new trial.

Judgment affirmed.

Broyles, G. J., and Bloodtoorth, J., concur.


author: Bbovles, O. J.

text:
    15927.
    Lunsford v. The State.
    Decided December 9, 1924.
    , Conviction of possession of liquor; from Glynn superior court— Judge Highsmith. August 16, 1924.

      Krauss & Strong, for plaintiff in error.

      Alvin V. Sellers, solicitor-general, contra.
   Bbovles, O. J.

The motion for a new trial contained the usual general grounds only, and the verdict was amply authorized by the evidence. The court did not err in refusing a new trial.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    15928.
    Wilder v. The State.
    Decided December 9, 1924.
    Indictment for possessing and transporting liquor; from Glynn superior court—Judge Highsmith. August 16, 1924.
    Application for certiorari was denied by the Supreme Court.

      J. T. Colson, for plaintiff in error.

      Alvin V. Sellers, solicitor-general, contra.
   Luke, J.

The evidence authorized the defendant’s conviction of violating the prohibition statute. The assignments of error upon excerpts from the charge of the court, when the charge is read in its entirety, are without merit. The special assignments of error upon the rulings of the court upon the admissibility of evidence are without merit. Dor no reason pointed out did the court err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, 0. J., and Bloodworth, J., concur.


text:
    15930.
    JOHNSON et al. v. THE STATE.
    When a verdict approved by the trial judge is supported by any evidence, this court will not disturb it because of alleged insufficiency of evidence.
    Decided December 9, 1924.
    Indictment for kidnapping; from Calhoun superior court—Judge Custer. August 30, 1924.

      A. L. Miller, H. A. Willcinson, for plaintiffs in error.

      B. C. Gardner, solicitor-general, contra.
   Bloodworth, J.

The verdict is approved by the trial judge, and we can not say that there is no evidence to support it. In Rogers v. State, 101 Ga. 562, 563 (28 S. E. 978), Justice Cobb said: “Applications for new trials on the ground that the verdict of the jury is contrary to evidence are addressed to a sound legal discretion to be exercised by the trial judges. When this discretion has been exercised and the motion for a’ new trial overruled, this court will not interfere where there is any evidence which would justify the jury in reaching the conclusion which it set forth in the verdict. While in many cases we would probably not have rendered the verdict returned, and* if we were authorized to pass upon the case as on appeal, would render here a different judgment, still under the established practice of this court as required by the law of this State, we can not overrule a trial judge, who, fresh from the atmosphere of the trial, sends to us a record in which he endorses the finding of the jury which tried the ease in his presence. 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 us to endorse his judgment in cases of this character.”

Judgment affirmed.

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


author: Broxx.es, 0. J.

text:
    15933.
    Widincamp v. The State.
    Decided December 9, 1924.
    Conviction of possession of liquor; from city court of Jesup— Judge Clark. September 1, 1924.

      II. L. Williams, V. B. Padgett, for plaintiff in error.
   Broxx.es, 0. J.

1. The exception to the overruling of the demurrer to the accusation, not being referred to in the brief of counsel for the plaintiff in error, is treated as abandoned.

2. The venue of the offense was sufficiently proved and the evidence authorized the verdict.

Judgment affirmed.

Luhe and Bloodworth, JJ., eoneur.