text:
    19403.
    MYRICK v. JONES-STEWART MOTOR COMPANY.
    Decided April 11, 1929.

      J. P. Burnett, for plaintiff.

      Jones, Jones, Johnston & Russell, for defendant.
   Stephens, J.

(After stating the foregoing facts.) The sole question presented for determination is whether one who is served with a summons of garnishment issuing out of the municipal court of Macon upon a pending suit for a sum in excess of $25, and answerable in that court, must answer upon the first day of the term at which the summons is answerable, as is required in answering a summons of garnishment in a justice’s court, or is allowed until the term of the court next after the term at which the summons of garnishment is answerable to make answer, as is allowed in answering a summons of garnishment in the superior court.

The act approved August 16, 1913, establishing the municipal court of Macon (Ga. L. 1913, p. 252), in section 18 provides that “the general laws of this State in regard to the commencement of actions in the superior courts, and defenses thereto, of whatever nature, the pleadings, the method of procedure and practice therein, and in regard to the examination of parties to suits or witnesses, by interrogatories or under subpoena, witnesses and'their attendance, continuances, charge of the court, granting of new trials, and other matters of a judicial nature within the jurisdiction of said municipal court, shall be applicable to said municipal court, except as may be otherwise provided in this act,.” and section 19 of the act provides that “suits in said municipal court shall in all respects be conformable to the mode of procedure in the superior courts save as in this act excepted.” The only exceptions in this act or in any act amendatory thereof, relating to practice or procedure other than obtains in the superior courts of the State, are contained in sections 20 (b) and 15, where it is provided, in section 20 (b), in addition to a provision excepting suits not exceeding $25 in the principal sum claimed, or the value of the property in controversy, from the rules of pleading as provided in section 18, that the general laws of this State with reference to procedure in the superior courts are modified as respects the municipal court of Macon by the abolition of the requirement of demurrers and special pleas, and where provision is made for the verification of claims and answers and for amendments to pleadings, and where it is provided in section 15 (of the act) that “all ‘warrants, summary processes, and writs issuing out of said municipal court, in which the principal sum claimed to be due or the value of the property in dispute does not exceed five hundred dollars shall be returnable to said municipal court in the same manner and under the same rules as such writs are required to be returned to the superior courts or the justice courts of this State as the case may be.”

The institution of a suit against a debtor and the issuance thereon of a summons of garnishment against another constitutes a “suit” and an “action” against the garnishee. Hines v. Minor, 26 Ga. App. 278 (3) (105 S. E. 851). The garnishee’s answer to the summons of garnishment served upon him is in the nature of a plea. Therefore, under the provisions of sections 18 and 19 of the act of 1913 creating the municipal court of Macon, all the proceedings incident to the institution of the suit or action against the garnishee and the garnishee’s answer thereto in that court are governed by the general laws of this State applicable to the superior courts, which permit the garnishee to answer by the next term of the court after the term at which the summons of garnishment is made answerable (Civil Code (1910), §§ 5097, 5269; Banders v. Miller, 60 Ga. 554; Liverpool &c. Insurance Co. v. Savannah Grocery Co., 97 Ga. 746, 25 S. E. 828), unless otherwise provided in the act or in acts amendatory thereof. There is certainly in section 20 (b) of this act nothing providing otherwise as respects the time within which the garnishee is permitted to make answer to the summons of garnishment. Section 15 of the act, by its terms, has reference only to the return of warrants, summary processes, and writs issuing out of the court. The return of a warrant, process, or writ is the report of the officer of the court who serves the warrant, process, or writ, as to his acts and doings respecting the service thereof. The return of a warrant, process, or writ is not the answer made by_the person upon whom it was served. The answer made by a garnishee to a summons of garnishment which has been served upon him is not a “return” of the summons of garnishment, but is in the nature of a plea or answer to the suit instituted against the garnishee. The case of Bateman v. Macon National Bank, 25 Ga. App. 42 (102 S. E. 548), was decided correctly, but if there is anything stated in the opinion in that case which is in conflict with what is here stated, it is obiter.

The judge of the municipal court of Macon, therefore, properly overruled the demurrer to the garnishee’s motion to set aside the judgment, and properly sustained the motion, and the judge of the superior court properly overruled the certiorari brought by the respondent to the motion.

Judgment affirmed.

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


source: Caselaw Access Project

author: Stephens, J.

license: Public Domain

text:
    19410.
    WALKER v. CITY OF CAIRO.
    Decided April 11, 1929.

      8. P. Gain, for plaintiff in error. Jeff A. Pofe, contra.
   Stephens, J.

(After stating the foregoing facts.)

The defendant, in alleging in the affidavit of illegality that the plaintiff had accepted the check and obtained the money thereon in full settlement of the claim sued on, alleged an executed contract in satisfaction of the plaintiff’s claim. It is not essential to the validity of an executed agreement in satisfaction of a claim that the claim be disputed. There is therefore no merit in the special ground of the demurrer to the affidavit of illegality that it was not alleged therein that the execution was “mentioned, discussed, or included in the amount covered by the check.”

The affidavit of illegality alleges generally that the check tendered in accord and satisfaction was mailed to “the City of Cairo,” and was accepted by “the City of Cairo.” Nowhere is it alleged that the check was mailed to the person who held the office of clerk and treasurer of the city or that it was accepted by him in satisfaction of the claim. There is therefore no merit in the special demurrer upon the ground that the affidavit of illegality fails to allege that the clerk and treasurer of the City of Cairo was authorized to settle any execution issued by the city.

The pleadings do not present for determination any question respecting the authority of any particular officer or officers of the city to accept for the city any sum in full satisfaction of the city’s claim. Of course, if the officer of the city to whom the check was delivered and who accepted it and obtained the money on it in full satisfaction of the city’s claim had no authority to compromise the claim or to settle it for less than the full amount, the transaction did not constitute a satisfaction of the claim. The affidavit of illegality alleging generally that the money was paid to and accepted by the City of Cairo in full satisfaction of the city’s claim, but not alleging that it was paid to any designated officer of the city or was accepted by him, is good against the general demurrer.

The affidavit of illegality being good as against the general demurrer, and there being no special demurrer directed to it for its failure to designate what officer or officers, having authority to settle and compromise claims for the City of Cairo, accepted the money in full satisfaction of the city’s claim, and the special demurrer filed being without merit, the court erred in sustaining the demurrer and striking the affidavit of illegality.

Judgment reversed.

Jenkins, P. J., concurs. Bell, J., disqualified.


author: Jenkins, P. J.

text:
    19185.
    HEATH v. LOUISVILLE AND NASHVILLE RAILROAD COMPANY et al.

    Decided April 12, 1929.

      Allen & Pottle, for plaintiff.
    Jones, Jones & Johnston, Ilines & Carpenter, for defendants.
   Jenkins, P. J.

The petition alleges: that the defendants operate a line of railroad along Wayne street, the main business street of the city of Milledgeville, and at the time of the alleged injury were engaged in changing the line of railroad from the side of the street to the center thereof; that in performing this work they were using large quantities of stones of various sizes; that at the intersection of Wayne street with Hancock street there was a pass-way for pedestrians from the east corner to the west corner, which was in constant use by pedestrians generally. The petition shows that the plaintiff knew that loose stones were scattered oh the sidewalk or crossway, but was unaware of the danger incurred in crossing the street, and that, using all possible care and diligence, she undertook to cross Wayne street along such generally-used passageway, and in so doing stepped upon one of the loose stones and fell, causing described injuries. It is alleged that the defendants were negligent in permitting such stones to be' and remain in the pathway constantly used by pedestrians, and that such negligence constituted the sole proximate cause of the injury. The defendants demurred generally and specially, and the court, without passing upon the special demurrer, sustained the general demurrer and dismissed the petition, on the theory that the petition shows on its face that the plaintiff did not exercise ordinary care. What constitutes negligence on the part of a defendant, what constitutes the proximate cause of an injury, and what amounts to a failure to exercise ordinary care on the part of a plaintiff, are generally questions for the jury. Mayor &c. of Americus v. Johnson, 2 Ga. App. 378, 380 (58 S. E. 518); Holliday v. Mayor &c. of Athens, 10 Ga. App. 709, 715 (74 S. E. 67). “The fact that a,traveler voluntarily attempts to pass, with knowledge of the defect or obstruction, is not ordinarily conclusive evidence of a want of due care; but if he has or ought to have notice thereof, he must exercise such care as the circumstances demand.” Idlett v. Atlanta, 123 Ga. 821, 823 (51 S. E. 709); Harrell v. Macon, 1 Ga. App. 413 (58 S. E. 124). In the instant case this court is unable to say as a matter of law that the plaintiff failed to exercise ordinary care in attempting to use the passageway across a public street, and, as she says that in doing so she used all possible prudence, as against general demurrer the petition set forth a cause of action.

Judgment reversed.

Stephens and Bell, JJ. concur.


author: Bell, J.

text:
    19193.
    JACKSON v. DAVIS et al.

    Decided April 12, 1929.

      Craighead & Craighead, W. C. Henson, for plaintiff.

      L. J. Steele, Robert Ramspecls, for defendant.
   Bell, J.

(After stating the foregoing facts.) We think the court properly sustained the demurrer. The petition alleges that the rear porch “had been in a defective and unsafe condition” for a long time, and that this condition had been frequently reported to the defendants. Ordinary care required that the plaintiff should have refrained from using that portion of the premises which appeared to be unsafe. Notwithstanding allegations to the effect that the defects were latent, the petition when construed as a whole discloses that the plaintiff knew that the rear porch, including the banister, was “defective and unsafe,” and knew or should have known that its use would likely result in injury.

It is true that a tenant, after notifying the landlord of a defect, has the right to use such parts of the premises as are apparently in good condition; but the plaintiff here was using a part of the premises which he knew was in bad condition.

Construing the allegations of the petition most strongly against the plaintiff, as must be done on demurrer, it affirmatively appears that the injury sustained by the plaintiff was the result of his own failure to exercise ordinary care for his safety. In our opinion the case is controlled by the decisions in Ball v. Walsh, 137 Ga. 350 (73 S. E. 585); Donehoe v. Crane, 141 Ga. 224 (80 S. E. 712); Ledbetter v. Gibbs, 19 Ga. App. 485 (2) (91 S. E. 875); Weyman v. Maynard, 24 Ga. App. 94 (2) (100 S. E. 25), and should be distinguished from such cases as Stack v. Harris, 111 Ga. 149 (36 S. E. 615), and Miller v. Jones, 31 Ga. App. 318 (120 S. E. 672).

Judgment affirmed.

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


text:
    19195.
    ALLEN et al., administrators, v. ALLEN.
    Decided April 12, 1929.

      Pierce Brothers, for plaintiffs in error.

      Fleming & Fleming, contra.
   Jenkins, P. J.

(After stating the foregoing facts.) “The doctrine is well settled that where there are two administrators, one can not maintain an action alone” (Harrington v. Roberts, 7 Ga. 510, 511); the general rule being that where joint authority is given to any number of persons, or officers, it must be exercised by a majority of them, unless it is otherwise declared. Civil Code (1910), § 4 (5). binder the rule thus stated, while the institution of the motion for new trial in the court below, originally joined in by all the administrators, was legal, it can not proceed on its own momentum, and in order for it to be maintained there must continue to be a legal plaintiff in error. A majority of the representatives of the estate being necessary to make a party, the proceeding falls for the lack of a plaintiff in error when less than a majority continue its prosecution. It appearing on the face of the record that the case is being prosecuted without a legal party plaintiff in error, in that less than a majority of the representatives of the estate are prosecuting the writ of error, this court is without jurisdiction to entertain it, and it must, therefore; be dismissed. Were it to be suggested that it should require as much authority to discontinue a proceeding after it has once been legally instituted as is required to commence it, the reply would be that a case proceeds not by virtue of a shove, but rather by virtue of a continuing push, and that, therefore, in order to preserve its validity there must exist a proper plaintiff throughout every stage of its prosecution. Writ of error dismissed.

Stephens and Bell, JJ., concur.


text:
    19203.
    WHITWORTH v. CARTER.
    Decided April 12, 1929.

      N. L. Hutchins, M. D. Irwin, for plaintiff.

      O. A. Nix, for defendant.
   Bell, J.

R. A. Whitworth _ sued out a possessory warrant against Mrs. Lillie Carter to recover possession of a bale of cotton. The affidavit to obtain the warrant followed the language of section 5371 of the Civil Code (1910), which section contains the general provisions of law as to the grounds upon which a possessory warrant may issue. IJpon the trial before the magistrate it appeared that the cotton was produced upon lands, of the plaintiff and had been taken and carried away by the defendant.

The plaintiff contended and testified that he had employed the defendant’s husband, Sam Carter, as a general farm laborer for a part of his time, and in addition thereto had contracted with him as a share-cropper to work the small tract upon which the cotton was produced; that the crops had not been divided and that he had not been fully paid for all advances made by him to aid in making the crop. The plaintiff’s testimony authorized the inference that as to the particular land and the products thereof the relation between the plaintiff and the defendant’s husband was that of landlord and cropper.

The defendant and her husband, Sam Carter, both testified that the use of the lánd was granted to the defendant, Carter’s wife, as a part of the contract of hiring between Carter and the plaintiff, and that under the terms of the agreement no part of the crops should belong to the plaintiff, but they should be the property of the defendant.

The magistrate sustained the warrant and ordered that possession of the cotton be surrendered to the plaintiff. The defendant carried the case by certiorari'to the superior court, where the certiorari was sustained and a final judgment rendered in favor of the defendant. The judgment of the superior court affirmatively shows that the judge rendering it exercised no discretion upon the conflicting testimony, but held that, assuming the evidence of the plaintiff to be true, trover and not possessory warrant was his remedy. The plaintiff excepted to this judgment, and brought the case to this court.

Granting that the plaintiff’s testimony was true, and therefore that the relation between him and the defendant’s husband was that of landlord and cropper, was possessory warrant an available remedy, the cotton having been taken and carried away, not by the cropper himself but by his wife, who was not a party to the contract ?

The Code provides that “Whenever the relation of landlord and cropper exists, the title to and right to control and possess the crops grown and raised upon the lands of the landlord by the cropper shall be vested in the landlord until he has received his part of the crops so raised, and is fully paid for all advances made to the cropper in the year said crops were raised to aid in making said crops” (Civil Code of 1910, § 3705) ; and also that “In all cases where a cropper shall unlawfully sell or otherwise dispose of any part of a crop, or where the cropper seeks to take possession of such crops, or to exclude the landlord from the possession of said crops, while the title thereto remains in the landlord, the landlord shall have the right to repossess said crops by possessory warrant, or by 'any other process of law by which the owner of property can recover it under the laws of this State” (Civil Code of 1910, § 3706).

Notwithstanding these provisions, the defendant in error contends that before a landlord can proceed by possessory warrant to recover the possession of the crops from a third person he must show that the property had previously been in his possession (Cobb v. Megrath, 36 Ga. 625; Allen v. Smith, 45 Ga. 84), and that in such a case the landlord does not show such possession merely by proof that the crops were produced by a share-cropper, although the statute allows such a remedy as against the cropper himself in certain circumstances. It is insisted that under the relation of landlord and cropper, without more, the landlord is not in actual possession of the crops, but merely has a right of possession; and that this is not enough to authorize the issuance of a possessory warrant against one other than the cropper himself.

This does not in our opinion represent a proper construction of the Code provisions quoted above. Section 3705 provides that the title to and the right to control and possess the crops shall be vested in the landlord, and while the “right to control and possess” might not in every case imply possession, we think such is the true meaning of the language here quoted.

As respects the remedies of the landlord to enforce his right in the crops, he is to all intents and purposes in actual possession. Sections 3705 and 3706 must be construed together, since they are parts of the same legislative act and stand in pari materia in the Code, and it is provided in the latter section that where the cropper seeks to take possession of the crops, or to exclude the landlord from the possession thereof, while the title remains in the latter, the landlord shall have the right, not to possess the crops, but to “repossess” the same by possessory warrant. The phrase “take possession,” as referring to the wrongful act of the cropper, is also significant. If the cropper were already in possession as against the landlord, it would seem inappropriate to speak of his taking possession. “To take,” in a general sense, means to get or gain possession where it was theretofore held by another and not by the person acting, and we think that it was in this sense that the term was used in the statute under consideration. Civil Code (1910), § 4-268 (2).

Thus, as between the landlord and the cropper, the landlord and not the cropper is the one in possession, the latter being a mere laborer whose wages are payable in a part of the crops. Howard v. Franklin, 32 Ga. App. 737 (124 S. E. 554). His possession is in right of the landlord and is to be treated as the possession of the landlord, and where a landlord is in the possession of crops by and through the cropper as his servant or agent, such possession is actual and not constructive only. Sheriff v. Thompson, 116 Ga. 436, 438 (42 S. E. 738).

More than this, such possession by the landlord is not a legal fiction which exists merely as between the landlord and the cropper, but is an actual condition, recognized by law, arising out of the relation of the parties and affecting all persons 'who might seek to interfere with the crops until the right of the landlord therein has been satisfied. Such is the import of section 3705, the provisions of which are not restricted alone to the rights and liabilities of the parties referred to therein.

“Possession of personalty by an agent is actual, not constructive, possession by the principal, and will support a possessory warrant by the latter against one who wrongfully and fraudulently takes possession thereof.” Hillyer v. Brogden, 67 Ga. 24; Meredith v. Knott, 34 Ga. 222; Wilcox v. Turner, 46 Ga. 218; Allen v. Wheeler, 121 Ga. 277 (48 S. E. 923); Monk v. Gay, 3 Ga. App. 356 (59 S. E. 1117).

The proposition that the possession of the landlord in a case of this sort is not such possession as would support a possessory warrant, because it arises merely out of the legal definition of the relation between him and his cropper, could not be more tenable than would a contention (if made) that’the possession of a principal exercised by and through an agent would be insufficient to authorize such a proceeding, because the character of such possession is determined by legal principles contained in the law of principal and agent; and from the authorities cited it is well settled that a principal may by possessory warrant recover the possession of property wrongfully taken from the custody of his agent.

If the defendant had obtained the cotton from her husband by purchase or by any other disposition of the same by him contrary to the rights of the plaintiff as prescribed in section 3706, the plaintiff could have recovered the property by possessory warrant (compare Wynn v. Harrison, 111 Ga. 816, 35 S. E. 643), and she is in no better position simply because she took the cotton directly from the premises, without obtaining it through her husband, provided it be true that her husband was a share-cropper and the claims of the landlord were still subsisting. Otherwise the landlord could not have recovered the cotton by possessory warrant even as against a thief who had entered and stolen it, and it would seem that his right to employ such remedy in that case could hardly be questioned.

The defendant claimed that the property was her own, but as to this the evidence was in conflict, and, as stated above, the magistrate or the judge of the superior court could have concluded that the true relation between the plaintiff and the defendant’s husband was that of landlord and cropper, and thus that the defendant’s claim was unfounded. We think the evidence for the plaintiff, if true, made a case for the issuance of the warrant, under the general law relating to that subject as contained in the Civil Code, § 5371, it sufficiently appearing that the cotton while in the rightful possession of the plaintiff was taken possession of by the defendant without lawful warrant or authority.

What we have just said virtually settles a further contention of the defendant, namely, that where the plaintiff bases his claim of possession upon the fact that the property consists of crops, or a part of crops, produced by another as share-cropper, the affidavit to obtain the warrant should be drawn in accordance with the language of section 3706, and not in conformity with the provisions of section 5371. This contention is based upon the decision of the Supreme Court in Visage v. Bowers, 122 Ga. 760 (50 S. E. 952), where it was held that it was the evident purpose of the legislature in passing the act now codified in sections 3705 and 3706 (Ga. L. 1889, p. 113), to confer upon the landlord an additional right to that previously existing under the law as expressed in section 5371 (see act of 1821, Cobb’s Digest, 591). It was said in that case that where a landlord seeks to obtain a possessory warrant against his cropper, alleging that the cropper is attempting to exclude him from the possession of the crop and fails to pay for supplies and advances made to him, it is not necessary to allege or prove the existence of any one of the grounds for -obtaining a possessory warrant as contained in the section last above mentioned. The effect of that decision, however, was merely to hold that it is not necessary in such a case that the affidavit be framed under section 5371, but that it may be drawn under the other section, and it was not ruled that a party may not plead under section 5371 although the case which he expects to prove arises by reason of his claim to the possession of crops by virtue of the relation between him and another as cropper.

The act of 1889 may have given a right where none existed before, but it did not necessarily prescribe a new and exclusive procedure for the enforcement of such right. A landlord might in some circumstances have the option of proceeding either under the old law or under the new, while in other cases the facts might not fall within the purview of section 3706. although the possession of the plaintiff arose out of the relation of landlord and cropper. Whether the plaintiff in the instant case could have proceeded under that section, he was, under his testimony, authorized to invoke the remedy as under section 5371.

Under the rulings made above, the court erred in holding as a matter of law that the plaintiff was not entitled to prevail in the case and in rendering final judgment in favor of the defendant. While in a ease of certiorari to review a judgment in.a possessory-warrant proceeding, as distinguished from other cases of certiorari (Civil Code of 1910, § 5201; Bass v. Electric Storage Battery Co., 123 Ga. 640, 51 S. E. 579), the judge of the superior court has the power, even where the evidence is in conflict, to remand the case or to give such final judgment and direction therein as he may see fit (Bush v. Rawlins, 80 Ga. 583 (2), 5 S. E. 761; Susong v. McKenna, 121 Ga. 97 (2), 48 S. E. 695; Cone v. Bodiford, 31 Ga. App. 573, 121 S. E. 523), yet it is the contemplation of law that in so doing he shall exercise a discretion, and where it appears that, instead of simply granting a new trial, he has, on sustaining the certiorari, rendered final judgment in favor of one of the parties and has done so upon a misconception of law and not in the exercise of the discretion vested in him, this court will reverse the judgment and remand the case for further consideration by him. McIntyre v. McIntyre, 120 Ga. 67 (47 S. E. 501, 102 Am. St. R. 71, 1 Ann. Cas. 606); Rogers v. State, 101 Ga. 561 (28 S. E. 978); Walker v. Jones, 1 Ga. App. 70, 73 (57 S. E. 903).

In the present case it appears that the learned judge in passing upon the certiorari exercised no discretion whatever upon the evidence, his judgment showing that he was of the opinion that, even if the plaintiff’s testimony was true in every respect, the warrant still was not maintainable, and that for this reason the certiorari was sustained. If the judgment had gone no farther than to sustain the certiorari, it would have amounted to the first grant of a new trial and doubtless would have been affirmed notwithstanding the judge’s erroneous view of the law. Civil Code of 1910, § 6204; Carr v. Carr, 157 Ga. 208 (121 S. E. 227); Mays v. Mays, 33 Ga. App. 335 (2) (126 S. E. 299). But the general rule as to the affirmance of the first grant of a new trial where the verdict was not demanded can have no application where the effect of the judgment complained of was not to grant a new trial but to render final judgment in favor of one of the parties upon an expressed theory not sustained by law. Brown v. Todd, 124 Ga. 939 (3) (53 S. E. 678).

When the case again reaches the superior court, the judge may rehear the same, and should he then determine, in the exercise of his discretion on the evidence, that the plaintiff is not entitled to recover, he still may grant the certiorari and render final judgment in favor of the defendant. We reverse the judgment solely because it contained a final adjudication against the plaintiff, without a consideration of his evidence under the proper and applicable rules of law. See, in this connection, Woodbury v. Atlanta Dental Supply Co., 36 Ga. App. 548 (7) (137 S. E. 302); Talley v. Commercial Credit Co., 39 Ga. App. 297.

Judgment reversed.

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


text:
    19204.
    McHan v. McHan, administrator.
    Decided April 9, 1929.

      A. H. Burtz, Morris, Hawkins & Wallace, for plaintiff in error.

      William, Butt, contra.
   Jenkins, P. J.

1. A statutory proceeding to evict one alleged to be in possession of lands as a tenant can not be maintained unless the relation of landlord and tenant actually exists between the parties. Edwards v. Blackshear, 24 Ga. App. 622 (101 S. E. 585); Collier v. Buice, 36 Ga. App. 198 (3) (136 S. E. 287).

2. Where one, pursuant to a contract of employment, occupies premises belonging to the employer, in connection with his service and for the necessary or better performance thereof, such possession is not adverse to the employer, but is treated as the possession of the employer, and ordinarily the relation of landlord and tenant does not exist between the parties. Mackenzie v. Minis, 132 Ga. 323 (4, 5), 330 (63 S. E. 900, 23 L. R. A. (N. S.) 1083, 16 Ann. Cas. 723).

3. In the instant case the eviction proceeding was brought and successfully maintained by the plaintiff, as an administrator de bonis non, under section 5385 et seq. of the Civil Code (1910), against the defendant as an alleged tenant at will holding over after the giving of the prescribed notice. On the trial it was contended by the plaintiff that the defendant went into possession under the original administrator, to look after the premises for the administrator, for compensation to be paid by the administrator, whereas it was contended by the defendant that he went into possession in his own right, under a claim adverse to the administrator. It is conceded by counsel for the plaintiff that “the relation between the administrator de bonis non and the defendant with reference to his position was the same as the relation which originally existed between the regular administrator and the defendant,” and there is no proof of any sort tending to show a termination of the contract of employment by the original administrator or the administrator • de bonis non, and a subsequent occupancy by the defendant sufficiently long to warrant an inference of consent to a different holding. Under the authorities cited above, the relation of landlord and tenant was not established.

4. Under the foregoing rulings the verdict in favor of the plaintiff was not authorized, and the defendant’s motion for a new trial should have been granted.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    19211.
    Deen et al. v. Bank of Hazlehurst.
   Bell, J.

1. Where, in consideration of a loan of money by one bank to another, and in order to secure the payment of the loan, the borrowing bank pledged to the lénding bank certain notes of customers as collateral, under an agreement that the collateral should stand as security not only for the loan then obtained, but for “all other liabilities of the undersigned [borrower] to the said bank [lender] due or to become due, or which may hereafter be contracted or existing, whether incurred directly or indirectly by the undersigned to the said bank, including as well promissory notes, bills of exchange, and other evidences of indebtedness in writing, made, indorsed or accepted by the undersigned and purchased or owned by said bank,” the lending bank had the right to hold such collateral as security for a time-certificate which had theretofore been issued by the borrowing bank to one of its customers, and which by the customer had been indorsed and pledged to the lending bank as security for a loan made to him by the latter bank; and this is true notwithstanding at the time of the transaction between the banks the borrower had no knowledge of the fact that the lender already held such time-certificate as security for an indebtedness of such customer or third person.

2. In a suit by such lending bank against the maker of one of the notes pledged with the plaintiff by the borrowing bank to secure the loan as first indicated above, where the pledge contract contained the language quoted, parol Evidence that at the time of the transaction, between the banks it was not the intention of the borrowing bank that the collateral placed with the lending bank to secure the loan should be held as security for any other indebtedness, would, in the absence of fraud, accident, or mistake, be objectionable as contradicting or varying the terms of a valid written agreement. Civil Code (1910), § 5788.

8. Although in a case of this sort there may be special rules of interpretation which would require that the pledge contract be construed favorably to the pledgor, or to the maker of one of the notes so pledged, and strictly against the pledgee, the ultimate and final criterion, as in all cases, is that the real object of the court should be to ascertain the intention of the parties; and that where such intention is clear and contravenes no rule of law, and sufficient words are used to arrive at the intention, it shall be enforced, irrespective of all technical or arbitrary rules of construction. Civil Code (1910), § 4266.

4. In view of the broad language contained in the pledge agreement, the instant case is distinguishable from Citizens First National Bank v. Jones, 161 Ga. 655 (3). (131 S. E. 529, 43 A. L. R. 1059) and other eases there cited. Upon affair interpretation of the agreement under consideration, no other conclusion appears to be reasonably possible than that it was the intention of the banksj when entering the pledge contract, that the collateral then pledged to secure the specific loan might be held by the pledgee bank as security also for the time certificate. See, in this connection, Clydesdale Bank v. Blackshear Mfg. Co., 18 Ga. App. 515 (89 S. E. 1051); Hurst v. Flynn-Harris-Bullard Co., 166 Ga. 480 (143 S. E. 503) ; Oleon v. Rosenbloom, 247 Pa. 250 (93 Atl. 473, L. R. A. 1915E, 968, Ann. Cas. 1916D, 233); Fourth National Bank v. Stahlman, 132 Tenn. 367 (178 S. W. 942, L. R. A. 1916A, 568) ; 21 R. C. L. 640, 653) ; 31 Cyc. 820 et seq.; 22 Am. & Eng. Enc. Law (2d ed.) 871.

Decided April 12, 1929.

Wade II. Waison, for plaintiffs in error. Gordon Knox, contra.

Judgment affirmed.

Jenhvns, P. J., and Stephens, J., eoneur.


author: Broyles, C. ¿T.

text:
    19505.
    ALDERMAN v. CITY OF VALDOSTA.
    Decided April 13, 1929.

      J. G. Cranford, W. L. Cranford, J. B. Odum, for plaintiff in error,
    cited as to sufficiency of evidence: 13 Ga. App. 645; 11 Ga. App. 811; 15 Ga. App. 633.

      O. W. Franldin, H. C. Elerhardl, contra,
    cited: On motion to dismiss: 92 Ga. 576. As to the evidence: 15 Ga. App. 633; 95 Ga. 419; 59 Ga. 169; 18 C. J. 1218.
   Broyles, C. ¿T.

1. The motion to dismiss the bill of exceptions is denied. The ruling in Delk v. Pickens, 92 Ga. 576 (17 S. E. 862), will not be extended to cover the facts of the instant case.

2. The evidence was insufficient to authorize the judgment of the recorder, and the overruling of the certiorari was error. This case is differentiated by its particular facts from the cases cited in the brief of counsel for the defendant in error. As this ruling is controlling in the case, the special assignment of error (ground 2) in the petition for certiorari, in which error is assigned on the admission of testimony as to the character of the accused is not passed upon. Judgment reversed■

Luhe and Bhodworih, JJ., concur,


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

text:
    19451.
    COBB v. BOND.
    Decided April 9, 1929.
    Rehearing denied May 15, 1929.
   Broyles, C. J.

The petition as amended was subject to general demurrer, and the trial judge of the municipal court of Atlanta properly so held. The reversal of that ruling by the appellate division of the court was error; and the judge of the superior court erred in sustaining the decision of the appellate division and in overruling the defendant’s petition for certiorari. See, in this connection, Town of Decatur v. Jaudon, 136 Ga. 854 (72 S. E. 351).

Judgment reversed.

Dulce and Bloodworih, JJ., concur.

Edgar Laihctm, for plaintiff in error.

Brown & Brown, J. Wiglvtman Bowden, contra.

ON MOTION EOR REHEARING.

Broyles, C. J.

It is true (as pointed out in the motion for a rehearing) that in Town of Decatur v. Jaudon, 136 Ga. 854 (supra), there was no alteration of the plans and specifications submitted by Jaúdon and accepted by the Town of Decatur, and that in the instant case the original plans and specifications submitted by Bond, the contractor, and accepted by Cobb, the owner of the stores to be built by Bond, were so changed as to increase the cost of the buildings. In our opinion, however, that distinction between the facts of the two cases is immaterial for the following reason: The contract entered into between Bond and Cobb provided that Bond would furnish plans and specifications for the erection of two stores, and would build them; that the amount to be paid by Cobb to Bond was four hundred dollars, to be paid as follows: “Fifty dollars to be paid for the plans and specifications upon their delivery, and the balance to be paid as the work progresses in weekly amounts of twenty-five dollars per week until two hundred dollars has been paid, at which point the payments shall cease until the stores are fully completed and an inventory of total cost of same be made; and if such cost is found to exceed five thousand dollars, then the balance remaining due to the contractor shall be applied to paying this excess; and if, after such excess over $5,000 is paid, there shall be a balance left of the amount due the contractor, it shall be paid to him. If this balance due the contractor under the above terms of payment, to wit, $200, is not sufficient to pay the excess of the total cost above $5,000 of the stores completed, the owner agrees not to hold the contractor liable for such balance uncovered by the $200.” It was also provided in the contract that the owner of the buildings to be erected had the mght, as the work progressed, to alter the flans, and that his decision thereon was final. It follows, therefore, that when the contract was signed, the contractor knew that the plans could be changed by the owner, and he knew, or should have known, that such alterations would probably, or at least possibly, increase the cost of the buildings, and yet he agreed in the contract to erect them for the sum stated therein. lie could have provided in the contract that if the alterations in the plans increased the cost of the buildings he should receive additional compensation, or that the increased cost should not operate to diminish the total amount ($400) which he was to receive under certain conditions. He did not do so, however, and he is bound by the express terms of the written contract executed by him. The contract was unambiguous, and, in a suit upon the contract, the contractor can not alter or change the terms of the written instrument by any allegations in his petition. In our opinion the principle enunciated in the decision of the Jaudon case, supra, is applicable to the facts of this case.

Rehearing denied.

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


author: Luke, J.

text:
    19465.
    National Bank of Lumpkin v. Trotman.
    Decided April 9, 1929.
    Rehearing denied May 14, 1929.
   Luke, J.

I. The evidence being in conflict as to whether Trotman furnished his tenant with supplies or was merely security for the tenant, who was himself the purchaser of the supplies, this court can not.say that there was no evidence to support the jury’s verdict finding, in effect, that the landlord’s lien for supplies was superior to the bank’s mortgage. See, in this connection, Phillips v. Freeman, 30 Ga. App. 450 (118 S. E. 404).

2. Considering the instructions complained of with their context and in the light of the charge as a whole, there is no error therein that requires a new trial.

3. Tlie evidence supports the verdict, and for no reason assigned did the court err in overruling the motion for a new trial.

Judgment affirmed.

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

R. 8. Wimberly, for plaintiff in error. G. Y. Harrell, contra.


author: Bloodworth, J. Bloodworth, J.

text:
    19470.
    MEKINS v. THE STATE. HURLEY v. THE STATE.
    19478.
    Decided April 9, 1929.
    Rehearing denied May 14, 1929.

      Hugh E. Combs, for plaintiffs in error.

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

The motion for a new trial in each of these eases was overruled on the 19th day of November, 1928. The bills of exceptions assigning error on these rulings were each presented to the trial judge on the 17th day of December, 1928. This not being within the twenty days prescribed by law, this court is without jurisdiction to entertain the cases. Watson v. State, 38 Ga. App. 435 (144 S. E. 142), and cit.; Jennings v. State, 38 Ga. App. 454 (144 S. E. 147).

Writs of error dismissed.

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

ON MOTION FOR REHEARING.

Bloodworth, J.

In the motion for a rehearing in this case it is stated that counsel for movant had five criminal cases from Wilkes superior court, in each of which he had made a motion for a new trial; that on November 26, 1928, he saw Judge Perryman at the court-house in Washington, and at that time the judge had the “records in all live of the cases, and called attention of counsel for movant to the fact that he had overruled his motions, and called for a pen to date same. Counsel for movant naturally thinking that these motions were overruled on the date above mentioned, November 26, 1928, and as a matter of fact only the cases of Tutt and Panning bear date of November 26, 1928, as the date of the overruling of the motions for new trial, . . and neither movant nor his counsel had any knowledge of the fact that November 26, 1928, was nob the true dale of the overruling of all these motions, including, of course, the motion in this case. And the twenty days after the true date overruling this motion had expired before either movant or his counsel knew that November 26th was not the true dale of the overruling of this motion.” (Italics ours.) Should a rehearing be granted, it would avail the plaintiff in error nothing, as it was more than twenty days from November 26 to December 17. Counsel for the plaintiff in error practically conceded that he was too late in presenting to the judge the bill of exceptions in each of these cases; for on each of the bills of exceptions is a note by the trial judge which reads as follows: “This bill of exceptions was not presented to me until December 17, 1928, counsel for movant stating that he was too sick to draw it on December 15, 1928.”

Rehearing denied.

Broyles, C. J., and Lulce, J., conawr.


author: Bbotles, C. J.

text:
    19471.
    Parker v. The State.
    Decided April 9, 1929.
    Rehearinq denied May 15, 1929.

      Hugh E. Combs, for plaintiff in error.

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

It affirmatively appears from both the bill of exceptions and the record that the motion for a new trial was denied on November 19, 1928. It is also affirmatively shown, by the note of the trial judge that the bill of exceptions was presented to him on December 17, 1928. The bill of exceptions not having been tendered within twenty days of the date of the judgment complained of therein, this court is without jurisdiction to entertain the case.

Writ of error dismissed.

Luke cmd Bloodworth, JJ., concur.


author: Broyles, C. J.

text:
    19476.
    Cook v. The State.
   Broyles, C. J.

1. In view of the evidence submitted upon the issue raised by the defendant’s plea of former jeopardy, as disclosed by the petition for certiorari and by the untraversed answer of the trial judge to the petition, the judge, sitting without the intervention of a jury, did not err in finding' against the plea. The evidence, while conflicting in some particulars, authorized the finding.

2. A constitutional question raised for the first time in a petition for certiorari can not be considered by the reviewing courts. Bolton v. Newnan, 147 Ga. 400 (94 S. E. 236) ; McClelland v. State, 27 Ga. App. 783 (110 S. E. 245).

3. The evidence contained in the petition for certiorari, together with the additional evidence set forth in the answer of the trial judge, amply authorized the verdict and judgment, and the overruling of the certiorari was not error for any reason assigned.

Decided April 9, 1929.

Rehearing denied M!ay 15, 1929.

Morris Machs, John Ii. Payne, for plaintiff in error.

Carlton W. Binns, solicitor, John A. Boykin, solicitor-general, J. W. LeCraw, contra.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    19508.
    Allen v. The State.
   Broyles, C. J.

1. The' conviction of the accused did not depend wholly upon circumstantial evidence, and the failure of the court to charge upon the law of direct and circumstantial evidence was not error, in the absence of a request so to do.

2. Where a ground of a motion for a new trial complains of the charging of certain principles of law (which the ground alleges should not have been charged, under the evidence adduced), or complains of the failure to give certain charges (which the ground alleges was error, under the evidence adduced), but where no evidence whatsoever is set forth in the ground, the ground is not complete and understandable within itself, and this court will not search through the brief of the evidence to discover whether the charge, or the failure to charge (as the case may be), was error, under the evidence in the case. See, in this connection, Beavers v. State, 33 Ga. App. 370 (2) (126 S. E. 305). Under the principle of this ruling special grounds 2, 3, 4, 5, and 6 of the motion for a new trial are not complete and understandable within themselves. In order for this court to determine whether any one of those grounds showed error, or whether the error was material, it would have to refer to the brief of the evidence, or the indictment; or some other portion of the record.

3. In the light of all the facts of the ease, the remaining special grounds of the motion for a new trial show no reversible error.

4. In misdemeanors all who participate, aid, advise, or abet in the commission of the crime are guilty as principals. In the instant case the evidence authorized a finding that the accused was present at or near the scene of the offense (larceny from the house), and that she advised and abetted in the commission thereof.

5. Under repeated rulings of the Supreme Court and of this court, upon the trial of a misdemeanor the jury may believe the uncorroborated testimony of a single witness in preference to the testimony of many witnesses. This is true although it be shown that the witness was guilty of aiding in the commission of the crime, and although evidence tending to impeach him has been introduced and no counter-showing in his behalf has been made.

Decided April 9, 1929.

Rehearing denied May 15, 1929.

Shackelford, Shackelford & Davis, for plaintiff in error.

Clifford Pratt, solicitor-general, contra.

6. Under the above-stated rulings and the facts of this case, the verdict was authorized, and the refusal to grant a new trial was not error for any reason assigned.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


author: Bloodwoeth, J.

text:
    19575.
    Nunn v. The State.
    Decided April 9, 1929.
    Rehearing denied May 14, 1929.

      T. N. Brown, for plaintiff in error.

      R. H. Humphrey, solicitor, I. W. Rountree, contra..
   Bloodwoeth, J.

Where a husband and his wife, while living in the State of Florida, separated, and later each moved into Emanuel county in this State, and lived there several months, during which time the father lived apart from his wife and children, and some of the children were minors and in a dependent condition, unable to support themselves, and the father contributed nothing to the support and maintenance of the minors and did not make any provision whatsoever for them, he would be guilty of a violation of section 116 of the Penal Code of 1910; and Emanuel county, in which the dependent minors lived at the time the accusation was sworn out, and in which they had lived for several months prior thereto, would have jurisdiction of the case. There is nothing in the record to show that prior to their arrival in Emanuel county the minors were not properly cared for. So far as the evidence shows, the state of dependency of the minors did not begin until after their arrival in Emanuel county. For that reason the crime is to be considered as having been committed in that county. Fry v. State, 36 Ga. App. 312 (136 S. E. 466); Ware v. State, 7 Ga. App. 797 (68 S. E. 443) ; Boyd v. State, 18 Ga. App. 623 (89 S. E. 1091) ; Towns v. State, 24 Ga. App. 265 (2) (100 S. E. 575). The facts of the case under consideration clearly differentiate it from Jemmerson v. State, 80 Ga. 111 (5 S. E. 131). See Bull v. State, 80 Ga. 704 (6 S. E. 178) ; Sikes v. State, 37 Ga. App. 164 (139 S. E. 87). The special grounds of the motion for a new trial show no cause for a reversal of the judgment, and the evidence supports the verdict.

Judgment affirmed.

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


text:
    19578.
    FIELDS v. THE STATE.
    Decided April 9, 1929.
    Rehearing denied Mat 14, 1929.

      F. H. Colley, Hugh E. Combs, for plaintiff in error.

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

The bill of exceptions in this case was certified by the judge on January 12, 1929, and was filed in the office of the clerk of the trial court on February 6, 1929. Not having been filed within fifteen days from the date of the certificate of the judge, in compliance with the mandatory requirements of the statute, the writ of error must be dismissed. Civil Code (1910), § 6167; Gook v. State, 120 Ga. 137 (47 S. E. 562); Pate v. Kister, 28 Ga. App. 278 (110 S. E. 756).

Writ of error dismissed.

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

ON MOTION FOR REHEARING.

Bloodworth, J.

A motion for a rehearing was made on the ground that the bill of exceptions was lost after the judge had certified to it on January 12, 1929, and that an'order was signed January 30, 1929, establishing a copy of the lost paper, and a copy of the order appeared on the bill of exceptions. This court can pass upon such questions as this only as they are shown by the record. It is true that a copy of the lost bill of exceptions appears in the record, and on it an order dated January 30th, establishing it as a copy of the lost original, but when the order of this court dismissing the writ of error was written there was nothing in the record to show when the paper was lost, by whom it was lost, or when it was found, and nothing to show on what date the petition to establish the copy was filed. So taking the record as it appeared when this court dismissed the writ of error, the order was correct. However, should we concede that it was error to dismiss the bill of exceptions (which we are far from doing), grant a rehearing, and vacate the order dismissing the writ of error, it would avail the plaintiff in error nothing, for we have examined the motion for a new trial as amended and find in it nothing that would require another trial of the case.

Rehearing denied.

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


text:
    19443.
    Southern Railway Co. v. Davenport.
    Decided April 16, 1929.

      Maddox, Maddox & Mitchell, T'F. M. B.app, for plaintiff in error.

      D. IF. Mitchell, William E. & Gordon Mann, contra.
   Broyles, C. J.

1. A railway company and its engineer may be jointly sued for the negligent infliction of personal injuries, where the negligence of the company results solely from the act and conduct of the engineer. Southern Railway Co. v. Grizzle, 124 Ga. 735 (2) (53 S. E. 244, 110 Am. St. R. 191).

2. In a joint action against a railway company and its .engineer, to recover damages for the infliction of personal injuries upon the plaintiff solely in consequence of the engineer’s negligence, a verdict finding the engineer not liable, but finding in favor of the plaintiff against the railway company, is unauthorized and should be set aside. Southern Ry. Co. v. Harbin, 135 Ga. 122 (68 S. E. 1103, 30 L. R. A. (N. S.) 404, 21 Ann. Cas. 1011); Salmon v. Southern Ry. Co., 137 Ga. 636 (73 S. E. 1062).

3. The instant case is a joint action against the railway company and its engineer for the negligent infliction of personal injuries upon the plaintiff. The petition, properly construed, most strongly against the plaintiff, shows that the injuries sued for were caused solely by the negligence of the engineer. Eurthermore, upon the trial of the case there was no evidence that authorized a finding that any other employee or agent of the railway company was guilty of any negligence that contributed to the plaintiff’s injuries. Accordingly, under the above-stated ruling, the verdict, which exonerated the engineer and held the railway company liable, was unauthorized, and the court erred in- refusing to grant a new trial.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


text:
    19335.
    Mobley, superintendent of banks v. Chamblee.
   Stephens, J.

Section 20 of article 7 of the banking act approved August 16, 1919 (Ga. L. 1919, p. 135, 160), which provides that after a stockholder in a bank which has been taken over for liquidation by the superintendent of banks has been given notice by mail of an assessment made against the stockholder, if the stockholder “so notified shall refuse or neglect to pay any such assessment within thirty days after the levy of such assessment and notice thereof, the superintendent of banks shall issue an execution against such stockholder for the amount of such assessment,” implies that the stockholder against whom the assessment has been made, and to whom the notice has been given by mail as required, shall be entitled to thirty days, exclusive of the date upon which the notice of assessment was given, withip which to pay the assessment; before an execution by the superintendent of banks can be legally issued against the stockholder. It follows, that, where an assessment against a stockholder was made by the superintendent of banks and the required notice was given on the 19th day of October, 1926, an execution for the enforcement of the assessment which was issued on November 18, 1926, was issued within the period of thirty days after the levy of the assessment and the giving of the notice, and therefore the issuance of the execution was premature, and therefore illegal. The judge of the superior court therefore properly sustained the stockholder’s affidavit of illegality interposed to the levy made under the execution. Civil Code (1910), § 4, par. 8; Knoxville City Mills v. Lovinger, 83 Ga. 563 (10 S. E. 230) ; Rusk v. Kill, 117 Ga. 722 (45 S. E. 42) ; Holt v. Richardson, 134 Ga. 287 (67 S. E. 798) ; Grooms v. Hawkinsville, 31 Ga. App. 424 (120 S. E. 807); Mobley v. Goodwyn, 39 Ga. App. 64 (146 S. E. 78). Judgment affirmed.

Decided April 11, 1929.

Rehearing denied May 18, 1929.

Orville A. Parle, O. N. Davie, Willingham, Wright & Covington, for plaintiff. G. E. Maddox, Graham Wright, for defendant.

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


text:
    19399.
    Tarver v. Beneficial Loan Society of Macon.
   Stephens, J.

1. In a written instrument executed by a borrower of money, which conveys to the lender title to personal property as security for the debt, a provision that the borrower agrees to hold the property as “bailee” for the lender until the debt is paid does not, on payment of the debt, operate to divest the lender of the fee. It can, on payment of the debt, do no more than deprive the property of its contractual status as a bailment and leave the parties in the situation in which they would have been had this provision not been inserted in the contract, namely, a situation in which the legal title, on payment of the debt, is not, by virtue of any provision of the contract, revested in the borrower. Since this provision does not operate as a defeasance, its presence in the instrument does not operate to characterize the instrument as a mortgage.

2. Where a person borrowed money, and, to secure the payment thereof, executed to the lender a written instrument in which it was recited that described personal property was thereby deeded, sold, and conveyed to the lender to secure the loan, and that the instrument was “a deed conveying title to secure the . . loan,” and that “a bond to reconvey is this day taken,” and the instrument contained no defeasance clause, and where in fact the lender executed to the borrower a bond, conditioned to reconvey the property to the borrower on payment of the debt, the instrument was a bill of sale of personal property to secure a debt, and was not a mortgage. Civil Code (1910), § 3306; Ellison v. Wilson, 7 Ga. App. 214 (66 S. E. 631); Owens v. Bridges, 13 Ga. App. 419 (79 S. E. 225). The setting aside of the property afterwards, as being exempt from levy and sale by virtue of the homestead and exemption laws, in no wise affected the previously acquired title of the lender. Where, after a levy upon the property under a proceeding to foreclose the bill of sale as provided in section 3298 of the Civil Code of 1910 as amended by an act approved August 15, 1921 (Ga. L. 1921, p. 114), the borrower filed a claim to the property, upon the ground that it was exempt from levy and sale by virtue of the homestead and exemption laws, and where it appeared from the claim filed that the property levied upon was impressed with exemption after the borrower had executed the bill of sale to secure the debt to the lender, the court did not err in dismissing the claim on demurrer and allowing the levy to proceed.

Decided April 11, 1929.

Rehearing denied May 18, 1929.

E. F. Goodrum, for plaintiff in error.

Parle & Sirozier, A. Edward Smith, contra.

3. Although the bill of sale may have been executed as security for a loan of $300 with interest at the rate of 3-1/2% per month, authorized under the “small-loan act” approved August 17, 1920 (Ga. L. 1920, p. 215; 8 Park’s Code Supp. 1922, § 1770), and even though it be assumed that loans of money made pursuant to the provisions of that act can not be secured by a bill of sale passing title to personalty, and which, therefore, is not a mortgage, the borrower, in setting up exemption of the property from levy by virtue of the homestead and exemption laws, does not attack the validity of the lender’s security, but sets up an exemption which he claims supersedes the lender’s security, upon the ground that, as contended by the borrower, the instrument securing the lender was a mortgage and not a bill of sale passing title to the property to the lender as security for the debt.

4. The judge of the municipal court properly dismissed the claim, on demurrer, and the judge of the superior court properly refused to sanction the petition for certiorari presented by the claimant.

Judgment affirmed.

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


text:
    19358.
    HAYGOOD v. McDEVITT et al. KNOWLES v. McDEVITT et al. LEWIS v. MORGAN et al. SWILLING v. MORGAN et al.

    19359.
    19360.
    19361.

      Decided May 14, 1929.
    J; L. R. Boyd, O. J. Bundy, R. J. Reynolds Jr., for plaintiff.

      R. R. Jackson, for defendants.
   Luke, J.

The court sustained the general demurrers of the defendants to the petitions in these cases. To this judgment each plaintiff filed exceptions pendente lite, and later a bill of exceptions reciting that to the judgment sustaining the general demurrer and dismissing the action the plaintiff “then and there excepted by exceptions pendente lite, as appears in this bill of exceptions, which exceptions pendente lite preserved the right of plaintiff in error to except, and he here and now excepts to the said judgment of the said Judge Howard dismissing his action.” The only object of exceptions pendente lite is to preserve as a part of the record things occurring on the trial which would not otherwise appear of record. Since the general demurrers were sustained and the actions dismissed, there was no trial on the merits in these cases, and they could have been brought to this court by direct bills of exceptions assigning error on the sustaining of the general demurrers to the petitions, and without exceptions pendente lite. The actions having been dismissed in the lower court, exceptions pendente lite could not properly be filed. Zorn v. Lamar, 71 Ga. 80 (6). Disregarding the exceptions pendente lite, the record shows that the final judgments excepted to in each of these cases were dated October 19, 1928. The bills of exceptions were presented to the trial judge on November 20, 1928. This is not within the thirty days provided by law, and the writ of error in each case must be dismissed. Crawford v. Goodwin, 128 Ga. 134 (57 S. E. 240).

Writs of error dismissed.

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


author: Bloodworth, J.

text:
    19450.
    AYCOCK REALTY COMPANY v. BROWN.
    Decided May 14, 1929.

      Mitchell & Mitchell, for plaintiff.

      Frank T. Qrizzard, II. F. Sharp, for defendant.
   Bloodworth, J.

C. G. Aycock Realty Company brought suit in the municipal court of Atlanta against J. B. Brown to recover $300 commissions. These commissions were alleged to be due because of a contract to exchange real estate, the petition alleging that “the said J. B. Brown agreed to sell Mrs. Julia B. Russell two certain parcels of land in the city of Atlanta, Georgia, through C. G. Ay-cock Realty Company, and to pay said C. G. Aycock Realty Company a commission of $300 for making the sale.” The defendant Brown demurred to the petition, on the ground that the contract sued on was too indefinite in several particulars and was not a binding and legal contract. The trial court sustained the demurrer, and Aycock Company appealed the case to the appellate division of the municipal court, which affirmed the trial judge, and Aycock Company carried the case by certiorari to the superior court. The judge of the superior court overruled the certiorari and sustained the judgment of the lower court, and Aycock Company then brought the case to this court by bill of exceptions assigning error on the overruling of his certiorari.

The contract which is the basis of the suit is as follows: “State of Georgia, County of Eulton. Atlanta, Ga., Eeb. 7, 1928. The undersigned hereby agrees to exchange through C. G. Aycock Realty Co., agent, the following described property, to wit: all that tract or parcel of land lying and being in the City of Atlanta, Eulton County, Georgia, same being a eight unit apartment known as 264 N. Moreland Ave. as shown for the sum of thirty thousand ($30,-OO'O.OO) dollars to be paid as follows: Assumes a loan of $18,-000.00 bearing 6% reducible $500.00 in 1929 and will give my property known as two houses and lots Nos. 861 and 865 Norcross Street subject to $4000.00 loan bearing 7% interest, and will give $6000.00 payable $80.00 per month secured by loan deed on above apartment bearing 7% interest. It is agreed that the vendor shall furnish good and marketable title to said property and purchaser shall have a reasonable time in which to investigate same. In the event the title is objected to, the vendor shall be furnished with a written statement of all objections and be allowed a reasonable time thereafter in which to furnish a valid title. It is agreed that such papers as may be legally necessary to carry out the terms of this contract shall be executed and delivered by the parties at interest as soon as the validity of the title to said property has been established. Special Stipulations. Taxes for 1928 to be paid as fixed by law insurance. Interest and rents to be prorated at date of closing. This proposition is open for acceptance until the end of the-day of-, 19— J. B. Brown. The above proposition is hereby accepted, this the-day of-, 19— Mrs. Julia B. Russell.” .

The first ground of Brown’s demurrer is general and alleges that “no cause of action is set out;” and the second ground of demurrer alleges that the $18,000 loan referred to in the contract is not described with sufficient certainty. Obviously the contract is too ambiguous and indefinite to be capable of enforcement. Certain amendments to the petition were offered, but these were not amendments to the contract; and since the contract is the basis of the action, plaintiff’s case must stand or fall according to the validity of this contract. In the first place it is uncertain as to which piece of property Brown was to sell. The contract is in the form of a written proposition by Brown and an acceptance by Mrs. Russell. It states that “The undersigned hereby agrees to exchange . . the following described property, to wit: all that tract or parcel of land lying and being in the City of Atlanta, Fulton county, Georgia, same being a eight unit apartment know as 264 N. Moreland Ave. . .” Since the proposition was made by Brown and he was “the undersigned” first signing, the above-quoted language would indicate that he was the party selling the apartment; and yet other portions of the record show that Mrs. Russell was selling the apartment. The contract speaks of “the vendor,” but since the contract provides for an exchange of property, both parties are selling, and neither party is specifically designated as the vendor, and the contract does not name the owners of the properties in question, and the obligations alleged to be assumed are somewhat indefinite.

Again, the description of each of the three properties named in the contract is indefinite. While it is not necessary to describe the property in a sale contract with the same degree of particularity as in a deed, yet in the instant contract neither the dimensions of the properties, the boundaries, nor the directions that the properties face are given. See Young v. Flournoy, 139 Ga. 634 (77 S. E. 807).

Again, the contract does not show how long Brown’s proposition was open for acceptance, nor does it show when Mrs. Russell accepted it; the day, year, and month of each being left blank.

Again the contract refers to certain loans neither of which is definitely described. The contract contains the following: “Assumes a loan of $18000.00 bearing 6% reducible $500.00 in 1929.” The contract does not show who assumes the loan, what company or person has the loan, what time in 1929 the $500 is reducible, when the remaining portion of .the principal is due or payable, nor when the interest is due. In the case of Trust Company of Georgia v. Neal, 161 Ga. 965 (3, 4) (132 S. E. 385) it was held that an amendment seeking to describe more definitely a loan mentioned in a sale contract was not allowable; but even though such an amendment was allowed in the instant case, it merely amended the petition and did not amend the alleged contract for sale as executed by the parties which is the basis of the action and without which the action can not stand. In the Neal case, supra, the first paragraph of the decision is in part as follows: “A paper provided: ‘The undersigned hereby agrees to purchase . . the following described property, to wit: [then follows a description of particular realty] for the sum of twenty-seven thousand, five hundred dollars ($27,500.00) to be paid as follows: Assumption of loan $9500.00, cash $7000.00, and the balance represented by [then follows a description of other realty]. [Signed] L. G. Neal. The above proposition is hereby accepted . . [Signed] D. J. Griffin.’ Held, that the language, ‘assumption of loan $9500.00,’ construed in connection with its context, is too indefinite to identify any particular loan.” And in paragraph 2 of the decision it is ruled that the language quoted above is an essential and inseparable part of the contract and should be definite and certain, and, failing to be so, the contract could not be enforced. There is a marked similarity between the contract in the Neal case and the contract in the instant case; but the contract in the instant case is even less definite than that in the Neal case, because the contract in the instant case is indefinite both as to the description of the property and the description of the loan, while the indefiniteness in the Neal contract is as to the loan only. In the case of Crawford v. Williford, 145 Ga. 550 (89 S. E. 488), the Supreme Court said: “While the amount of the cash payment under the stipulations of this paragraph is a definite, certain amount, the terms of the payment of the balance of the purchase-price are indefinite and uncertain, because it is not stated whether notes are to be given for the balance; and if it be assumed that notes were to be given, then the amounts of the same and the date upon which they were to be paid are left uncertain. Eox these reasons the contract is invalid and unenforceable, and the refusal of the owner of the property to sell under the terms of the contract contained in the paragraph now under consideration gives no right of action.” In the instant case the assumption of the loan is a part of the consideration, and the date upon which it is to be paid is left uncertain. In the case of Rogers Realty & Trust Co. v. Dennett, 37 Ga. App. 591 (141 S. E. 88), this court held: “Where the consideration of an agreement of the defendant to buy, through the plaintiff, agent for a named owner, party of the first part, a designated lot of land on Ponce de Leon Avenue, was stated as “the sum of $20,000.00, to be paid as follows: Assume first loan of $10,000.00 at 6 per cent interest, and $5750 in monthly notes of $100 each, and an equity of $4250 in brick bungalow known as 130 Melrose Drive . . Party of the first part agrees to assume $3250 first loan against 130 Melrose Drive; sale price of Melrose property $7500/ the consideration for the Ponce de Leon property was not set out with sufficient certainty to sustain an action to recover commission alleged to be due the plaintiff under the contract.” In the case of Southeastern Realty Co. v. Griffin, 38 Ga. App. 220 (143 S. E. 435), it was held: “A contract signed by the purported vendor and vendee of certain real estate, by which the vendor agreed to sell described property to the vendee for a named price, so much to be paid in cash and the balance in “monthly notes/ the time of maturity of which was undisclosed, and which contract provided that the cash payment was' to be derived from the proceeds of a loan to be thereafter placed upon the property by the vendor, but did not state the terms and conditions of the loan, or from whom it was to be obtained, or the length of time for which it was to run, and which did not provide for its assumption by the vendee, was too vague and indefinite to be enforced as a sale agreement, and consequently a stipulation therein that a named agent should receive a named commission for effecting the agreement was a mere naked promise, unsupported by any valid consideration, and was unenforceable. . . In a suit by the broker for commissions, it was not error for the judge of the municipal court to reject the contract sued on, when it was tendered in evidence, and to direct a verdict in favor of the defendant; and the judge of the superior court did not err in overruling the certiorari.” It will be noted that this court 'does not hold that if the loan had already been placed, a different ruling would result. The court held that “if the contract had provided for the'assumption of a then-existing loan identified by the agreement, the rule might be different, since such a reference might furnish a key by which the provisions of the outstanding contract could be ascertained with certainty without resort to parol evidence.” (Italics ours). The loan in the case now under consideration was not sufficiently identified in the contract, and did not furnish a key by which the provisions could be ascertained. Furthermore, the loan in the Dennett case, 37 Ga. App. 591, and in the Neal case, 161 Ga. 965 (supra), were in existence and were assumed; and yet those contracts were held to be too indefinite and therefore unenforceable. A comparison of the contract in the instant case with the contracts in the Dennett, Griffin, and Neal cases, supra, will show that each of them is as definite as the contract now under consideration, and the contracts in those cases were held to be too indefinite for enforcement.

In Massell Realty Co. v. Hanbury, 165 Ga. 534 (141 S. E. 653), relied upon by the plaintiff in error, the description of the loan referred to in the contract is much more definite than the description of the loan referred to in the contract in the instant case. In the Massell case the contract specified that the purchaser agrees to “assume loan of $900 now outstanding against the property purchased." In the instant case the purchaser merely “assumes a loan of $1800,” and it is not specified that the loan assumed is against the property purchased or what property it is against, and consequently it does not furnish a key of identification. In the Massell case the contract states that the loan “matures in about eighteen months and can be taken up at any time prior to maturity by paying interest to date.” In the instant ease the contract does not show when the loan matures or when the interest thereon may be paid. In the case of Muller v. Cooper, 165 Ga. 439 (141 S. E. 300), the description of the property and of the consideration to be paid therefor is much more definite than the description of the property and consideration in the instant case.

In the instant case the indefiniteness is not only as to the loan but as to other phases of the contract. The contract for the exchange of realty consisting of a proposition and acceptance, being indefinite as to the respective owners of the properties, and the description of the properties being vague and indefinite, and no time limit for acceptance being specified, and the time of acceptance not being shown, and the contract providing for the assumption of a loan of $18000 bearing 6%, reducible $500 in 1929, and not specifying what property the loan was against, and not showing to whom the loan was due, or what time in 1929 the $500 would be payable, or when the remaining portion of the loan would be due or payable, or when the interest would be due, was too indefinite to sustain an action brought by a real-estate broker to recover commissions; and the judge of the superior court properly overruled the certiorari.

Judgment affirmed.

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


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    19463.
    ABERCROMBIE v. GEORGIA DISTRIBUTING COMPANY.

      Decided May 14, 1929.

      Asior Merritt, for plaintiff in error. J. B. Hutcheson, contra.
   Bloodworth, J.

The Georgia Distributing Company brought suit against W. C. Abercrombie, alleging in part “that on September 18, 1926, said defendant made a contract in writing with plaintiff whereby he agreed to purchase and did purchase 15 tons of cottonseed meal at and for the price of $28.00 per ton,” and that “on September 21, 1926, said defendant made a contract in writing with plaintiff whereby he agreed to purchase and did purchase thereby 15 tons of sack and three loads of bulk cottonseed hulls;” that the goods were “to be ordered out by defendant' by late September, 1926,” and that the hulls were to be shipped, one car each, September 30, October 10, and October 20. Each contract provided that the goods were to be delivered at Douglasville, “terms S/D, B/L attached, free of exchange to buyer, under the rules of the Interstate Cottonseed Crushers Association.” The defendant failed to order out the bulk hulls and the cottonseed’ meal purchased within the contract time. The rules of the said Interstate Cottonseed Association were as follows: “If the buyer shall fail to order out purchases within the contract period, the sellers shall give him wire notice of his intention to sell same for his account, and then give orders to an impartial broker to sell same for his account.” “On October 29, 1926, plaintiff gave the defendant wire notice of his intention to sell to [for ?] his account the said three carloads of hulls, amounting to 60 tons, and the said 15 tons of cottonseed meal, and on the 30th day of October, 1926, Jarrett-Eeely Company, an impartial broker, did sell to account of said defendant at and for the price as follows: 15 tons of meal at $22.24 per ton, 60 tons cottonseed bulk hulls at $5.92 per ton, both sales being basic Douglasville delivery. . . In order to resell said goods for said defendant under said contract plaintiff was forced to pay and it did cost him 25 cents per ton each commodity as a brokerage fee. Which said defendant became liable to plaintiff under said contract.” It was alleged that the plaintiff sustained, by reason of the failure of the said defendant to comply with his contracts aforesaid, the following sums of money:

A loss of $5.76 per ton on 15 tons of cottonseed meal ... .$ 86.40

Broker fee of 25 cents per ton........................ 3.75

A loss of $3.08 per ton on 60 tons bulk hulls............ 184.80

Broker’s fee of 25 cents per ton on 60 tons bulk hulls...... 15.00

Total amount sued for and for which defendant is indebted $289.95

It was alleged “that by virtue of the said contracts and the failure of the defendant to comply with his stipulations and agreements therein, he became and is indebted to this plaintiff in the sum of $289.95 as aforesaid, besides interest thereon at rate of seven per cent, per annum from October 30, 1926; that plaintiff has complied with every stipulation and term of said contracts with said defendant, and the defendant has failed to comply with his stipulations and agreements therein as aforesaid alleged; that this petition has set out every detail, agreement and condition and term of said contracts, wherefore no copies are attached as not being necessary.” The defendant demurred generally and specially, the demurrer was overruled, and on this ruling he assigned error. He filed a plea in which he denied each and every paragraph of the petition, and by amendments to his plea he sought to set off certain amounts which he claimed were due him because of certain shipments of cottonseed hulls made to him by the plaintiff on September 13th, 22d, and 29th, 1926, and alleged that in each instance a sight draft was attached to the bill of lading, which draft he was forced to pay before he could unload said hulls, and in each instance the hulls had become heated and worthless; that he was damaged by the worthless hulls shipped to him $541.28, for which amount, less the amount for which plaintiff had sued him, he asked for a judgment against the plaintiff. When the evidence was all in, the judge directed a verdict for the plaintiff for the full amount sued for, including commissions, and the defendant excepted.

The ruling stated in the first headnote needs no elaboration.

The plaintiff offered in evidence a book purporting to contain the rules of the Interstate Cottonseed Crushers Association, the title page of which is headed as follows: “1927-1928”. Then follow the rules. The defendant objected to the admission of this book in evidence, upon the ground that the rules “are not certified copies of the purported rules of Interstate Cottonseed Crushers Association; their authenticity has not been proved,” and upon the further ground that “this book contains what purports to be the rules for 1927 and 1928 [the transaction in question having occurred in October, 1926],” and insisted that “the rules in force at the time of the alleged contract would be the highest and best evidence.” The judge admitted the evidence. This was error. The record shows that “the Interstate Cottonseed Crushers Association was incorporated,” and that minutes of the proceedings of their meetings were kept. In Caudell v. Athens Savings Bank, 140 Ga. 713 (79 S. E. 776), it was held: “Ordinarily the minutes of a corporation show the formal actions of its directors and stockholders; and before parol evidence thereof can be introduced, they should be produced or accounted for. Parol evidence, however, is admissible to prove the unrecorded acts and transactions of corporations, or of their officers or directors.” See Bank of Garfield v. Clark, 138 Ga. 798 (7) (76 S. E. 95). In the case under consideration the minutes of the Interstate Cottonseed Crushers Association were not produced or accounted for, nor does the record show a certified copy thereof.

Plaintiff in error insists that the judge erred in directing a verdict, because it is settled law in this State that where a buyer refuses to pay for goods which he has bought, and the seller elects to sell the goods at the buyer’s risk and brings suit under section 4131 of the Civil Code of 1910, he must first give “the buyer timely written notice of his election and also of the time and place of resale in order that the buyer may, if he desires to do so, attend the sale for the purpose of protecting his interest.” Bridges Grocery Co. v. Dan Joseph Co., 9 Ga. App. 189 (70 S. E. 964). Such a notice is essential (Sims-McKenzie Grain Co. v. Patterson, 10 Ga. App. 742, 73 S. E. 1080) and indispensable (Cartersville Grocery Co. v. Taylor, 31 Ga. App. 252 (2), 120 S. E. 447). See also Felty v. Southern Flour and Grain Co., 140 Ga. 332 (78 S. E. 1074). The evidence for the plaintiff shows that the following telegram was sent to the defendant: “October 29, 1926. W. C. Abercrombie & Co., Douglasville, Ga. Hereby notify you selling for your account three carloads hulls, fifteen tons of meal. Georgia Distributing Co.” On the copy of the telegram introduced it had “4.45 p. m.” The defendant swore that he did not receive such a telegram. Even if we concede that this telegram was a sufficient notice of the intention of the plaintiff to sell the hulls and meal and hold the defendant responsible therefor, if the defendant did not receive the notice he would not be bound by the sale. At least there was here a disputed question of fact that should have been submitted to the jury. Another telegram introduced in evidence is as follows: “Atlanta, Ga., October 30, 1926. W. C. Abercrombie & Co., Douglasville, Ga. Have instructions Georgia Distributing Company sell your account three cars bulk hulls, 15 tons meal. Jarrett-Ereeley Co.” This copy was marked, “Send at 5 p. m.” Although the sale was made on October 30, this telegram shows that it must have occurred after 5 p. m. of that day. In Bennett v. Mann, 24 Ga. App. 581 (101 S. E. 706), the 2d headnote is as follows: “Whether a seller, who, upon the purchaser's refusal to take and pay for goods bought, elected to resell and recover the difference between the contract price and that obtained on the resale, exercised reasonable diligence to sell within a reasonable time and at the best price he could obtain is a question for the jury. Robson v. Hale, 139 Ga. 753 (78 S. E. 177); Carver v. Graves, 47 Tex. Civ. App. 481 (32 S. W. 826).” What is just quoted is applicable to this case.

The verdict directed embraced an item for broker's commissions. As, under our holding, the rules of the Interstate Cottonseed Crushers Association were improperly admitted, this case must be determined under the provisions of § 4131 of the Code of 1910. Under the provisions of that section the plaintiff, in such a suit as this, can not recover commissions, but can only “recover the difference between the contract price and the market price at the time and place of delivery.” In Allison Lumber Co. v. Decatur Lumber Co., 30 Ga. App. 613 (118 S. E. 597), this court, citing a number of cases to support the proposition, held: “Where a purchaser refuses to take and pay for goods bought, and the vendor elects to sell the property, the difference between the contract price and the price of resale constitutes the amount 'of the damages for the breach of the contract. Accordingly the trial court in the instant case did not err in striking from the petition, on special demurrer, certain items of expenses alleged to have been incurred in the shipment and resale of the goods in question, such as freight, taxes, demurrage, storage, labor, insurance, etc.”

There was some evidence for the defendant to support his plea that the plaintiff shipped to him cottonseed hulls which had become heated and worthless. The contracts showing sales of hulls by the plaintiff to the defendant, which were in evidence, each had written on it the stipulation: “All claims to be made within ten days after arrival of cars at destination;” and although in his plea as amended the defendant stated that he “made immediate complaint to the said plaintiff and within ten days from the arrival of said cars at Douglasville, Georgia,” there is no evidence to support this allegation. Although the defendant swore that he talked to Mr. Campbell of the Georgia Distributing Company about the bad hulls, there is no evidence that this conversation was within ten days after the arrival of the goods at Douglasville or that he then made claim for any damages sustained. On the contrary, B. N Neal swore at the trial that he was the owner and manager of the Georgia Distributing Company, and that “the first time I ever heard about any bad hulls was about ten minutes ago.” A new trial will not be granted because of the failure of the judge to submit to the jury the question of the right of the defendant to recover on his plea of set-off.

Because of the errors pointed out above, in subdivisions 2, 3, and 4, a new trial is ordered.

Judgment reversed.

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


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    19512.
    THOMAS v. THE STATE.
    Decided May 14, 1929.

      Stephens & Kea, F. L. Stephens, for plaintiff in error.

      Fred Kea, solicitor-general, contra.
   Luke, J.

The first count in the indictment charges Miss Joanna Carter, John W. Thomas, R. H. Wrye, alias Henry Allen, and R. M. Holmes with forgery, in that they did “falsely and fraudulently make, sign, print, and were concerned in the false and fraud-talent making, signing, and printing, and did falsely witness, attest, and procure the same to be done, a certain warranty deed and writing purporting to be signed, sealed, and delivered by Okella R. Carter, in the presence of John W. Thomas, R. Ii. Wrye, and R. M. Holmes, J. P., to Miss Joanna Carter.” The second count charges the same defendants with tattering aaad publishing as true alleged forged deed. The State elected to try John W. Thomas, aaad the jury found him guilty uaader count 1 of the iaadictanent, and not guilty under count 2. The defendant moved for a new trial upon the general grouaads aaad seven special grounds. Siaice all of the special grouaads preseaat but two questions for the coaasideratioaa of this court, and siaaee special ground 1 presents both questions, we shall discuss that only.

When the case was called by the attorney for the State at about eleveaa o’clock of the morning of the day it was set for trial, for the purpose of making a motion for a coaatiaauance counsel for the defendants immediately announced ready for trial. After State’s counsel had argued his motion for a coaatiaauaaace “at length,” the court refused to grant the coaatinuanee and announced the case ready for trial for the State, State’s counsel refusing or declining to annouaaee ready for trial.” Again the defendants annouiaced ready for trial. Theaa couaasel for the State announced that he elected to put John W. Thomas oaa trial; and counsel for movant at once announced ready for trial. The noon hour having arrived, the court announced a recess until two o’clock. When the court was reconvened after dinner and the case called, “movant agaiaa immediately announced himself ready for trial.” Then, and not till theaa, did counsel for the State offer to submit certain writiaags for the purpose of comparisoaa of handwritiaag. These writings were admitted in evidence over the objection, that they were not subnaitted to the movant before he aaaaaouaaced himself ready for trial, and over the further objectioaa that they were not proved or acknowledged to be geaauiiae. Siaaee it does not appear from the exception whether or aaot the genuineness of the writings offered in evidence was acknowledged or proved, we shall ndt consider the objection based upon that ground. Furthermore, it appears from the record that evideaaee to prove the genuineness of the writings was subsequently introduced. The controlling question in the case is whether or not the writings were submitted to the opposite party in due time. Section 5836 of the Civil Code (1910) reads: “Other writings, proved or acknowledged to be genuine, may be admitted in evidence for the purpose of comparison by the jury. Such other new papers, when intended to be introduced, shall be submitted to the opposite party before he announces himself ready for trial.” In the case of Ginn v. Ginn, 142 Ga., 420 (83 S. E. 118), where the issue was whether or not a will was a forgery, it was held: “Where on the trial of such an issue it was sought.to prove or disprove the genuineness of the signature to the instrument by introducing in evidence other signatures of the alleged testator, proved or acknowledged to be genuine, for comparison with that attached to the alleged will, it was necessary, under the Civil Code (1910), § 5836, that such new papers, when intended to be introduced, should be submitted to, the opposite party before he announced ready for trial.” The same rule was applied in the case of Marietta Fertilizer Co. v. Gray, 22 Ga. App. 604 (6) (96 S. E. 711), it was held: “Even though the other writings offered for the purpose of comparison be ‘acknowledged as genuine/ the opposite party is entitled to know that evidence for the comparison of signatures will be resorted to, and to have the writings that are introduced for that purpose submitted to him before he announces himself ready for trial.” To the same effect are the following decisions: Georgia Masonic Mutual Life Ins. Co. v. Gilson, 52 Ga. 640 (4); Thomas v. State, 59 Ga. 784, 788; Axson v. Belt, 103 Ga. 578 (2) (30 S. E. 262); Moultrie Repair Co. v. Hill, 120 Ga. 730, 734 (48 S. E. 143).

In view of the mandatory language of the statute and of-its strict construction by the courts of this State, we are constrained to hold in a case like this, where the charge is serious and the evidence conflicting, and where the writings must have had considerable weight with the jury, that the statute was not complied with, and that the court committed material error in overruling the motion to exclude the evidence.

Judgment reversed.

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


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    19533.
    CHAMBERS v. THE STATE.
    Decided May 14, 1929.

      JP. Z. Qeer, for plaintiff in error. J. A. Drake, solicitor, contra.
   Luke, J.

The accusation, which is in three counts, charges John G. Chambers with three separate and distinct assaults and batteries upon three different persons, to wit, Jeff Carter, Mrs. Jeff Carter, and Jesse Carter.

Briefly stated, the State’s case is this: At about 12 o’clock on the night of August 31, 1928, the defendant and four other persons came to the home where Jeff Carter, his wife, and their son, Jesse Carter, lived, for the avowed purpose of beating Willie Young, who was a niece of Jesse Carter, and was at the Carter home at the time. The girl hid under a bed, and was not found by the defendant and his party. After numerous shots had been fired into the house, the defendant severely beat all three of the Carters with a buggy-trace. At the time, Jeff Carter was paralyzed, his wife was ill, and their son Jesse was unarmed. Mrs. Carter never recovered from the beating she received, and died within two months of the time it was administered.

The defendant denied his guilt, and stated that at about half-past 9 o’clock of the night the Carters were said to have been attacked he went to Mr. Albritton’s and that while there they heard several guns Are. S. G. Albritton testified: that there was a case springing out of the same transaction pending against him; that on the night of the alleged attack on the Carters the defendant came to his house between nine and ten o’clock to see about a cow that was getting in the defendant’s field, and that while they were talking at his'gate they heard shooting in the direction of the Carter home; and that he did not know whether or not the ‘defendant went to Carter’s house (which was about half a mile from that of witness) after leaving his place. The defendant failed to make out his alibi either by his statement or by the testimony of any witness, and we are at a loss to see how the jury could have rendered any other verdict than they did.

Special grounds 1, 2, 4, and 5, in effect, complain that the court so charged the jury as to lead them to believe that they could render only one of two verdicts, i. e., guilty on all three counts, or innocent on all three counts. The criticism appears to be well founded, but we are quite sure that the error indicated was not harmful to the defendant. The evidence as to each assault and battery is practically identical, and it is inconceivable that the jury could have found any reason, or even excuse, for rendering a verdict of guilty on one or two counts and a verdict of innocent on the other counts or count. Besides, the evidence is overwhelming that the defendant was guilty under every count of the accusation. Error without injury is not ground for reversal, and the court did not err in overruling the special grounds indicted.

In the only remaining special gound, number 3, complaint is made that there was no evidence to warrant the charge based upon section 103 of the Penal Code (1910), that opprobrious words or abusive language might justify an assault and battery. No doubt, the court was prompted to give this charge by a desire that the defendant might have the benefit of every inference that might be helpful to him; and Jesse Carter did testify as follows: “Me, nor my father, or mother cursed John Chambers.” We think it would have been better to have omitted the charge under consideration, yet we fail to see how it could have been harmful to the defendant, and hold that is was not ground for a new trial.

Judgment affirmed.

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


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    19543.
    Buchannon v. The State.
    Decided May 14, 1929.

      A. B. Boss, L. G. Iiwrrell, W. A. Wooten, for plaintiff in error.

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

The bill of exceptions was filed in the office of the clerk of the trial court on August 14, 1928, and was transmitted to the clerk of this court and filed in his office on January 30, 1929. Under the ruling in Barnhart v. Atlanta &c. R. Co., 133 Ga. 59 (65 S. E. 138), this court has no jurisdiction of the case, and the bill of exceptions must be dismissed.

Writ of error dismissed.

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