text:
    16458.
    Jones v. The State.
    Decided June 20, 1925.
    Conviction of. possessing liquor; from city court of LaG-range— Judge Tuggle. March 20, 1925.

      Harry M. Breed, for plaintiff in error.

      L. L. Meadors, solicitor, contra.
   Broyles, C. J.

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

Judgment affirmed.

Luke and Blood/worth, JJ., concur.


source: Caselaw Access Project

author: Broyles, C. J.

license: Public Domain

text:
    16463.
    Brazeal v. The State.
    Decided June 20, 1925.
    Assault with intent to murder; from Laurens superior court— Judge Camp. March 14, 1925.
   Broyles, C. J.

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

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

W. A. Dampler, for plaintiff- in error.

Fred Kea, solicitor-general, contra.


author: Luke, J.

text:
    16464.
    Pate v. The State.
    Decided June 20, 1925.
    Rehearing denied July 15, 1925.
    Conviction of possessing liquor; from city court of Carrollton— Judge Hood. April 3, 1925.
    Application for certiorari was denied by the Supreme Court.

      S. J. Boykin, Boykin & Boykin, for plaintiff in error.

      Emmett Smith, solicitor, contra.
   Luke, J.

The evidence authorized the defendant’s conviction, and there is no merit in the special assignments of error.,

Judgment affirmed.

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


text:
    16477.
    Smith v. The State.
    Decided June 20, 1925.
    Conviction of assault with intent to murder; from Dodge superior court—Judge Graham. March 28, 1925.

      W. A. Wooten, Roberts & Smith, for plaintiff in error.

      M. E. Boyer, solicitor-general, J. E. Milner, contra.
   Broyles, C. J.

1. “An affidavit in support of the witness upon whose newly discovered evidence a new trial is sought must-give the names of his associates (italics ours), a statement that he keeps good company not being sufficient to meet this requirement, which is necessary to enable the prosecution to make a counter-showing; and where such affidavit does not comply with this requirement, the trial judge does not abuse his discretion by refusing to grant a new trial on this ground.” Ivey v. State, 154 Ga. 63 (6) (113 S. E. 175). Under this ruling it was not error for the trial judge in the instant case to overrule all the grounds of the motion for a new trial based upon alleged newly discovered evidence. Moreover, in view of the character of the alleged newly discovered evidence and the counter-showing made by the State, the overruling of the grounds was not error.

2. The excerpts from the charge of the court upon the law of alibi, when considered in connection with their context and the charge as a whole, show no material or harmful error.

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

Judgment affirmed.

Lulce and Bloockoorth, JJ., concur.


author: Bloodworth, J.

text:
    16482.
    BOLING v. THE STATE.
    A conviction approved by the trial judge will .not be set aside by this court because based on testimony contradicted by other statements of the witness.
    Decided June 20, 1925.
    Indictment for possessing liquor; from Cherokee superior court —Judge Blair. April 4, 1925.

      Morris, HawJcins & Wallace, for plaintiff in error.

      John S. Wood, solicitor-general, contra.
   Bloodworth, J.

“The jury in all cases must, in the process of arriving at the truth, determine what credit shall be given to each particular witness; and even though a witness is proved to have made statements directly contrary to his evidence, that evidence affords a sufficient basis for a verdict, if the jury believe it to be true.” Haywood v. State, 114 Ga. 111 (39 S. E. 948). “In this case the motion for a new trial contained only the usual general grounds. There was some slight evidence authorizing the verdict; and, the verdict having been approved by the trial judge, under the repeated and uniform rulings of this court and of the Supreme Court a reviewing court is powerless to interfere. When the verdict is apparently decidedly against the weight of the evidence, the trial judge has a wide discretion as to granting or refusing a new trial; but whenever there is any evidence, however slight, to support a verdict which has been approved by the trial judge, this court is absolutely without authority to control the judgment of the trial court.” Toole v. Jones, 19 Ga. App. 24 (90 S. E. 732). The accused was convicted of possessing intoxicating liquor. It is insisted by counsel for plaintiff in error that a new trial should be granted because the principal witness for the State, and without whose evidence the áceused could not have been convicted, had stated more than once that the defendant was not the man in possession of the whisky. Even had the witness made no explanation of why he made these statements, the credibility of the witness was exclusively for determination by the jury, and, under the principles announced in the foregoing cases, this court will not set aside the verdict, which has evidence to support it and is approved by the judge who tried the case.

Judgment affirmed.

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


author: Beoyles, C. J.

text:
    16488.
    Williams v. The State.
    Decided June 26, 1925.
    Indictment for larceny of automobile; from Heard superior court —Judge Eoop. April 9, 1925.

      L. L. Meadors, M. U. Mooty, Smith & Taylor, for plaintiff in error.

      W. Y. Atkinson, solicitor-general, contra.
   Beoyles, C. J.

1. It has been well settled by repeated rulings of the • Supreme Court and of this court that an affidavit by a witness for the state, made! since the trial of the case, that his testimony given upon the trial was false, is not cause for a new trial. Hayes v. State, 16 Ga. App. 334 (2) (85 S. E. 253), and citations.

(a) This is especially true where the motion for a new trial is based upon extraordinary grounds. Wheeler v. State, 149 Ga. 473 (1) (100 S. E. 568).

2. “An affidavit in support of the witness upon whose newly discovered evidence a new trial is sought must give the names of his associates [italics ours], a statement that he keeps good company not being suffi- • cient to meet this requirement, which is necessary to enable the prosecution to make a counter-showing; and where such affidavit does not comply with this requirement, the trial judge does not abuse his discretion by .refusing to grant a new trial on this ground.” Ivey v. State, 154 Ga. 63 (6) (113 S. E. 175).

(a) Especially is this true when the motion for a new trial is based solely upon extraordinary grounds, such grounds not being favored by the courts.

3. Under the above-stated rulings the overruling of the defendant’s extraordinary motion for a new trial was not error.

Judgment affirmed.

Luke and Bloodworih, JJ., concur.


author: Bloodwoeth, J.

text:
    16516.
    Leach et al. v. The State.
   Bloodwoeth, J.

1..A copy of a check, embodied in a count of the in. dictment charging that the accused uttered as true a forged check, showed the date of the check as being January 24, 1924. A check dated January 24, 1925, was introduced in evidence over the objection that its date was different from the date of the check embodied in the count of the indictment under discussion. “A written instrument set forth according to its tenor in an indictment must be proved as alleged;” hence, where an indictment for uttering a forged cheek contained a copy of the check, including the date, and it was not charged that the forgery extended to a change of the date of the check, it was error to admit in evidence a check bearing a date different from that alleged in the indictment. Perkins v. State, 29 Ga. App. 278 (3), 280 (3) (115 S. E. 27).

Decided June 20, 1925.

Indictment for forgery; from Whitfield superior court—Judge Tarver. May 6, 1925.

William E. & Gordon Mann, for plaintiffs in error.

G. G. Pittman, solicitor-general, contra.

2. A general verdict of guilty upon an indictment in two counts, one charging the forgery of a cheek and the other charging the uttering of a forged cheek as true, is not authorized, when the evidence, as in this case, does not support the latter charge. Jones v. State, 27 Ga. App. 601 (110 S. E. 626); Williams v. State, 27 Ga. App. 609 (110 S. E. 37) ; Tanksley v. Chisholm, 28 Ga. App. 36 (110 S. E. 627). The case of Berrien v. State, 156 Ga. 380 (119 S. E. 300), cited by counsel for defendant in error, is differentiated from the present case in that while the indictment in that ease contained several counts, each charged the same felony,—larceny after trust,—but in different ways.

3. It is not necessary to pass upon the allegations of error not dealt with above, as they are not likely to recur on another trial.

Judgment reversed.

Broyles, G. J., and Luke, J., coneur.


text:
    16498.
    Clay v. The State.
    Decided June 20, 1925.
    Conviction of making liquor; from Hancock superior court— Judge Park. April 15, 1925.

      8am H. Wiley, John G. Lewis, for plaintiff in error.

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

1. Under the facts of this case the court did not err, in the absence of a timely and legal written request therefor, either in failing to charge the jury “the law relating to circumstantial evidence” or “in failing to charge the law of alibi.”

2. The evidence was sufficient to support the verdict.

Judgment affirmed.

Broyles, O. J., and Luke, J., eoncwr.


author: Broyles, 0. J.

text:
    16517.
    Whitaker v. The State.
   Broyles, 0. J.

1. Under repeated rulings of the Supreme Court and of this court, a ground of a motion for a new trial, complaining of alleged errors in the charge of the court upon the law of murder, is without merit, where the accused was convicted of a lesser offense. Under this ruling and the facts of the instant case, there is no merit in grounds 1, 2, 3, 4, 5, and 9 of the amendment to the motion for a new trial. •

2. “The court having fully instructed the jury upon the law of justifiable homicide, it was not error (especially in the absence of a timely and appropriate written request) to fail to give in charge section 73 of the Penal Code.” Copeland v. State, 23 Ga. App. 667 (2) (99 S. E. 136) ; Crawford v. State, 149 Ga. 485 (3) (100 S. E. 633).

Decided June 20, 1925.

Conviction of manslaughter; from Putnam superior court— Judge Park. May 4, 1925.

B. G. Jenlcins, W. 0. Cooper Jr., for plaintiff nrerror.

Joseph B. Dulce, solicitor-general, M. F. Adams, Clement & Campbell, contra. ,

3. The remaining special grounds of the motion for a new trial are without merit, and the verdict of voluntary manslaughter was amply authorized by the evidence.

Judgment affirmed.

Luhe and Bloodworth, JJ., eoncur.


text:
    16523.
    Patterson v. The State.
    Decided June 20, 1925.
    Conviction of shooting at another; from Bibb superior court— Judge Mathews. April 25, 1925.

      W. 0. Cooper Jr., for plaintiff in error.

      Charles E. Garrett, solicitor-general, contra.
   Luke, J.

The evidence authorized the conviction; the charge of the court, when read in its entirety, is not erroneous for the reasons pointed out in the specific assignments of error; the court, in refusing to grant the motion for a continuance, did not abuse the discretion invested by law; and for no reason pointed out by the record did the court err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, C. J., and Bloodworth, J., eonew.


text:
    16524.
    SHARPE v. THE STATE.
    Where an objection to testimony includes admissible testimony, and fails to point out and object separately to that which is objectionable, it is proper to overrule the objection.
    The ground of the motion for a new trial which alleges that the court erred in charging the jury on the impeachment of witnesses is not in proper form for consideration.
    Failure to amplify, without request, a correct charge on alibi is not ground for a new trial.
    Decided June 20, 1925.

      Conviction of shooting at another; from Montgomery superior court—Judge Graham. April 28, 1925.

      W. A. Wooten, M. B. Calhoun, for plaintiff in error.

      M. H. Boyer, solicitor-general, contra. • -
   Bloodworth, J.

1. “Where evidence is offered and objected to, and a portion thereof is admissible and a part objectionable, unless the illegal portion, is specified and properly objected to, the whole will be admitted.” City of Atlanta v. Sciple, 19 Ga. App. 694 (3) (92 S. E. 28). “An assignment of error upon the admission of specified testimony is not well taken,, when part of it was admissible.” Murphy v. State, 122 Ga. 149 (7) (50 S. E. 48). The brief of evidence shows that the words, “That is the man that shot me; I am certain .of it; I know him,” were used at the time of the shooting of the witness, for which the accused was on trial. Under the principle announced in the foregoing decisions, this evidence was clearly admissible, and the ground of the motion for a new trial complaining of its admission shows no cause for a reversal of the judgment.

2. “No ground of a motion for a new trial which is not complete and understandable without resorting to an examination of the brief of evidence or the charge of the court will be considered as presenting a question for consideration by this court.” Hawkes v. Cowart Co., 21 Ga. App. 397 (94 S. E. 643). The ground itself must point out the error. A ground of the motion for a new trial alleges that the court erred in charging the jury on the impeachment of witnesses. An examination of the brief of evidence would be necessary to determine what witness or witnesses it was sought to impeach, by whom introduced, and- whether or not the charge was prejudicial to plaintiff in error. Under the ruling in> the foregoing case this court will not consider this ground of the motion.

3. In the 3d ground of the motion the court is alleged to have erred in charging the jury on the defense of alibi, because the charge “failed to instruct them as to what effect such proof should have upon their deliberations.” There is no exception to the charge, but it is insisted that the judge erred in not giving a further and fuller charge. “A correct statement of law embraced in a charge to the jury is not erroneous because the court failed in the same connection to give to the jury other appropriate instructions.” Conley v. State, 21 Ga. App. 134 (1) (94 S. E. 261), and cases cited. Moreover, there is no merit in this ground, and counsel for plaintiff in error practically abandoned it in his brief.

4. In the brief of counsel for plaintiff in error he says: There was enough evidence to warrant the conviction.” We agree with him.

Judgment affirmed.

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


author: Bkoyx.es, C. J.

text:
    16444.
    City National Bank of Dawson v. Bridges.
    Decided June 22, 1925.
    Levy and claim; from city court of Dawson—Judge Edwards. March 24, 1925.

      Warren B. Paries, for plaintiff.
    IF. H. Gurr, for defendant.
   Bkoyx.es, C. J.

1. Where the judge has finally passed on the merits of a motion for a new trial, the question as to the sufficiency of the approval of the grounds of the motion will not be entertained by the reviewing court, unless it was first raised and insisted upon before the trial judge. Ga. L. 1911, § 3, p. .150.

2. The excerpts from the charge of the court which are complained of, when considered in the light of the charge as a whole and the facts of the case, disclose no material error.

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

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


author: Bkoyles, 0. J.

text:
    16448.
    Morgan v. The State.
   Bkoyles, 0. J.

1. Where an accusation in the city court charges the offense of larceny from the house, and the evidence shows a breaking and entering of the house in question and a stealing therefrom of articles valued at less than .$50, a conviction of the offense charged is not contrary to law because the evidence made also a case of burglary; and the city court has jurisdiction of the case. Barlow v. State, 77 Ga. 448 (2), 449, 450; Green v. State, 119 Ga. 120 (1) (45 S. E. 990) ; Gardner v. State, 105 Ga. 662 (31 S. E. 577).

2. When, in a trial for larceny from the house, it was clearly shown that the larceny was committed, and that shortly thereafter the accused was in absolute possession of a portion of the stolen goods, and where the accused in his statement to the jury made no explanation whatsoever as to how he came into possession of the goods (he merely denying that he was ever in such possession), the presumption of his guilt raised by his recent possession of the stolen goods was not rebutted. Under these circumstances the failure of the court to instruct the jury upon the law of circumstantial evidence (no request therefor having been made) does not require another hearing of the case, the charge of the court, except as to the omission referred to, being full and complete, the jury being properly instructed upon the weight to be given the defendant’s statement, and upon the law touching reasonable doubts, and the case not being a close or doubtful one. See, in this connection, Jones v. State, 105 Ga. 649 (31 S. E. 574).

Decided June 22, 1925.

Accusation of larceny; from city court of Dublin—Judge Bid-good. April 11, 1925.

Hal B. Wimberly, for plaintiff in error.

J. A. Merritt, solicitor, contra.

3. The verdict was amply authorized by the evidence, and neither the exceptions pendente lite nor the special grounds of the motion for a new trial show cause for a reversal of the judgment below.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


author: Bboyles, C. J.

text:
    16483.
    Burch v. The State.
    Decided June 22, 1925.
    .Indictment for kidnapping; from Whitfield superior court— Judge Tarver. April 23, 1925.

      William E. & Gordon Mann,'for plaintiff in error.

      0. 0. Pittman, solicitor-general, contra.
   Bboyles, C. J.

1. The excerpts from the charge of the court which aré complained of, when considered in connection with the remainder of the charge, show no material error.

2. The grounds of the motion for a new trial, based upon the refusal of the court to give to the jury certain written requested charges, are too defective to be considered by this court, since it is not stated in the grounds-that the requests to charge were presented to the judge before the jury had retired to consider their verdict.

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

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    16499.
    Johnson v. The State.
    Decided June 22, 1925.
    Conviction of making liquor; from Glascock superior court— Judge Perryman. April 8, 1925.

      B. F. Walker, for plaintiff in error.

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

1. The excerpts from the charge of the court which are complained of, when considered in connection with the remainder of the charge and the facts of the case, disclose no material error.

2. The ground of the motion for a new trial complaining of the admission of certain testimony is too incomplete to be considered by this court, since the question of the materiality of the evidence admitted can not be decided without a reference to other parts of the record. Thompson v. State, 118 Ga. 330 (2) (45 S. E. 410); Smith v. State, 126 Ga. 803 (2) (55 S. E. 1024).

3. The remaining ground of the amendment to the motion for a new trial, and the general grounds of the motion, are not argued or insisted upon in the brief of counsel for the plaintiff in error, and therefore are treated as abandoned.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    15386.
    Williams v. McIntosh.
    Decided July 14, 1925.
    Action for libel; from city court of Thomasville—Judge Hammond. January 17, 1924.

      Titus & Dekle, for plaintiff.

      P. C. Andrews, W. W. Alexander, F. K. Wilcox, H. J. McIntyre, J. B. Burch, for defendant.
   Luke, J.

1. Under the decision of the Supreme Court reversing the judgment of this court in this case (33 Ga. App. 105, 125 S. E. 864), the special demurrers to subparagraphs d and e of paragraph 13 of the answer were properly overruled'. Under the former decision of this court referred to (which has become the law of the case) all the other special demurrers to the answer, and the general demurrer thereto, were properly overruled.

2. Under the facts of the case and the rulings of the Supreme Court in this case (made June 10, 1925), 160 Ga. 461, the verdict was authorized by the evidence, and none of the grounds of the amendment to the motion for a new trial requires a reversal of the judgment below. The former judgment of this court reversing the judgment of the trial court is hereby vacated and that judgment is now

Affirmed.

Broyles, O. J., and Bloockoorth, J., eonour.


author: Bboyees, C. J.

text:
    15945.
    Rich v. The State.
    Decided July 14, 1925.
    Indictment for rape; from Union superior court—Judge J. B. Jones. September 13, 1924.

      J. G. Collins, B. P. Gaillard Jr., V. M. Waldrup, O. J. Well-born, for plaintiff in error.

      Robert McMillan, solicitor-general, contra.
   Bboyees, C. J.

The accused, was tried for the offense of rape and convicted of an assault with intent to rape. His motion for a new trial was overruled, and this judgment was affirmed by this court on December 9, 1924 (33 Ga. App. 153, 126 S. E. 154). On certiorari the judgment of this court was reversed on June 20, 1925, the Supreme Court holding, in effect, that the evidence for the State, if credible, demanded a finding that the offense of rape had been committed, and that there was no evidence authorizing the verdict returned. 160 Ga. 513. In view of that ruling, it is hereby ordered that the former judgment of this court in this case be vacated; and the judgment of the trial court is reversed on the ground that the verdict was unauthorized under the law and the evidence.

Judgment reversed.

Luke and Bloodworth, JJ., eoneur.


author: Bloodwobth, J.

text:
    16238.
    Prichard v. The State.
    Decided July 14, 1925.
   Bloodwobth, J.

1. An indictment or accusation based upon section 311 of the Penal Code of 1910, which does not allege that the officer was attempting to serve or execute a lawful process or order, is' fatally defective. Evans v. State, 29 Ga. App. 204 (114 S. E. 812).

2. The headnotes to an opinion rendered June 20, 1925, by the Supreme Court in answer to certified questions propounded by this court (160 Ga. 527, 128 S. E. 655) are as follows:

(а) Under sections 339 and 366 of the Penal Code, a third person can .not be punished for resisting or obstructing an officer in this State who is attempting, without a warrant, to arrest another for a violation of the prohibition law of this State, which makes the possession or transportation from point to point in this State of intoxicating liquors a misdemeanor.

(б) The above sections of the Penal Code only adopt and make crimes in this State offenses against public justice or against the public peace which were punishable as such at common law.

3. Under the foregoing ruling, the court erred in overruling the general demurrer to the accusation, and the further proceedings.were nugatory.

Judgment reversed.

Broyles, G. J., and Luke, J., eoneur.

Accusation of obstructing officer; from city court of Fairburn— Judge Parker. November 10, 1924.

C. G. Battle, for plaintiff in error.

Lawrence 8. Camp, solicitor, William B. Jones, solicitor, contra.


author: Luke, J".

text:
    16378.
    Moore v. The State.
    Decided July 14, 1925.
    ' Burglary; from Grady superior court—Judge Custer. February 7, 1925.

      W. H. Duckworth, for plaintiff in error.

      B, C. Gardner, solicitor-general, C. B. Crow, Billie B. Bush, contra.
   Luke, J".

1. The fact that an indictment for burglary designated the offense as “misdemeanor” affords no cause for a new trial. The misnomer was not brought to the attention of the court prior to the entry of the defendant’s plea of not guilty, and throughout all the subsequent proceedings the court properly treated the offense as a felony. Camp v. State, 3 Ga. 419; Camp v. State, 25 Ga. 689 (3) ; O’Halloran v. State, 31 Ga. 206; Disharon v. State, 95 Ga. 351 (22 S. E. 698); Alexander v. State, 122 Ga. 174 (50 S. E. 50) ; Lipham v. State, 125 Ga. 52 (53 S. E. 817, 114 Am. St. R. 181, 5 Ann. Cas. 66).

2. A smokehouse within 65 feet of the owner’s dwelling house and used by him as an outhouse and place for storing meat is among the buildings referred to in section 146 of the Penal Code (1910), defining the offense of burglary, regardless of whether the smokehouse is within the same inelosure as the dwelling. Bryant v. State, 60 Ga. 358; Parks v. State, 22 Ga. App. 621 (96 S. E. 1050).

3. The charge was sufficiently full and fair, and the record discloses no reversible error.

Judgment affirmed.

Broyles, G. J., and Bloodworih, J., eoneur.


text:
    16434.
    Lumberman’s Mutual Casualty Company et al. v. Taylor.
   Bboyles, C. J.

This is a workmen’s compensation ease. The commissioner trying the case adjudged that “The Lumberman’s Mutual Casualty Company will pay Jim Taylor, father of deceased, $3.75 a week, beginning September 9, 1924, and continuing three hundred weeks; also medical expenses and funeral expenses in a sum not exceeding $100.” This award was affirmed by the entire Industrial Commission of Georgia, and subsequently by the judge of the superior court of Bulloch county. Held: It being shown by undisputed evidence that there were no medical expenses, and that the funeral expenses had been paid by the employer of the deceased, the award for such expenses was unauthorized. With this exception, the award of the commission was authorized by the evidence. The remaining assignments of error in the bill of exceptions are without substantial merit. It is directed that the judge of the superior court pass an order writing off from the judgment rendered the amount awarded for medical and funeral expenses.

Decided July 14, 1925.

Appeal; from Bulloch superior court—Judge Strange. March 18, 1935.

Underwood, Pomeroy & Haas, E. Smythe Gambrell, for plaintiffs in error.

Deal & Benfroe, contra.

Judgment affirmed, with direction.

Lulce and Bloodworth, JJ., coneur.


text:
    16445.
    McSwain et al. v. Estroff.
    1. In the trial of a claim case declarations of a defendant in execution, made after the pendency of litigation and prior to the time of levy, but at a time when she was not in possession of the property levied on, that she owned such property, are not admissible as evidence and of no probative-value even if admitted without objection. Nelson v. Brannon, 32 Qa. App. 455 (1) (123 8. E. 735), and citations; Civil Code (1910), § 5776 (4).
    (a) Whether the criticism of the decision in the ease of Smiley v. Padgett, 123 Qa. 39 (50 S. E. 927), made in Smith v. Johnson, 13 Qa. App. 837 (4) (80 S. E. 1051), is well founded, need not be here considered, since both of these decisions sustain the conclusion reached in - this case.
    2. The verdict in this case resting, as it does, solely upon testimony wholly without probative value, can not stand, even though no objection was interposed to the testimony when offered (see, in this connection, Oastlick v. So. By. Oo., 116 Ga. 48, 42 S. E. 499), and the judgment of the trial court overruling the motion for new trial was error.
    Decided July 14, 1925.
    Levy and claim; from Toombs superior court—Judge Hardeman. March 17, 1935.

      Saffold & Sharpe, for plaintiffs in error.

      Wimberly E. Brown, contra.
   Luke, J.

Defendant in execution was not in possession of the four bales of cotton levied on, at the time of the levy, and the plaintiff assumed the burden of proof. In its final analysis, the verdict finding the property subject to the fi. fa. rested solely upon the testimony of a witness that the defendant in execution told him that the cotton in question was hers. This declaration was made after the rendition of the judgment in the main case, shortly before the execution based thereon had been levied on the cotton claimed, and not in the hearing of either of the two claimants. This evidence was admitted without objection. The gist of the claimants’ evidence was that they were half-croppers of their mother, the defendant in execution, that there had been a final and complete division of the cotton raised by them between them and her, and that they owed her nothing for supplies.

Judgment reversed.

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


text:
    16450.
    Baker v. Kimzey, administrator.
    Decided July 14, 1925.
    Appeal; from Habersham superior court—Judge- J. B. Jones. February 7, 1925.
    J. G. & H. E. Edwards, for plaintiff.

      Sam Kimzey, for defendant.
   Luke, J.

1. Where the maker of a deed to secure a debt dies, and his widow and the holder of the security deed and the administrator, on his estate all agree that the land shall be sold by the administrator, and the administrator, after procuring an order of sale from the ordinary and advertising as required by law, sells the land at public outcry, before the court-house door (where a large crowd is assembled), to the highest bidder, at a fair price, after first telling those present that he is selling the land free from all liens and that the title is absolutely good, it is lawful and proper for the administrator to pay off the secured loan from the proceeds of the sale before applying any part to the year’s support of the widow; and this is true even though at the time of the sale the deed is on record uncanceled and the legal title to the land is in the grantee. Thompson v. Atwater, 84 Ga. 270 (10 S. E. 718); Mallard v. Curran, 123 Ga. 872 (51 S. E. 712).

2. By agreement the court tried the case without a jury. The evidence supports the judgment finding the proceeds of the sale subject to the payment of the secured debt, no assignment of error upon the introduction of evidence warrants a new trial, and the judgment overruling the motion for a new trial is affirmed.

Judgment affirmed.

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


text:
    16453.
    Pope v. Ellis.
    Decided July 14, 1925.
    Complaint; from Wilkes superior court—Judge Perryman. April 18, 1925.

      W. A. Slaton, for plaintiff in error.

      O. E. Sutton, contra.
   Broyles, C. J.

1. Where a physician renders professional services to a minor child of a tenant, solely upon the credit of the landlord’s promise to pay for such services, the promise is an original and'not a collateral undertaking, and is not within the statute of- frauds. Easterling v. Bell, 29 Ga. App. 465 (1) (116 S. E. 50), and citations. In the instant case the jury were authorized to find, from the evidence, that the landlord (the defendant) did make, in substance and effect, such a promise.

(a) In such a ease the jury may find that the promisor is liable for the services of the doctor, even though the father of the child treated was ignorant of the contract between the promisor and the doctor, and regarded himself as solely liable for such services. Cordray v. James, 19 Ga. App. 156 (3) (91 S. E. 239).

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

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    16454.
    POWELL v. FOWLER & SON
    Allegations in a petition for certiorari not verified by the magistrate’s answer can not be considered either by the superior or the appellate court. Gochran v. Anderson, 30 Ga. App. 427 (1) (118 S. E. 450). And when the answer not only fails to verify the material allegations of the petition, but substantially denies them, and is so meagre and incomplete that this court can not intelligently consider the case, the judgment of the superior court overruling the certiorari must stand, furthermore, “If the amount in controversy is fifty dollars or less, and there is a dispute about the facts, there must be an appeal to a jury in the justice’s court, before the case can be carried by certiorari to the superior court.” Toole v. Edmondson, 104 Ga. 783 (31 S. E. 25).
    Decided July 14, 1925.
    Certiorari; from Wheeler superior court—Judge Graham. March 31, 1925.

      W. B. Kent, for plaintiff in error.

      Burch & Ennis, contra.
   Luke, J.

The record in this case is most unsatisfactory. In the first place, the affidavit of illegality does not appear, in form or substance, either in the magistrate’s answer or in the papers sent up by him. Again, the only mortgage appearing in the record is one for $45, whereas the foreclosure affidavit recites that a mortgage for a different amount is being foreclosed. Furthermore, instead of verifying the evidence as set out in the petition for certiorari, which shows an undisputed state of facts, the magistrate’s answer discloses a sharp conflict in the evidence. From an examination of the entire record it appears that this answer is inaccurate; and certainly it is not full enough. However, it was not traversed or excepted to, and this court is bound to take it just as it is, and it shows that the remedy of the plaintiff in error was an appeal to a jury in the justice’s court, the amount involved being less than fifty dollars. The certiorari was properly overruled.

Judgment affirmed.

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


text:
    16455.
    Powell v. Fowler & Son.

      1. “At the hearing of a certiorari in the superior court, nothing can be considered by the judge but the petition and answer.” Gildea v. Sill, 115 Ga. 136 (2) (41 S. E. 492).
    2. Even if it be conceded that the very meager statement in the bill of exceptions was tantamount to an agreement between opposing counsel that the facts set out in the petition for certiorari were true (and we doubt if it had that effect), still it has never been held in this State that an agreement between counsel or litigants is a legal substitute for verification of a petition for certiorari by the answer of the trial magistrate. In this connection see Kilpatrick v. Smith, 32 Ga. App. 44 (123 S. E. 35). Indeed, in Ooohran v. Anderson, 30 Ga. App. .427 (1) (118 S. E. 450), the law is stated as follows: “Allegations in the petition' for certiorari, not verified by the answer, are not to be taken as admitted, and present nothing for determination, either by the superior or the appellate court. Landrum v. Moss, 1 Ga. App. 216 (57 S. E. 96) ; Uttle v. Fort Talley, 123 Ga. 503 (51 S. E. 501) ; Brown V. Gainesville, 125 Ga. 238 (53 S. E. 1001) ; Thompson v. Becham, 2 Ga. App. 84 (2) (58 S. E. 311). They are not so verified when the answer is either silent in reference thereto or expressly denies them. Taft Go. v. Smith, 112 Ga. 196 (1) (37 S. E. 424) ; Colbert v. State, 118 Ga. 302 (45. S. E. 403) ; New Zealand Insurance Go. v. Brewer, 29 Ga. App. 773 (116 S. E. 922).”
    3. “Unless an execution issued upon the foreclosure of a chattel mortgage be arrested by a counter-affidavit, it is final process.” Collier v. Blake, 16 Ga. App. 382 (1) (85 S. E. 354).
    4. It not appearing from any proper source what were the contents of the affidavit of illegality in this ease, or even that there was such an affidavit, and the magistrate’s answer to the writ being in effect a denial of the content of the petition for certiorari, and there having been neither a traverse of the magistrate’s answer nor any exception taken thereto, the judgment overruling the certiorari was the only legal termination of the ease.
    Decided July 14, 1925.
    Complaint; from Jasper superior court—Judge Park. March 21, 1925.

      W. S. Florence, F. M. Baynes, for plaintiff in error.

      W. H. Key, contra.
   Luke, J.

The judgment of the justice of the peace in a mortgage foreclosure being adverse to defendant, she carried her case to the superior court by certiorari. The magistrate’s answer to the writ was as follows: “It is impossible for respondent to answer the allegations in said petition as the same are so indefinite and so far out of line with what really did happen, and so twisted and expressed in such a way that respondent can not answer them in an intelligent or satisfactory manner. All of the copies of proceedings herewith sent up.” The defendant’s affidavit of illegality, a very material portion of the record, was not sent up, either in form or substance. No traverse or exceptions to the magistrate’s answer were filed.

The bill of exceptions, duly certified, states that the judgment overruling the certiorari was error, “especially in the light of the fact that it was admitted in open court that the allegations in the petition .for certiorari were true as therein stated.” Counsel for plaintiff in error states in his brief that all the allegations as made in said petition were admitted as being true, in open court, and that “this was done in order to prevent traversing the answer of the justice of the peace, . . who did not remember anything that really happened, save probably in a vague and indefinite manner.”

Judgment affirmed.

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


author: Bloodworti-i, J.

text:
    16456.
    POLK v. BENTON’S SONS.
    The verdict against the defendant upon the account for goods furnished to his tenant was warranted by the evidence, which authorized the conclusion that the goods we re furnished solely on the credit of the defendant.
    Decided July 14, 1925.

      Complaint; from Jasper superior court—Judge Park. March 21, 1925.

      W. S. Florence, F. M. Baynes, for plaintiff in error.

      W. H. Key, contra.
   Bloodworti-i, J.

This -was a suit against a landlord for goods furnished his tenant by third persons. The evidence for the plaintiff was sufficient to authorize the jury to reach the conclusion that the goods were furnished the tenant solely on the credit of the defendant. The defendant denied that he ever authorized the plaintiff to charge any of the goods to him, or that he was liable on the account for any amount except $18.20 for four sacks of guano. This amount was paid into court. The jury, who are the arbiters in all questions of fact, believed the evidence of the plaintiff and returned a verdict for the amount of principal sued for, less $18.20 which had been paid into court. Under the principle announced in Trapnell v. Bird, 21 Ga. App. 21 (2) (93 S. E. 498), and Cordray v. James, 19 Ga. App. 156 (91 S. E. 239), the verdict was authorized, and there is no merit in any of the grounds of the motion for a new trial.

Judgment affirmed.

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


text:
    16457.
    FORTH v. THE STATE.
    Although there was irregularity on the part of the judge in drawing the names of jurors from the box, the irregularity did not occur until after the drawing of the names of the twenty-four from whom the jury that tried this case were selected, and could not have harmed the defendant.'
    The evidence authorized the verdict, and there was no error that required a new trial.
    Decided July 14, 1925.
    Accusation of sale of liquor; from city court of Claxton—Judge Burroughs. April 15, 1925.
    P. M. Anderson, for plaintiff in error.

      8. T. Brewton, solicitor, contra.
   Bloodworth, J.

1. A ground of the motion for a new trial is based upon alleged irregularities in the drawing of the jury for the term at which the accused was tried, of which neither the defendant nor his counsel knew until after conviction. The record shows that thirty-six jurors were drawn from the box, that, after twenty-eight had been regularly and legally drawn, the judge, in order that jurors might be obtained who were qualified to try certain cases of long standing on the docket, drew the remaining eight jurors with reference to these cases, and when a juror’s name was taken from the box, if it was the same name as that of either party in any of these old cases, the judge would drop it back in the box. This was irregular, and in that practice the judges should not indulge. The record further shows that on the list of twenty-four from which the jury in this case was stricken, there was not on the list a single name of the eight drawn from the box by the judge, but the list was made from the twenty-eight names first drawn and one talesman summoned to take the place of a juror excused for cause, who was one of the twenty-four first drawn. It thus appears that there was no irregularity as to the first twenty-four jurors on the list from which the twelve who tried the case were selected. There is no claim that a single person who served on the jury was not a qualified juror. “There is no intimation in any part of this record that the jury in this case was not as fair and-impartial as any jury that could have been obtained by the most exact and literal compliance with the statute.” Governor v. State, 5 Ga. App. 363 (63 S. E. 241). See Worley V. State, 21 Ga. App. 787 (95 S. E. 364). This ground of the motion for a new trial shows no reason why the judgment should be reversed.

2. It is not part of the duty of this court to settle disputed questions of fact. Where there is conflict in the evidence, the trial judge has a wide discretion as to granting or refusing new trials, but where the jury has passed upon the facts, and their verdict is approved by the judge who tried the case, and no error of law has been committed, this court is powerless to interfere.

Judgment affirmed.

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


text:
    16459.
    Sellman et al. v. The State.
    Decided July 14, 1925.
    Larceny of automobile; from Eulton superior court—Judge E. D. Thomas. March 30, 1925.
   Luke, J.

Plaintiffs in error were convicted of the oifense of simple larceny. The evidence did not authorize the conviction of the defendants upon the indictment. Eor this reason the court erred in overruling the motion for a new trial.

Judgment reversed.

Bloodworth, J., concurs. Broyles, O. J., dissents.

Scott, Hornbuclcle & Moore, for plaintiffs in error.

John A. Boylcin, solicitor-general, 1L A. Stephens, Ralph H. Pharr, contra.


author: Bkoyles, C. J.

text:
    16460.
    Ladd Lime and Stone Company v. Case & Cothran.
    Decided July 14, 1925.
    Certiorari; from Fulton superior court—Judge E. D. Thomas. March 30, 1925.

      Waller R. Brown, for plaintiff.

      Ralph H. Pharr, Dorsey, Shelton c§ Dorsey, for defendants.
   Bkoyles, C. J.

1. While the municipal court of Atlanta has jurisdiction of suits involving larger amounts than those formerly within the jurisdiction of the justice’s courts, the procedure in the municipal court of Atlanta, so far as the necessity for pleadings is concerned, does not differ from that of the justice’s courts. Shippey v. Owens, 17 Ga. App. 127 (1) (86 S. E. 407).

2. “Niceties in pleading are not required in a justice’s court. G. S. & F. Ry. Co. v. Barfield, 1 Ga. App. 203 (58 S. E. 236). Accordingly, a liberal construction has been given section 4715 of the Civil Code (1910). If the defendant in a justice’s court is informed of the nature of the plaintiff’s demand against him, the requirement of the code-section is met. Hendrix v. Elliott, 2 Ga. App. 301 (2) (58 S. E. 495).” Kinney v. Kinney, 20 Ga. App. 816 (1) (93 S. E. 496).

3. Under the above-stated rulings and the facts of the instant case, the trial judge of the municipal court of Atlanta did not err in overruling the demurrers, general and special, to the defendant’s plea of set-off; and the judge of the superior court did not err in overruling the certiorari.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    16461.
    PHILLIPS v. ANDERSON et al.

    1. “In order to entitle a defendant to the opening and conclusion of the argument, he must in his pleadings, and before the plaintiff begins to introduce evidence, admit enough to make out a prima facie case for the latter.” Halley v. Taylor, 27 Ga. App. 147 (1) (107 S. E. 611); Beid v. Sewell, 111 Ga. 880 (2) (36 S. E. 937) ; Central <£c. By. Co. v. Morgan, 110 Ga. 168 (1) (35 S. E. 345); Wall v. Wall, 15 Ga. App. 156 (82 S. E. 791).
    2. “Refusal to direct a verdict is not subject-matter for a valid exception in this State.” Gate City Fire Ins. Co. v. Thornton, 5 Ga. App. 585 (4) ; (63 S. E. 638) ; Deal v. Montgomery, 31 Ga. App. 20 (6) (120 S. E. 26) ; Bennett v. Patten, 148 Ga. 66 (3 a) (95 S. E. 690).

      3. Where a plaintiff introduces in evidence the defendant’s answer, he is not concluded by the parts of the answer adverse to his case; nor is he estopped to contradict them. Christian v. Macon By. ASo. Co., 120 Ga. 314 (47 S. E. 923) ; Stallings v. DeBardeleben Coal Co., 22 Ga. App. GOO (96 S. E. 708); Reaves v. Columbus Electric £ Bower Co., 32 Ga. App. 140 (4) (122 S. E. 824).
    4. The judgment of the court below, overruling the motion for a new trial, is reversed solely upon the ground that the verdict is not supported by the evidence.
    Decided July 14, 1925.
    Complaint; from city court of Louisville—Judge Barwick. March 17, 1925.

      B. F. Walker, for plaintiff in error.

      Roy V. Harris, Q. 0. Anderson, contra.
   Luke, J.

Plaintiffs alleged that they had rented a farm to defendant for the year 1920, for 1500 pounds of middling cotton; that defendant delivered to them 1085 pounds of cotton, leaving a balance due of 415 pounds; that said cotton was worth 23 cents per pound; and that defendant owed them $95.45, the value of said .cotton when said rent was due, together with interest thereon. Defendant’s sworn answer was, that “he not only delivered to plaintiffs the 1085 pounds of cotton, but he delivered to them the full amount of 1500 pounds, and thereby paid them all of said rent, and he owes them no amount as sued for, and he hereby pleads payment in full of such rents.” Defendant further denied that he was indebted to plaintiffs $95.45, the principal sued for, or that the cotton was worth 23 cents per pound.

“During the trial of the case and before any judgment therein,” defendant offered the following amendment to his answer, “solely for the purpose” of assuming the burden of proof and obtaining the opening and conclusion: He admits he rented the land for the year 1920 for the amount of cotton named in paragraph 2 of plaintiffs’ petition. He admits the cotton was worth 23 cents per pound on the date rent was due as alleged. He admits the payments set out in paragraph 3 of plaintiffs’ petition: i. e., 1085 pounds of middling cotton. It does not appear that this proffered amendment was sworn to. The first assignment of error is based upon the disallowance of the foregoing amendment. This was not error. It nowhere appears from the record that the amendment was offered prior to the introduction of evidence, and we think this should affirmatively be shown. Of course, the refusal to direct a verdict was not error. There is no merit in the contention that, because the plaintiffs in the court below introduced in evidence the defendant’s sworn answer, they were absolutely and irrevocably bound by every portion of it. The suit was for 415 pounds of cotton at an alleged value of 23 cents per pound. The defendant’s answer (which was put in evidence by the plaintiff) denied that the cotton was worth that amount. The jury’s problem, then, was to find the money value of so much cotton worth so much per pound. There is no proof anywhere in the record of the value of a pound of the cotton, and, viewing the matter from a legal standpoint, the problem was insoluble and the answer wrong. The judgment is reversed solely because the verdict was not supported by the evidence. The law is found in the headnotes.

Judgment reversed.

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


text:
    16462.
    Brazeal v. The State.
    Decided July 14, 1925.
    Conviction of larceny; from Laurens superior court—Judge Camp. March 14, 1925.

      W. A. Dampier, for plaintiff-in error.

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

The motion for a new trial contains the general grounds only. There is some evidence to support the verdict, and “whenever there is any evidence, however slight, to support a verdict which has been approved by the trial judge, this court is absolutely without authority to control the judgment of the trial court.” Bradham v. State, 21 Ga. App. 510 (94 S. E. 618).

Judgment affirmed.

Broyles, O. J., and Luhe, J., concur.


author: Beoyles, O. J.

text:
    16472.
    Southern Railway Company v. Easley Cotton Mills.
   Beoyles, O. J.

1. The former ruling of this court in this case (32 Ga. App. 768, 125 S. E. 480), that the evidence and the law did not demand a finding in favor of the railway company, became the law of the case. Therefore, upon a consideration of the trial now under review, the evidence being the same as upon the first trial, it must be held that a verdict for "the cotton mills was authorized, under the law and the evidence.

2. The overruling of a general demurrer to the defendant’s answer, upon the first trial of the ease (the ruling not having been excepted to by the plaintiff), while conclusive upon the points of law necessarily involved, was not an adjudication that the defendant was absolutely entitled to a verdict in its favor provided it proved its defense as laid. See, in this connection, McDuffie v. Ocean Steamship Co., 5 Ga. App. 125, 129 (62 S. E. 1008).

Decided July 14, 1925.

Action for damages; from Fulton superior court—Judge E. D. Thomas. .April 20, 1925.

McDaniel & Neely, Kendrick L. Scott, Rembert Marshall, for plaintiff in error.

Horace Russell, Watkins & Asbill, contra.

3. The plaintiff was not entitled as a matter of right to recover interest on the amount of damages assessed by the jury against the defendant, and the judge erred in instructing the jury to the contrary.

4. The other grounds of the amendment to the motion for a new trial show no harmful error, and the verdict, except as to the item of interest, was authorized by the evidence. It is, therefore, directed that the plaintiff, when the remittitur from this court is made the judgment of the trial court, write off from its judgment the sum of $41.43 (the amount evidently returned by the jury as interest). It is also adjudged that the costs of prosecuting this writ of error be taxed against the defendant in error.

Judgment affirmed, mth direction.

Luke and Bloojioorth, JJ., concur.


text:
    16476.
    BARLOW v. CITY OF HAWKINSVILLE.
    The plaintiff in certiorari having failed to comply with the statute as to the bond required of him, the court did not err in overruling the certiorari.
    Decided July 14, 1925.
    Certiorari; from Pulaski superior court—Judge Graham. March 19, 1925.

      D. C. Ghalker, for plaintiff in error.

      H. K. Coates, contra.
   Bloodworth, J.

The petition for certiorari is lacking in more than one of the mandatory provisions of the law. In the record there is a copy of the bond in which it is alleged that the principal and security “acknowledge themselves held and bound to George W. Jordan, Commissioner of the City of Hawkinsville and his successors in office,” in > a certain sum.. While this bond is approved by the clerk of the city, the petition does not allege that the bond was filed with the clerk, or that it was approved and accepted by him, and there is no certificate from him.that the bond was filed with and approved and accepted.by him. No certified copy of the bond is attached to the petition. Moreover, the copy of the alleged bond which appears in the record is not payable as required by law, nor is it in any way identified. Under the ruling in Gillespie v. Macon, 19 Ga. App. 1 (90 S. E. 970), the judge of the superior court did not err in overruling the certiorari. See Park’s Ann.- Code, § 5191 (a); Simon v. Savannah, 4 Ga. App. 171 (2) (60 S. E. 1036); Andrews v. Edison, 21 Ga. App. 292 (94 S. E. 282); Parks v. Atlanta, 22 Ga. App. 244 (95 S. E. 935); Williams v. Dublin, 24 Ga. App. 358 (2) (100 S. E. 77); Allen v. Blue Ridge, 28 Ga. App. 69 (110 S. E. 322).

Judgment affirmed.

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


text:
    16486.
    Chapman v. The State.
    Decided July 14, 1925.
    Indictment for robbery; from Bibb superior court—Judge Mathews. April 4, 1925.

      W. A. McClellan, T. A. Jacobs Jr., for plaintiff in error.

      Charles JB. Garrett, solicitor-general, contra.
   Luke, J.

There was evidence to authorize the verdict finding the accused guilty of robbery, and the conviction has the approval of the trial judge. When the charge of the court is read in its entirety and applied to the facts of the case, it is not subject to the several criticisms urged in the motion for a new trial. The rulings complained of as to the admissibility of evidence were not erroneous. The court properly overruled the motion for a new trial.

Judgment affirmed.

Broyles, G. J., and Bloodioorth, J., eoneur.


text:
    16525.
    Glasgow et al. v. The State.
   Broyles, C. J.

1. Under repeated rulings of the Supreme Court and of this court, a special ground of a motion for a new trial will not be considered by the reviewing court where the ground ' is not complete and understandable within itself. This ruling disposes of grounds 1 to 6, inclusive, of the amendment to the motion for a new trial.

Decided July 14, 1925.

Indictment for larceny after trust; from Fulton superior court —Judge Howard. April 6, 1925.

Ernest G. Bentley, G. P. Bentley, for plaintiffs in error.

John A. Boylcin, solicitor-general, E. A. Stephens, Ralph H. Pharr, John 3. Hudson, contra.

2. The charge of the court upon the law of conspiracy was not error for any reason assigned.

(a) Upon the trial of two or more persons, indicted for a crime, where the evidence authorizes a charge upon the law of conspiracy, such a charge is not error merely because the indictment did not allege a conspiracy between them to commit the crime. Bradley v. State, 128 Ga. 20 (4) (57 S. E. 237).

(b) In the instant case the evidence authorized the charge. A conspiracy may be shown by circumstantial evidence. Carter v. State, 141 Ga. 308 (1) (80 S. E. 995).

3. Under the facts of the case the failure of the court to charge upon the law of simple larceny was not error.

4. There was evidence connecting all three of the defendants with the crime charged.

5. “Where one entrusted with money by another fraudulently converts it ' to his own use, he is guilty of larceny after trust, though he may have fraudulently induced the delegation of the trust with intent to so convert the money.” Walker v. State, 117 Ga. 260 (1) (43 S. E. 701); Martin v. State, 123 Ga. 478 (51 S. E. 334); Crofton v. State, 79 Ga. 584 (4 S. E. 333). Under this ruling and the facts of the instant ease, the verdict for larceny after trust was authorized.

6. The overruling of the motion fór a new trial was not error for any reason assigned.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    16149.
    DOERUN ICE AND COLD STORAGE CO. v. ADAMS.
    The amount of the jury’s finding for services rendered by the plaintiff is in excess of the amount authorized by the evidence; and the judgment • overruling the defendant’s motion for a new trial is affirmed on condition that the amount of the excess, stated in the opinion, be written off; otherwise a new trial is ordered.
    Decided July 15, 1925.
    Lien foreclosure; from Colquitt superior court—Judge W. E. Thomas. November 25, 1924.

      J. L. Dowling, for plaintiff in error.

      G. A. Christian, contra.
   Luke, J.

1. J. B. Adams brought suit against the Doerun Ice & Coal Storage Company to foreclose a lien upon real estate. The jury rendered a verdict for the full amount in favor of the plaintiff, and, upon its motion for a new trial being overruled, the defendant brought the case to this court. The said lien arose by virtue of a contract which the plaintiff had with the defendant to supervise and oversee the construction of a building for the defendant. The contract provided that the plaintiff was to receive “for his services 10 per cent, of the cost of material and labor used in the erection and completion of said building.” In his petition the plaintiff alleged that the defendant company “paid for his services so rendered in accordance with the contract for the cost of the labor and material furnished in the building, except for the cork which was furnished and put into said building.” Plaintiff introduced no evidence (so far as the record shows) showing the specific cost of the labor used in installing the cork, but testified that “this material which went into the building is what they have not paid me for what I claim a lien for.” The only evidence as to the cost of the cork shows that it amounted to $1750.48, ten per cent, of which is $175.04. The jury' rendered a verdict in favor of the plaintiff for $245.71, which is $70.67 in excess of the amount authorized by the evidence. If the plaintiff will write off this excess, the judgment will be affirmed; otherwise a new trial is ordered.

2. The special grounds of the motion for a new trial show no reversible error, and a verdict of $175.04 is authorized by the evidence.

Judgment affirmed on condition.

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


author: Bioodwoeth, J.

text:
    16186.
    CHATHAM LAND & HOTEL CO. v. MAYOR AND ALDERMEN OF SAVANNAH.

      The alleged contract with the city, upon which the affidavit of illegality was based, was illegal, and the court did not err in overruling the affidavit and ordering the execution to proceed.
    Decided July 15, 1925.
    Affidavit of illegality; from Chatham superior court—Judge Meldrim. December 2, 1924.

      Application for certiorari was denied by the Supreme Court.

      H. Wiley Johnson, for plaintiff in error.

      F. P. Mclntire, Anderson, Oann & Cann, contra.
   Bioodwoeth, J.

1. In his written opinion overruling the affidavit of illegality Judge Meldrim said: “The land' company was the owner of certain lots on 47th Street, Savannah. It desired to have the street paved under what is known as the Oklahoma plan, and to that end addressed to the city a petition, which was 'made with the understanding that all material that comes out of this street is to be subject to placing on our property (that of the land company) within the mile limit as usually called for in your (the city) contracts.’ The city paved the street, but did not give to the land company the material (sand) that came out of the street. The company demanded from the city payment for this sand, which demand 'was refused. The city assessed the company for the cost of paving, and issued execution, and has levied it on certain realty of the company. To this execution the company has filed its affidavit of illegality, on five grounds. Four of these grounds—1, 2, 3, and 4—may be considered together. These grounds are that .the company does not owe the amount for which the execution issued, or any part thereof, because the paving was done under the act of August 18, 1919, and in the petition which put the paving machinery in motion it was expressly declared that the material taken from 47th street in order to pave it should be placed at such points on the company’s property as the company might designate. The affiant avers that the city refused to permit the material taken from the street to be placed on the property of the company, and that the city had no right to pave the street at the expense of the abutting-lot owners, except upon the condition expressed, and that the petition of the affiant was invalid. The contention is that the city made a contract with the land company that the city would pave 47th street, and give the material taken from that street to the company. Contracts are absolute or conditional. If there was a contract between the parties, it clearly was not absolute. If conditional, then the covenants are dependent one upon the other, and a breach of one is a release of the binding force of all dependent covenants. But there was no dependent covenant in this case. The land company was not to do anything or to omit anything. It was not to confer a benefit on the city, or to suffer itself an injury. No legal contract existed between the parties. One of the essentials of a valid contract is that there must be a consideration moving to the contract. The sand in the street belonged to the city. The company could not give this sand as consideration for a contract to pave the street, for the company did not own the sand. For the city to have given away this material, valued by the company at $5,000, would have been to have made a donation, given a gratuity of $5,000, to the company. If this were the condition, then it was illegal, and illegal conditions are binding on no one. I am forced to hold that the affidavit is not well founded, and it is ordered and adjudged that, the affidavit be, and the same is, hereby overruled, and that the execution proceed.” We agree with the learned judge who wrote the foregoing opinion, and adopt it as our own.

2. That portion of the affidavit of illegality not covered by the opinion just quoted is without substantial merit.

Judgment affirmed.

Broyles, O. J., concurs. ■ Luke, J., dissents.


text:
      16237.

    BULLARD v. THE STATE.
    1. Where a crime capable of being committed by one person alone is in point of fact committed by two persons acting jointly and with a common purpose, one as principal in the first degree and the other as principal in the second degree, the offenders may be indicted either jointly or separately; and where the principal in the second degree is indicted separately, he may be treated in the indictment as if he were the absolute and sole perpetrator of the crime, no reference therein
    • to any other participant in the crime being necessary; and, where so indicted, the principal in the second degree may be 'convicted upon proof alone that he was present actually or constructively at the scene of the crime, aiding and abetting its commission by his confederate, who was the actual perpetrator thereof.
    2. .The evidence, being wholly circumstantial, and failing to exclude every reasonable hypothesis save that of the defendant’s guilt, did not authorize the verdict.
    Decided July 15, 1925.
    Conviction of assault with intent to murder; from Cobb superior court—Judge Blair. January 17, 1925.

      Fred Moiris, John T. Dorsey, W. W. Múndy, for plaintiff in error.

      John B. Wood, solicitor-general, Mozley & Qann, contra.
   Luke, J.

Buth Bullard was convicted of assault with intent to murder D. D. Bullard, by shooting him with a shotgun, and she excepts to the judgment overruling her motion for a new trial.

The accused was indicted separately. The indictment makes no reference to the degree of her guilt, or to her having acted jointly and in concert with any other person, or to her having merely been present at the scene of the alleged crime, 'aiding and abetting another in its commission. Upon the trial the State contended, and undertook to prove, that one Sim Edwards was the actual perpetrator of the crime, and to show that Buth Bullard, the wife of the person assaulted, had confederated and conspired with Edwards to have her husband killed and was present at the scene of the shooting, secretly aiding and abetting Edwards in the act to be done. She objected to the evidence offered to show such a conspiracy, and excepts to the charge of the court on the subject of conspiracy, on the ground that the indictment contains no allegation to authorize it. She contends also that proof alone of her presence at the scene of the crime, aiding and abetting another in its commission, will not support a conviction on such an indictment. The ease was tried throughout as if the indictment had been against Buth Bullard and Sim Edwards jointly; and, in our opinion, it was properly so tried.

Formerly, there was some confusion in the decisions of this State on the point here in question. In the early ease of Hill v. State, 28 Ga. 604, where the controlling facts were identical in principle with the facts of the instant case, it was held, with one judge dissenting, that “the variance was immaterial; both being principals in law, as well as in deed; and the stroke of one being in law the stroke of the other.” In the later case of- Washington v. State, 36 Ga. 222 (2), the controlling facts of which were also identical in principle with the facts of the instant case, it was held that proof alone of the defendant’s presence, aiding and abetting in the alleged crime, would not support a conviction on the indictment. It was also held in some of the earlier decisions, including Shaw v. State, 40 Ga. 120, that even where two persons were jointly indicted as the absolute perpetrators of the alleged offense, neither of them could be convicted as a principal in the second degree. The rule in Shaw’s case was, however, abandoned as early as Dumas v. State, 62 Ga. 58 (5), and has not been followed in this State since that time; while recently the Supreme Court reviewed the decisions in both Washington v. State and Shaw v. State, supra, and overruled both of them in so far as they conflict with .the earlier decision in Hill v. State, supra. See Johnson v. State, 151 Ga. 21 (2), and citations (105 S. E. 603).

Thus, the rule seems now to be well settled that, where a crime capable of being committed by one person alone is in point of fact committed by two persons acting jointly and with a common purpose, one as principal in the first degree and the other as principal in the second degree, the offenders may be indicted either jointly or separately; and where the principal in the second degree is indicted separately, he may be treated in the indictment as if he were the absolute perpetrator of the crime, without reference therein to any other participant in any degree; and, where so indicted, the principal in the second degree may be convicted upon proof merely that he was present at the scene of the crime, aiding and abetting in its commission by his confederate, who was the actual perpetrator thereof. Such presence, of course, may be either actual or constructive, the code declaring: “A principal in the first degree is the actor or absolute perpetrator of the crime. A principal in the second degree is he who is present, aiding and abetting the act to be done; which presence need not always be an actual, immediate standing by, within sight or hearing of the act; but there may be also a constructive presence, as when one commits a robbery, or murder, or other crime, and another keeps watch or guard at some convenient distance.” Penal Code (1910), § 42. It follows that the indictment in the instant case was lacking in nothing necessary to render admissible proper proof of a conspiracy between the accused and another to commit the alleged offense, nor was there anything to render a charge on conspiracy inappropriate, or to create a material variance between the allegations and the proof.

The evidence, which was wholly circumstantial, was not sufficient to establish the guilt of the accused to the exclusion of every other reasonable hypothesis.

Judgment reversed.

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


text:
    16568.
    Giles et al. v. The State.
    Decided July 16, 1925.
    Indictment for disturbing school; from Thomas superior court— Judge Knight. April 28, 1925. '

      Humphreys & DeLoache, James L. Dowling, for plaintiffs in error.
    ■ C. E. Hay, solicitor-general, E. B. Askew, contra.
   Broyles, C. J.

1. It is well settled by repeated and numerous decisions of the Supreme Court' arid this court that the striking of a defendant’s plea is not a final judgment in the case, and that a direct bill of exceptions complaining of such a judgment only will not lie. The striking of a plea of former jeopardy comes within this rule.

2. “Where in a given case it should have been obvious that the writ of error was premature, this court will refuse an application to allow the bill of exceptions to be withdrawn and filed in the court below as exceptions pendente lite.” Harvey v. Bowles, 112 Ga, 421 (37 S. E. 364) ; Burkhalter v. Roach, 145 Ga. 834 (4) (90 S. E. 52) ; Brannon v. State, 147 Ga. 499 (2) (94 S. E. 759).

Writ of error dismissed.

Luke and Bloodworth, JJ., concur.


author: Jenkins, P. J.

text:
    15658.
    Orr et al., trustees, v. Riley, by next friend.
    Decided July 20, 1925.
    Complaint; from city court of Elberton—Judge Grogan. May 10, 1924.

      Tutt & Brown, for plaintiff in error.

      J. T. Sisk, Howard B. Bayne, contra.
   Jenkins, P. J.

It appearing, from the remittitur and the opinion of the Supreme Court, that the judgment of this court rendered in this ease (see Orr v. Riley, 33 Ga. App. 472, 127 S. E. 236) has been reversed, the former judgment of this court is vacated, and, in accordance-with the ruling of the Supreme Court, the judgment of the court below is reversed because the court erred in overruling the demurrer to the petition. Orr v. Riley, 160 Ga. 480 (128 S. E. 669).

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    16054.
    Quarterman v. Godwin.
   Jenkins, P. J.

1. “No cause for reversing a judgment denying a new trial is presented by a general assignment of error, that the verdict is contrary to the charge of the court, or to a specified portion thereof.” Wight v. Schmidt, 111 Ga. 858 (1) (36 S. E. 937) ; Athens Mfg. Co. v. Rucker, 80 Ga. 291 (5), 296 (4 S. E. 885).

2. “A judgment on demurrer until reversed concludes the parties upon all questions necessarily involved in the decision of the points raised in the demurrer.” Gibson v. Mason, 31 Ga. App. 584 (2) (121 S. E. 584). “A judgment overruling a general demurrer to a petition, unless excepted to and reversed, is an adjudication that the petition sets forth a cause of action; and the court may not by indirection deprive the plaintiff of the estoppel he is entitled to urge as against the defendant. . . In such circumstances the trial judge may not give to the defendant the benefit of the defense set up in the demurrer; and it is not error to instruct the jury in effect that the plaintiff may recover upon proof of the allegations made in the petition.” Turner v. Willingham, 148 Ga. 274 (2) (96 S. E. 565) ; Brooks v. Rawlings, 138 Ga. 310, 313 (96 S. E. 565) ; Sims v. Ga. Ry. & Elec. Co., 123 Ga. 643 (75 S. E. 157) ; Pierpont v. Savannah, 153 Ga. 455 (112 S. E. 462) ; Hixon v. Hinkle, 156 Ga. 341 (1) (118 S. E. 874). In the instant action for damages on account of the death from personal injuries of the plaintiff’s husband, caused by the breaking of a defective fly-wheel in a corn-shredding machine, the petition alleged that the deceased was a share cropper on the farm of the defendant owner of the machine, and quoted all material portions of a written contract relied upon to show such relation of master and servant. The defendant, having generally demurred to the petition as setting forth no cause of action, is precluded by the judgment overruling his demurrer from insisting, under the general grounds of his motion for new trial, that the verdict is contrary to law because the contract created only a relation of partnership; the question of the status of the parties under the contract being necessarily involved in the ruling on the demurrer, and there being no exception to such ruling. There being no exception to any instruction of the court, the defendant can not complain that the question as to what was the relation of the parties under the contract was submitted to the jury.

3. The defendant’s motion for new trial being limited to the general grounds, which, under the.foregoing rulings,'must be restricted to the questions' of negligence, it can not be said that the verdict for the plaintiff was unauthorized. There was testimony tending to show that the defendant was the owner of the defective machinery, that it had been previously set up and the speed regulated by an employee of the owner acting under his direction, that the deceased was not an experienced mechanic and had not previously operated the machine, and that, whether or not the deceased should have observed the fact that the fly-wheel had been welded, the defective nature of which repairs it is claimed caused the injury, and should have anticipated the consequence that it would break from rapid running in its defective condition, the defendant had nevertheless, about a week prior to. the injury, insisted that the deceased run the repaired shredding machine, and then assured him that it was “perfectly safe” and there was “not a bit of danger” in running it. See Massee & Felton Lumber Co. v. Ivey, 12 Ga. App. 583 (3) (77 S. E. 1130) ; Hood v. Atlantic Steel Co., 29 Ga. App. 457 (2, 3) (115 S. E. 917) ; Cen. of Ga. Ry. Co. v. Lindsey, 28 Ga. App. 198 (110 S. E. 636); Bush v. West Yellow Pine Co., 2 Ga. App. 295 (58 S. E. 529) ; Brown v. Rome Foundry, 5 Ga. App. 149, 150 (62 S. E. 720) ; Mitchell v. Schofield’s Co., 19 Ga. App. 201, 203, 204 (91 S. E. 275).

Decided July 20, 1925.

Action for damages; from Chatham superior court—Judge Meldrim. September 22, 1924.

N. J. Norman, Wilson & Rogers, for plaintiff in error.

David 8. Atkinson, contra.

Judgment affirmed,.

Stephens and Bell, JJ., concur.


text:
    16099.
    Heinz v. Backus.
   Jenkins, P. J.

1. In the instant action for personal injuries, resulting from the collision between the defendant’s automobile and the “jitney” in which the plaintiff was riding as a passenger, the evidence authorized the verdict for the plaintiff, both on the issue of negligence and on the question as to whether the defendant’s chauffeur was using the machine at the time by, or contrary to, the orders of the defendant during his absence from the city. On the latter issue the jury were authorized to find that the chauffeur was at the time of the collision returning to the defendant’s home after the delivery of milk to the defendant’s mother, as directed by him, and also was carrying fertilizer in the caito the defendant’s home by direction and for the use of the defendant’s gardener, to whose direction the defendant in effect testified the chauffeur was subject during the defendant’s absence.

2. Evidence that a defendant in an action for damages is protected by liability insurance is ordinarily inadmissible, as irrelevant, and should be excluded or ruled out upon proper motion, and counsel have no right to comment thereon. It is the general rule that, where the mere exclusion of such evidence, and appropriate instructions from the court to disregard it and remarks of counsel thereon, can not disabuse the prejudicial impression created upon the jury, a mistrial should be granted. O’Neill Mfg. Co. v. Pruitt, 110 Ga. 577, 578, 579 (36 S. E. 59).

(a) “A party to a cause is not entitled as a matter of right to withdraw legal and competent evidence voluntarily introduced by him, which is favorable to his adversary,” but “the rule is different where the testimony is neither legal nor relevant. Where illegal or irrelevant testimony has crept into the record of the case, it is always in order to withdraw it.” Zipperer v. Savannah, 128 Ga. 135 (2), 139 (57 S. E. 311). “A party who has offered testimony which the court has admitted against objection by the opposite party may, before the evidence is concluded, ask to have 'it withdrawn from the consideration of the jury, and the court may grant such motion. The opposite party can not complain of the withdrawal of evidence allowed over his objection, for such withdrawal would in effect be sustaining the objections made to it.” Ala. R. Co. v. Hardy, 131 Ga. 239, 241 (2) (62 S. E. 71).

(6) “Where objection is made to the admissibility of testimony and the court does not rule upon the objection, but the testimony is allowed to go to the jury, the failure of the court to rule upon the evidence, under the facts, is equivalent to overruling the objection.” Lynn v. State, 140 Ga. 387 (8) (79 S. E. 29). But where, after a witness has made an irrelevant or illegal answer to a question propounded by counsel, to which the opposite party objects, counsel in effect withdraws such testimony by stating that the answer was not responsive to his question, and saying, “I don’t insist upon it,” the fact that such testimony was previously given, and that the court, in view of counsel’s withdrawal of the testimony, did not rule upon the objections, will afford no legal ground for a motion for a mistrial, or for a new trial. See Bowling v. Mims, 142 Ga. 397 (3) (83 S. E. 112). In the instant ease it further appears that the testimony of the witness was merely that he had signed a certain written statement or affidavit in “an insurance office,” and that if it could be taken, without more, as prejudicial to the defendant as relating to liability insurance, it was brought out on a redirect examination by plaintiff’s counsel as to the circumstances under which the witness signed the writing, after the defendant’s counsel, on cross-examination, had questioned him as to certain statements contained therein or the apparent purpose of impeachment.

3. “Where long extracts from the charge of the court are excepted to, the plaintiff in error must specify what parts of them are erroneous or inapplicable. If this be not done, and some parts be applicable, a new trial will not be granted because of such charges.” Grace v. Martin, 83 Ga. 245 (5) (9 S. E. 841) ; Verdery v. Savannah Ry. Co., 82 Ga. 675 (6), 680 (9 S. E. 1133); Enright v. Atlanta, 78 Ga. 288 (1); Thompson v. Feagin, 60 Ga. 82 (4) ; Anderson v. So. Ry. Co., 107 Ga. 501 (4 c) (33 S. E. 644).

(а) “A charge embracing an abstractly correct and pertinent principle of law is not rendered erroneous by a failure to charge some other legal principle applicable to the case.” Wilson v. Small, 28 Ga. App. 587, 591 (113 S. E. 238); Ga. Granite Corp. v. Union Granite Co., 31 Ga. App. 261 (3) (120 S. E. 547).

(б) After quoting a long extract from the charge of the court, containing several independent rules of negligence, comparative negligence, and diminution of damages, and as to whether the plaintiff while a passenger in the “jitney” at the time of the collision had control over its movements, the plaintiff in error, without segregating any particular portion as erroneous, follows this quotation with only the following grounds of exception: “that the law as given in charge to the jury was not applicable to the facts and issues of this ease, because the driver of the car in which plaintiff was riding was exceeding the State law as to speed,” and because his negligence in throwing on brakes and skidding on the wet street after such high speed was “the sole cause of the injury, and plaintiff could not recover;” that “the said issue was raised by the proof in the case and the court should have charged the jury that, ‘if the evidence showed that the jitney driver was negligent, and that his negligence amounted to or was the sole cause of the plaintiff’s alleged injury, that she could not recover against this defendant;’” and that “said charge is further erroneous for the reason that it made defendant liable for all hazards of the road, especially the sole negligence of the jitney driver in this case.” Since the charge as a whole was not erroneous or inapplicable to the issues presented by the conflicting evidence, these grounds of error, under the rules stated, are without merit.

Decided July 20, 1925.

Action for damages; from city court of Decatur—Judge Daley. November 6, 1924.

Sidney Smith, for plaintiff in error.

Harwell, Fairman & Barrett, contra.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    16104.
    Baggs-Langford Motor Company v. Lewis.
   Jenkins, P. J.

A writ of certiorari, directed to a justice of the peace, was issued from the superior court, requiring answer “5 days before the first Monday in July next” (July 7 being the first day of the term). The magistrate’s answer was filed in the clerk’s office on July 5. On October 27 the plaintiff in certiorari filed exceptions to this answer. The certiorari coming on for a hearing, on October 30, the superior court entered an order dismissing the certiorari, upon oral motion of the defendant in error, on the ground stated in the order that the answer had not been filed within the. time required by law. This judgment, however, was vacated and a new judgment entered on November 28, under a written agreement of counsel, the judgment and agreement reciting that the first order “was erroneously entered,” should be vacated, and that the new judgment should be entered in lieu thereof so as to show “the true ground of dismissal,” viz: that “plaintiff filed exceptions to the magistrate’s answer, upon the ground that same was incomplete and insufficient, in that it did not set up a true and certified copy of all of the facts, proceedings, and records in said justice court, plaintiff in certiorari thereby admitting that there was no legal answer filed by said magistrate.” Plaintiff in certiorari excepts to this judgment of dismissal. Held:

1. Section 5195 of the Civil Code (1910), as amended by the act of 1918 (Ga. L. 1918, p. 124, Park’s Code Supp. 1922), requires that “the answer to the writ of certiorari shall be filed in office five days before the first day of the term to which it is returnable, unless further time is given, and shall reply specifically to the allegations of the petition.” Section 5196 requires that exceptions to the answer “shall be filed in writing, specifying the defects, and notice thereof given to the opposite party before the case is called in its order for a hearing.” While the answer must be filed, or the t'ime extended, before the adjournment of the term to which it is returnable (Carroll v. Upchurch, 25 Ga. App. 646, 104 S. E. 16; J. M. High Co. v. Ga. Ry. & Power Co., 12 Ga. App. 505, 77 S. E. 588; L. & N. R. Co. v. Lovelady, 14 Ga. App. 305, 80 S. E. 725), still “the failure of a judge whose decision is sought to be reviewed by the writ of certiorari to file his answer by the first day of .the term [the time required before the 1918 amendment] to which the writ is returnable may subject him to punishment for contempt, but will not authorize a dismissal of the certiorari, when the answer is made during the first term and before a motion to dismiss the certiorari is filed.” Sutton v. State, 120 Ga. 865, 866 (48 S. E. 342).

Decided July 20, 1925.

Certiorari; from Fulton superior court—Judge Bell. November 28,1924.

{a) If exceptions to the answer of the trial judge are not taken before the case is called in order for a hearing, they can not be considered by the superior court. Bailey v. Ware, 17 Ga. App. 492 (87 S. E. 712), and cases cited. But the statute does not require that the exceptions shall be filed at the term to which the writ is returnable; they may be disposed of after that term, and may be filed at any time before the case is called in its order for a hearing. Rumph v. Cleveland, 72 Ga. 189; Fulton Bag & Cotton Mills v. Booze, 8 Ga. App. 430 (69 S. E. 494).

(5) Even if the defendant in error here be not estopped from now contending in the brief of counsel that the superior court properly dismissed the certiorari because the answer of the magistrate was not filed in the time required by law, in view of the agreement and consent of counsel and the second order of the superior court, reciting that the first order based upon that ground “was erroneously entered,” and that the second order should be entered so as to show “the true ground” as therein set forth, the failure of the magistrate to file his answer five days before .the first day of the term was not jurisdictional, the answer was filed only three days late, before any motion to dismiss the certiorari was filed and without any indication of fault on the part of the plaintiff in certiorari, and the exceptions to the answer were filed and notice thereof given before the case was called in order for hearing.

2. Where the answer to the writ of certiorari has been properly filed, its incorrectness or insufficiency is no ground for the dismissal of the petition, but “the proper remedy for the party complaining . . is by exception to it.” Marchman v. Brown, 143 Ga. 335 (1) (85 S. E. 99). The filing of exceptions by a plaintiff in certiorari will not constitute an admission that no legal answer was filed, so as to penalize such plaintiff by a dismissal of his petition. Moreover, in the instant case, while the exceptions were filed in due time and should be determined by the superior court, it' also appears, from an examination of the answer, that sufficient facts were therein set forth for a determination of the essential questions of law presented by the petition.

Judgment reversed.

Stephens 'and Bell, JJ., eoneur.

7. W. DeLoach, for plaintiff.

F. W. Flint, G. H. Cornwell, for defendant.


text:
    16108.
    BROWN v. MEIKLEHAM.
    1. The grounds of the motion for new trial that relate to the measure and amount of damages, not being argued or insisted upon in the brief of plaintiff in error, will be treated as abandoned.
    2. The grounds referring to an alleged want of evidence to show that the driver of the defendant’s automobile truck was his agent and servant acting in the scope of his business and employment at the time of the collision with the plaintiff’s car, and as to errors in the charge in ignoring or failing to charge upon such alleged lack of proof, are without merit. There was uneontroverted testimony from the driver of the car, his companion at the time of the collision, and others, as to his continuous employment for several years by the defendant, who operated a transfer business, and as to his driving the defendant’s car in hauling cotton at the time of the injury, and there was nothing to indicate that the employee, in thus driving the car, was engaged in any work or enterprise independent of the business of the master. See Brown v. Tankersley, 31 Ga. App. 23, 24 (119 S. E. 459) ; Gallagher v. Gwwn, 16-Ga. App. 600 (1) (85 S. E. 930).
    3. An instruction to the jury, in which the rule, expressed in section 4426 of the Civil Code. (1910), which precludes a recovery where the plaintiff has failed to exercise ordinary care, is confused with the rule as to comparative negligence and diminution or apportionment of damages, is erroneous.
    4. While it is true that “a charge embracing an abstractly correct and pertinent principle of law is not rendered erroneous by a failure to charge some other legal principle applicable to the ease,” and that “an exception to a correct charge, because of failure to give, in the same connection, some other pertinent legal proposition, is not a good assignment of érror” (Wilson v. Small, 28 Ga. App. 587, 591, 113 S. E. 238; Ga. Granite Oorp. v. Union Granite Oo., 31 Ga. App. 261 (3), 120 S. E. 547), yet, “when a judge undertakes to charge the law upon any subject, he must charge ’all of it upon that subject that is material and applicable to the ease;” and to render applicable the first stated rule, the charge given must be correct. Hinson v. Hooks, 27 Ga. App. 430 (108 S. E. 822).
    5. The eourt erred in refusing a new trial, on the exceptions taken to the charge relating to the negligence of the parties.
    Decided July 20, 1925.
    Damages; from Eloyd superior court—Judge Wright. November 33, 1934.
    The eourt charged the jury as follows: “If you should find that both sides were negligent, but you should find that the proximate cause of the injury, that is, the preponderating cause of the injury, the greater cause of the injury, was due to the negligence of the defendant’s servant, the plaintiff could recover; but if the greater cause of the injury was upon the part of the plaintiff’s agent, the plaintiff can not recover.” Exception to this excerpt is taken on the ground that it states “only a partial proposition of law, . . that the court, having stated the rule as to the right to recover upon the showing of comparative negligence, should have gone further, even in the absence of a written request, and charged the rule applicable thereto with reference to the diminution of damages;” in other words, that, “while the court was not properly required to charge, in the absence of a request, upon the question of comparative negligence, yet, . . having undertaken to charge upon the rule of law governing the element of comparative negligence, and having given in charge to the jury a portion of the law applicable thereto, movant contends that the court erred in failing then to follow the same up and give in charge to the jury the rule of law applicable to the measure of damages and the diminution of damages in such cases.” The pleadings do not raise the question of comparative negligence or diminution of damages. There was no request to charge the rule or doctrine invoked. The evidence was in conflict as to what and whose fault caused the injury. There was a verdict of $450 for the plaintiff.

      Denny & Wright, for plaintiff in error.

      WillinghamWright & Covington, contra.
   Jenkins, P. J.

(After stating the foregoing facts.) With reference to the rulings made in the last three divisions of the syllabus, relating to exceptions to the charge on the subject of negligence,—it is provided by the Civil Code (1910), § 4426, that, “if the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover. But in other cases the defendant is not relieved, although the plaintiff may in some way have contributed to the injury sustained.” In Americus &c. R. Co. v. Luckie, 87 Ga. 6, 7 (13 S. E. 105), it was held that “the ‘other eases’ referred to are manifestly those in which the plaintiff could not by ordinary care have avoided the consequences of defendant’s negligence. In cases of that kind, both parties being at fault, the damages are apportioned.” But the rule which precludes the plaintiff from any recovery whatever where he has failed to exercise ordinary care to avoid the results of the defendant’s negligence, as set forth m the first sentence of section 4436, “is a different principle from what is known as the doctrine of contributory (or more accurately speaking) comparative negligence” and diminution of damages, as referred to in the latter sentence of that section, and (with reference, to damages by railroad companies) in section 3781. Cen. of Ga. Ry. Co. v. Burton, 33 Ga. App. 199 (3) (135 S. E. 868); Lamon v. Perry, 33 Ga. App. 218 (4) (125 S. E. 907). Under the first rule, where the defendant has failed to exercise ordinary care, if the plaintiff himself also failed to exercise ordinary care to avoid the consequences caused by the defendant, the plaintiff can recover nothing. But under the latter rule, where the defendant failed to exercise ordinary care, the plaintiff, notwithstanding his own fault, can recover partial damages diminished and proportioned according to the degree of his negligence compared with that of the defendant, provided the fault of the plaintiff does not also amount to a lack of ordinary care, and does not equal but is less than the fault of the defendant. Cen. R. Co. v. Newman, 94 Ga. 560 (1) (31 S. E. 319); Davies v. West Lumber Co., 33 Ga. App. 460 (2 a) (123 S. E. 757); Cen. of Ga. Ry. Co. v. Burton, supra. A confusion of these two distinct rules in a charge is error. Americus R. Co. v. Luckie, supra (87 Ga. 7).

“When a judge undertakes to charge the law upon any subject, he must charge all of it upon that subject that is material and applicable to the case.” Hinson v. Hooks, 27 Ga. App. 430 (108 S. E. 822). This rule is in no wise in conflict with that expressed in Wilson v. Small and Ga. Granite Gorp. v. Union Granite Go., supra, that a failure to charge a legal principle in the same connection with another correct and pertinent rule is not erroneous; for the latter rule assumes that the instructions on the rule given are correct and stated with sufficient completeness not to confuse the jury. In the instructions now under review the judge obviously was not confining himself to the rule set forth in the first sentence of section 4436, wholly precluding the plaintiff’s recovery, but was also dealing with the distinct rule of comparative negligence, partially but incompletely stated in that section. While the judge was under no duty, in the absence of any raising of the issue by the pleadings or of any request to charge, to deal with the rule of comparative negligence, nevertheless when he did deal in part therewith, it became his duty to charge with accuracy the essentials of that principle. The instructions as given failing'in this respect, and being subject to the construction that the plaintiff could be allowed full, instead of diminished, damages, if “the greater cause of the injury was due to the negligence of the defendant’s agent,” was erroneous. In view of the closeness of the issues of negligence involved under the evidence, it was, for this reason alone, error to refuse a new trial to the plaintiff. See also Cen. R. v. Brinson, 70 Ga. 207, 210 (8); G. S. & F. Ry. Co. v. Overstreet, 17 Ga. App. 629, 630 (5 d) (87 S. E. 909).

Judgment reversed.

Stephens and Bell, JJ., concur.