text:
    16837.
    Nasworthy v. The State.
    Decided December 15, 1925.
    Arson; from Emanuel superior court—Judge Hardeman. September 2, 1925.
    Application for certiorari was denied by the Supreme Court.

      F. H. Saffold, for plaintiff in error.

      Walter F. Grey, solicitor-general, A. S. Bradley, I. W. Rountree, contra.
   Broyles, C. J.

The request to charge was sufficiently covered by. the charge given, and the verdict was authorized by the evidence. See Oopelamd v. State (a companion case to the case at bar), 33 Ga. App. 150.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


source: Caselaw Access Project

author: Luke, J.

license: Public Domain

text:
    16838.
    Popham v. The State.
    Decided December 15, 1925.
    Conviction of possessing liquor; from city court of Eloyd county—Judge Bale. September 25, 1925.

      Porter & Mebane, for plaintiff in error.

      Alec Harris, solicitor, contra.
   Luke, J.

Popham was convicted of violating the prohibition statute. The evidence was in conflict. The jury, as they had the right to do, believed the State’s testimony, which was sufficient to authorize them to find beyond a reasonable doubt that the defendant put a can of whisky in a car in which he was riding, and that, after being arrested by the officers, he said (according to one of the witnesses), “You have caught me fair.” See, in this connection, Hebbard v. State, 33 Ga. App. 45 (125 S. E. 508).

The special assignment of error upon the court’s failure to separate the witnesses is without merit. See Hoxie v. State, 114 Ga. 24 (8) (39 S. E. 944).

Judgment affirmed.

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


author: Bloodworth, J.

text:
    16839.
    SIMS v. THE STATE.
    The court erred in giving in charge to the jury section 713 of the Penal Code of 1910, which provides that “A person who has given a lien under section 3348 of the Civil Code, or any other lien, shall, when giving a new lien under said section on the same property to another person, inform such person, if interrogated as to the facts, of the amount of such prior lien and to whom given. If he gives false information as to said facts, he shall be punished as for a misdemeanor.” This section was not applicable to the case, and the court made no reference to section 7Í9 of the Penal Code, which was applicable.
    Decided December 15, 1925.
    Indictment for fraudulent mortgage; from Wilkes superior court—Judge Perryman. August 21, 1925.
    ‘'The indictment charged, that the defendant executed a mortgage on two horses to a named bank, and, with intent to defraud H. P. Thomas, represented to him at the same time that there were no other liens against said property, when there was in fact a lien against it, held by A. K. Dickey, and the defendant knew that the representation was false, and by said false representation induced H. P. Thomas to indorse his notes, payable to the said bank, for stated sums, and obtained thereon stated sums, which he failed and refused to repay, and for which Thomas was held liable, and which Thomas repaid, and that Thomas was thereby cheated and defrauded, etc.

      Hugh E. Combs, for plaintiff in error.

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

1. The headnotes in Jacobs v. State, 4 Ga. App. 509 (61 S. E. 924), are as follows: “1,, (a) .S.ection 668 of the Penal Code [section 713 of the Penal Code of 1910]-is designed solely for the protection of landlords and landlords’ liens. The operation of this section of the code is expressly, confihed to those, who are about to give liens under § 2800 of the Civil Code [Section 3348 of the Civil Code of 1910], and who, upon being ¡interrogated as to the existence, ownership, and amount of any prior lien, give false information. A concealment of the existence of any lien, when disclosure of the facts is in the proper .manner required, is criminal only when the new lien given is a landlord’s lien. (b) An indictment for a violation of section 668 [now section 713] of the Penal Code is defective unless it avers that the information alleged to be false was given in response to inquiry, and unless it appears, from the accusation, that the lien taken in pursuance of such false information was a lien arising by operation of § 2800 of the Civil Code [section 3348 of the Civil-Code of 1910]. (c) An accusation drawn under the provision of § 668 [now section 713] of the Penal Code must allege such facts as show that the prior lien alleged to have been given by the accused was in fact a valid, subsisting lien upon the same property upon which the subsequent lien was given. 2. As against a proper demurrer, an accusation charging a violation of § 670 of the Penal Code [section 719 of the Penal Code of 1910] by means of false •representations .must allege specifically: (a) knowledge of the existence of a prior lien; (5) knowledge of the falsity of said representations; (c) that the representations alleged to have been made were made with intent to deceive and defraud, and (d) that they did deceive and defraud. Each of these allegations is material in a prosecution for cheating and swindling by false representations; and a demurrer pointing out the absence of any one of them should be sustained.”

Under the foregoing rulings, the indictment in this case is fatally defective if treated as based upon § 713 of the Penal Code of 1910, but is good under § 719 of that code. (There was no' ^demurrer to the indictment.) The judge charged § 713, quoting it, but made no reference to § 719. It is true that “Defects in an indictment afford no ground for a new trial. Exceptions which merely go to the form should be made before trial. For matters affecting -the real merits, the remedy, after trial, is by motion in arrest of judgment” (White v. State, 93 Ga. 47 (1), 19 S. E. 49), yet'where the judge' based his instructions to the jury on § 713 of the code, which was inapplicable to the case on trial, and made no reference to § 719, which was applicable, this was error, as the crime defined by the last-named section as .interpreted by this court (Goddard v. State, 2 Ga. App. 154, 58 S. E. 304; Jacobs v. State, 4 Ga. App. 510 (2), 61 S. E. 924) contains elements which it is necessary to allege and prove, different and distinct from those necessary to be alleged and proved under section 713.

2. The other allegations of error in the motion for a new trial, which are not covered by the above ruling, need not be considered, as they are of such a nature that they are not likely to recur upon another trial of the case.

Judgment reversed.

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


author: Broyles, 0. J.

text:
    16846.
    Hawks v. The State.
    Decided December 15, 1925.
    Conviction of transporting liquor; from Clarke superior court— Judge Fortson. August 29, 1925.

      Gerdine Lumpkin, Carlisle Cobb, for plaintiff in error.

      Henry H. West, solicitor-general, contra.
   Broyles, 0. J.

The motion for a new trial contained the usual general grounds only, and the verdict was authorized by the evidence.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    16850.
    Carman v. The State.
    Decided December 15, 1925.
    Conviction of larceny of automobile; from Fulton superior court —Judge E. D. Thomas. September 12, 1925.

      W. A. James, Vester M. Ownby, for plaintiff in error.

      John A. Boykin, solicitor-general, Ralph H. Pharr, contra.
   Bloodworth, J.

Neither of the special grounds of the motion for a new trial shows any reason why the judgment should be reversed, and there is some evidence to support the verdict, and this has the approval of the trial judge.

Judgment affirmed.

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


author: Broyles, C. J.

text:
    16851.
    GILSTRAP v. THE STATE.
    A conviction of burglary was not authorized by the. evidence.
    Decided December 15, 1925.
    Indictment for burglary; from Floyd superior court—Judge Wright. September 5, 1925.
    From the evidence it appears that the building in which Army Barnes conducted a pressing club was broken and entered at night, and that several suits of clothes were taken from it. This place was entered from an alley near East First Street, between Fifth and Sixth Avenues, in the city of Eome. A policeman testified that on that night he got a call on East First Street, between Fifth and Sixth Avenues', and went there in an automobile with Mr. Stevens, and found the defendant in a five-passenger automobile, lying down in it, as if he were resting, and asked him what he was doing there, and he said he was waiting for a boy named Wood, who had gone down town; the witness told him that was no place to be lying in a car at twelve thirty, and that he had getter get away from there, and he went on down the street, the witness following him some distance, after which the witness turned around and went back to where he first saw the defendant, and parked his car, and, after he had been there about twenty minutes, a negro named Marshall came out of the alley with a suitcase, apparently going to step in the car, and, on being asked by the witness where he got the suitcase, threw it down and ran off; and that the suitcase contained several suits of clothes identified by Army Barnes as having been taken from his pressing club, the back door of which had been broken open. Stevens testified that previously on the same night, about eleven twenty,, he saw the defendant and Marshall in “the car” together at South Borne bridge, and that Marshall got out of the car and went up town, and the defendant drove off by himself. Marshall, who had been convicted of burglarizing the same place on the occasion referred to, testified that on that night the defendant came to his house in a car at nine thirty, and said that he (the defendant) was going to leave for South Carolina at twelve o’clock; that they were going together, and the defendant took him in the ear, and they took a ride, taking with them the wife of the witness and another woman; that later they left the women, and the defendant drove to East First Street and stopped at the alley leading to the pressing club of Army Barnes, and told the witness to go down there, and get his grip, but did not say what was in the grip; that he (the witness) found the grip at the rear of a garage two doors from the pressing club, and took it to East First Street and started to get in “the car;” that the defendant had gone and he saw Mr. Stevens there, and threw down the suitcase and ran; that the defendant had been with him all the time from nine thirty o’clock until he (the witness) started to get the grip, about eleven o’clock, and that during that time the defendant was not out of the ear except to get his lights fixed, and was not at the Army Barnes place that night, and did not say anything to him about going into that store; that there was no agreement between them for one of them to steal that stuff out of the store. Barnes testified that the suitcase in which the clothes were found was not his suitcase. The defendant, in his statement at the trial, said that he knew nothing about the Army Barnes pressing club and was never at it; that on the night mentioned he was getting ready to leave for South Carolina and “this negro” wanted to go with him,-and that when the officers came up to his car, where it was parked, he was waiting for a man named Wood, who had gone to bring two girls to the car for a joy ride.

      M. B. Bubanlcs, James Maddox, for plaintiff in error, cited 14 Ga. App. 578 (4).

      J. F. Kelly, solicitor-general, M. Neil Andrews, contra.
   Broyles, C. J.

The verdict was unauthorized by the evidence, and the refusal to grant a new trial was error.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


text:
    16852.
    Gordon v. The State.
    Decided December 15, 1925.
    Conviction of assault with intent to murder; from Long superior court—Judge Sheppard. August 8, 1935.

      O. 0. Darsey, for plaintiff in error.

      J. Saxton Daniel, solicitor-general, contra.
   Luke, J.

The conviction of the accused was fully authorized by the evidence. The assignments of error upon excerpts from the charge of the court, when the charge is read in its entirety, are wholly without merit. The court properly overruled the motion for a new trial.

Judgment affirmed.

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


author: Broyles, O. J.

text:
    16863.
    Jenkins v. The State.
   Broyles, O. J.

1. The defendant was convicted of an assault with intent to murder. Upon the trial evidence was adduced which would hav,e authorized the jury to find that there was a mutual intent to fight on the part of the defendant and the person alleged to have been assaulted by him, and that mutual blows were exchanged. Therefore, the court, even without, a written request, should have charged the jury, upon the law of mutual combat and of voluntary manslaughter, and the failure to do so requii’es another tx'ial of the case. Tucker v. State, ante, 670.

Decided December 15, 1925.

Conviction of assault with intent to murder; from Wilkes superior court—Judge Perryman. September 29, 1925.

Norman & Norman, H. B. Combs, for plaintiff in error.

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

2. The assignments of error not dealt with above are without merit.

Judgment reversed.

Luke and Bloodworth, JJ., concur.


text:
    16870.
    ROWLAND v. THE STATE.
    1. Notice to a witness, under the provision of the code that “if there be an appeal or new trial, notice of the fact, without a new subpoena, shall be sufficient to require the attendance of the witness” (Civil Code of 1910, § 5849), was not shown by the defendant’s testimony that when a new trial was granted he immediately “wrote” a certain witness “at his correct address in Macon, Georgia,” that he would expect that witness to be present as a witness at the time of the new trial. Before a presumption that a letter has been received by the addressee arises, there must be affirmative proof not only that the letter was properly addressed, but that it was properly stamped and mailed. The court did not err in overruling a motion for a continuance because of the absence of the witness referred to.
    2. Under the facts of this case, in which the accusation charged the accused with the offense of disturbing divine service by using profane or obscene language and by being intoxicated and otherwise indecently acting, and further charged that at the same time and place he appeared intoxicated, a new trial was not required because the court admitted testimony that the defendant was intoxicated at the time and place alleged, over the objection that on a previous trial of this case the jury found the defendant guilty on “count one” of the accusation, and the verdict was silent as to “count two,” which charged intoxication, and that therefore the defendant was acquitted on the charge of being intoxicated and could not be again tried on that charge.
    3. The accused himself being present when the verdict was received, the absence of his counsel, under the facts of this case, is not cause for a new trial,
    4. The verdict of guilty was authorized by the evidence.
    Decided December 15, 1925.
    Accusation of disturbing congregation; from city court of Wrightsville—Judge Blount. September 5, 1925.
    The second headnote sufficiently indicates the alleged errors complained of in grounds 5 and 6 of the motion for a new trial.
    The third headnote deals with the following ground: “7. Because the court erred in allowing the jury, in' the absence of co'úñsel for the defendant, who was absent by the court’s permission, to render the following verdict: ‘We, the jury, find the defendant $40.00 including costs. [Signed] J. M. Powell, 8-12-1925,’ and, after said verdict had been returned and while counsel was still absent by permission of the court, instructed the jury to retire to their room and make a verdict of guilty or not guilty. Said jury retired to their room and wrote, after the word ‘costs’ in said verdict, the word ‘guilty,’ and returned it in the court while counsel was still absent by permission of the court. The error being that the defendant and his counsel were entitled to be present, under the law of this State, at every stage of the trial; which action of the court denied defendant that right.”

      J. L. Kent, for plaintiff in error.

      G. 8. Claxton, solicitor pro tern., contra.
   Bloodworth, J.

The court properly overruled the ground of the motion for a new trial based upon the refusal to continue the case on account of the absence of a witness. This ground of the motion shows that a new trial had been granted the accused. When this is true, section 5849 of the Civil Code of 1910 provides that witnesses shall be given “notice of the fact.” Although this ground contains a statement by the defendant that “when a new trial was granted in this case I immediately wrote Waddell Renfroe at his correct address in Macon, Georgia, that I would expect him to be present as a witness in this case at the present time,” this was not sufficient. This court, citing a number of cases to support the proposition, held, in Rawleigh Medical Co. v. Burney, 25 Ga. App. 20 (102 S. E. 358), that “before the presumption of the receipt of a letter by the addressee arises, the evidence must affirmatively show that the letter was written, properly addressed and stamped, and mailed.”

Even if we should concede (which we do not) that the admission of the evidence of which complaint is made in the motion for a new trial was error, it was not such an error as, under all the facts and circumstances of the case, would require the grant of a new trial.

The accused being present when the verdict was received, under the particular facts of this case a new trial will not be granted because of the absence of his counsel.

This court in Steele v. State, 24 Ga. App. 276 (100 S. E. 656), held: “Section 412 of the Penal Code penalizes any disturbance of a congregation of persons lawfully assembled for divine worship, either during the service or while they are dispersing after the conclusion of the service, and until all the congregation have left the church building and the church grounds. Brown v. State, 14 Ga. App. 21 (80 S. E. 26); Minter v. State, 104 Ga. 743 (30 S. E. 989). In the instant case the evidence authorized the jury to find that the congregation of persons disturbed by the defendant was lawfully assembled for divine service, and that the disturbance occurred before all the congregation had left the church grounds.” See Folds v. State, 124 Ga. 167 (5) (51 S. E. 305). Under the rulings in the foregoing cases, .there was evidence to support the verdict.

Judgment affirmed.

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


text:
    16875.
    Fountain v. The State.
    Decided December 15, 1925.
    Conviction of selling liquor; from Montgomery superior court— Judge Graham. September 4, 1925.

      Fred. M. Harris, Sajfold & Sharpe, for plaintiff in error.

      M. H. Boyer, solicitor-general, contra.
   Broyles, C. J.

1. The alleged newly discovered evidence was impeaching in its character, and the most important part of it was met by counter-evidence from the State. It does not appear that the judge abused his discretion in overruling the ground of the motion for a new trial based upon the alleged newly discovered evidence.

2. The venue of the crime was sufficiently proved.

3. 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:
    16883.
    FURR v. THE STATE.
    On the trial of one whom the indictment charged with possessing on his premises the necessary apparatus for the purpose of manufacturing intoxicating liquor, a verdict finding him “guilty of possessing apparatus,” was not a nullity; and the court did not err in refusing to arrest the judgment.
    Decided December 15, 1925.

      Indictment- for possessing- distilling apparatus, etc.; from Douglas superior court—Judge Irwin. September 19, 1925. .. ¡

      J. B. Hutcheson, for plaintiff in error.

      E. S. Griffith, solicitor-general, contra.
   Luke, J.

Will Furr was charged in the indictment with having violated the prohibition law. In one count he was charged with manufacturing liquor, and in the other he was charged with possessing on his premises the necessary apparatus for the purpose of manufacturing liquor. ' The jury returned a verdict finding him guilty of possessing the apparatus. He insists that the verdict was a nullity, for the reason that it was in these words: “We, the jury, find the defendant Will Furr guilty of possessing apparatus. Sept. 25, 1924,” signed by the foreman. We do not think the verdict was a nullity, and the court properly refused to arrest'the judgment.

There was no error in the charge of the court, the venue was proved, the evidence in the case amply authorized the defendant’s conviction, and for no reason pointed out did the court err in overruling the motion for a new-trial. . - - .

Judgment affirmed.

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


author: Broyi.es, C. J.

text:
    16884.
    Waldrip v. The State.
   Broyi.es, C. J.

1. “Motions for continuance, made at the term at which the indictment is found, while addressed to the discretion of the court, stand upon a different footing from such motions made at a subsequent term. In such cases the discretion of the court should be liberally exercised in favor of a fair trial, no less than that the trial should be speedy; and every facility should be afforded a defendant for presenting his defense as fully as he might be able to do were the case tried at a subsequent term. Reasonable opportunity for the defendant to prepare his defense should not be sacrificed in the interest of speed.” Brooks v. State, 3 Ga. App. 458 (3) (60 S. E. 211).

2. Where one indicted for a felony was forced to trial at the term at which the indictment was returned and on the same day on which he employed the counsel who defended him, and his counsel were not familiar with the ease, and stated to the court, in their places, that they had not had a reasonable time to prepare the case for trial, and requested a continuance of the case, or at least a postponement until the following day, the refusal to postpone requires a new trial. McArver v. State, 114 Ga. 514 (40 S. E. 779); Blackman v. State, 76 Ga. 288; Penal Code (1910), § 8, subsection 1.

Decided December 15, 1925.

Conviction of incestuous adultery; from Crisp superior court— Judge Crum. October 1, 1925.

J. T. Jeter, Dorris & Broiun, for plaintiff in error.

J. B. Wall, solicitor-general, Strozier & Gower, contra.

(of) 'This érror rendered the further proceedings in the case nugatory. . |

Judgment reversed.

Luke and Bloodworth, JJ., concur.


text:
    16887.
    Hales v. The State.
    Decided December 15, 1925.
    Indictment for misdemeanor; from Gordon superior court— Judge Tarver. September 12, 1925.
    The indictment charged Margaret Hales with the offense of misdemeanor, for that she did unlawfully and with force and arms, she being a single woman, have unlawful sexual intercourse with one Joe Goble. It was testified that the defendant and Joe Goble, a married man, had often, and sometimes at night, been seen riding together, but he had never been seen riding with his wife; that on several occasions Goble 'bought two railroad-tickets. and got' on a night train with the defendant; that about two years before the trial they left the county about the same time and' remained away, but had been seen coming to his mother’s ,in a car and going back to Chattanooga together; that at the .time of his leaving, his wife did not leave, but remained with his mother and made a crop, and that when the defendant was arrested she was at his house near Chattanooga, and his Wife and.children also were there, and that she had never been"married, but had'several children; and the State introduced in evidence a bond -given by her, signed by Joe Goble as surety, to guarantee the maintenance and' education of a bastard child born to her, within a period of two years before the term at which the indictment was returned. The defendant, in her statement at the- trial, denied the charge, and said that her two brothers, her sisters, .and .her brother-in-law lived in the same house in Chattanooga with Joe Goble and his wile, that the ear in which she rode with him belonged to her brother and Goble together, and that Goble was not the father of any of her children.
   Luke, J.

Margaret Hales was convicted of the offense of fornication and adultery. The evidence raised a strong suspicion' of her guilt, but was not sufficient to authorize her conviction. Eor this reason the court erred in overruling the motion for a new trial.

Judgment reversed.

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

A. L. Henson, for plaintiff in error.

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


author: Ltjke, J.

text:
    16663.
    Federal Life Insurance Co. v. Walton.
   Ltjke, J.

In an action in the municipal court of Atlanta upon an accident and health insurance policy James P. Walton procured a judgment against Federal Life Insurance Company. On certiorari the superior court rendered final judgment against the plaintiff in certiorari. A motion was made in this court to dismiss the writ of error because the bill of exceptions failed to assign error upon any final judgment. The policy contained the following stipulations: “Written notice of . . . sickness on which claim may be based must be given to the company . . within ten days after the commencement of disability from such sickness.” “Failure to give notice within the time provided in this policy shall not invalidate any claim if it shall be shown not to have been reasonably possible to give such notice and that notice was given as soon as was reasonably possible.” “Compliance on the part of the insured and beneficiary with all the terms, agreements and provisions of this policy is a condition precedent to recovery hereunder and any failure in this respect will forfeit to the company all rights to any indemnity.” Held:

1. Even though the bill of exceptions, after stating that the judge passed an order “overruling the petition for certiorari and entered up judgment” on the certiorari bond, “as follows,” quoted the order of the court granting a supersedeas, and the latter order was immediately followed by the exception, “to which order so overruling said petition for certiorari, and so entering up judgment against Federal Life Insurance Co. and its surety, the plaintiff in certiorari then and there excepted, and now excepts, and assigns said order and judgment as error,” etc., yet since the bill of exceptions recited that there was a final judgment, and since such final judgment “overruling the petition for certiorari,” etc., was specified in the bill of exceptions and sent to this court in the record, the motion to dismiss the writ of error, on the ground that the assignment of error related to the order granting a supersedeas and not to any final judgment, is denied.

2. Since it appears from the record that written notice of sickness on which claim was based was not given to the company until after the expiration of ten days from the commencement of disability from such sickness, and since it does not appear that “it was not reasonably possible to give such notice and that notice was given as soon as was reasonably possible,” and since waiver of such notice, was neither pleaded (McLeod v. Travelers Ins. Co., 8 Ga. App. 765, 70 S. E. 157; Fidelity & Casualty Co. v. Gate City National Bank, 97 Ga. 634, 25 S. E. 392, 33 L. R. A. 821, 54 Am. St. R. 440), nor proved, the court committed reversible error in entering up a final judgment against Federal Life Insurance Company. United Benevolent Society v. Freeman, 111 Ga. 355 (36 S. E. 764); North American Accident Ins. Co. v. Watson, 6 Ga. App. 193 (64 S. E. 693) ; Watson v. North Am. Acc. Ins. Co. 11 Ga. App. 354 (75 S. E. 362).

Decided December 16, 1925.

Certiorari; from Fulton superior court—Judge Thomas. May 25, 1925.

Bryan & Middlebroolcs, for plaintiff in error.

Winfield P. Jones, contra.

3. Since the ruling in the preceding paragraph is controlling, it is unnecessary to pass upon the other assignments of error.

Judgment reversed.

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


text:
    16814.
    Central of Georgia Railway Co. v. Stocks.
    Decided December 16, 1925.
    Damages; from city court of Barnesville—Judge Darsey presiding. August 20, 1925.

      G. J. Lester, Cleveland & Goodrich, for plaintiff in error.

      E. 0. Dobbs, contra.
   Broyles, 0. J.

1. In view of the facts of the case, the grounds of the-motion for a new trial, complaining of rulings upon the admissibility of evidence, show no reversible error.

2. The refusal to give the requested charges was not error.

3. The excerpt from the charge, as complained of, when considered in the ■light of the charge as a whole and the facts of the case, contains no harmful error.

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

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    16815.
    NEWBERRY et al. v. MILLER.
    As to the land line in question the finding of the jury was authorized by the evidence; and the charge of the court was not subject to the exceptions taken.
    Decided December 16, 1925.

      Processioning; from Baker superior court—Judge Custer. August 4, 1925.
    TF. I. Geer, for plaintiffs in error.

      Benton Odom, contra.
   Luke, J.

Mat Miller instituted processioners’ proceedings to determine a certain land line. The return of the processioners was favorable to Miller’s contention, and William Newberry 'and others filed objections thereto. A trial before a jury resulted in a verdict and judgment for Miller.

1. The 'evidence being in sharp conflict, the verdict can not be changed for any reason assigned in the general grounds of the motion for a new trial.

2. A careful study of the record discloses that the true question involved was whether or not Miller had "previously agreed by word or conduct to accept as his boundary a line run several feet from a boundary line shown to have been theretofore established for approximately fifty years. The court’s charge, considered as a whole, properly presented this question, and was not subject to the criticism that it was contradictory, or that in it the court expressed an opinion as to the evidence.

Judgment affirmed.

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


text:
    16824.
    Mays v. The State.
    Decided December 16, 1925.
    Conviction of larceny of chickens; from city court of Hall county—Judge Sloan. September 11, 1925.

      B. P. Gaillard Jr., for plaintiff in error.

      B. B. Kenyon, solicitor, contra.
   Broyles, C. J.

While the evidence in this case was circumstantial, it was sufficient to authorize the jury to find that it excluded every reasonable hypothesis save that of the guilt of the accused.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    16847.
    WHITENER v. THE STATE.
    The indictment described sufficiently the freight-car alleged to have been broken and entered, and the articles alleged to have been taken from it, and was not subject to the demurrer.
    Decided December 15, 1925.
    Indictment for car-breaking; from Whitfield superior court— Judge Tarver. September 5, 1925.

      George G. Glenn, Joseph M. Lang, for plaintiff in error.

      O. G. Pittman, solicitor-general, contra.
   Luke, J.

1. The indictment was under section 181 of the Penal Code of 1910, and charged, that Bill Pierce, Jim Pierce Jr., Jess Bates, and Cliff Whitener did “break and enter a certain railroad freight-car, the property of Western and Atlantic Bailroad and Nashville, Chattanooga and St. Louis Bailway, lessees, and, after breaking and entering said railroad freight-car, from said railroad freight-car did take and carry away one sack of dry salt meat of the value of twenty-five dollars, two crates of lard in tin cans of the value of twenty-five dollars, one crate of wienie sausage of the value of five dollars, one hoop of cheese of the value of five dollars, and one hog, the same being dressed and not cut up, of the value of fifteen dollars, did take and carry away with intent to steal the same property of said Western and Atlantic Bailroad and said Nashville, Chattanooga and St. Louis Bailway, lessees.” This indictment was good as against the general demurrer, and as against the special demurrer on the ground that there was no sufficient description of the car and that the articles alleged to have been taken were not described with the required particularity. Penal Code (1910), § 954; Farm v. State, 24 Ga. App. 114 (100 S. E. 36), and citations. Of course, it was unnecessary to allege either the name of the consignor or the destination of the articles alleged to have been taken.

2. There being sufficient evidence to sustain the allegation as to the ownership of the car (Adkins v. State, 115 Ga. 582, 41 S. E. 987), and the verdict being supported by the testimony of an accomplice corroborated by a voluntary confession (Partee v. State, 67 Ga. 570 (2)), there was no merit in the general grounds of the motion for a new trial.

3. No reversible error appears either in-the court’s charge or' in the rulings during the trial, and the verdict of guilty must stand.

Judgment affirmed.

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


text:
    16865.
    BENNETT v. THE STATE.
    The chai'ge on the law of involuntary manslaughter, and the conviction of that offense, were not unauthorized. The evidence did not show the size of the rock with which the defendant struck the deceased, and did not demand a finding that it was a weapon likely to produce death, or that the blow was struck with intent to kill, though such a finding would have been authorized.
    Decided December 16, 1925.
    Indictment for murder—conviction of involuntary manslaughter; from Calhoun superior court—Judge Custer. September 26, 1925.

      A. L. Miller, for plaintiff in error.

      B. G. Gardner, solicitor-general, G. B. Crow, contra.
   Luke, J.

Bennett was jointly indicted with another, charged with the offense of murder, and was convicted of involuntary manslaughter. One of the special grounds of the motion for a new trial complains of the court’s charge upon the law of involuntary manslaughter. The evidence shows that the defendant struck the deceased with a rock, but does not show the size of the rock. Under the facts of the case it was for the jury to say whether the rock was a weapon likely to produce death when employed in the manner in which it was shown to have been used; and while the jury would have been authorized to find that it was such a weapon, the evidence was not of such a character as to demand a finding that the rock was a weapon likely to produqe death and that the blow was struck with the intent to kill. The evidence authorized the charge upon the law of involuntary manslaughter, and the verdict therefor was not contrary to law and the evidence. Kelly v. State, 145 Ga. 210 (3), 213, 214, and citations.

.The other grounds of the motion for a new trial are without merit.

Judgment affirmed.

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


text:
    16885, 16886.
    Hampton v. The State (two cases).
    Decided December 16, 1925.
    Indictments for misdemeanors; from Morgan superior court— Judge Park. September 18, 1925.
    On substantially the same evidence Percy Hampton was convicted under indictments respectively charging him 'with' possession of intoxicating liquor and with operating a motor-vehicle while under the influence of intoxicating liquor. From the evidence it appeared that in the evening after dark a Ford car occupied by the defendant and his brother collided with a car driven by‘Beeman a short distance from Madison, Georgia, on the public road between Madison and Augusta, Georgia, and turned over on the side, and the defendant and his brother then said to Beeman that they were blinded by the light from Beeman’s car and could not see. Beeman testified that after they had been there some time and when others were helping the defendant and his brother to turn the Ford car back on its wheels, he (Beeman) looked under the running board of that car and saw on the ground a pasteboard shoe-box in which was a gallon can of corn whisky; that he did not put the box there and did not know who put it there; that he could smell whisky and would judge by the manner of the defendant that the defendant was drinking; that the defendant “talked loud;” that he (Beeman) had not taken a drink. An officer who arrested the defendant testified that “he smelled of whisky and acted like he was drunk; he talked loud and was excited, and seemed not to be at himself.” There was other testimony of the same character. The shoe-box was “branded Friedman,” and a shoe merchant of that name, whose store was in Madison, testified that the box came from his store, but he did not know to whom it was sold. When the collision occurred the defendant’s car was going towards Madison and Beeman’s car was going towards Augusta. In one of these eases it appeared that the defendant lived near Madison, and his brother was a porter in a hotel in Madison. Witnesses who after the collision helped to turn back the defendant’s car on its wheels testified that they searched the car and did not find any whisky in it; that they smelled liquor but did not see any. Beeman testified that when he met the defendant’s car the car did not turn out to let him pass, but ran into his car, hitting it on the left side, about midway; that he got out of his car and got his pistol, and, with his pistol in his hand, demanded of the Hamptons that they pay him $60 as damages, and the defendant’s brother left, saying he was going for an officer; the defendant remained and three or four persons came up and helped turn the car; an officer came and arrested the Hamptons, and Beeman went to where they were imprisoned and offered to stop prosecution and settle with them if they would pay him $50. Thé defendant, in his statement at the trial, denied that he had been drinking, and said: “After we had been there for some time and I was unable to pay the $50 demanded of me, Mr. Beeman came around and placed a package on the ground and said, cNow I guess you will pay, as here is some liquor, and if you do not pay I will have you arrested for having this liquor.’ I had not seen the liquor, and knew nothing about it until he came round with it and set it on the ground near my car.”
   Bloodworth, J.

In each of these cases the conviction was dependent upon circumstantial evidence. In neither of them was the evidence sufficient to exclude every other reasonable hypothesis save that of the guilt j>i the accused. The refusal to grant a new trial was error.

Judgments reversed.

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

M. C. Few, for plaintiff in error.

Joseph B. Dulce, solicitor-general, contra.


text:
    16806.
    Central Bank & Trust Corporation v. Owens.
    Decided December 17, 1925.
    Complaint; from Fulton superior court—Judge Ellis. August 29,. 1925.,

      Candler, Thomson & Hirsch, for plaintiff.

      D. E. Johnston, for defendant.
   Broyles, C. J.

The verdict was authorized by the evidence, and none of the grounds of the amendment to the motion for a new trial show cause for -a reversal of the judgment of the trial court.

Judgment affirmed.

Bloodtoorth, J., concurs. Luke, J., dissents.


author: Bell, J.

text:
    16236.
    NATIONAL COUNCIL JUNIOR ORDER UNITED AMERICAN MECHANICS v. EVANS.
    Under the facts appearing in the instant suit to recover a funeral benefit alleged to be due the plaintiff by the defendant fraternal organization, the local council thereof, in "which the plaintiff’s husband was a member at his death, was the agent of the defendant in the transactions between the defendant and the members of the local council who were enrolled in the defendant’s funeral-benefit department; and the defendant was liable directly to the plaintiff as a dependent of her deceased husband, for the ■ amount claimed, notwithstanding certain general language in the defendant’s by-laws declaring that the officers of the local council were not the defendant’s agents, and that the defendant did not make contracts with individual members of the order, but only reinsured the contracts made by the local councils. The nature of its undertaking is ■ determined by the detailed provisions of its by-laws, and not by the , general description which the defendant made of it. The petition set forth a cause of action, and the superior court properly reversed the judgment of the municipal court sustaining a general demurrer thereto.
    Decided December 21, 1925.
    Certiorari; from Fulton superior court—Judge Humphries. December 11, 1924.

      Little, Powell, Smith & Goldstein, William Matthews, for plaintiff in error.

      G. N. Bynum, contra.
   Bell, J.

Mrs. C. A. Evans, as “the widow and dependent of C. A. Evans, deceased,” brought suit in the municipal court of Atlanta, against the National Council Junior Order United American Mechanics (hereinafter referred to as the defendant or the national council), to recover $500 alleged to be due her as a funeral benefit on the death of her husband. The petition alleged that the defendant “does not issue any certificate or contract of insurance, and did not issue any” to the plaintiff’s husband, but that it is. nevertheless liable for the sum claimed, under its constitution and by-laws. It is averred that the defendant is a fraternal organization, maintaining a funeral-benefit department, and that Clara Council No-. 15 (hereinafter referred to as the local council) is a subordinate lodge of the defendant which acts as the national council’s agent in the matter of enrolling the members of the local council as members of the national council’s funeral-benefit department; that the plaintiff’s husband was a member of the local council and as such had been duly enrolled in class “B” in such funeral department, and that in case of the death of a member in good standing in this class, as was true of the plaintiff’s husband, his legal dependents would be entitled to be paid by the defendant the sum of $500 as funeral benefits. Copies of the constitution and by-laws of the local council and of the by-laws of the national council relating to its funeral department were attached as exhibits to the petition and made a part thereof. The defendant interposed a general demurrer, which the municipal court sustained. The plaintiff carried the case, by certiorari, to the superior court, where the-judgment of the municipal court was reversed, and the defendant excepted.

The sole contention made in this court by counsel for plaintiff in error is that their client is not liable to the plaintiff because it had no contract with her, but merely occupied the relation of re-insurer to the local council. If the defendant was only a reinsurer as claimed, it would seem that the municipal court was right in dismissing the action, because the suit in that ease should have been brought in the name of the local council. North British &c. Co. v. Speer, 7 Ga. App. 330 (66 S. E. 330); 33 C. J. 57. But we can not agree that counsel have correctly interpreted the nature of the defendant’s undertaking. To examine the facts as disclosed by the petition and the exhibits thereto, the fee of initiation into the local council is $10, and the monthly dues are eighty cents. The local -council provides certain sick benefits, but no funeral benefits except “twenty dollars towards defraying the funeral expenses''of the deceased brother in accordance with sec. 8, art. XI, constitution of national council,” and except that (its members being enrolled in class “B” of the national council’s funeral-benefit department) “a further sum of four hundred and eighty dollars will be paid upon the receipt of the same from funeral benefit department of the national council.”

The by-laws of the national council created a funeral-benefit department for the purpose of establishing and maintaining a fund “for the reimbursement” of the local councils of the order “for amounts paid by them as funeral benefits,” and provided that “said department shall not make or enter into contracts with individual members of the order but shall be limited to reinsure the contracts' made by councils thereof to those members entitled to receive the same under the conditions as defined in the laws of the order. It is the policy of said order that the councils thereof shall have the sole and exclusive jurisdiction to contract’with the members thereof regarding the payment of funeral benefits as provided in the laws of the National Council Junior Order United American Mechanics.” The by-laws of the national council further provided: “There shall be two classes of membership in the department, to be known as Class ‘A’ and Class CB,’ and it shall be optional with each council to enroll its members in either class. Class ‘A’ entitles the council to $350.00 to be paid to the council in case of death, and Class ‘B’ entitles the council to $500.00 to be paid to the council in case of death. The names of the entire beneficial membership can be enrolled in either class, but no council shall be permitted to enroll the names of part of its members in Class ‘A’ and part in Class ‘B,’ except as hereinafter provided.”

It was left “optional”.with any local council to be enrolled in the department or not, but no council could “become connected with any so-called funeral benefit association, or any association or any organization whose business may be to pay funeral or death benefits, which is not connected with and controlled by the national council;” and no council “shall be entitled to any reimbursement by reason of the death of any of its members who do not possess the qualifications hereinafter provided.” Any local council desiring to obtain membership in the funeral department of the national council was required to make application upon blanks furnished by the national council for that purpose, accompanied with a list of the names of the- members “eligible to benefits . . under qualifications” prescribed by the national council, and, where the enrollment was to be in Class “B,” to remit sixty cents for each member, a part of this being for the enrollment and the remainder being for the assessment “for the month in which the [local] council is admitted into this department.” A further “regular monthly assessment” is required of each local council “for each member on its roll in the department on the first day of the current month.” The local council, in applying for membership in such department, agrees that “in all business transactions between it and the funeral benefit department” its officers are acting “not as agents of the funeral benefit department or of the national council, but exclusively for this council, and that no liability shall attach against the funeral benefit department or the national council for of by reason of any act or default of any officer of this' council in improperly performing or in failing to perform any duty imposed by the laws of the order.”

While it is provided throughout the by-laws of the national council that the'funeral benefits shall be paid to the local council, rather than directly to the dependents of the deceased member, the national council nevertheless directs and controls the disbursement of the fund, for it is stipulated, as a condition to the enrollment of the local council in the department, that it has either adopted or will adopt “a by-law providing for the payment to the legal dependent of the deceased member, as provided by the laws of the State or domicile of the council, irrespective of the time of membership of the said member in this council, the full amount received by this council from the department, less the cost of preparing the claim, and all other charges legally due the council at the time of death.”

With reference to the disposition to be made by the local council of a funeral benefit paid to it for the death of a member, the bylaws of the national council further provide: “The fund so received [by the local council] shall be applied by [it] as provided by the laws thereof and the laws of the State of its domicile. In default of there being any legal dependent of such deceased mem: ber, the council may appropriate toward the payment of the expense of the last sickness and of the funeral expense of the deceased so much as may be necessary for that purpose, not exceeding the amount to which said member would be entitled, and if after said payment there shall be any amount remaining, then such excess shall revert to the national council, and be placed to the credit of the same fund from which it was drawn, with a statement and receipt of such sums expended.”

Various duties are enjoined upon local councils, namely: “It shall be the duty of the council enrolled in the department to forward such monthly assessments to the secretary thereof, on or before the tenth day of each month, using blanks furnished by the secretary of the department for that purpose, and should such payment not reach the office of the secretary by the last day of the month, such council shall thereby ipso facto be suspended and not entitled to benefits until, such suspension shall have been removed.” “Immediately after the initiation, reinstatement or admission by card of a member in any council that has already been admitted to the department, if such member possesses the qualifications prescribed in section 8 of these laws the council shall forward to the secretary of the department, on blanks provided for that purpose, the name of such member in full, his present age and his occupation, the council through its duly authorized officer shall certify that such member is in sound bodily health and free from any disease, together with thirty cents if in Class CA/ or sixty cents if in Class ‘B/ which shall be for the enrollment fee and the assessment for such member for the month in which his is enrolled in the department.” “When members of any council which is enrolled in the department becomes in bad standing in such council as provided by the laws of such council, State or national council, the council shall promptly forward.to the secretary of the department the names of such members upon blanks provided for that purpose, and upon receipt thereof by the secretary of the department in proper form the names of such members shall be dropped from the membership roll of such council in the department.”

Since the rules of the national council give specific direction as to what shall be done by the local council with a funeral benefit paid to it, including, among other things, a requirement that the fund so received shall be applied by the by-laws thereof and the laws of the State of its domicile, the national council is presumed to know the by-laws of the local council with respect to the application to be made of the same. It thus appears that the national council knew that the local council was obligated to pay the dependent or dependents of a deceased member only $20, and a further sum of $480 only “upon the receipt of the same from funeral department of the national council.” The defendant, however, insists that it was only to reimburse the aggregate of these payments that it became obligated to pay to the local council the sum of $500 as a funeral benefit on the death of a member in class “B,” and that its undertaking was only to reinsure the local council for amounts paid as funeral benefits. How could it reimburse the $480 when, according to the by-laws of the local council, that body was not to pay the sum until it was received from the national council? And where is the reinsurance as to this amount, when the only liability of the local council therefor was to deliver it to the dependents of a deceased member on the receipt of the same from the national council? The defendant is in the anomalous attitude of saying that it reinsured the liability of the local council to pay over the amount to be received by that body from it. Its position may be illustrated as follows: A is to pay to the legal dependents of B on the death of B a certain sum, provided he receives it from C; whereupon C says to A, “I will save you harmless for any loss on your part by reason of your promise to pay over the amount you are to receive from me.” This would be a strange sort of reinsurance, a kind which we have not heard of before and which we see in this case only by certain general language in the rules of the national council, wholly at variance with the express terms of its undertaking as determined by the detailed provisions of its by-laws. The defendant can not by a mere general description change the true character and import of its obligation. It appears from the various by-laws to which we have referred above that its funeral department was formed for the express purpose of paying funeral benefits to the members of the order, and that it chose to pay them through the local council as its agent. The local council, as an organization for the payment of such benefits, has its existence solely under the national council, and is subject absolutely to the direction and control of the national council. It is conceivable that the national council might (if its charter will permit) so conduct its business as to avoid the relation of principal and agent between it and the local council, but this it can not do when the entire scheme is to have the local council to function only as a medium between the governing body and its individual members in a manner and way which it expressly prescribed. The conclusion is inevitable that the local council was the agent of the national council in this case, and that the latter was not without a liability directly to the legal dependent of the deceased member. See National Council &c. v. Caraway, 13 Ga. App. 819 (81 S. E. 243); National Council &c. v. Cragen, 17 Ga. App. 575 (87 S. E. 836); National Council &c. v. Van Giesen, 20 Ga. App. 211 (92 S. E. 1022); Gilbert v. Dawson Council &c., 25 Ga. App. 130 (102 S. E. 831); Supreme Circle of Benevolence v. Beall, 18 Ga. App. 425 (89 S. E. 630); Supreme Circle of Benevolence v. Smith, 21 Ga. App. 678 (94 S. E. 1034); Hurley v. District Grand Lodge &c., 24 Ga. App. 197 (100 S. E. 233); Evans v. Junior Order &c., 183 N C. 358 (111 S. E. 526); Witty v. National Council &c., 183 N. C. 679 (111 S. E. 721); 19 R. C. L. 1220.

Counsel suggest that it is apparent that the defendant’s by-laws have been changed since the decisions by this court in the four eases first cited above, and that such decisions are therefore not authority in the present case. From a comparison of the facts of the instant record with those stated in these prior decisions we think it is true that certain amendments have been made to the by-laws as suggested. We have not deemed it necessary to examine the records in the previous cases, because, even assuming everything claimed as to changes in the by-laws, we are still of the opinion expressed above. Although the defendant may have said that it would discontinue dealing with .the local council as its agent, and would no longer grant insurance directly to the members, but would thenceforth only reinsure the local council, it nevertheless proceeded straightway to do the very things it declared it would not do. The municipal court erred in dismissing the plaintiff’s suit, and the superior court properly sustained the certiorari.

Judgment affirmed.

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


author: Jenkins, P. J. Jenkins, P. J.

text:
    16350.
    MITCHAM et al. v. CITIZENS BANK OF BULLOCHVILLE.
    Individual liability for debts of a corporation can not be imposed upon all its members by a by-law adopted by vote of a majority of the members where no provision for such liability is made by statute or charter. Corporations without capital stock are within this rule.
    No question as to estoppel of the defendants to allege the invalidity of such a by-law is raised by the pleading in this ease.
    The action being against the corporation and all its members, and the validity of such a by-law being essential to the maintenance of the action, the petition should have been dismissed on demurrer on the ground of misjoinder of parties.
    Decided November 16, 1925.
    Rehearing denied December 21, 1925.
    Complaint; from Meriwether superior court—Judge Roop. February 19, 1925.
    Application for certiorari was made to the Supreme Court.

      Terrell & Terrell, PL. H. Revill, M. Z. O’Neal, W. R. Jones, J. P. Atkinson, W. R. Smith, N. F. Oulpepper, A. L. Hardy, for plaintiffs in error.

      R. A. McGraw, J. F, Hatchett, contra.
   Jenkins, P. J.

The Citizens Bank of Bullochville brought joint action in two counts against the "Warm Springs Truck Growers Association and all its members. In the first count of the petition, as amended, it is alleged that the association was incorporated without capital stock, under authority of the act of the General Assembly approved August 17,1920 (Ga. L. 1920, p, 125), a copy of the charter being attached to the petition, and -that the said association and all of its members were indebted to the plaintiff on two certain notes, aggregating the principal sum of $1,767.58 (copies of which were attached), executed, signed, and delivered by the association to the plaintiff bank; the alleged liability of the members being based on a regularly adopted by-law, attached to the petition, by the terms of which the members became liable for their per capita share of the debts of the association up to and including the sum of $25,000. It is alleged that this by-law was made known to said bank by defendants, and that upon the faith of it the bank extended the credit which is the basis of this suit. In the second count, a judgment of joint liability against the corporation and its members in the sum of $5,429.10 was sought on certain individual notes, some of which were signed by members of the association and others by non-members, made payable to the association and indorsed by it to the plaintiff. The by-law embracing the liability of the members for the debts of the corporation was also set forth in the second count. Plaintiff’s contention as to the basis of this count is not that the plaintiff “is suing the members and signers of any notes set out in count 2 as makers, but is suing the association and members thereof because of the indorsement thereof by the association to the bank for a valuable consideration.” There were general and special demurrers to the petition, one of them setting up a misjoinder of parties and a misjoinder of actions. Section 8 of the act referred to (Ga. L. 1920, p. 125) provides “that each corporation shall formulate by-laws prescribing the duties of the directors and officers; the manner of distributing the profits of the business, the manner of becoming a member, and such other rules and regulations for its officers and members as will tend to make the corporation an effective business corporation; buy, sell, and own real estate and other property, and to sue and be sued in its own corporate name.” The charter of the Warm Springs Truck Growers Association contains the following language: “to make such by-laws as may be necessary or proper for the management of its property and regulation of its affairs.”

1. The theory of joint liability set up by the first count is that the association is liable on its note, and all its members are liable as members under the by-law; under the second count, that the association is liable on the notes by virtue of its indorsement of them to the bank, and that all the members of the association are liable, not as makers of the notes, but as members of the association, under the by-law. In either case there is manifestly a misjoinder of parties, unless the liability under the by-law subsists.

2. At common law the stockholders in a corporation are not individually liable for the corporate debts. Tichenor v. Williams Block Pavement Co., 116 Ga. 303, 306 (42 S. E. 505). Such liability may be created by statute (Robison v. Beall, 26 Ga. 17, 73); or. the members may incur liability by legally pledging as individuals their personal credit for the obligations of the corporation. Flint v. Pierce, 99 Mass. 68 (96 Am. Dec. 691). But the mere passage of a by-law seeking to impose individual liability upon all of the members of a corporation where neither the general statute nor the charter so provides is invalid, even though the bylaw be regularly adopted by a majority vote of the members in meeting regularly called; and it can not impose individual liability upon the members of the corporation. Reid v. Eatonton Mfg. Co., 40 Ga. 98 (2 Am. Rep. 563).

3. The question of estoppel can not be considered if it is not raised in the pleadings. Tuells v. Torras, 113 Ga. 691 (39 S. E. 455). The petition, while setting forth that the adoption of such by-law was made known to the bank by the “defendants,” and that credit was granted to the corporation on the faith thereof, does not specifically raise the question of estoppel, but appears to plant the claim of liability upon the validity of the by-law. However this may be, the doctrine of estoppel could only be invoked as a preclusion in law which would prevent the defendants from making a denial contrary to their own previous allegations acted on by the opposite party to its injury. Thus, under the allegations of the petition, the defendants could not be heard to deny that such a bylaw had been adopted, whatever the truth as to that might be; but in the absence of any false or fraudulent representation as to what had been done, their report that a by-law had been adopted,

which in law was necessarily null and void, would not render them liable under such by-law. “The fact that the individual members of the corporation may have represented to the public that they were so liable, will not bind them as stockholders.” Reid v. Eatonton Mfg. Co., supra.

4. The validity of such an attempted by-law being essential to the maintenance of the joint action, and it being ineffective, the petition should have been dismissed as involving a misjoinder of parties.

Judgment reversed.

Stephens wnd Bell, JJ., concur.

ON MOTION ROE REHEARING.

Jenkins, P. J.

Able counsel for defendant in error, in their motion for- rehearing, submit that the rule set forth in the syllabus as to the invalid by-law does not apply where the corporation concerned has no fixed capital stock. They cite Thompson on Corporations, vol. 4, as follows: “§4728. By-laws creating a personal liability. This personal liability of stockholders may undoubtedly be imposed by by-law. But it would be necessary, to give a by-law such binding effect, that it had been consented to by all stockholders, and relied upon by a creditor in dealing with the corporation and giving it credit; and as in the case of an agreement this would bind the members individually rather than as stockholders. Where a corporation having no fixed capital enacted by-laws by which each of the corporators were bound to contribute equally to all expenses incurred, it was held that the stockholders were liable for the debts of the corporation.” The citations given by the author of this work in support of the last proposition stated in the quoted excerpt are: Hume v. Winyaw &c. Canal Co., 1 Car. L. J. 217; Savage v. Putnam, 32 Barb. (N. Y.) 420. We have been able to examine only the latter of those two cases, and find that the case does not relate to a corporation at all, but to a private stock company or partnership. In the opinion the court said: “If it were a corporation, neither the outgoing member, nor indeed' any of ■ the stockholders, would be personally liable for the debts of the concern, unless made so by the law which created the corporation.” In the instant case the association is a duly chartered business corporation without capital stock, created for the purpose of conducting an agricultural, dairy, or other business on the co-operative plan. Under the law it could have been incorporated either with or without capital stock. If intended to earn a profit for itself, capital stock would be required, but if its purpose was purely cooperative and intended only for 'the mutual help and benefit of its members, it need not have stock. In either event it would be an “effective business organization” with power and authority to transact in its corporate name the business authorized, and as such it could acquire property, incur liabilities, and “sue and be sued in its corporate name.” The fact that such an incorporated business organization is without capital stock would not take from it its corporate character or entity, and consequently its members would, not be liable for its debts as a matter of law. Since they are not, we see no reason why a portion of the members could be authorized to render another portion individually liable for the debts of the corporation by the adoption of a by-law. We do not see why the general rule would not apply, to wit: “Where neither the charter nor the governing statute imposes on the members a personal liability to pay the debts of the corporation, such liability can not be created by any by-law or vote of the corporation so as to be binding on dissenting members.” 10 Cyc. 357 (9).

Counsel for the movant, in their motion for rehearing, say: “It might be said that on the trial of the case some of the defendants could be heard to say that they did not participate in the by-law and did not in any manner render itself liable in any manner, but, as the suit is brought, certainly the court could not, on demurrer, assume such a defense, and because of that assumption hold that there is a misjoinder of defendants.” It must be borne in mind that the plaintiff’s petition does- not allege that all the defendants, or which of the defendants, concurred in the adoption of the bylaw. The allegation of the petition amounts to nothing more than that the by-law was regularly adopted by the members at a regularly called meeting. That it was thus adopted indicates nothing further than that a majority of the members acquiesced in its adoption. No light is thrown by the petition upon which of the members actually acquiesced, or who, or how many, less than a majority, might have dissented. So far as any allegation of the petition shows, one less than a majority of the members sued might have failed to participate or might have dissented. As we construe the suit, it is planted upon the binding effect of the by-law; that it was effective as a by-law upon its adoption, or that the members by their subsequent conduct are estopped from denying its validity as such. The petition in no way undertakes to show that the defendants, to use the language of the decision in this ease, incurred “liability by legally pledging as individuals their personal credit for the obligations of the corporation.” For the reason that we did not consider that any such contention was the purpose or legal effect of the averments, we did not consider or discuss how or in what manner this might be done. The quoted excerpt from the motion now under consideration would seem, however, to attack the ruling on the theory that the petition was in fact based not upon the binding effect of the by-law, as such, upon each and all of the members, but upon an alleged individual assumption of personal liability by the members composing the corporation as already indicated. The petition does not set forth facts such as would permit a claim of liability on such a theory. Under either theory, the burden of alleging and proving individual liability on the part of stockholders for corporate indebtedness is on the party seeking to impose it. In our opinion the petition can not be taken as seeking to set up the individual assumption of personal liability by the members of the corporation. Without going into the question of how and in what manner the members of a corporation might, as individuals, legally pledge their personal credit for the corporate indebtedness, the petition does not even disclose what members in any way might have participated in the adoption of the alleged by-law; nor does it show who might have assented and who might have dissented in its adoption. Assuming, therefore, that the petition, as it asserts itself to be, and as it necessarily must be, is based not upon this theory, but upon the validity of the alleged by-law, which purports, as such, to bind all the members of the corporation, and being of the opinion that such a bylaw is null and void, and without any binding force and effect, we held that the individual members were improperly joined in a suit against the corporation on its corporate obligation. As stated in the decision, even if we could consider the doctrine of estoppel as having been invoked, under the explicit ruling made in Reid v. Eatonton Mfg. Co., supra, the mere holding out by the members of the corporation that such a by-law, void on its face, had been adopted would not operate to hold them, liable under its terms.

Rehearing denied.


author: Jenkins, P. J.

text:
    16341.
    Citizens Bank of Valdosta v. Valdosta Mill & Elevator Co.
   Jenkins, P. J.

1. No officer, or set of officers, of a corporation is authorized to divert its property or pledge its credit for the payment or securing of the individual debt of an officer; and, except in cases where the rights of innocent third persons may have become involved, any such attempted misapplication will be annulled or avoided in any appropriate proceeding; and this is true without regard to the form or method which may have been pursued in such illegal undertaking. Accordingly, a bank with knowledge that an officer of a corporation is using the company’s funds on deposit with it to discharge his individual debt to the bank is liable in a suit in indebitatus assumpsit for the amount of the property so misapplied.

2. Where there has been no ratification or laches on the part of the stockholders of the injured corporation, the fact that one of the directors of the company subsequently acquired knowledge of such illegal procedure does not estop it from asserting its right to reimbursement. Accordingly, the corporation itself is not estopped from asserting its rights even though the offending hank sought by its pleadings to set up such a defense. Walker v. Kingston Supply Co., 18 Ga. App. 447 (89 S. E. 533) ; Spinks v. Athens Savings Bank, 108 Ga. 376, 378, 379 (33 S. E. 1003); 14 Corpus Juris, 377, 378.

3. “A plaintiff must recover upon the cause of action as laid in the petition; and a verdict in his favor is illegal when the evidence fails to support the cause declared on, even though a different cause of action may appear from testimony admitted without objection. But evidence, admitted without objection, which supports what is in fact the same cause of action, although it might have been excluded on objection, may be sufficient to authorize a recovery, if, under the facts of the case, the petition could by amendment have been so conformed to the proof as to render such testimony relevant.” Napier v. Strong, 19 Ga. App. 401 (2) (91 S. E. 579). Accordingly, the verdict is not illegal on the ground that the allegata and probata do not correspond because the petition may have charged that the bank knowingly accepted payment of a personal note made to it by one of plaintiff’s officers by means of a check drawn by him on the funds on deposit to the credit of the company, while the evidence introduced, including that of the defendant, showed that the note in question was made by the company’s officer to the company and indorsed by the company through that officer to the bank, it otherwise satisfactorily appearing that the note was a renewal or substitution of his prior individual obligation to the bank.

3. The evidence authorized the verdict on every essential element of proof. The court did not err in permitting the plaintiff to introduce a portion of its regular books of account for the purpose of corroborating its other testimony on the question whether the indorsed note was a substitution or renewal of a direct personal obligation of the plaintiff’s officer. Shields v. Carter, 22 Ga. App. 507, 509 (96 S. E. 330). On this point the evidence for the defendant is at least vague, equivocal, and indefinite, if not in fact itself indicating that such was the truth of the case. The ground of special demurrer not abandoned is without merit.

Decided December 21, 1925.

Complaint; from Lowndes superior court—Judge W. E. Thomas. February 20, 1925.

STATEMENT OE EACTS BY JENKINS, P. J.

The petition in substance alleged: that the defendant bank had on checking deposit account a large sum of money of the plaintiff company; that the plaintiff was indebted to the bank in a large sum; that M. Curry, who was the vice-president and general manager of the company, was also individually indebted to the bank; that in a settlement and liquidation of the company’s indebtedness, the bank, acting clandestinely with reference to the other officers of the company and in collusion with the said Curry, induced him to include the amount of his individual indebtedness in a check given by him for the company in settlement of the company’s obligations; that this padded check was duly honored by the defendant and. charged against the deposit account of the company; and the petition alleged that by reason of these facts the defendant was indebted to the plaintiff in the amount thus applied to the individual debt of Curry. The defendant contended that the note of Currjq included in the settlement, was in fact an obligation of the plaintiff company; that it was in fact a note made by Curry to the plaintiff, and indorsed by it, through Curry, to the bank; and that the bank, being an innocent holder of the note, was entitled to payment thereof from the plaintiff. On the trial the defendant sought to show that the note was taken from Curry in renewal or substitution for a prior personal obligation of Curry to the bank; and that the bank took it with full knowledge of these facts. The defendant filed demurrers, which were overruled, but which are expressly abandoned in the brief, except the special demurrer setting forth that the petition does not allege how and in what manner the bank induced Curry to sign the cheek complained of. A verdict was returned for the plaintiff in the full amount sued for, with interest. The case came to this court on exceptions to the overruling of the demurrer and to the overruling 'of the defendant’s motion for a new trial.

The defendant contends that since the evidence showed that the check by the company did not include any note by Curry to the bank, but only a note by Curry to the company, indorsed by him for the company to the bank, the allegata and probata do not correspond. It further insists on this point by making exceptions to the charge of the court. It contends that the evidence does not show that the note thus included represented the renewal or substitution of a previous note by Curry. It further insists that the company, under the evidence, must be held to have ratified the payment as made. The record shows that no plea of ratification was entered. Exception is taken also to the admission in evidence, over objection, of the books of the plaintiff, introduced for the purpose of corroborating the testimony of its officers and agents that the note paid from its funds represented a personal obligation of Curry. The ground of this contention is that the books were but self-serving declarations. The defendant itself, in its effort to show that the note included in the check represented an obligation of the company, showed the payment of the indorsed note complained of. The president of the bank admitted in general terms that “he [Curry] borrowed this first money on his own individual credit. We allowed him to substitute the obligation of the Yaldosta Mill & Elevator Company for his own obligation, without making any inquiry except to him.” There was other testimony for the plaintiff, with the documentary evidence, which tended to support its contention. It appears that the plaintiff repudiated the transaction and demanded a refund immediately after the facts were brought to its attention at its first meeting of stockholders held after the payment, and that only one other director had acquired any previous knowledge of the alleged misapplication.

Judgment affirmed.

Stephens cmd Bell, JJ., concur.

Franklin & Langdale, for plaintiff in error.

Whitaker & Dukes, contra.


author: Stephens, J.

text:
    16351.
    Remington v. Garrett.
   Stephens, J.

1. A conveyance of title in fraud of a creditor is void, and the creditor may attack it in a suit at law. Civil Code (1910), §§ 3218, 3224 (2).

2. Where, upon the trial of a claim case, it appears that a conveyance of title to the property levied on, made by the defendant in execution to a . stranger prior to the levy, would, if valid, operate, under section 6038 of the Civil Code (1910), to deprive the defendant in execution of any leviable interest in the property, the plaintiff in execution may, in the same action, for the purpose of subjecting the property to the execution, attack the conveyance upon the ground of fraud.

Decided December 21, 1925.

Claim; from city court of Quitman—Judge Weston. January 27, 1925.

Sam T. Harrell, for plaintiff.

Branch & Snow, for defendant.

3. Where it appeared from the evidence in such a case that the conveyance was made by the defendant in execution to his brother two days prior to the rendition of the judgment upon which the execution issued, and purported on its face to secure an indebtedness of eleven hundred dollars, when in fact the actual indebtedness was about two hundred and fifty dollars, there was presented an issue for determination by a jury as to whether the conveyance was fraudulently made by the defendant in execution.

4. This case is distinguishable from Sloan v. Loftis, 157 Ga. 93 (120 S. E. 781). In the latter cáse it appears conclusively, as a matter of law, that the legal title was in the claimant, and that the only interest the defendant in execution had ever had in the property levied upon was as a purchaser holding under a bond for title.

5. Where the property levied upon consisted of crops,'live stock, and other personalty acquired as a result of the operation by the defendant in execution of certain farms consisting of lands owned partly by himself and partly by his wife (the claimant), and operated as one enterprise and in his own name, the husband selling the products of the farms and banking the proceeds in his own name, the wife in the meantime living with him.and making no objection to the arrangement or to the manner of the operations, the inference is authorized that the property levied upon'was his property and not that of the wife.

6. The fact that certain of the live stock were descended from stock owned by the wife twenty years prior to the levy does not as a matter of law establish her title to the present descendants of such remote ancestors.

7. It being a question of fact whether the prior conveyance which had been made by the defendant in execution to his brother was valid, and there being evidence which would have authorized a finding by the jury that the property levied upon was the property of the defendant in execution, and therefore subject to the levy, the court erred in dismissing the levies.

Judgment reversed.

Jenlcins, P. J., and Bell, J., eoncur.


text:
    16393.
    Tarver v. Jones.
   Jenkins, P. J.

1. “An adjudication of the same subject-matter in issue in a former suit between the same parties, by a court of competent jurisdiction, should be an end of litigation.” Civil Code (1910), § 4335. “Before a claimant becomes a party to a garnishment suit, he must file a claim to the property apparently belonging to the defendant, in the hands of the garnishee, or he must give a bond to dissolve the garnishment under the provisions of Civil Code (1910), § 5282.” Drought v. Poage, 3 Ga. App. 178 (3) (59 S. E. 728). Thus, while a judgment rendered against the garnishee on the trial of the issue raised by a traverse of his answer is conclusive against the garnishee, it does not bind persons not parties to that proceeding. Warthen v. Melton, 132 Ga. 113 (1) (63 S. E. 832, 131 Am. St. Rep. 184). Accordingly, since “in cases of attachment the claim may be interposed either before or after judgment” (Civil Code of 1910, § 5120), where a claimant, in response to a levy of the execution in attachment, files his claim to property in the hands of a garnishee, he is not estopped by the previous judgment in favor of the plaintiff in attachment against the garnishee on the issue tried, on a traverse of his answer, to which such claimant was not a party.

Decided December 21, 1925.

Levy and claim; from city court of Columbus—Judge Tigner. March 21, 1925.

Hatcher & Hatcher, for plaintiff.

George 0. Palmer, for defendant.

2. Estoppels are not favored at law and in no ease can the doctrine be invoked save where the estoppel is mutual. Harris v. Amoskeag Lumber Co., 101 G1. 641, 643 (29 S. E. 302); Dodd v. Mayfield, 99 Ga. 319, 320 (25 S. E. 698) ; Luke v. Hill, 137 Ga. 159 (1) (73 S. E. 345, 38 L. R. A. (N. S.) 559); Whitmam v. Bolling, 47 Ga. 125, 133. Thus, one who has not become a party to a garnishment suit in attachment is not bound by a judgment in the proceeding in favor of the plaintiff merely by reason of the fact that during the trial of the traverse to the garnishee’s answer, he was physically present at the trial, but took no part therein. Wingo v. Johnson, 119 Ga. 486, 488 (46 S. E. 669) ; Mauck v. Rosser, 126 Ga. 268, 273, 274 (55 S. E. 32); Smith v. Johnston, 71 Ga. 748 (3) ; Churchman v. Robinson, 99 Ga. 786 (1) (27 S. E. 164) ; Rutherford v. Fullerton, 89 Ga. 353, 354 (2) (15 S. E. 471); Bullock v. Butts, 33 Ga. App. 7 (124 S. E. 905 (4) ); Southern Railway Co. v. Funke, 152 Ala. 513 (44 So. 397).

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    16469, 16528.
    Turk et al., trustees, v. Royal et al.

   Bell, J.

1. In a proceeding to validate bonds, under the act of December 6, 1897 (Ga. L. 1897, p. 82; Civil Code (1910), § 445 et seq.), it is within the power and jurisdiction of the superior court, upon proper pleadings and sufficient evidence, to pass upon the validity of any votes east in the election, and to eliminate such votes as are shown by the pleadings and the evidence to be illegal. In the present case, wherein certain citizens intervened and objected to the issuance of the proposed bonds because the several voters who voted in favor of them were for specified reasons not qualified to participate in the election, a demurrer to the intervention, upon the ground that the court was without authority, under the law, to inquire into the validity of the votes east in the election, was properly overruled. See Coleman v. Board of Education of Emanuel County, 131 Ga. 643 (5) (63 S. E. 41), in which such eases as Tharpe v. Hardison, 69 Ga. 280 (2), Skrine v. Jackson, 73 Ga. 377, Caldwell v. Barrett, 73 Ga. 604 (4), and Ivey v. City of Rome, 129 Ga. 286 (1) (58 S. E. 852), are distinguished; and compare Brown v. City of Atlanta, 152 Ga. 283 (3) (109 S. E. 666) ; Davis v. Warde, 155 Ga. 748 (4), 780 (118 S. E. 378); Drake v. Drewry, 109 Ga. 399 (35 S. E. 44); Mayor &c. of Macon v. Hughes, 110 Ga. 795 (3) (36 S. E. 247).

2. If the trial judge erred in refusing, on demurrer, to strike other allegations of the intervention, setting up additional reasons why the bonds should not be validated, his findings from the evidence were against the intervenors, as to the truth of such allegations; and the error was therefore harmless to the opposite parties.

3. One of the requisites to the qualification of a votor is that he shall have paid all taxes required of him since the adoption of the constitution of 1877 that he may have had an opportunity of paying agreeably to law, and must have paid the same at least six months prior to the election at which he offers to vote, unless the election is held within six months from the expiration of the time fixed by law for the payment of such taxes. “The expiration of the time fixed by law for the payment of such taxes in this State is December 20th of each year.” Davis v. Warde, supra.

4. Although a person’s name may have been signed by him in the voters’ book and may appear upon the registration list, he is not lawfully entitled to vote in a school-district bond election unless he sufficiently made the oath or affirmation prescribed by law for voters when he signed the voters’ book. Chapman v. Sumner Consolidated School District, 152 Ga. 450 (2 e) (109 S. E. 129).

5. One who had moved from another county to that wherein the bond election was held, and, by application to the tax-collector of the latter county, had had his name transferred and entered upon the voters’ book of that county, but at no time had made any application to the registrars thereof for such transfer, and had offered no proof before them as to his qualifications to vote, was not qualified to vote in such bond election. See Civil Code (1910), § 71; Chapman v. Sumner Consolidated School District, supra.

6. One can not lawfully register as a voter without signing his name in the voters’ book in person, except that where the applicant can not sign his name, the proper officer “shall sign it for him, the applicant making his mark thereto.” Civil Code (1910), § 42.

7. The bonds could not lawfully be issued without the assent of two thirds of the qualified voters of the district, voting at an election for that purpose, nor unless the two thirds so, voting were a majority of the registered voters of the district. Goolsby v. Stephens, 155 Ga. 529 (1) (117 S. E. 439).

8. “If the name of a person who is not a qualified voter is entered upon the list of registered voters, he would not become a qualified voter. While the managers of the election would be authorized to receive a ballot from him, on a contest of the election the vote would not be counted.” Cole v. McLendon, 109 Ga. 183 (3), 189 (34 S. E. 384).

Decided December 21, 1925.

Bond validation, from Crisp superior court—Judge Crum. March 90, 1995.

Strozier & Gower, for plaintiffs in error.

J. B. Wall, solicitor-general, Dorris & Brown, contra.

9. In tlie instant case the judgment was against validation, and the trustees excepted. They assign, among other things, that the judge erred in holding that certain votes cast in favor of bonds were illegal, and that certain others cast against bonds were legal. The brief filed by their attorneys contains the following statement: “By the findings of the judge, upon the challenge of the votes, there were cast ‘for bonds’ 3 legal votes, and ‘against bonds’ 3 legal votes, and 1 legal voter of said district did not participate in said election.” Applying to the evidence the principles enunciated above, this court can not say, as a matter of law, that any of the rulings complained of, with respect to the validity of the votes, were unauthorized. Since it can not be held that the judge’s ruling should have been different as to the legality of any vote cast, and since his conclusions, as stated and construed by the plaintiffs in error, were to the effect that only .three qualified voters voted in favor of bonds, and that three qualified voters voted against the bonds, it appears that the bonds were not assented to by the requisite proportion of the qualified voters, and the judgment refusing the validation should not be disturbed.

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

Jenkins, P. J., and Stephens, J., conctw.


text:
    16470.
    Singer Sewing Machine Company v. Crawford.
   Jenkins, P. J.

1. The effect of the amendment to the magistrate’s answer to the petition for certiorari was to set forth that the magistrate who tried the case held that the burden of proof was upon the claimant. The superior court, in overruling the second exception taken to the magistrate’s answer, in effect held such to he the case.

2. In the trial of a claim case, where it was in no wise made to appear in whose poss'ession the property levied upon was found, the burden of proof was upon the plaintiff in fi. fa. Civil Code (1910), § 5170; Knowles v. Jourdan, 66 Ga. 300 (1); Thompson v. American &c. Co., 107 Ga. 832 (1) (33 S. E. 689); Howell v. Simpson Grocery Co., 121 Ga. 461 (3) (49 S. E. 299) ; Green v. Wade-Chambers Gro. Co., 19 Ga. App. 454, 455 (2) (91 S. E. 789).

3. In a case where the entry of levy did not disclose in whose possession the property was found at the time of the levy, and no admission or other proof was made with reference to this question, and both the plaintiff in fi. fa. and the claimant contended that the burden was upon the opposite party, an adjudication by the court that the burden was upon the claimant was erroneous.

Decided December 21, 1925.

Certiorari; from Bartow superior court—Judge Tarver. March 23, 1925.

STATEMENT OE EAOTS BY JENKINS, P. J.

The Singer Sewing Machine Company filed in a justice’s court a claim to a sewing machine levied upon under a distress warrant prosecuted by J. B. Crawford. On the trial of the claim the jury found the property subject to the distress warrant. The claimant took the case to the superior court by certiorari, alleging the verdict was contrary to law and evidence, etc. A certain paragraph of the petition for certiorari was answered by the magistrate as follows: “The plaintiff’s attorney asked the question as to who would take the burden of proof; the court replying that he thought the burden was on plaintiff. The claimant plaintiff then, said ‘All right, we will go ahead without any discussion.’ ” To this part of the answer the claimant filed exceptions, which were sustained, and the magistrate was required to file another answer, which was done in the following language: “Comes now W. G. Mathews, justice of the peace, in answer to the exceptions to paragraph'7 of the original answer made in the above-stated case to writ of certiorari in original petition is not true in particular. The plaintiff attorney for claimant asked the question, saying ‘Who will take the burden of proof ? We are insisting here that the burden is on the plaintiff in fi. fa. There is no evidence to show in whose possession the property was in when it was levied on.’ J. B. Crawford, plaintiff in fi. fa., remarked, ‘The burden is on them,’ the court answering, ‘I think the burden is on the claimant.’ The attorney for claimant answering saying, ‘All right, we will go ahead.’’ The entry of the levy did not show in whose possession the property was found at the time of the levy. There was no evidence offered preliminary as to whose possession the property was found at the time it was levied on as a ground for the court’s ruling.” The plaintiff in certiorari excepted to this portion of the renewed answer, and the exception was overruled. The certiorari was overruled and the claimant excepted.

4. The fact that after such an adjudication counsel for the claimant said, “All right, we will go ahead,” did not amount to an assumption, by agreement, of the burden of proof, or an acquiescence in such previous adverse and erroneous judgment, since the question had already been determined by an adverse adjudication of the court, and there was nothing left for the claimant to do except to go ahead.

Judgment reversed.

Stephens and Bell, JJ., concur.

William T. Townsend, for plaintiff in error.

Finley & Henson, contra.


text:
    16606.
    Lundy v. Tucker.
    Decided December 21, 1925.
    Appeal; from Bibb superior court—Judge Malcolm D. Jones. May 22, 1925.
    Will Lundy sued Viney Tucker in a justice’s court for an alleged balance due on the purchase-price of a horse. On appeal a jury in the superior court rendered a verdict for the defendant.
    On the trial Simmons, a witness for the plaintiff, testified: “I was present one day last summer and saw the horse Viney Tucker got from Will Lundy lying on the side of the road near the Log-Cabin Club. Viney had been driving the horse that day; it appeared to have been driven too hard in the very hot weather, and had fallen down from overheat. When T got there they had poured cold water over the horse and were trying to revive it,- but it died there, and at that time I heard Viney Tucker make the statement that she had just shortly before this bought the horse then lying on the roadside. I am the stepfather of Will Lundy, the plaintiff in this case.”
   Stephens, J.

1. The identity of a person making an extrajudicial- statement need not be established by the testimony of the witness who establishes the existence of the statement. It may be established by circumstantial evidence or by the testimony of other witnesses.

2. Where, in a suit to recover for the alleged purchase-price of a horse, the issue was whether the horse was sold to the defendant or was held by her merely as a bailee of the plaintiff, the testimony of a witness that he (the witness) was present on a certain occasion, and there heard a woman, whom he could not identify, but who was in charge of a horse, state that she had bought the horse a few days prior to that occasion, was relevant as cumulative evidence tending to establish an extrajudicial admission made by the defendant to the effect that the horse which was the subject-matter of the suit had been bought by her from the plaintiff, there being evidence by another witness to the effect that on the particular occasion described the woman in charge of the horse was the defendant, and that the particular horse was the subject-matter of the suit.

3. The evidence being conflicting as to whether the defendant had bought the horse or held it merely as a bailee, under a loan from the plaintiff, and a verdict having been found for the defendant, it was error prejudicial to the plaintiff to exclude from the jury the evidence of the witness first referred to.

Judgment reversed.

Jerikms, P. J., and Bell, J.,'concur.

Brown, a witness for the plaintiff, testified: “One day last summer, late in the evening, about dark or nearly dark, I noticed a horse had fallen down in the road near my home. I went out to where the horse was lying. Several negroes had gathered about the horse. The horse seemed to be struggling for breath, and I advised them to lift the horse up on the bank near the roadside, so it could get some fresh air; and this was done. The horse appeared to have been overdriven and was overheated. I heard the woman there make the statement—I do not know whether it was this woman (pointing to Viney Tucker, the defendant), I did not know the woman, and besides I could not see very well at the time, as it was getting somewhat dark.”

Simmons, being recalled, testified: “As I have already testified, I was present last summer just after the horse Prince, which Viney Tucker got from Will Lundy, fell down on the road from overheat, from which it later died. The point in the road where the horse fell was just in front of the home of Mr. Charles T. Brown, and while the horse was lying there, struggling for breath and dying, Mr. Charles T. Brown came from his house to where the horse was lying, and I heard Viney Tucker make the statement, in the presence of Mr. Brown, as follows: ‘I just bought this horse a few days ago.’ ”

The court refused to allow the plaintiff to prove by Brown that on the occasion as to which the witness had testified, the woman who had charge of the horse said: “I just bought this horse a few days ago.” This is complained of in the plaintiff’s motion for a new trial, which was overruled.

J. P. Burnett, for plaintiff.

Hubert F. Rawls, for defendant.