text:
    18209.
    Lee v. The State.
    Criminal Law, 16 C. J. p. 1232, n. 95,. 96.
    Decided July 14, 1927.
    Possessing intoxicating liquor; from city court of LaGrange— Judge Tuggle. April 29, 1927.

      Dulce Davis, for plaintiff in error.

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

1. The single ground of the amendment to the motion for a new trial was based upon the alleged newly discovered testimony. However, the ground was not accompanied by an affidavit of the witness, and no reason was given for its non-production. The ground, therefore, was fatally defective. Berry v. State, 10 Ga. 511 (14) ; Suggs v. Anderson, 12 Ga. 461 (3), 464; White v. Wallen, 17 Ga. 106 (2); Burge v. State, 133 Ga. 431 (2) (66 S. E. 243).

2. The verdict whs amply authorized by the evidence.

Judgment affirmed.

Lulce and Bloodworih, JJ., eoneur.


source: Caselaw Access Project

author: Per Curiam. Luke¿ J.,

license: Public Domain

text:
    18210.
    JOHNSON v. THE STATE.
    Banks and Banking, 7 G. J. p. 579, n. 11.
    Decided July 14, 1927.
    Embezzlement; from Decatur superior court—Judge Custer. May 20, 1927.
    Certiorari was granted by tlie Supreme Court.

      A. B. Conger, W. I. Geer, for plaintiff in error.

      B. C. Gardner, solicitor-general, contra.
   Per Curiam.

The indictment charges that the defendant, “being an officer, director, agent, clerk, and employee of the Farmers Bank of Climax, Ga., did embezzle, abstract, and wilfully misplace [misapply] the monies and funds of said bank, to and in the amount and value of the sum of $20,000, with the intent to injure and defraud the bank.” The word “funds” includes all the available assets of the bank, and therefore the charge complained of in the second special ground of the motion for a new trial is without merit. The defendant’s conviction of the charge was authorized by the evidence, and no reversible error is shown by the special grounds of the motion for a new trial.

Judgment affirmed.

Broyles, O. J., and Bloodwortli, J., concur.

Luke¿ J.,

dissenting. The indictment was found under the banking act (G-a. L. 1919, p. 216; Park’s Penal Code Supp. 1922, § 202(t)). It charges that.the defendant “did embezzle, abstract, and wilfully misplace [misapply] the monies and funds of said bank to and in the amount and value of the sum of $20,000.” The court instructed the jury as follows: “There must have been an embezzling, misappropriation, or defrauding or abstracting, of either money, or note, or checks, or funds, or assets of the bank, before you would be authorized to convict the defendant.” The writer is of the opinion that this charge was misleading and confusing to the jury, in that it authorized them to convict the defendant of embezzling, abstracting, and wilfully misapplying notes, or checks, or assets of the bank, when the indictment made no such charge.


author: Jenkins, P. .J.

text:
    17769.
    HUGHES v. WEEKLEY ELEVATOR COMPANY et al.

    1. Where a general demurrer is interposed to a petition, a judgment overruling the demurrer, unexcepted to, conclusively adjudicates the sufficiency of the allegations, and if the subsequent proof supports the same a recovery is authorized. But where no demurrer is interposed, the defendant may, nevertheless, at any time before a verdict, move to dismiss the case upon the ground that under the pleadings and the evidence no legal recovery could be had; and such procedure is not barred by the previous failure to demur.
    2. Under the pleadings and proof, no legal recovery could have been had . by the servant of the owner of the elevator against the manufacturer of the elevator, on account of the negligence of the servant of one acting as the independent contractor of the manufacturer engaged in repairing the same; nor could the manufacturer be held liable to the plaintiff on account of defects in the machinery furnished by it to his master, where it appears without dispute that the plaintiff, while engaged in helping the independent contractor to remedy the defect complained of, was injured solely by reason of the negligence of the servant of the independent contractor. Accordingly, the court did not err in dismissing the action so far as it pertained to the defendant manufacturer.
    3. A servant assisting the servant of another to facilitate the business of the former’s master is not a volunteer.

      (a) While one acting mer'ely as the agent'of another in employing under-servants for and on behalf of his principal is not liable to third persons for torts committed by such underservants, this doctrine does not have application where an independent contractor of another uses his own servants in doing the work according to his own manner and methods; and since it appears from the pleadings and the evidence for the plaintiff that the injury was occasioned by the negligence of a servant in the employ of the defendant independent contractor of the manufacturer, the case should have been submitted to the jury in order for it to pass upon such questions of negligence and the damage resulting therefrom.
    Agency, 2 C. J. p. 826, n. 78; p. 829, n. 97.
    Dismissal and Nonsuit, 18 C. J. p. 1176, n. 37.
    Master and Servant, 39 C. J. p. 270, n. 72 New; p. 1316, n. 7; p. 1324, n. 11.
    Pleading, 31 Oye. p. 351, n. 36 New; p. 729, n. 54.
    Decided July 14, 1927.
    Rehearing denied August 26, 1927.
    Action for damages; from city court of Atlanta—Judge Dorsey. September 22, -1926.
    Hughes brought a joint suit for personal injuries against Weekley Elevator Compaity, of Atlanta, and Eeliance Elevator Company, of Chicago, Illinois, alleging that the Weekley Elevator Company was the local agent in Atlanta for the Eeliance Elevator Company, and, as such, had sold A. C. Miller & Company of Atlanta an elevator to be operated in the place of business of the latter, where the plaintiff was employed as their servant. The plaintiff showed by his evidence that the Weekley Elevator Company was the Atlanta agent of the Eeliance Company and sold and -installed elevators manufactured by the latter concern, receiving for its services commissions which were added to the purchase-price of the elevators, the purchasers remitting directly to the Eeliance Company and the Eeliance Company reimbursing the Weekley Company for materials and labor furnished by it in the installation of the machinery, and for the profit to be received by the Weekley Company from the sale. The contract between Miller & Company and the Eeliance Company provided that the Eeliance Company should “furnish without charge new parts for any part proving defective (ordinary wear and tear' excepted) upon written demand, within one year from date of completion of the elevator, provided the equipment has been properly used, oiled, and cared for, has not been overloaded, and provided all payments due by the terms of this contract have been made in full.” The Weekley Company conducted a general elevator service business, and was generally engaged in the business of repairing elevators of all makes and kinds in connection with its representation of the Eeliance Company as selling agent. In connection with its service business the Weekley Company “maintained an inspection service” of the elevator sold to Miller & Company, and received pay from Miller & Company for such service. The Eeliance Company have no connection with such inspection service. On the date of the alleged injury to the plaintiff the elevator which the Weekley Company had sold to Miller & Company became out of order and fell for a distance of a floor and a half while it. was being used in raising an automobile up to the top floor of the three-story ■building of Miller & Company. Miller & Company reported the occurrence to the Weekley Company, which sent one Ewing to make the necessary repairs. After making an examination and after welding a broken controller arm, finding that the elevator still failed to function properly, he announced to Miller that it was necessary for him to have additional help in putting the elevator in operation, whereupon Miller offered to lend the service of his servant, the plaintiff Hughes, who, under the direction of Ewing, stationed himself beneath the elevator in order to hold the safety cable while it was being readjusted by Ewing. It is indicated by the petition and by the evidence in support of it that while the plaintiff was so stationed, and while thus engaged in accordance with the direction of Ewing, the latter released the safety catch of the elevator, causing the elevator to fall again and severely injure the plaintiff. The plaintiff contends that the first fall of the elevator on the dajr of the injury was caused by the stripping of the gearing of the pinion-gear, which the petition alleges was defectively constructed. It was further shown by the evidence, that after the injury to Hughes the Weekley Company notified the Beliance Company of the defect in the machinery, and that the Beliance Company advised that it would “express the stuff right down, and get it fixed,” and that thereafter the Beliance Company paid the Weekley Company not only for the material used in the repair work, but.for the actual cost of the labor employed in making the repairs.
    No demurrer to the petition was filed, but at the conclusion of the plaintiff’s evidence, on motion of the defendants, the court passed an order dismissing the case on the ground that under the pleadings and the evidence no legal recovery could be had against either of the defendants. ■ The Beliance Company contends that the' plaintiff, under the pleadings and the evidence, was nothing more than a mere volunteer, and, further, that it could not be held liable for the negligence of the servant of the Weekley Company, which, at most, occupied toward it the status of an independent contractor. The Weekley Company made the same contention with reference to the plaintiff being a volunteer, and also contended that under the provisions of section 3613 of the Civil Code of 1910 it, as the agent of the Beliance Company, could not be held liable for the negligence of its underservant.

      Reuben R. & Lowry 'Arnold, B. P. Gambrell, for plaintiff.

      Qolquili & Gonyers, Bryan & Middlebroolcs, for defendants.
   Jenkins, P. .J.

(After stating the foregoing facts.)

The principle announced in the first division of the syllabus requires no elaboration. See Kelly v. Strouse, 116 Ga. 872 (43 S. E. 280); Rountree v. Seaboard Air-Line Ry. Co., 31 Ga. App. 231, 236 (120 S. E. 654).

Save for the fact that the record indicates that the Beliance Company did in fact pay back to the Weekley Company the cost ancl charges spent by it in the repair work in question, there would seem to be a total lack of proof going to indicate that the Weekley Company was in any wise authorized to act for and on behalf of the Eeliance Company in doing repair work on elevators sold for the Eeliance Company by the Weekley Company, it in fact appearing that the Eeliance Company had merely contracted with Miller, the purchaser, to supply, under stated conditions, new parts for defective parts, and was in no wise bound to keep the elevator in repair or to pay the cost of repairing or of installing new parts; but even on the assumption that the Weekley Company was in fact acting for the Eeliance Company in doing the repair work in question, the pleadings and proof fail to indicate any liability on the part of the Eeliance Company on account of the alleged negligence of the servant of the Weekley Company, for the reason that it further appears that any such work as the Weekley Company may have been recognized as having been obligated or authorized to perform for and on behalf of the Eeliance Company necessarily must have been and actually was executed as an independent contractor, for the reason that under both the allegations and the proof the- Eeliance Company did not have or retain any authority or control over the time, manner, means, or method by which such work was to be performed. Civil Code (1910), § 4414; Malin v. Oily Council of Augusta, 29 Ga. App. 393 (115 S. E. 504). So far as any liability of the Eeliance Company is concerned, even were it to be assumed that the plaintiff might be entitled to recover for damages occasioned by defective machinery when it appears that at the time of the injury the very work upon which he was engaged was that of helping to remedy the defect which caused the machinery to fail to function (Green v. Babcock Lumber Co., 130 Ga. 469, 60 S. E. 1062; Huey v. Atlanta, 8 Ga. App. 597, 604 (70 S. E. 71), there could, nevertheless, be no recovery against the Eeliance Company in the instant case for any such alleged defect in the machinery, since it appears, from the plaintiff’s contention, that while such defect may have occasioned “the first fall of the elevator on that dajr,” the contention of the plaintiff as to the proximate cause of the fall which occasioned the injury is that it was brought about solely by the negligence of the servant of- the Weekley Company in his manipulation of the safety-catch. According to the principles above set forth, the court did not err in dismissing the ease in so far as it was proceeding against the Eelianee Company.

“One assisting the servants of another to facilitate his own business, or that of one to whom he sustains a contractual business relation, mutually beneficial, is not a volunteer.” Davis v. Savannah Lumber Co., 11 Ga. App. 610 (2) (75 S. E. 986). In the instant- case, contrary to the theory of the action sought to be maintained by the cases cited in Early v. Houser, 28 Ga. App. 24 (109 S. E. 914), the plaintiff did not maintain his action on the theory that he was the servant of the defendants, but solely on the theory that he was on the premises of his master, following the instructions of his master, in the course of his regular employment in the business of his master, and that the injury was received while so engaged in an effort to facilitate the business .of one to whom he sustained a contractual business relation. See, in this connection, Savannah &c. Ry. Co. v. Booth, 98 Ga. 20 (25 S. E. 928); Georgia Ry. & Power Co. v. Middlebrooks, 34 Ga. App. 156 (128 S. E. 777); Railroad v. Ward, 98 Tenn. 123 (38 S. W. 727, 60 Am. St. E. 848). See also Georgia Ry. & Power Co. v. Simms, 33 Ga. App. 535 (126 S. E. 850).

All agents are liable for their own tortious acts of misfeasance, but they are not liable for such acts of underservants employed by them- for and on behalf of their principal. Civil Code (1910), § 3613. As regards the liability of the Weekley Company, the provisions of the code section just cited with reference to the tortious acts of an underservant do not absolve it, since the agent is relieved of liability for such acts of the under-servant only when the underservant is employed by the agent in its capacity as such, fox and on behalf of its principal, and the principle of law by which the agent is thus relieved does not have application where it appears that the agent is an independent contractor, proceeding, even without the knowledge of the principal, to execute the work with its own servants and according to its own methods.

In view of the principles of law above set forth, the court erred in dismissing the action as against the Weekley Elevator Company.

Judgment affirmed in pari and reversed in part.

Stephens and Bell, JJ., concur.

ON MOTION ROE EEHEARING.

As we understand the contention of the movant in its motion for rehearing, exception is taken to the application of the doctrine quoted in the third division of the opinion, to wit, “One assisting the servants of another to facilitate his own business, or that of one to whom he sustains a contractual business relation, mutually beneficial, is not a volunteer,” where, as here, it is assumed that the work for Miller, the plaintiffs master, was being done by the Weekley Elevator Company as an independent contractor. The motion states that “the court decided that the Weekley Elevator Company was an independent contractor in doing the work of repairs upon the elevator for the A. C. Miller Company, which owned the elevator, The court overlooked the fact that this work of repair was not the work cof the A. C. Miller Company, but was simply work !for’ the A. C. Miller Company.” The motion further contends that the decision of the court is self-contradictory, in that it was decided “that the Weekley Elevator Company was an independent contractor, and in the teeth of this decides that the work being done was the work of the A. C. Miller Company. It decided that the Weekley Elevator Company was an independent contractor, and also decides that its mechanic could bind it by an unauthorized permission to Hughes to expose himself in the dangerous premises which were under the control of the Weekley Elevator Company for the purpose of being repaired; and this last decision is made in the very teeth of the undisputed evidence introduced by the plaintiff that no authority of any kind was ever given by the Weekley Company to Hughes, authorizing him to expose himself to this danger.” As we construe the motion, it is thus urged that the doctrine above quoted from the Davis case could only have application when the work in which the injury to the servant was received was that of his master, and not merely for his master. As we see it, the argument would be just as effective if the Reliance Company were completely removed from the case, and the work was being done directly by the Weekley Company for the Miller Company. In point of fact, no stress or point seems to be made upon the fact that the Weekley Company was an independent contractor engaged in the work for the Miller Company under a contract with the Reliance Company and not under a contract with the Miller Company. The gist of the movant’s argument would appear to be that as the Miller Company had not control over Ewing, the servant of the Weekley Company, operating as an independent contractor, in performing the work, Miller’s direction or permission for the plaintiff to assist Ewing in the work would not bind-the Weekley Company, just as the unauthorized acquiescence of Ewing himself would not have any such effect. As was stated in the original opinion, the plaintiff did not maintain his action on the theory that he was the servant of the defendant, Weekley Company, but solely on the theory that he was on the premises of his own master, where he had a right to be, following the instructions of his master, and that the injury was received while he was engaged in an effort to facilitate the business of his own master, with the knowledge and acquiescence of the defendant’s servant in charge of the work and premises. It was for this reason, and not because Ewing had authority to employ the plaintiff as the servant of the Weekley Company, or because Miller had authority to employ him as the servant of the Weekley Company, that the plaintiff was held not to be a mere volunteer. The only relevancy of Ewing’s acquiescence in the plaintiff’s assistance lies in the fact that Ewing, as the servant of the defendant, had control of the premises for the purpose of doing the repair work, and that the known presence and exposure of the plaintiff might throw light upon the question of Ewing’s negligence. If the principle quoted from the Davis case could have application only in cases where the servant was injured in the work of his own master, the doctrine would be dissolved into a meaningless statement having-no force or effect whatever, since the very gist of the doctrine relates and pertains to a servant who is assisting the servant of another master to facilitate the business of his own master. If the work was the work of, and not merely work for, the injured servant’s master, all persons engaged therein would be merely fellow servants of the same master, and there would be no room or scope for the application of the rule. So far as we are able to see, when the injured servant was assisting the servant of another master in charge of the premises, and acted to facilitate the business of his own master, it makes no difference whether the independent contractor whose servants he was assisting was the independent contractor of the plaintiff’s own master or that of a third person engaged in work for the benefit of his master.

Rehearing denied.


author: Jenkins, P. J.

text:
    17824.
    BANK OF PARROTT v. KENYON.
    1. Assuming, under the authority of Bridges v. Southern Bell Telephone •Ac. Co., 12 Ga. App. 108 (76 S. E. 996), that a stockholder in a corporation can maintain an action against the purchaser of the corporate property for damages by reason of an illegal and unauthorized sale of the corporate assets by the president, the principle thus assumed to be the legal rule would not have application in the instant case, where the previous conveyance of the corporate assets to the president (subsequently conveyed by him to the defendant) presumptively appears to have been authorized by virtue of the signature of the secretary of the corporation, carrying the corporate seal. I'razier v. Swain, 147 Ga. 654 (95 S. E. 211); Nelson v. Spence, 129 Ga. 35 (5), 38 (58 S. E. 697) ; New York Life Ins. Co. v. Rhodes, 4 Ga. App. 25 (4) (60 S. E. 828) ; American Investment Co. v. Cable Co., 4 Ga. App. 106 (3), 110 (60 S. E. 1037). While it is true that one taking from an officer of a corporation corporate assets which purport to have teen conveyed to the officer in a deed executed in the corporate name by and to the officer is bound to take notice that the officer thus dealing with himself might not have been acting in the interest of the corporation, but for the benefit of himself, and while it is true that such a conveyance, if without proper and valid consideration, is void as against the corporation, still, in conformity with the rule set forth in Henderson Lumber Co. v. Chatham Ba/nk tG Trust Co., 33 Ga. App. 196 (125 S. E. 867), since there is nothing in the instant case to discredit the secre-tary’s execution of the deed to the president and since the mere fact that such a conveyance bears also the signature of the official who is the grantee in the deed would not operate to destroy the presumption in favor of the regularity of the transaction as effected by the corporation through its secretary, the grantee of the president is protected, in the absence of proved notice to it of the invalidity of the conveyance. Especially would such rule have application where, as here, it is not alleged that the corporation did not receive from the president full and adequate consideration for the property conveyed to him by the corporation through its -secretary, it -not being alleged what the value of the property was at the time of the sale to the • president. Accordingly, the petition failed to set forth a cause of action, and the court erred in overruling the demurrer thereto.
    2. The foregoing principle being controlling, it is unnecessary to pass upon the defendant’s contention that the claim of the plaintiff was barred by the statute of limitations.
    Corporations, 14a C. J. p. 113, n. 35, 43 New; p. 155, n. 75 New; p. 161, n.’ 57; p. 397, n. 17.
    Decided July 14, 1927.

      Action for damages; from Terrell superior court—Judge Yeomans. November 15, 1926.

      B. B. Jones, for plaintiff in error. W. E. Gurr, contra.
   Jenkins, P. J.

Kenyon brought suit against the Bank of Parrott for damages in the sum of $100, alleging in substance that he was the owner of ten shares of the capital stock of the Farmers Union Gin Company, of the par value of $100 and of the actual value of $140; that on April 4, 1919, the gin company, by and through its president and secretary, executed to its president a deed to all of its property, and that on July 30, 1924, the grantee therein executed a deed conveying the property to the defendant, and that the defendant went into possession of the property formerly belonging to the gin company and refuses to recognize the plaintiff’s rights therein; that after the execution of the deed to the company’s president, the president,recognized the plaintiff’s rights as a shareholder, and continued to pay him dividends on his stock until the execution of his deed to the defendant, and offered to purchase his stock in the corporation, but that the plaintiff declined to sell. He alleged that he had no notice of the intention of the president to deed to himself the assets of the company, and had no notice of any meeting of the company’s stockholders with reference thereto. He further alleged that the defendant, “at the time it acquired its rights in and to said property by virtue of the deed aforesaid, . . through its officers had actual notice and knowledge of the fact that petitioner’s ten shares of stock in the Farmers Union Gin Company were still outstanding and owned by-petitioner.” It was not alleged that the president did not pay full value for the corporation’s property, or that the defendant did not pay the president for the property, or that there was any fraud in either of such transactions. The conveyance to the president, made in the year 1919, sets forth a consideration of $2500. The petition does not set forth what the value of the property was at the time of such conveyance, but does allege that at the time of the second conveyance, in the year 1924, from the president to the defendant, the property was worth $3500. It was contended by the defendant that the petition showed on its'face that any claim the plaintiff might have had was barred b-y the statute of limitations, and the plaintiff contended that such bar did not attach, because the president of the corporation had con-tinned to pay dividends to the plaintiff after the date of the company’s deed to him.

Judgment reversed.

Stephens and Bell, JJ., concur.


author: Bell, J.

text:
    17870.
    Hope v. Underwood.
    Bills and Notes, 8 C. J. p. 1053, n. 58, 59. Executions, 23 C. J. p. 553, n. 80, 88 New; p. 817, n. 61; p. 819, n. 74.
   Bell, J.

1. An execution against certain persons as makers and others as indorsers does not, without more, import that the latter are sureties, either as accommodation indorsers or otherwise; and, in the absence of further proof of their suretyship, they must be regarded as technical or regular indorsers. Sibley v. American Exchange Bank, 97 Ga. 126 (4) (25 S. E. 470); Booth v. Huff, 116 Ga. 8 (42 S. E. 381, 94 Am. St. R. 98); Chamblee v. Davie, 88 Ga. 205 (3) (14 S. E. 195); Warthen v. Melton, 132 Ga. 113 (2), 116 (63 S. E. 832, 131 Am. St. R. 184); Civil Code (1910), §§ 4279, 3556.

2. A levy upon personal property sufficient to pay the debt, unaccounted for, is prima facie evidence of satisfaction to the extent of the value of such property (Civil Code of 1910, § 6047); but where, as in the present case, the sheriff had in his hands an execution against certain persons as makers and others as indorsers, and the indorsers procured the sheriff to make a levy upon property belonging to the makers, which levy the sheriff subsequently dismissed at the instance of the plaintiff in fi. fa., and where it appears that the sheriff, on the dismissal of such levy, delivered the property back into the possession of the defendant makers, as whose property it had been seized, and that the fi. fa. has not been paid, such levy and its dismissal are both sufficiency accounted for. “The question in such eases to be settled is, whether the execution has in fact been satisfied, either by the money of the defendant or his property. In the absence of proof to the contrary, the legal presumption is that it has, when the levy is not accounted for, or the dismissal of the levy is not explained; but like any other legal presumption, it may be rebutted by the facts of the case.” Rawson v. Davis, 36 Ga. 511, 515. See also Ryan v. Lieber, 30 Ga. 433 (2); Rawson v. Gregory, 59 Ga. 734.

3. Where, after the dismissal of the levy referred to in the preceding-paragraph, the plaintiff in fi. fa. caused a levy to be made upon property of one of the defendants named in the fi. fa. as an indorser, and this defendant filed an affidavit of illegality, claiming to have been discharged by the dismissal of the previous levy, and where, on the trial of the issue thus fprmed, the evidence disclosed, without dispute, that the facts were as stated above, the court properly directed a verdict in favor of the plaintiff in fi. fa. The dismissal of the first levy being accounted for as a matter of law, there was no issue for determination by the jury.

4. There being no evidence to show that the defendant who filed the affidavit of illegality (now the plaintiff in error) was a surety, it is unnecessary to determine whether, if a suretyship had been shown, the dismissal of the levy under the same circumstances would have resulted in his discharge.

Decided July 14, 1927

Affidavit of illegality of execution; from city court of Hall county—Judge Sloan. November 16, 1926.

W. N. Oliver, for plaintiff: in error. A. G. Wheeler, contra.

Judgment affirmed.

Jenlwns, P. J., and Stephens, J., coneur.


text:
    17883, 17884.
    United States Fidelity and Guaranty Company et al. v. Washington; and vice versa.

    Workmen’s Compensation A'cts—C. J. p. 55, n. 23; p. 50, n. 24; p. 115, n. 37; p. 122, n. 40; p. 125, n. 08.
   Jenkins, P. J.

1. Except where the workmen’s compensation act specifically creates a presumption of dependency in favor of named classes, the question of dependency is one of fact rather than of law. Under that act a boy under the age of eighteen or a girl under the age of eighteen is conclusively presumed to be wholly dependent for support upon a parent. The same presumption arises in favor of a child over the age specified who is shown to be physically or mentally incapacitated from earning a livelihood. Ga. D. 1920, p. 189, § 39(c). In the instant- case, the claimant being more than eighteen years of age, there was no original legal presumption of dependency upon the deceased parent, and while there was evidence tending to show such mental incapacity as would prevent the claimant from earning a livelihood, it did not demand a conclusion of such incapacity so as to give rise to the presumption of total dependency. Accordingly, even though it be assumed that the claimant, living with her parent, would, though a widow, be entitled to the conclusive presumption of total dependency upon her parent upon its being shown that her mental deficiency prevented her from earning a livelihood, the evidence was not such as to establish conclusively such a presumption in her favor so as to demand a finding of total dependency, as a matter of law, under the presumption of the statute, nor does the evidence demand a finding of total dependency as a matter of fact. Such being the case, the finding of the industrial commission against total dependency can not be disturbed, and the cross-bill of exceptions of the claimant is without merit. Ocean Accident &c. Corp. v. Council, 35 Ga. App. 632 (134 S. E. 331).

2. The undisputed evidence clearly indicates q state of partial dependency by the claimant upon the deceased employee, her fathei’, but the testimony, while indicating contributions to1 her support in some manner and to some extent, entirely fails to show their amount or value, and since, under the terms of the compensation act, the weekly eompensation of those partially dependent “shall be in the same proportion to the compensation for persons wholly dependent as the average amount contributed weekly by the deceased to the partial dependents bears to his average weekly wages at the time of his .injury” (Ga. L. 1920, p. 187, § 38(c)), the evidence introduced did not afford a basis on which an award in favor of th,e claimant could have been rendered, and the judge of the superior court reviewing the case might, without committing error, have approved the judgment actually rendered refusing an award. Austin Brothers Bridge Co. v. Whitmire, 31 Ga. App. 560 (121 S. E. 345).

Decided July 14, 1927.

Rehearing denied September 9, 1927.

Appeal; from Chatham superior court—Judge Meldrim. December 8, 1926.

Lawrence & Abrahams, for plaintiffs in error in main bill of exceptions.

Ulmer & Dotvell, contra.

3. However, since the evidence disclosed by the record conclusively shows a state of partial dependency on the part of the claimant, the finding of the industrial commission, that the claimant “was not a dependent, and therefore not entitled to compensation,” was unauthorized. In view of the contributions made to her by her deceased parent, she was entitled to compensation in some undisclosed amount, and since, under the workmen’s compensation act, § 59, the judge of the superior court, in reviewing the findings of the commission, has power to “recommit the controversy to the commission for further hearing or proceedings in conformity with the judgment and opinion of the court,” the action of the judge of the superior court in recommitting the ease for another hearing, in an effort to ascertain the amount of compensation to which the partially dependent claimant is actually entitled, will not be disturbed. Austin Brothers Bridge Co. v. Whitmire, supra.

Judgment affirmed on the main hill of exceptions and on the cross-bill.

Stephens and Bell, JJ., concur.


text:
    17910.
    WILKINS, receiver, v. FRIEDMAN.
    1. Under the revised general statutes of the State of Florida, §§ 3836 and 3837, as proved in the instant case and appearing in the record, a sale of personalty to secure the payment of money is deemed a mortgage, and under the Florida statutes and decisions is held to be a specific lien on the property, and not a conveyance of the legal title or of the right of possession, such as would support a claim. Accordingly, where the planter of certain crops, growing and to be grown in the State of Florida, obtains advances under a Florida contract for the purpose of making such crops, under an oral agreement whereby the planter agrees to deliver the entire crop to the person making the advances, when it matures, at the prevailing market price or at a price to be then ascertained, the purchaser to deduct the advances made from the total purchase price and pay over to the planter the difference, such oral agreement, even if it could be construed as a valid contract of sale to secure advances, and not merely an executory contract to sell (see, in this connection, Civil Code of 1910, §§ 4106,'4125; Luke v. Baits, 11 Ga. App. 783, 76 S. E. 165), under the Florida statute could not pass title in the property to the person making the advances, and could only have the force and effect of a mortgage. See, in this connection, Lewis v. Lofley, 60 Ga. 559. In such a case, where the plantel-, before the maturity of such crops, executes a mortgage thereon to a third person, which mortgage is properly executed and recorded, the person making the advances under such prior oral agreement takes any portion of the crop delivered to him thereunder subject to the lien of the written and recorded mortgage, and he can not sustain a claim to a portion of such mortgaged crop levied upon by virtue of the foreclosure of the recorded mortgage. Accordingly, the charge of the court complained of which authorized a finding for the claimant on the theory that title to the property passed under such prior oral agreement was erroneous, and necessitates the grant of a new trial.

      Banks and Banking, 7 C. J. p. 547, n. 15; p. 548, n. 38 New; p. 549, n. 67 New. Chattel Mortgages, 11 C. J. p. 406, n. 58; p. 625, n. 44; p. 654, n. 17.

      2. Ordinarily, the president or other executive officer in charge of a bank has no power to bind it except in the discharge of his ordinary duties, Swindell v. Bainbridge State Bank, 3 Ga. App. 365 (60 S. E. 13) ; and in no event would any such officer or set of officers have authority to bind the bank by a gratuitous waiver or release to a third person of the lien upon property mortgaged to it. But the executive officer in charge of a bank has the power and authority to act for it in the business of collecting its assets, and, in order so to do, and in furtherance of such purpose, may enter upon an agreement with a third person whereby the bank’s lien on mortgaged property may be waived or released, when such agreement is founded upon a valid consideration flowing to the bank. 'It appearing in the instant case that the president of the bank was in fact the executive head of the corporation, and that the agreement made by him on behalf of the bank to release the lien upon property mortgaged to the bank was done in an effort to compromise a doubtful adverse claim and effect a collection of the debt owing to the bank and secured by the mortgage, and that the release was supported by the alleged promise of the purchaser to take either all or a stipulated portion of the mortgaged property at a fixed price in excess of the market value of the commodity, the release thus made and entered upon will be upheld as within the scope of the officer’s powers and authority and founded upon an adequate consideration flowing to the bank.
    3. Where a mortgagee agrees to release the mortgaged property to a purchaser from the mortgagor upon conditions to be performed by the purchaser, or by the mortgagor, of which the purchaser has knowledge, the release does not become effective, nor is the property discharged from the lien of the mortgage, unless and until performance is made of the conditions of the release. 11 C. J. 625; Brimm v. Long, 22 Kan. 153. See also Tucker v. Mann, 124 Ga. 1003 (53 S. E. 504). In the instant case there was an issue of fact as to the terms of the agreement under which the undisputed release was made, and, consequently, as to whether the terms of the agreement had been complied with by the purchaser. The questions for determination upon a retrial will be what constituted the terms of the release, and whether or not the conditions under which the plaintiff waived the lien of its mortgage have been performed by the claimant so as to render the release or waiver of the mortgage lien binding and effectual.
    Decided July 14, 1927.
    Claim; from Decatur superior court—Judge Custer. December 27, 1926'

      John R. Wilson, Y. L. Watson, for plaintiff in error.

      A. B. Conger, contra.
   Jenkins, P. J.

The First National Bank of Quincy, Florida, held a mortgage executed by D. G. Hutehenson on a certain crop of tobacco and other produce growing in Gadsden County, Florida, which mortgage was dated June 20, 1922. The mortgage was foreclosed, after being recorded in Decatur County, Georgia, and the mortgage fi. fa. was levied upon certain tobacco which had been harvested and was in the possession of L. A. Friedman in the latter county. Friedman filed a claim to the property. On the trial it appeared that Friedman had furnished to Hutehenson the necessary supplies and money to make the crop, which was grown on the latter’s land, under an agreement which had been in operation for several years, by which the crop, when matured and gathered, was to be delivered by Hutehenson to Friedman, the latter deducting the advances made and paying over to Hutehenson the balance of the purchase price. No agreement appears to have been entered into as to the price Friedman would pay Hutehenson for the particular crop of tobacco when it was delivered. When the crop matured certain deliveries were made to Friedman by Hutehenson, the tobacco being shipped to him at Bainbridge, Georgia, by truck, when the plaintiff ordered the deliveries stopped. Friedman went to Quincy and discussed the matter with Hutehenson and Key, the president of the bank, who, it appears without dispute, was the executive head of the bank and in charge of its business. It was then agreed between all parties that Friedman should pay a price of sixty-five cents per pound for the tobacco, which price, it is clearly inferable from Friedman’s testimony, was in advance of the market price at the time, the bank consenting, through Key, for the tobacco to be delivered to Friedman. Friedman testified that under the agreement whereby the bank waiyed its mortgage, he was to take only the sound part of the tobacco at sixty-five cents per pound; while the contention of the-bank was that- he was to take the entire crop at that price. After the tobacco levied upon had been delivered to Friedman by Hutchenson, the former refused to accept any more, giving as his reason therefor that the tobacco was off grade; whereupon the bank foreclosed its mortgage, and Friedman filed his claim, setting up his contentions with reference to his alleged contract with Hutchenson made prior to the execution of the mortgage, and the alleged release by the bank. The jury on the trial found the property not subject, and the plaintiff filed a motion for a new trial; pending a hearing a receiver was appointed for the bank and made party plaintiff, and the receiver now excepts to the order overruling the motion for a new trial.

Judgment reversed.

Stephens and Bell, JJ., concur.


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

text:
    17981.
    DAVIS v. THE STATE.
    The verdict was a nullity, and a motion to set aside the judgment because there was no legal verdict on which to base it should have been sustained, where, on a trial under an indictment charging the defendant, in the first count, with simple larceny of an automobile, and in the second count with having converted the automobile to his own use after having been entrusted with it for the purpose of delivering it to a designated person, the finding of the jury was as follows: “We . . find the defendant guilty of misdemeanor, and recommend to the mercy of the court, count 2.” Broyles, C. J., dissents.
    Criminal Law, 1G C. J. p. 1103, n. G8.
    Decided July 15, 1927.
    Larceny after trust; from Fulton superior court—Judge E. D. Thomas. January 29, 1927.

      Joe Hill Smith, for plaintiff in error.

      John A. Boykin, solicitor-general, John H. Hudson, J. Walter LeCraw, contra.
   Luke, J.

The defendant was tried under an indictment charging him in the first count with simple larceny of an automobile, and in the second count with having converted the automobile to his own use after being entrusted with it by one Davis for the purpose of delivering it to a designated person. The verdict was as follows: “We, the jury, find the defendant guilty of misdemeanor, and recommend to the mercy of the court, count 2 He was sentenced to work twelve months, the sentence to be suspended upon his making reasonable restitution to the Drive-It-Yourself Company. The case came to this court on exceptions to the overruling of his motion to set aside the judgment, upon the ground that there was no legal verdict to base the judgment upon. Held, that the verdict was a nullity, and that the court erred in overruling the motion to set aside the judgment, or sentence, in the case. Wells v. State, 116 Ga. 87 (42 S. E. 390); Smith v. State, 117 Ga. 16 (2) (43 S. E. 703).

Judgment reversed.

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

Broyles, C. J.,

dissenting. The motion in this case was to set aside a judgment based upon an alleged void verdict. In McDonald v. State, 126 Ga. 536 (55 S. E. 235), the motion was to set aside a judgment based upon-an alleged void indictment, and-it was there distinctly held that the motion to set aside was nqt the appropriate remedy, and that the motion was properly overruled by the trial judge. That ruling was followed by this court in Gravitt v. State, 36 Ga. App. 301 (136 S. E. 829). The ruling made in those two cases is controlling in the instant case, since there is no essential difference between a motion to set aside a judgment based upon a void indictment and a motion to set aside a judgment based upon a void verdict. The reason why a judgment founded upon a void indictment can be arrested is, as was said by Air. Justice Cobb in McDonald v. Sowell, 129 Ga. 242 (58 S. E. 860, 12 Ann. Cas. 701), that “the verdict and judgment in such a case is an absolute nullity." In each of the two cases cited in the majority opinion in the instant case, the motion was to arrest the judgment, not to set it aside.


author: Beoyx.es, C. J.

text:
    18111.
    Hinesville Bank et al. v. Rimes.
    Appeal and Error, 4 C. J. p. 905, n. 41 j p.-1129, n. 58.
    Decided July 15, 1927.
    Complaint; from Ware superior court—Judge Reed. February 19, 1937.

      Travis <fs Travis, 'M. Price, for plaintiffs in error.

      Oliver <& Oliver, W. 0. Hodges, John Z. Ryan, contra.
   Beoyx.es, C. J.

1. The court did not err in overruling the general and special demurrers to the petition.

2. The verdict was authorized by the evidence, and none of the special grounds of the motion for a new trial show cause for a reversal of the judgment. Judgment affirmed.

Luke and Bloodworth, JJ., ooneur..


author: Luke, J.

text:
    18128.
    LANE, trustee, v. DUKE.
    Under section 1114 of the Penal Code (1910), which provides that money arising from fines “shall be first applied to the extinguishment of the insolvent lists of the officers bringing it into court,” etc., “the officers bringing it into court” are those who are in office when the money is actually paid into court. Bloodwokth, J., dissents.
    Fines, Forfeitures and Penalties, 25 O. J. p. 1167, n. 93.
    Decided July 15, 1927.
    Rule; from Putnam superior court—Judge Park. April 15, 1937.
    Certiorari was granted by the Supreme Court.

      John R. L. Smith, Joseph LeConte Smith, for plaintiff.

      Allen & Pottle, for defendant.
   Luke, J.

In this case the alleged error is the sustaining of a general demurrer to a petition for a rule to distribute money. Counsel for the plaintiff in error concisely and correctly summarize the petition as follows: “While Honorable Doyle Campbell was solicitor-general of the Ocmulgee circuit Obe Harper was, in Baldwin superior court, prosecuted, indicted, tried, convicted, and fined $1000; his motion for new trial was perfected, argued, and overruled; he brought the case to this court [the Court of Appeals]; and it was here argued.- All this occurred during Mr. Campbell’s term, and he rendered all necessary and proper service in that behalf. On January 1, 1935, Honorable Joseph B. Duke succeeded Mr. Campbell. On January 13 this court affirmed the conviction of Harper (33 Ga. App. 339, 126 S. E. 20). He applied to the Supreme Court for a writ of certiorari, which was denied in February. A judgment prepared and procured by the clerk of Baldwin superior court was entered upon the remittitur from this court, making the judgment of this court the judgment of that. On June 1, 1925, Harper paid the fine. $500 thereof was applicable to insolvent cost bills of either Mr. Campbell or Mr. Duke. The latter and plaintiff, as trustee in bankruptcy for Mr. Campbell, both claim it. Mr. Campbell had duly allowed cost bills in excess of that amount. Mr. Duke’s allowed insolvent-cost bills up to June 1, 1925, for the regular and adjourned January term, 1925, amounted to $759. He collected on account of insolvent costs up to June 1, 1925, $700.01. His allowed insolvent cost bills through both the terms of 1925 were in excess of fines collected by him from both those terms, including the amount received from Harper.”

The law controlling this case is contained in section 1114 of the Penal Code (1910), and is as follows: “Money arising from fines, or collected on forfeited recognizances in the superior courts, or for a violation of the penal laws, shall be first applied to the extinguishment of the insolvent lists of the officers bringing it into court and those of justices and constables pro rata, and then to the orders of former officers 'in proportion to their claims.” Under this code section, “the officers bringing it [the money] into court” are those who are in office when the money is actually paid into court.

The general demurrer to the petition was properly sustained.

Judgment affirmed.

Broyles, O. J., concurs. Bloodworlh, J., dissents.


author: Bloodwortii, J.

text:
    18059.
    Georgia Southern and Florida Railway Company v. Tifton Produce Company.
    Appeal and Error, 4 O. J. p. 864, n. 34.
    Costs, 15 C. J. p. 285, n. 44.
   Bloodwortii, J.

1. The motion for a new trial contains no special grounds. The evidence supports the verdict, which has the approval of the judge who tried the case, and this court can not interfere.

2. The motion of the defendant in error asking for damages, on the ground that the' ease was brought to the Court of Appeals for the purpose of delay only, is denied.

Decided July 26, 1927.

Damages; from Tift superior court—Judge Eve. February 12, 1927.

Application for certiorari was made to the Supreme Court.

J. E. Hall, C. J. Bloch, R. D. Smith, Sieve F. Miichell, for plaintiff in error.

Fulwood & Forrester, J. S. Ridgdill, contra.

Judgment affin-med.

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


text:
    18129.
    Lang v. South Georgia Investment Company.
    Appeal and Error, á C. J. p. 852, n. 56. _
    Costs, 15 C. J. p. 285, n. 50.
    Decided July 26, 1927.
    Complaint; from Colquitt superior court—Judge W. E.,Thomas. April 6, 1927.
    P. Q. Bryan, for plaintiff in error. Hoyt H. Whelchel, contra.
   Bloodwortii, J.

1. The evidence amply authorized the finding of the jury.

2. This court not being convinced that this case was “taken up for delay only,” the request of defendant in error that damages be assessed, as provided by section 6213 'of the Civil Code (1910), is denied.

Judgment affirmed.

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


text:
    18216, 18217.
    Fomby v. The State.
    Criminal Law, 16 C. J. p. 913, n. 96 New.
    Decided July 26, 1927.
    Possessing intoxicating liquor; from city court of LaGrange— Judge Tuggle. May 5, 1927.
   Luke, J.

The plaintiffs in error were indicted for violating the prohibition statute. The evidence amply authorized the verdict of guilty in each case.

The ground of the motion for a new trial which assigns error upon the court’s refusal to allowT the defendant’s attorney to recite from memory to the jury the facts as reported in Court of Appeals reports in criminal cases of like nature is without merit, especially so in view , of the note of the trial judge in approving that ground. The motion for a new trial in each case was properly overruled.

Judgment affirmed.

Broyles, G. J., and Bloodwortii, J., concur.

E. A. Jones, for plaintiff in error.

L. L. Meadors, solicitor, contra.


author: Bloodworth, J.

text:
    18223.
    Coleman v. The State.
    Appeal and Error, 3 O. J. p. 1125, n. 21; p. 1126, n. 29 New.
    Decided July 26, 1927.
    Making intoxicating liquor; from Schley superior court—Judge Littlejohn. May 6, 1927.

      Zttch. Childers, for plaintiff in error.

      Jule Felton, solicitor-general, contra.
   Bloodworth, J.

Upon the call of this case the attention of the court was directed to the fact that the pauper affidavit by the plaintiff in error was attested by the tax-receiver of Schley county, Georgia. The court held that an affidavit so attested was not sufficient to relieve counsel from the payment of • costs due the State, and the case was submitted subject to the payment of these costs within ten days. More than ten days having elapsed and the costs not having been paid, the bill of exceptions is dismissed.

Writ of error dismissed.

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


author: Broyles, C. J.

text:
    18224.
    CRUMMEY v. THE STATE.
    Although the offense charged in the accusation was designated therein as “the offense of a misdemeanor,” the facts alleged therein show that the offense was a felony, namely the unlawful, wilful, and malicious destruction of a bridge, which under section 750 of the Penal Code (1910) is punishable by confinement and labor in the penitentiary. The judge ■ of the city court erred in overruling the plea to the jurisdiction.
    Criminal Law, 16 C. J. p. 153, n. 69.
    Indictments and Informations, 31 C. J. p. 670, n. 29, 30 New.
    Decided July 26, 1927.
    Maliciously destroying bridge; from city court of Jesup—Judge J. E. Thomas. May 6, 1927.

      D. M. Ciarle, W. D. Turner, for. plaintiff in error.

      Raymond Pierce, solicitor, contra.
   Broyles, C. J.

1. John Crummey was arraigned in the city court of Jesup under an accusation which read as follows (formal parts omitted) : “charge and accuse John Crummey with the offense of a misdemeanor . . for that the said John Crummey, on the 7th day of February in the year 1927, in the county aforesaid, did then and there, unlawfully and with force and arms, wilfully and maliciously injure and destroy a certain board and plank bridge, by then and there tearing up said bridge and cutting up and destroying the boards and planks and sills and of the private property of the said E. J. Woods & Guy Woods, said bridge being of the value of $45.00 [and] located at the mouth of Abe branch, and being on the road running from and across the Jesup and Stafford’s ferry road or highway and extending towards Sandy bottom on Big Goose creek.”

The accused filed a timely plea to the jurisdiction of the court, on the ground that the accusation charged the offense of destroying a bridge, which offense, under section 750 of the Penal Code of Georgia, was a felony, and, therefore, not within the jurisdiction of the city court of Jesup. The plea was overruled.

The plea should have been sustained. The facts set forth in the accusation showed the wilful, unlawful, and malicious destruction of a bridge, which is made a felony by section 750 of the Penal Code (1910). No facts there stated differentiate the offense charged from the offense denounced by that code section. The allegation that the defendant was charged “with the offense of a misdemeanor” is immaterial, it being well settled that the facts set r forth in an indictment or accusation determine the offense charged therein.

2. The error in overruling the plea to the jurisdiction rendered the further proceedings in the case nugatory.

Judgment reversed.

Lulce and Bloodworth, JJ., concur.


text:
    18230.
    Brigman v. The State.
    Criminal Law, 17 C. J. p. 134, n. 7; p. 180, n. 18.
   Broyles, C. J.

Where a defendant in a criminal case enters a plea of guilty, and, before sentence has been passed, moves the court to allow him to withdraw that plea and enter a plea of not guilty, and where the motion is denied and sentence is thereafter passed upon him, and he thereupon sues out a direct bill of exceptions, in which the only assignment of error is upon the refusal to allow him to withdraw his plea of guilty and enter a plea of not guilty, this court can'not entertain the bill of exceptions, since it contains no exception to the final judgment in the case. To give this court jurisdiction of a case, the bill of exceptions must contain an assignment of error upon the final judgment rendered. Hester v. Mallary &c. Co., 142 Ga. 320 (82 S. E. 884), and cit.

Decided July 26, 1927.

Rehearing denied August 12, 1927.

Possessing intoxicating liquor; from city court of Baxley— Judge M. B. Wood. May 3, 1927.

H. L. Williams, for plaintiff in error.

Wade H. Watson, solicitor, contra.

Writ of error dismissed.

Lulce and Bloodworth, JJ., concur.


text:
    18231.
    Futch v. The State.
    Criminal Law, 16 C. J. p. 406, n. 29 New; 6. 414, n. 31 New; 17 C. J. p. 26, n. 31; p. 35, n. 56 New.
    Decided July 26, 1927.
    Arson; from Evans superior court—Judge Daniel. May 13, 1927.

      C. L. Cowart, for plaintiff in error.

      J. T. Grice, solicitor-general, contra.
   Luke, J.

A bill of exceptions will not lie to a judgment overruling a motion for a new trial in a criminal ease where the only trial had was upon the issues raised by a plea in abatement, the verdict being against the plea. There is no difference in principle between a verdict finding against a plea in abatement, and a finding against such a plea by the judge (where, by consent, he passes upon the plea without the intervention of a jury), and it is well settled that the striking of a plea in abatement is not a “final” judgment within the meaning of section 6138 of the Civil Code of 1910. McElroy v. State, 123 Ga. 546 (51 S. E. 596); W. & A. R. Co. v. Williams, 146 Ga. 27 (90 S. E. 478); English v. Rosenkrantz, 150 Ga. 745 (105 S. E. 292). A plea of res judicata is a plea in abatement.

Writ of error dismissed.

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


author: Bloodworth, J. Bloodwortii, J.

text:
    18232.
    GUTHRIE v. THE STATE.
    Criminal Law, 16 C. J. p. 620, n. 66; p. 858, n. 67 New; p. 1146, n. 53; p. 1149, n. 91; p. 1150¡ n. 93.
   Bloodworth, J.

1. This court will not say that the judge of the trial court abused his discretion in overruling the motion for a continuance of the case.

2. For no reason alleged did the court err in allowing the solicitor-general to exhibit to each of two witnesses certain bottles “supposed to contain liquor that was alleged to have been purchased from the defendant,” and on each of which was pasted certain written memoranda.

Decided July 26, 1927.

Rehearing denied August 12, 1927.

Selling intoxicating liquor; from city court of Waycross—Judge Crawley. April 2, 1927.

Application for certiorari was denied by the Supreme Court.

I. J. Bussell, H. IF. Wilson, D. M. Parker, for plaintiff in error.

IF. G. Parker, solicitor, contra.

3. Certain bottles witli figures and. words pasted thereon as follows, “11-3-26 Guthrie. M. C. Sapp.” and “-11-3-26 Bought from H. S. Guthrie Paid $5.00 for one half gallon. M. C. Sapp,” were admitted in evidence. This is alleged to be error because “of the written statements thereon which were placed on them out of the presence of the defendant, and because they were, prejudicial to the defendant.” These bottles were positively identified as those containing whisky bought of the accused, and witness Sapp swore that lie put the labels on them. The bottles and their contents were admissible, and there was no motion to have' the labels removed before the bottles were sent to the jury. Witness Sapp had testified to everything shown bj' the labels. Neither the bottles nor the labels thereon were inadmissible for the .reasons above assigned. ;

4. None of the excerpts from the charge of which complaint is made in the special grounds of the motion- show reversible error.

5. The verdict was demanded by the evidence.

Judgment affirmed.

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

ON MOTION FOR REHEARING.

Bloodwortii, J.

A motion for a rehearing was made upon the grounds that the court had overlooked certain principles and decisions relative to the admission of evidence and to the charge of the court. None of these were overlooked. The 5th headnote in this case is: “The verdict was demanded by the evidence.” In Hager v. State, 71 Ga. 167, Chief Justice Jackson said: “The evidence is overwhelming that the defendant is guiltjr, and where such is the case, even errors in the admission or rejection of testimony, or in the charge of the court, will not operate so as to require a new trial.” In Belton v. State, 21 Ga. App. 794 (5) (95 S. E. 299), citing a number of eases to support the proposition, this court held: “Where the evidence demands a verdict, an error in the charge will not require tlie grant of a new trial.” Even should we concede, which we do not, that the court erred in the admission o£ the evidence complained of and in giving to the jury that portion of the charge discussed in the motion for a rehearing, it is well settled that before a new trial should be granted because of alleged errors in the trial, not only error but injury must be shown. This has not been done.

Motion denied.

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


text:
    18233.
    Staples v. The State.
    Criminal Law, 17 C. J. p. 212, n. 18; p. 255, n. 54.
    Decided July 26, 1927.
    Making intoxicating liquor; from DeKalb superior court-judge Hutcheson. April 23, 1927.

      Fred W. Flint, Eugene L. Tiller, for plaintiff; in error.

      Olaude C. Smith, solicitor-general, contra.
   Broyles, C. J.

The verdict was amply authorized hy the evidence, and the single ground of the motion for a new trial other than the general grounds is expressly abandoned in the brief of counsel for the plaintiff in error. Judgment affirmed.

Luke arid Bloodworth, <7,7., concur.


text:
    18237.
    Wingfield v. The State.
    Criminal Law, 17 C. J. p. 255, n. 54; p. 317, n. 10.
    Decided July 26, 1927.
    Making liquor; from Wilkes superior court—Judge Perryman. May 27, 1927.

      Hugh E. Combs, for plaintiff in error.

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

The evidence amply authorized the conviction of the defendant, and the special assignments of error upon the rulings of the court on the admissibility of evidence show no harmful error. The defendant has had a legal trial, and the court properly overruled his motion for a new trial.

Judgment affirmed.

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


text:
    18238.
    Skinner v. The State.
    Master and Servant, 39 C. J. p. 139, n. 37; p. 141, n. 82, 91.
   Bloodworth, J.

“ 'In a prosecution for a violation of the “labor-contract act” [Penal Code 1910, § 715], the State, to complete its presumptive case, must show that there was no good reason why the contract was not performed, or no good reason why the accused did not return the money advanced to him. Without this proof the case for the State is incomplete, because the prosecution has failed to create the evidentiary presumption necessary to rebut the presumption of innocence.’ Lewis v. State, 15 Ga. App. 406 (83 S. E. 439). It does not affirmatively appear in this case that the failure to perform the services contracted for or to return the money advanced was without good and sufficient cause.” Gatlin v. State, 16 Ga. App. 232 (84 S. E. 973). Under the authority quoted above, the trial judge erred in overruling the motion for a new trial.

Decided July 26, 1927.

Violating labor-contract law; from Douglas superior court-judge Edwards. May 18, 1927.

D. 8. Strickland, for plaintiff in error.

8. W. Ragsdale, solicitor-general, J. R. Hutcheson, contra.

Judgment reversed.

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


text:
    18243.
    18252.
    SPRINGER v. THE STATE. BATTLE v. THE STATE.
    There being no evidence of a specific intent to kill in the operation of the automobile by which it was alleged the assault in question was committed, a conviction of assault with intent to murder was unauthorized.
    Homicide, 30 C. J. p. 20, n. 18.
    Decided July 26, 1927.
    Rehearing denied August 12, 1927.
    Assault with intent to murder; from Morgan superior court— Judge Park. April 25, 1927.
    From the evidence it appeared that an eleven-year-old boy walking on the left side of the highway and carrying a sack of stovepipe on his back was struck from behind by an automobile. The only eye-witness who testified to this was the boy himself. He swore that late in the afternoon of October 19 a closed unlighted car was approaching behind him, “going pretty fast,” that when he heard it he was off the pavement about a foot or two and got farther away, and was off it when he was hit, and that he did not remember anything that happened there after he was hit. He was unconscious when found in the road. There was evidence that the car had left the pavement about three feet before it struck the boy, and that the point at which he was struck was about five or six feet beyond a cross street. The defendants, Mrs. Springer, and her chauffeur, Frank Battle, were seen in her autotomobile, the chauffeur sitting at the steering wheel and she sitting next him, at a place some distance beyond on the highway, and there was evidence tending to show that this was the automobile that struck the boy. It was testified that she said it was possible that her car could have struck him; that Frank Battle was driving in accordance with her directions, and the car was going thirty or thirty-five miles an hour on that part of the road.
    The solicitor-general, in his motion for a rehearing, cited: Ga. L. 1921, pp. 256-7, sections 2 and 3, Penal Code (1910), §§ 67, 31; Dennard v. State, 14 Ga. App. 485; Collier v. State, 39 Ga. 32; Gallery v. State, 92 Ga. 463.

      John C. Lewis, for plaintiffs in error.

      Joseph B. Duke, solicitor-general, contra.
   Broyles, C. J.

Under repeated rulings of the Supreme Court and this court, an essential ingredient of the offense of assault with intent to murder is the specific intent to kill. In neither of the instant cases was there any evidence, direct or circumstantial, showing or tending to show such an intent on the part of the accused. Furthermore, there was no evidence authorizing even a finding that either of the defendants intentionally committed the assault with which they were charged; and the trial judge instructed the jury in the Springer case that the State did not contend that either Mrs. Springer or Battle (the two defendants) intentionally made the assault. The same instructions could have properly been given in the Battle case. It follows that the verdict in each case for assault with intent to murder was unauthorized, and that the court erred in each case in refusing the grant of a new trial.

Judgments reversed.

Luke and Bloodworth, JJ., concur.


text:
    18244, 18245.
    18246, 18247.
    Bearden v. The State (two cases). Weaver v. The State (two cases).
    Oriminal Law, 16 O. J. p. 1049, n. 82; p. 1050, n. 84. Intoxicating Liquors, 33 C. J. p. 759, n. 98; p. 761, n. 53.
   Luke, J.

These eases, while here on separate writs of error, are identical upon facts, the same errors, are assigned in each of the separate motions for a new trial, and they are briefed and considered together. The defondants in tlie trial court were charged with violating the prohibition statute. The State proved that in the automobile of the defendants there were some fifty cans, all of which contained some quantity of intoxicating liquor, except two or three which contained only gasoline. The defendants introduced no evidence, but in their statements to the jury claimed that they had bought the cans a short distance away from a man they had stopped for the purpose of buying from him some repairs for one of their automobile tires. The positive evidence and all the circumstances amply authorized the verdict of guilty.

Decided July 26, 1927.

Possessing liquor; transporting liquor; from Gordon superior court—Judge Pittman. April 25, 1927.-

Joseph M. Lmg, for plaintiff in error.

John G. Mitchell, solicitor-general, contra.

The special grounds of the motion which attack the charge of the court, -when the charge is considered in its entirety, are without merit. The defendants have been ably defended, and have had a fair and legal trial. The motion for a new trial in each case was properly overruled.

Judgments affirmed.

Broyles, O. J., and Bloodworih, J., eoneur.


author: Bloodwobth, J.

text:
    18253.
    EVANS v. THE STATE.
    1. Although a juror has been found competent and has been accepted, under the provisions of Penal Code (1910), § 1004, the trial court is authorized, before any evidence has been submitted on the main issue, to put the juror on trial again as to his competency, if, subsequently to his acceptance, there has been brought to the attention of the court any evidence attacking his competency.
    (a) The fact that the juror in this case “was examined touching his competency in the presence of his fellow jurors” was not such errólas requires the grant of a new trial.
    2. There was evidence to support the verdict, which -was approved by the trial judge, and this court is powerless to interfere.
    Criminal Daw, 16 C. J. p. 1131, n. 92 New; p. 1180, n. 72; 17 C, J. p. 252, n. 16; p. 271, n. 41.
    Juries, 35 C. J. p. 389, n. 5S New,
    Decided July 26, 1927.
    Involuntary manslaughter; from Laurens superior court— Judge Camp. May 4, 1927.

      N. L. Gillis Jr., J. 8. Adams, for plaintiff in error.

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

In the amendment to the motion for a new trial it is alleged that “after the jury had been impaneled in this case and sent to their jury room, the solicitor-general stated to the court that information had come to him that one of the jurors Avho had qualified and had been accepted as a juror, if not directly, had indirectly used his efforts to keep down a bill of indictment in the case, and that he hoped to show that he heard the testimony on the former trial in, this case, and in view of this information he desired to have the juror brought in and further questioned touching his qualification.” It is further alleged that “the defendant objected to the further examination of the juror after he had qualified, had been accepted, and retired to the jury room,” and further “objected to the juror being examined in the presence of the full panel of jurors who had been selected as fellow jurors with him to try said cause.” We think that it can be very well concluded from the statement made by the solicitor-general that the information to which he called the court’s attention had come to him since the juror had been accepted. Under the principle announced jn Hotton v. State, 137 Ga. 86 (72 S. E. 949), the court did not err in allowing the investigation made as to the competency .of the juror. See, in this connection, Penal Code (1910) § 1004; Eberhart v. State, 47 Ga. 598 (3); Wesley v. State, 65 Ga. 731 (3); Lampkin v. State, 87 Ga. 516 (7) (13 S. E. 523); Warnack v. State, 7 Ga. App. 73 (66 S. E. 393).

We do not think that the fact that the juror “was examined touching his competency in the presence of his fellow jurors” was such error as requires the grant of a new trial.

“There was some slight evidence authorizing the verdict; and, the verdict having been approved by the trial judge, under the repeated and uniform rulings of this court and of the Supreme Court, a reviewing court is powerless to interfere. When the verdict is apparently decidedly against the weight of the evidence, the trial judge has a wide discretion as to granting or refusing a new trial; but when there is any evidence, however slight, to Support a verdict which has been approved by the trial judge, this court is absolutely without authority to control the judgment of the trial court.” Toole v. Jones, 19 Ga. App. 24 (90 S. E. 732). See also Tate v. State, 30 Ga. App. 35 (116 S. E. 541); Usry v. State, 30 Ga. App. 180 (117 S. E. 108); Williams v. State, 24 Ga. App. 53 (2) (99 S. E. 711).

Judgment affirmed.

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


author: Bkoyees, C. J.

text:
    18254.
    Shepard v. The State.
    Criminal Law, 17 C. J. p. 69, n. 38; p. 212, n. 18.
    Decided July 26, 1927.
    Seduction; from Laurens superior court—Judge Camp. May 14, 1937.

      T. W. Eardwich, J. 8. Adams, for plaintiff in error.

      Fred Kea, solicitor-general, contra.
   Bkoyees, C. J.

1. An objection to evidence that it is “irrelevant, immaterial, and prejudicial to the defendant” is too general to be considered by the reviewing court. Martin v. State, 35 Ga. App. 575 (2-a) (134 S. E. 185), and cit.

2. Under the facts of the case the excerpt from the charge excepted to shows no cause for a reversal of the judgment below.

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

Judgment affirmed.

Luke and Bloodworlh, JJ., concur.


text:
    18263.
    White v. The State.
    Criminal Law, 16 C. J. p. 977, n. 45.
    Decided July 26, 1927.
    Making intoxicating liquor; from Spalding superior court— Judge Searcy. May 7, 1937.

      J. A. Darsey, for plaintiff in error.

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

Since the testimony offered to sustain the defense of alibi did not show the impossibility of the defendant’s presence at the scene of the offense at the time of its commission, but only accounted for his presence at another place before he was at a whisky still that was in operation, it was not error for the court to fail to charge on the defense of alibi.

(a) In the case here the suggested defense of alibi utterly failed, and the evidence authorized the defendant’s conviction of making intoxicating liquor.

Judgment affirmed.

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


text:
    18264.
    Jacobs v. The State.
    Criminal Law, 16 C. J. p. 764, n. 54; p. 1179, n. 67. Intoxicating Liquors, 33 C: J. p. 757, n. 74.
    Decided July 26, 1927.
    Possession of liquor; from Douglas superior court—Judge Edwards. May 17, 1927.
    A verdict of guilty of “possessing liquor” was rendered against Jim Jacobs. Prom the evidence it appeared that, under a pile of pine brush in woods about three hundred yards from his house, officers searching for liquor found corn whisky in six one-gallon jugs and in a half-gallon jug. No liquor was found' in his house, but they found there a lot of empty, corkéd, new pint and half-pint bottles which smelt of whisky and some of which looked as if they had just been emptied; also a lot of empty jugs. Eresh tracks led from the house “to the whisky and back,—men’s tracks;” and it was testified that “he had a pig tied in the yard by the neck, and a pig with tracks about the same size had followed him one trip to the whisky;” it had rained the night before, and it “seemed like three or four trips had been made to it since the rain.” The tracks went through the edge of ^the defendant’s cleared and cultivated field; and a clearing about six feet wide was cut through bushes and undergrowth to a point about twenty-five yards from where the whisky was found. There were other houses in the neighborhood, but the defendant’s house was the closest to that place. “The whisky was about the same distance from the big road as it was from his house.” His wife, his son, and the son’s wife lived with him, but the son was not at the house when the officers went there, and it was testified that he was “hiding out on the same charge.” A man who had been in jail for bootlegging lived about three quarters of a mile from where this whisky was found. The .defendant was at home when the officers went there, and he went with them voluntarily and without complaint. In his statement at the trial he denied knowledge of the whisky, and said that he sold bottles and had collected for sale those found in his house.
   Bloodworth, J.

The evidence in this case was entirely circumstantial and did not exclude every reasonable hypothesis save that of the guilt of the accused, and the court erred in overruling the motion for' a new trial.

Judgment reversed.

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

J. R. Hutcheson, for plaintiff in error, cited: Wilson T. State, 32 Ga. App. 427.

S. W. Ragsdale, solicitor-general, contra.


author: Broyles, C. .T.

text:
    18265.
    Miller v. The State.
    Criminal Law, 1G C. J. p. 1180, n. 74.
    Decided July 26, 1927.
    Possessing liquor; from Douglas superior court—Judge Edwards. May 4, 1927.

      J. R. Hutcheson, for plaintiff in error.

      S. W. Ragsdale, solicitor-general, contra.
   Broyles, C. .T.

The verdict was amply authorized by the evidence, and

the motion for a new trial was based upon the usual general grounds only. Judgment affirmed.

Luke and Bloodioorth, JJ., concur.


text:
    18266.
    Wallace v. The State.
    Criminal Law, 1G C. J. p. 1049, n. 82; p. 1180, n. 74.
    Decided July 26, 1927.
    Making liquor; from Clayton superior court—-Judge Hutcheson. May 14, 1927.

      Charles H. Griffin, 0. J. Coogler, for plaintiff in error.

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

The conviction was not without some evidence to support it, and, in the light of the charge as a whole and the evidence adduced upon the issues, the special grounds of the motion for a new trial are without merit.

Judgment affirmed.

Broyles, G. J., and Bloodu.orth, J., concur.


text:
    18269, 18270.
    Crozier v. The State (two cases).
    Criminal Law, 17 C. J. p. 2S2, n. 16; p. 271, n. 41.
   Bloodworth, J.

The defendant was convicted of carrying a pistol and of pointing a pistol at another. The two eases were tried together. The motion for a new trial in each case is based on the general grounds only. The evidence authorized the verdict, which was approved by the trial judge, and the judgments overruling the motions for a new trial are Affirmed.

Decided July 26, 1927.

Carrying pistol; pointing pistol; from Randolph superior court —Judge Yeomans. May 11, 1927.

B. A. Paterson, for plaintiff in error.

B. T. Castellón), solicitor-general, B. B. Arnold, E. C. Hill, contra.

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


author: Bkoyles, C. J.

text:
    18271.
    Harden v. The State.
    Criminal Law, 16 C. J. p. 1180, n. 74.
    Decided July 26, 1927.
    Burglary; from Fulton superior court—Judge Pomeroy. May 7, 1927.

      H. A. Allen, for plaintiff in error.

      John A. Boylcin, solicitor-general, J. W. LeCraw, J. II. Hudson, contra.
   Bkoyles, C. J.

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

Judgment affirmed.

Lulce and Bloodworth, JJ., concur.


text:
    18272.
    KENNEDY et al. v. THE STATE.
    Declarations of the State’s witness that he testified falsely on the trial did not require a new trial.
    Criminal Law, 16 C. J. p. 1189, n. 70.
    Decided July 26, 1927.
    Assault and battery; from Colitmbia superior court—Judge A. L. Franklin. May 5, 1927.

      J. B. & T. B. Burnside, J. T. Olive, for plaintiffs in error.

      George Ilains, solicitor-general, John M. Graham, contra.
   Luke, J.

This case was heretofore here for review, and is reported in 36 Ga. App. 602 (137 S. E. 573). It is now here on exception to the overruling of an extraordinary motion for a new trial, and the ground of the motion is that “because, a short time after the trial of said ease at the September term, 1926, of said court, James Elam, the witness who claimed to have been beaten by defendants, admitted that he had perjured himself in the trial of said case, as will appear by affidavit of W. C. Clary hereto attached.” The affidavit was to the effect that the said witness admitted to affiant that he had testified falsely upon the trial of the case against the defendants. Upon the authority of Norwood v. State, 28 Ga. App. 238 (5), 240 (111 S. E. 59), and cit., the judgment overruling the extraordinary motion for a new tria) must be affirmed.

Judgment affirmed.

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


text:
    18278.
    Gravely v. The State.
    Criminal Law, 17 C. J. p. 252, n. 16; p. 271, n. 41.
    Decided July 26, 1927.
    Possessing-liquor; from Eloyd superior court—Judge Maddox. May 28, 1927.

      M. B. Eubanks, for plaintiff in error.

      J. F. Kelly, solicitor-general, contra.
   Bloodworth, J.

The evidence authorized the verdict, which is approved by the trial judge, and the motion for a new trial, based on the general grounds only, was properly overruled.

Judgment affh-med.

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


text:
    18279.
    Oliver v. The State.
    Criminal Law, 16 O. J. p. 1199, n. 56; p. 1201, n. 58; p. 1202, n. 70; p. 1230, n. 66; 17 C. J. p. 252, n. 16; p. 271, n. 41.
    Decided July 26, 1927.
   Broyles, C. J.

1. The alleged newly discovered evidence is cumulative and impeaching and is not of such a character as would probably cause a different verdict upon another trial. Eurthermore, the affidavits in support of the witness upon whose newly discovered evidence a new trial is sought are defective in that they fail to give tlie names of 'his associates. Ivey v. State, 154 Ga. 63 (6) (113 S. E. 175).

2. The verdict was authorized by the evidence and the denial of a new trial was not error.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

Possessing and selling liquor; from Houston superior court— Judge Mathews. May 14,' 1927.

J. W. Bloodworth, M. Kunz, for plaintiff in error.

Charles H. Garrett, solicitor-general, contra.


text:
    18280.
    Norman v. The State.
    Criminal Law, 17 C. J. p. 252, n. 16; p. 271, n. 41.
    Decided July 26, 1927.
    Arson; from Colquitt superior court—Judge ’W. E. Thomas. June 4, 1927.

      Bowling & BeLoache, for plaintiff in error.

      C. B. Say, solicitor-general, contra.
   Luke, J.

Norman was convicted of burning an insured automobile for the purpose of defrauding the insurer. The case is here upon the usual general grounds that the, evidence does not authorize the verdict. The evidence amply supports the verdict, which has the approval of the trial judge.

Judgment affirmed.

Broyles, Q. J., and Bloodworth, J., eonour.


text:
    18281.
    Edwards v. The State.
    Criminal Law, 17 C. J. p. 252, n. 16; p. 271, n. 41.
    Decided July 26, 1927.
    Making liquor; from Putnam-superior court—Judge Park. May 16, 1927.

      M. C. Few, for plaintiff in error.

      J. B. Buhe, solicitor-general, contra.
   Bloodworth, J.

The motion for a new trial in this case is based on the general grounds only. The verdict is authorized by the evidence and is approved by the trial judge.

Judgment affirmed.

Broyles, O, J., and Lulce, J., eonour.


text:
    18282.
    Sikes v. The State.
    Criminal Law, 16 C. J. p. 164, n. 46.
    Parent and Child, 29 Cyc. p. 1678, n. 19.
    Decided July 20, 1927.
    Abandonment of child; from Colquitt superior court—Judge W. E. Thomas. June 4, 1927.

      Dowling & DeLoache, for plaintiJI in error.

      G. H. Hay, solicitor-general, contra.
   Broyles, C. J.

1. Under the ruling in Bennefield v. State, 80 Ga. 107 (2) (4 S. E. 869), where, in the State of Florida, a husband voluntarily and wilfully separated from his wife, whom he had married in the State of Georgia, and sent her and their child into the State of Georgia, and the child thereby became dependent and destitute in the latter State, he was guilty of abandoning his child, and the courts of Georgia had jurisdiction of the offense. See also Broten v. State, 122 Ga. 568 (2), 570 (50 S. E. 378). This ruling is not in conflict with the decision in Jemmerson v. State, 80 Ga. 111 (5 S. E. 131), cited by counsel for the plaintiff in error. Under the above-stated ruling the charge of the court in the instant case was not error.

2. The verdict was authorized by the evidence.

Judgment affirmed.

Luke and Bloodworih, JJ., concur.


text:
    18284.
    Sims, alias Burnett, v. The State.
    Criminal Law, 16 C. <1. p. 1180, n. 74.
    Decided July 26, 1927.
    Rehearing denied August 12, 1927.
    Uttering forgery; from Campbell superior court—Judge Hutcheson. May 27, 1927.

      Gamp & Fraser, A. T. Walden, II. B. Moss, IF. G. Munday, for plaintiff in error.

      Gla/ude G. Smith, solicilor-general, contra.
   Bloodwortii, J.

The evidence amply supported the finding of the jury, and none of the special grounds of the motion for a new trial show ' any reason why tlie case should be again tried.

Judgment affirmed.

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


text:
    18285.
    Hardeman v. The State.
    Criminal Law, 16 C. J. p. 1018, n. 20; p. 1061, n. 61.
    Decided July 26, 1927.
    Assault with intent to murder; from Morgan superior court— Judge Park. June 7, 1927.

      A. G. Foster, A. S. Thurman, for plaintiff in error.

      Joseph B. Dulce, solicitor-general, contra.
   Broyles, C. J.

In a criminal case where upon the trial the defendant makes a statement to the jury which is in direct conflict with the evidence for the State, and where the statement, if believed by the jury, would demand an acquittal, it is reversible error for the judge, even in the absence of a written request, to fail to instruct the jury that they may believe the statement in preference to the sworn testimony in the case. Bullard v. State, 31 Ga. App. 559 (121 S. E. 130), and eit.

Under the above-stated ruling and the facts of the instant case, the court erred in its charge to the jury and in refusing to grant a new trial.

Judgment reversed.

Luke and Bloodworih, JJ., concur.


text:
    18286.
    ALEXANDER v. THE STATE.
    A conviction of selling intoxicating liquor was authorized by the evidence.
    Criminal Law, 17 C. J. p. 252, n. 16; p. 271, n. 41; p. 317, n. 10.
    Intoxicating Liquors, 33 C. J. p. 764, n. 1; p. 786, n. 46.
    Decided July 26, 1927.
    Selling liquor; from Clayton superior court—Judge Hutcheson. May 23, 1927.
    Application for certiorari was denied by the Supreme Court.

      Lowndes Calhoun, for plaintiff in error.

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

Alexander was convicted of violating the prohibition statute. A witness testified positively that he bought for a cash consideration a quantity of whisky from the defendant; and the jury, as they had a right to do, believed this evidence. The two special grounds of the motion for a new trial, which complain of the court’s rulings on admissibility of evidence, even if technically correct, show no error. The verdict was authorized by the evidence, and was approved by the court. The motion for a new trial was properly overruled..

Judgment affirmed.

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


text:
    18287.
    HENDRIX v. THE STATE.
    There being evidence to support the verdict of guilty, this court will not disturb it.
    Criminal Daw, 16 C. J. p. 922, n. 3; p. 929, n. 86; p. 930, n. 93; 17 C. J. p. 252, n. 16; p. 255, n. 55; p. 271, n. 41.
    Decided July 26, 1927.
    Making liquor; from Evans superior court—Judge Daniel. May 13, 1927.

      P. M. Anderson, for plaintiff in error.

      J. T. Grice, solicitor-general, contra.
   Bloodworth, J.

The motion for a new trial contains the general grounds only. “The decision of every issue of fact is exclusively for the jury.” Davis v. Kirkland, 1 Ga. App. 5 (1) (58 S. E. 209). “No principle of law is founded upon better reason or has been more strictly adhered to by this court than that the jury are the proper judges of the weight and sufficiency of testimony and of the credibility of witnesses, and this court will not disturb the verdict of a jury where there is evidence to support its findings. Stricklin v. Crawley, 1 Ga. App. 139 (58 S. E. 215); Charles v. Brooker, 1 Ga. App. 219 (58 S. E. 218); Daughtry v. S. & S. Ry. Co., 1 Ga. App. 393 (58 S. E. 230).” Unity Cotton Mills v. Hasty, 19 Ga. App. 590 (2) (91 S. E. 915).

Judgment affirmed.

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


text:
    18288.
    Usry v. The State.
    Criminal Daw, 17 C. J.- p. 271, n. 41.
    Decided July 26, 1927.
    Assault with intent to rape; from Glascock superior court— Judge Perryman. May 9, 1927.

      J. B. '& T. B. Burnside, for plaintiff in error.

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

1. In the light of the facts of the case and the entire charge of the court, the several assignments of error upon the charge are without substantial merit.

2. After a careful review of the brief of evidence, this court can not hold that there was no evidence authorizing the verdict; and, the finding of the jury having been approved by the trial judge, this court is without authority to interfere.

Judgment affirmed.

Lulce and Bloodworth, JJ., oonour.


text:
    18289.
    Brown v. Teem Company.
    Justices of the Peace, 35 C. J. p. 878, n. 82, 83.
    Decided July 26, 1927.
    Certiorari; from Fannin superior court—Judge Pomeroy presiding. May 28, 1927.

      William Butt, for plaintiff in error.

      T. H. Crawford, contra.
   Broyles, C. J.

1. Where the answer of a justice of the peace to a writ of certiorari fails to verify sufficiently all the material allegations in the petition for certiorari, and where the answer and the allegations in the petition that are sufficiently verified do not set forth sufficient facts for the judge of the superior court to determine the questions sought to be raised in the petition, and where the answer is not traversed or excepted to, the dismissal of the certiorari is not error. Louisville & Nashville Railroad Co. v. Lovelady, 14 Ga. App. 305 (2) (80 S. E. 725); Stephens v. Barnes, 11 Ga. App. 491 (75 S. E. 827); Morris v. Battey, 31 Ga. App. 438 (121 S. E. 125). The statement in Marchman v. Todd, 15 Ga. 25 (8), that “all the material allegations in a certiorari ought to be fully answered or assumed as true,” was obiter. Knowles v. Coachman, 109 Ga. 356, 358 (34 S. E. 607).

2. The dismissal of the certiorari was not error.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    18290.
    CALINET v. HARE & CHASE OF ATLANTA INCORPORATED.
    The writ of attachment in this case was not signed at all, and when the defendant made his special appearance and moved to dismiss the attachment and the two garnishments based thereon because the attachment was not signed, the trial court erred in allowing the plaintiff to amend the writ nunc pro tunc by attaching the proper officer’s name to the writ of attachment as of the date on which the attachment proceedings were filed, and in overruling the defendant’s motion to dismiss. It follows that the judgment of the superior court denying the certiorari was error.
    Attachment, 6 O. J. p. 188, n. 21; p. 190, n. 54.
    Decided July 26, 1927.
    Certiorari; from Fulton superior court—Judge Humphries. June 6, 1927.

      Candler, Thomson & Hirsch, W. B. Cody, for plaintiff in error.

      Hooper & Hooper, contra.
   Luke, J.

On September 16, 1926, Hare & Chase of Atlanta Incorporated brought attachment proceedings in the municipal court of Atlanta against J. M. Calinet, and on the following day the summons of garnishment based thereon was duly served. On October 23, 1926, the defendant appeared specially and moved to dismiss the attachment, with the garnishments based thereon, “because said-attachment is not signed by the proper officer of court as required by the statute, but said attachment is left blank.” On December 16, 1926, the plaintiff moved that “said attachment be amended nunc pro tunc, the signature of said deputy clerk being added thereto by amendment as of the date of 16 day of October, 1926.” This amendment was allowed and ordered filed. Judgment was later rendered against the defendant, .and it was ordered that designated sums be recovered of the two garnishees. The appellate division of the municipal court of Atlanta affirmed the judgment of the trial court; and, on certiorari, the judge of the superior court sustained the judgment of the last-mentioned court. Exception was duly taken to this judgment.

“The writ of attachment is purely a creature of statute, and is confined to common-law actions.” Tenn. Fertilizer Co. v. Hand, 147 Ga. 589 (95 S. E. 81). A proceeding by attachment is a suit. Fincher v. Stanley Electric Mfg. Co., 127 Ga. 364 (56 S. E. 440). Since the levy of the attachment is the commencement of the suit, and constructive notice of it (Fincher case, supra), the writ bears some resemblance to the process attached to an ordinary suit. Viewing it in this light, it is strenuously contended that the case of Myers v. Griner, 120 Ga. 723 (48 S. E. 113), where the copy process was signed and the original process was not signed, and the defect in the original process was held amendable, is authority ’sustaining the right to amend the writ in this Case. It may also be stated here that it has also been held that where the original process is complete, and the copy process lacks the signature of the clerk, the defect in the copy process may be cured by amendment. See Harris v. Taylor, 148 Ga. 663 (98 S. E. 86). On the other hand, in the ease of Nicholas v. British America Assurance Co., 109 Ga. 621 (34 S. E. 1004), it was held that where no process is attached to the petition, the defect is not amendable. In reaching this conclusion, the court freely admitted that an irregular or defective process could be cured by amendment, but cited section 5693 of the Civil Code (1910), to show that a void process could not be amended. This case is relied on as authority for holding the writ in the case at bar void. To what extent these authorities bear upon the case at hand we do not say. It may be noted, however, that in the two cases first cited in this connection, a complete process was attached either to the original petition or to the copy petition, and there was something to amend by, while in attachment proceedings there is only a single writ.

It has been said that a writ of attachment issued at the beginning of a suit is a preliminary execution, depending for its ultimate efficacy upon the rendering of the judgment in favor of the plaintiff. See Goepper v. Phoenix Brewing Co., 115 Ky. 708 (74 S. W. 726). An attachment is a mesne process, and never becomes final until after judgment. It must be returned to a court, and procedure is provided for a hearing and disposition of the case in court. Waiters v. O’Neill, 151 Ga. 684 (108 S. E. 35). Certainly in Georgia, both in form and effect, a writ of attachment closely resembles an ordinary execution. Viewing it in this light, the words of Justice Lewis in discussing a mortgage foreclosure on realty in Rawles v. Jackson, 104 Ga. 593 (30 S. E. 820, 69 Am. St. R. 185), appear applicable. They are: “The

execution in this case, while made out-by a clerk, was not signéd at all; and if there is any omission which would render such a' process void, it seems to us that a failure of the proper official to sign the paper would have this effect.” We think the writ of attachment was void in the case at bar. We quote from Leffler v. Union Compress Co., 126 Ga. 666 (55 S. E. 927) : “An attachment can be .levied either by a seizure of visible property or by garnishment. In attachment cases, the summons of garnishment can only issue after the writ of attachment, and the executing officer derives his power of serving the summons from the attachment writ. Civil Code, §§ [5094, 5074], Service of the summons of garnishment serves the purpose of a levy of the attachment on the funds or property in the hands of the garnishee. Civil Code, § [5079]. If the attachment writ be void, then its levy would be of no legal effect, whether the levy be made in the one way or in the other. The judgment against the garnishee who fails to answer follows as a judicial sequence from the antecedent attachment proceedings, and if such proceeding be void, the judgment based thereon is necessarily void.”

In this ease the writ of attachment was void and not amendable, and the trial court erred in allowing the amendment and overruling the motion to dismiss. It follows that the judgment of the superior court, denying the certiorari and affirming the judgment of the lower court, was reversible error.

Judgment reversed.

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


text:
    18293.
    HALL v. CAIN.
    A possessory warrant did not lie to recover tlie hale of cotton in question which the plaintiff’s tenant sold with the plaintiff’s consent.
    Landlord and Tenant, 36 O. J. p. 707, n. 54 New.
    Decided July 26, 1927.
    Rehearing denied August 12, 1927.
    Certiorari; from Appling superior court—Judge J. H. Thomas. May 11, 1927.

      Highsmith & Highsmith, for plaintiff in error.

      H. J. Lawrence, contra.
   Luke, J.

Cain sued out a possessory warrant to recover a bale of cotton which his tenant, Hall, had sold to a warehouseman. The evidence was to the effect that Cain was present when the cotton was ginned, was present and consenting to the sale of the bale of cotton by his tenant, and was present and consenting to the warehouseman’s making a' check for the purchase price of the cotton in the name of the tenant; that after Cain and his tenant had left the warehouse with the check, and while they were in the bank for the purpose of getting the check cashed, there arose a difference as to the division of the proceeds of the check, and thereafter Cain had the warehouseman stop payment of the check. Under these facts the justice of the peace rendered a judgment in favor of the tenant. Certiorari was sued out, and the judge of the superior court sustained the certiorari.

It was error to sustain the certiorari. Under the facts here related a possessory warrant did not lie to recover the bale of cotton which had been sold with consent of the landlord.

Judgment reversed.

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


text:
    18294.
    Martin-Holland Company v. Willingham.
    Appeal and Error, 4 C. J. p. 902, n. 12.
    Decided July 26, 1927.
    Complaint; from city court of Decatur—Judge Guess. May 19, 1927.

      Taylor Smith, Thomas E. McLemore, for plaintiff.

      Bryan & Middlebroohs, for defendant.
   Bloodwobth, J.

Under the evidence as shown by the record, the court properly granted a nonsuit.

Judgment affirmed.-

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