text:
    17641, 17667.
    LATIMER v. BENNETT, superintendent of banks; and vice versa.

    1. Section 8 of the act of 1888 (Ga. L. 1888, p. 73), which fixes the liability of stockholders of the Washington Exchange Bank, has not been repealed or modified by subsequent legislation contained either in the act of 1893 (Civil Code of 1910, § 2270) or in the banking act of 1919 (Ga. L. 1919, p. 135), or otherwise. .Bennett v. Wilkes County, 164 Ga. 790 (139 S. E. 566). The liability of stockholders of this bank is therefore fixed and determinable by the provisions of section 8 of the act of 1888 incorporating the bank.
    2. The provision of section 8 of the act of 1888, incorporating the Washington Exchange Bank and fixing the liability of the stockholders therein, reads as follows: “That all the assets of the bank shall be liable for its debts, and each stockholder shall be individually liable for the debts of the corporation to the extent of his or her unpaid stock subscription, and in addition thereto, each stockholder shall be individually liable for the debts of the bank equally and ratably, and not one for another in an amount equal to the par value of- the stock owned by him or her at the time the debt was created.” This section, wherein it provides that each stockholder “shall be individually liable for the debts of the bank equally and ratably,” etc., fixes liability upon all the stockholders of the bank, whether they were holders of stock originally issued at the time of the bank’s incorporation or subsequently became owners of stock, either by subscription to stock issued by the corporation or by transfer from other stockholders. Reid v. DeJarnelte, 123 Ga. 787 (51 S. E. 770), is distinguishable.
    3. Section 20 of article 7 of the banking, act of 1919 (Ga. L. 1919, pp. 135, 160), providing for the assessment of stockholders of banks taken over by the superintendent of banks, applies to banks not incorporated under that act, and the method of assessment provided therein, and its enforcement by execution issued by the superintendent of banks against the stockholder, is applicable as against stockholders of the Washington Exchange Bank upon its being taken over by the superintendent of banks for the purpose of liquidation, as provided by law.
    4. One in whose name the capital stock of a bank stands upon the books of the corporation is a stockholder against whom an assessment may be made and an execution issued, as provided under section 20 of article 7 of the banking act of 1919, supra. Civil Code (1910), § 2248; Harris j. Taylor, 148 Ga. 663 (6) (98 S. E. 86) ; Pauly v. State Loan & Trust Co., 165 U. S. 606 (17 Sup. Ct. 465, 41 L. ed. 844). A stockholder in the Washington Exchange Bank who had sold her stock prior to the failure of the bank and to its being taken over for liquidation by the superintendent of banks, but who had not had the sale and transfer of the stock entered upon the books of the bank, as provided in section 6 of the act of 1888 incorporating the bank, is liable to an assessment under section 20 of article 7 of the banking act of 1919, supra, in an amount equal to the par value of her stock, for the payment of the indebtedness of the bank existing at the time of its failure.
    5. An assessment made by the superintendent of banks under section 20 of article 7 of the banking act of 1919, supra, against a stockholder of a bank taken over by him for liquidation shall be in an amount in his discretion not exceeding the liability of each stockholder upon his or her stock; and while a stockholder so assessed may, by an affidavit of illegality, contest his or her liability for the assessment, the stockholder can not contest the correctness of the estimate made by the superintendent of banks nor the amount of the assessment.
    Decided October 1, 1927.
    Affidavit of illegality of execution; from Wilkes superior court —Judge Perryman. August 26, 1926.
    Application for certiorari was made to the Supreme Court.

      B. W. Fortson, W. A. Slaton, for plaintiff in error.

      Norman é Norman, contra.
   Stephens, J.

This case arose upon an affidavit of illegality-filed by Mrs. Addie C. Latimer to an execution in the sum of $2400, issued against her under the authority of the banking act of 1919 (Ga. L. 1919, p. 135) by T. R. Bennett, superintendent of banks, to enforce an assessment in this amount against her as a stockholder of the Washington Exchange Bank. The case was tried on an agreed statement of facts before the Hon. C. J. Perry- • man, judge of the superior courts of the Toombs circuit, presiding in Wilkes superior court. The execution was sustained in part, a judgment in the sum of $682.80 being rendered in behalf of the plaintiff, T. R. Bennett, superintendent of banks. Each party brings a bill of exceptions excepting to the final judgment. From the able opinion rendered by the learned judge we quote and adopt the following:

“On December 14, 1925, T. R. Bennett, as State superintendent of banks, in charge of the assets of the Washington Exchange Bank, issued an execution under authority of an act of the legislature of Georgia approved August 16, 1919, against Mrs. Addie C. Latimer, to make the sum of $2400, with interest thereon at the rate of 7% per annum from November 13,' 1925, which sum was assessed against her as the owner of 24 shares of stock in said bank. On January 12, 1926, the deputy sheriff of Wilkes county levied the execution upon certain real estate of the defendant. On the day of said levy the defendant filed an affidavit of illegality to the execution, and on July 21, 1926, she filed and had allowed an amendment thereto. . .

“The following evidence, from the agreed statement of facts, is material: That Mrs. Addie C. Latimer was not at any time an original subscriber to the capital stock of Washington Exchange Bank; that about 1917 Thomas C. Hogue transferred to her the 24 shares of stock which still stood in her name on the books of said bank at the time of its failure on October 7, 1925, and had stood in her name on said books since said transfer; that for several years dividends were paid on this stock and received by defendant, but no dividends were paid after 1920, except one small dividend about the year 1922 or 1923; that by an actual sale she transferred 'on February 12, 1924, and on August 15, 1924, nine and fifteen shares, respectively, of said stock to L. B. Williamson; that the certificates of stock contained the following language: cwhich is fully paid and transferable only on the books of said bank in person or by attorney upon the surrender of this certificate;’ that an excerpt from the by-laws of said bank [is] as follows: ‘The stock of this bank shall be assignable and transferable only on the books of this bank according to the terms of the charter, and a transfer book shall be kept in which all assignments and transfers of stock shall be made, and transfers shall be suspended for fifteen days preparatory to the declaration of dividends, and unless an agreement to the contrary shall be expressed in the assignment, dividends shall be paid to the stockholders in whose name the stock shall stand at the date of the declaration of dividends. Certificates of stock signed by the president and cashier may be issued to stockholders, and the certificates shall state' upon the face thereof that the stock is transferable only upon the books of the bank, and when stock is transferred the certificates thereof shall be returned to the bank and cancelled and new certificates issued/ . .

“The Washington Exchange Bank was chartered under a special act of the legislature in 1888 (Acts of 1888, p. 73), and the only material portion of said charter necessary to be considered in this ease is as follows: ‘That all the assets of the bank shall be liable for its debts, and each stockholder shall be individually liable for the debts of the corporation to the extent of his or her unpaid stock subscription, and in addition thereto each stockholder shall be individually liable for the debts of the bank equally and ratably, and not one for another, in an amount equal to the par value of the stock owned by him or her at the time the debt was created/

“The affidavit of illegality raises three questions for decision by the court. 1st. Did the general banking act of 1919 repeal the act of the legislature incorporating the Washington Exchange Bank and relieve stockholders from liability thereunder and without making provision for liability? 2d. Are only original subscribers to the stock of the Washington Exchange Bank liable? 3d. If the defendant is liable, what is the amount of her liability ? These questions will be considered in their order.

“First: ^e relationship between creditors and depositors of the bank is contractual. Even if the legislature attempted to repeal the terms of the charter under which this relationship was created, by a subsequent act, the latter act to that extent would be unconstitutional and void as being violative of article 1, section 3, paragraph 2 of the constitution of Georgia, which prohibits the passing of any law impairing the obligation of contracts.. But the banking act of 1919 does not repeal the above-quoted provision in the charter of the Washington Exchange Bank. The liability of stockholders under the banking act of 1919 (article 18, section 1, Acts of 1919, p. 189) is confined to banks incorporatéd under that act, and does not undertake to fix the liability of stockholders in banks previously created by special act of the legislature, or otherwise. This view is further sustained by article 9, section 1, Acts of 1919, p. 169, which provided as follows: “And any bank heretofore incorporated by special act of the General Assembly may have its special charter amended so as to incorporate therein any provision of this act, or any amendment thereto.’ The charter of the Washington Exchange Bank was never amended.so as to include the provision for -liability of stockholders in the banking act of 1919. The court holds that the banking act of 1919 did not repeal that portion of the charter of the Washington Exchange Bank providing for the liability of stockholders.

“Second: There was no general law prior to 1893 fixing the liability of stockholders in banks, but their liability was fixed by the terms of the charter in a given case, and charters granted prior to that time, being in derogation of the common law, must be strictly construed. Wheatley v. Glover, 125 Ga. 710 (2). In determining whether the liability of a stockholder in the Washington Exchange Bank is limited to his being an original subscriber, resort must be had to the provisions of the charter. A careful reading of that portion of the charter, already quoted upon the question would show that there is no such limitation. The words, ‘the stock owned by him or her at the time the debt was created,’ clearly 'indicate that liability was not confined to original subscribers, but included any who might own stock, either by purchase or otherwise, at the time the debt was created. The case of Reid v. DeJarnette, 123 Ga. 787, is cited by counsel for the defendant.as controlling on this question. The section of the charter of Putnam County Banking Company, construed in: that case, is as follows: ‘That the assets of every kind of said bank shall be liable for any and all debts of said banking company and each stockholder in said corporation shall be individually liable for the debts of the corporation to the amount of his or her unpaid subscription to the capital stock of the corporation, and for an additional amount equal to Ills subscription.’ It will be seen that the language of the charter in that case is quite different from that in the case at bar. This provision limited the liability of a stockholder to his subscription, and of course the Supreme Court was correct in holding that there was no liability upon an owner of stock in the bank who was not an original subscriber. ‘The term “stockholder” is not synonymous with that of “subscriber;” each has a distinct, definite, technical meaning; the latter is employed to denote one who becomes bound by a subscription to the capital stock of a corporation.’ Reid v. DeJarnette, 123 Ga. 790. ‘A stockholder in a corporation is one owning stock.’ 36 Cyc. 1315.

“The court holds that the defendant is not relieved of her liability as a stockholder in the Washington Exchange Bank because she was not an original subscriber to the stock of said bank.”

See Bennett v. Wilkes County, 164 Ga. 790 (139 S. E. 566).

Judge Perryman sustained the affidavit of illegality- in part, by rendering judgment for the plaintiff in an amount considerably less than the amount of the execution, which was for $2400. He concluded, that, notwithstanding Mrs. Latimer’s name appeared on the books of the 'bank as the owner of the stock, she had sold her stock on August 15, 1924, and was, under section 8 of the act of 1888, liable only for the indebtedness due by the bank upon that date, which was in an amount considerably less than the-indebtedness due by the bank upon the date the bank was taken over by the superintendent of banks, to wit October 7, 1925. He accordingly rendered judgment for the plaintiff in the sum of $682.80.

In not rendering judgment for the full amorint of the assessment in the sum of $2400, we think Judge Perryman erred. The assessment was made and the execution was issued under the authority of section 20 of article 7 of the banking act of 1919 (Ga. L. 1919,' p. 135, 160). This section is applicable to any bank, such as the Washington Exchange Bank, not incorporated under the authority of that act. It provides that the superintendent of banks, after taking over a bank for liquidation, shall assess a stockholder and issue an execution against him for the assessment. Section 2248 of the Civil Code. (1910) provides that “the stockholder in whose name the capital stock stands upon the books of such corporation at the date of its failure shall be primarily liable to respond upon such individual liability.” This section was taken from the act of 1894 (Ga. L. 1894, p. 76), and is applicable to the Washington Exchange Bank. Bennett v. Wilkes Bounty (supra), headnote 3. See also Harris v. Taylor, 148 Ga. 663 (6) (supra); Pauly v. State Loan & Trust Co., 165 U. S. 606 (supra). See also section 6 of the act of 1888 (supra), incorporating the Washington Exchange Bank, which provides that, as against the bank, transfers of stock, to be valid, must be made upon the books of the corporation. As Mrs. Latimer’s name was upon the books of the bank as a stockholder when the bank was taken over by the superintendent of banks, she was a stockholder against whom an assessment could be made and an execution issued under the authority of section 20 of article 7 of the banking act of 1919, supra, and is liable to be assessed upon her stock in an amount equal to the par value of the stock for the payment of the indebtedness of the bank existing at the time of its failure.

The defendant, while denying liability in toto, contends that if she is liable in any amount, she should be given credit for the proportionate part of the appraised assets of the bank. The assessment was made and the execution was issued under the authority of section 20 of article 7 of the banking act of 1919, supra. This section provides that the superintendent of banks, after taking over a bank for liquidation under the authority of the act, shall make a careful estimate of the value of the cash assets of the bank and assess each stockholder and issue an execution against him for the assessment in an amount in the discretion of the superintendent of banks, not exceeding the liability of the stockholder upon his stock. It further provides that a stockholder so assessed may contest his liability for such assessment by an affidavit of illegality, but can not contest “the correctness of the estimate made by such superintendent or the amount of such assessment,” but that the “estimate and the amount of such assessment shall be final and conclusive upon the stockholders.” This section further provides that after all the indebtedness of the bank has been paid in full the stockholders paying assessments may be reimbursed out of assets remaining after the payment of the debts of the bank. The court erred in not rendering a judgment for the plaintiff in the full amount of the execution in the sum of $2400.

Although the bill of exceptions brought by T. R. Bennett, superintendent of banks, is on its face denominated a cross-bill, since it excepts to the final judgment it can be treated as a main bill.

Judgment reversed on the hill of exceptions of Bennett, superintendent of hanks; and affirmed on the hill of exceptions of Mrs. Latimer.

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


source: Caselaw Access Project

author: Stephens, J.

license: Public Domain

text:
    17669.
    State of Georgia v. Industrial Acceptance Corporation.
    Decided October 1, 1927.
    Claim; from city court of Hall County—Judge Sloan. August 18, 1936.

      B. D. Kenyon, for plaintiff.
    Underwood, Pomeroy & Haas, B. Smythe Gamhrell, Boyd Sloan, for defendant.
   Stephens, J.

1. Where one who is the owner and the holder of the legal title to a promissory note indorses thereon a transfer of title of the note to another, but still retains the note in his possession as owner, no.title to the note passes by virtue of the transfer. Bell v. Whitestone, 18 Ga. App. 536 (89 S. E. 1050).

2. This being a proceeding instituted in behalf of the State of Georgia to condemn and sell an automobile upon the ground that it was engaged in hauling intoxicating liquors along a public highway, and it appearing from undisputed evidence that the intervenor claiming title thereto was the holder of the legal title under a retention-of-title contract of sale, and had no knowledge that the automobile was engaged in the transportation of prohibited liquors and did not consent thereto, a verdict was properly directed for the claimant. Armington v. State, 24 Ga. App. 75 (100 S. E. 15); Seminole Securities Co. v. State, 35 Ga. App. 723 (134 S. E. 625). This is true although the proceeding was instituted against the purchaser of the automobile as the person having it in possession at the time of its seizure by the sheriff, and there is evidence to the effect that the market value of the automobile is in excess of the unpaid purchase-money, where the case was tried before a jury and the State invoked no ruling, charge, or direction from the court touching the condemnation of the equitable interest of the purchaser.

Judgment affirmed.

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


author: Stephens, ,T.

text:
    17826.
    Bell v. Tucker.
   Stephens, ,T.

1. Where a bond for title to land contains a provision whereby, upon the payment of the balance due upon the purchase-' money at the time agreed upon, the obligor will make to the obligee a good and sufficient warranty deed to the land with the title unincumbered, and will give to the obligee possession, a failure. of the obligor to pay off a mortgage which is upon a part of the land, and to acquire an outstanding title to another part of the land, and to convey to the obligee the land unincumbered and to give him possession thereof upon the latter’s offer to perform by payment of the balance due upon the purchase-money under the terms of the bond, amounts to a breach of the bond by the obligor and gives to the obligee out of possession a right of action against the obligor upon the bond for damages sustained by the obligee as a result of the breach.

2. This being a suit by the obligee against the obligor to recover damages for an alleged breach of the bond for title, under the above rulings the petition set out a cause of action. The petition" having been amended to meet the defects pointed out in the special demurrers, there is no merit in the exceptions of the defendant that the trial court erred in overruling the demurrers interposed to the petition.

3. Where it afterwards appears from the evidence adduced upon the trial that the ruling made by the court upon a demurrer was harmless to the party objecting thereto, the judgment of the court on the demurrer will be affirmed. Carolina Portland Cement Co. v. Zuber, 29 Ga. App. 96 (1) (113 S. E. 813).

4. Since it appears conclusively from the evidence that the defendant committed a breach of the bond for title sued upon, as alleged in the petition, and that therefore there was no breach of contract upon the part of the plaintiff, a rejection by the court of an amendment offered by the defendant, alleging by way of counterclaim a breach of the contract by the plaintiff to the damage of the defendant, was harmless to the defendant.

5. Where, upon the trial, the issue is as to the value of land at a particular , time, evidence as to the value of lands immediately adjoining and their adaptability to particular uses and the uses to which they are put, and also evidence as to the general character of lands in that section of the country for a particular purpose, as that they are suitable for the cultivation of pecans and peaches and were in use for such cultivation, is relevant as furnishing circumstances which, 'when taken in connection with direct evidence as to the value of the land, would tend to establish the value of the land in controversy.

6. Upon an issue as to the value of land, evidence as to its physical condition and its adaptability for certain purposes, as the raising of pecans and peaches, and the probable uses to which it can be put, as for such purposes, is relevant and admissible as furnishing circumstances which, when taken in connection with direct evidence as to the value of,the land, would tend to establish its value.

7. An offer made to buy land at a certain price is relevant and admissible jp behalf of a» owner, or one whose interest it is to establish a high value for tlie land, as a circumstance to be taken in connection with other evidence tending to establish the fact that the land is worth at least the amount of the offer. 22 0. J. 179, § 123; Georgia, Florida & Alabama Ry. Co. v. Spivey, 14 Ga. App, 157 (3) (80 S. E. 678).

8. In a suit by the obligee in a bond for title against the obligor to recover damages for an alleged breach of the bond by the defendant, a letter from the obligor to the obligee, written about the time of the alleged breach, in which reference is made to the obligee’s claim of a breach of the bond and in which the obligor states that she had an opportunity to sell the land at a profit in a certain sum named, is relevant as evidence of an admission by the obligor that the land-had, at the time of the alleged breach of the bond, increased in value in that amount over the contract pricq.

9. The rule that where land is bought by the tract a deficiency in the number of acres will not, in the absence of fraud, authorize the purchaser to rescind, is not applicable to a case where the vendor breaches a covenant of warranty by reason of inability to make good title to a part of the land included in the description of the land sold.

10. In a suit by the obligee in a bond for title against the obligor to recover damages for an alleged breach of the bond by the defendant, consisting in her failure and inability to make a full warranty title to the entire land in accordance with the terms of the bond, by reason of a lack of title in the obligor to a part of the land described, and also by reason of the existence of a mortgage upon another part of the land described, where it appears from undisputed evidence that the defendant obligor committed a breach of the bond in failing to comply with the obligation to make a full warranty title to the described land by reason of a lack of title to a part of the land, it is immaterial whether the defendant obligor had not breached the bond by reason of a failure to convey the property unincumbered with the mortgage. In such a ease it was not error to instruct the jury that the defendant had committed a breach of the bond and to submit to the jury the issue as to the amount of damage; and it was not error to refuse to give in charge certain requested instructions which would have submitted to the jury an issue as to whether the defendant had breached the bond by reason of a failure to remove the incumbrance upon the land represented by the mortgage.

11. Where, because of an outstanding title to a part of the land, the obligor is unable to comply with his obligations under the bond, no tender of the purchase-money by the obligee is necessary. Only an offer by the obligee to perform by payment of the purchase-money, and not actual tender of the money, is sufficient. Baynes v. Bernhard, 12 Ga. 150; Hunt v. Formby’s Guardian, 43 Ga. 79; Booth v. Saffold, 46 Ga. 279 (2); Irwin v. Askew, 74 Ga. 581 (4).

12. The court properly instructed the jury that the plaintiff could recover in an amount representing what he actually paid to the defendant upon the purchase price of the land. It was an issue of fact as to whether certain expenses incurred by the plaintiff, such as attorney’s fees, surveyor’s fee, and expenses of a trip to the defendant’s home, were necessarily incurred by him in complying with his contract, and it was also in the discretion of the jury as to whether, when finding an amount representing the difference in the contract price and the value of the land at the time of the breach, they should include an amount representing interest upon the sum found from the date of the breach. The court therefore erred in instructing the jury that these expenses incurred by the plaintiff could be recovered by the plaintiff as a matter of law, and also erred in instructing the jury that they should • find interest on the amount which they should find to represent the difference in the contract price and the value of the land at the date of the breach.

Decided October 1, 1927.

Damages; from Calhoun superior court—Judge Custer. November 20, 1926.

A. L. Miller, H. A. Wilkinson, for plaintiff in error.

Hooper Alexander, contra.

13. Where the jury brought in a verdict for the plaintiff in an amount representing their finding on an issue submitted to them as to the difference between the contract price of the land and its value at the date of the breach, and in addition thereto found for the plaintiff upon the other items of damage as directed by the court, but failed to stipulate the amount found for such latter items, the court, in directing the jury to rewrite the verdict and to bring in a verdict in a lump sum representing the aggregate of these amounts, did not express any opinion upon facts in issue, and such instruction was therefore not error.

14. Except as indicated above, the court, fairly to the defendant, submitted all the issues to the jury, and no error appears.

15. Since in the amount found for the plaintiff by the jury there is necessarily included a finding in an amount representing the items for certain expenses alleged to have been incurred by the plaintiff, which the court erroneously directed the jury to find, the verdict in the amount found for the plaintiff can not be allowed to stand. Since a verdict in an amount representing the difference in the contract price and the value of the land at the date of the breach, and in an amount representing the amount paid on the purchase-money by the plaintiff to the defendant, was authorized by the evidence, and since it appears from the verdict as originally brought in, which the court directed the jury to amend, that the jury found for the plaintiff in the sum of $4000 as representing the difference in the contract price and the value of the land at the date of the breach, and that the jury found for the plaintiff in an additional sum of $1000, representing the payment made by the -plaintiff to the defendant upon the purchase price of the land, the judgment will be affirmed on condition that the plaintiff will, at the time the remittitur from this court is made the judgment of the court below, write from the verdict an amount which will reduce the verdict to a finding in favor of the plaintiff in the lump sum of $5000, with interest at 7 per cent, on $1000 thereof from the date the plaintiff paid to the defendant $1000 upon the purchase price of the land; otherwise the judgment will be reversed.

Judgment affirmed on condition.

Jenlcins, P. J., and Bell, J., concur.


text:
    17829.
    Haygood v. Edwards.
    Decided October 1, 1927.
    Complaint; from Forsyth superior court—Judge John S. Wood. November 13, 1926.
    Application for certiorari was denied by the Supreme Court.

      A. B. Tollison, J. P. Brooke, for plaintiff.
    . Morris, Hawkins & Wallace, for defendant.
   Stephens, J.

1. This being a suit upon a note given by the defendant for the purchase-money of land, and there being evidence to authorize the inference that he never acquired possession of the land, and that after the execution of the note sued on and his acceptance of a bond for title to the land from the plaintiff, the plaintiff, without the defendant’s knowledge or consent, conveyed the land to another by an absolute deed of conveyance which was given to secure a debt and which contained no provision that it was made subject to the then-outstanding- bond for title to the defendant, the jury were authorized to 'find that the plaintiff committed a breach of the bond for title, and the verdict found for the defendant was, as a matter of law, authorized. Jones v. Clemons, 35 Ga. App. 552 (133 S. E. 744).

2. A vendor of land can not, after having committed a breach of his bond for title, compel the purchaser to accept a deed to the property.

3. Where both sides introduced evidence and closed, and both sides moved for the direction of a verdict, and where the judge remarked in the presence of the jury, “there is no issue in this ease to present to the jury under the present state of the record, and, in view of the fact that the Supreme Court seems to have adjudicated the law of it, the court directs a verdict in favor of the defendant,” and where the plaintiff' thereupon, with leave of the court, reopened the case and proceeded to introduce further testimony, and the court then stated in the presence of the jury that if the plaintiff’s counsel could establish by proof the facts which lie stated he expected to prove, that would make an issue for determination by the jury, an assignment of error in the plaintiff’s motion for a new trial, that the judge’s first remark, as indicated above, prejudiced the plaintiff’s case, fails to show cause for a new trial,' where it is not assigned that it would have been error to direct a verdict in favor of the defendant under the evidence as it stood at the timé the remark was made.

4. It is no ground for setting aside a verdict, on a motion for a new trial, that a juror, after the rendition of the verdict, made affidavit that the verdict was rendered under a misapprehension or misconstruction of the evidence. Coleman v. Slade, 75 Ga. 61 (13); Southern Ry. Co. v. Sommer, 112 Ga. 512 (1) (37 S. E. 735).

5. The evidence authorized the verdict for the defendant, and no error of law appears.

Judgment affirmed.

Jenlmns, P. J., and Bell, J., concur.


author: Bloodworth, J.

text:
    18291.
    CANDLER v. MOBLEY, superintendent of banks.
    Where a stockholder in a bank, individually liable under the charter, transfers his stock, but fails to have the transfer entered upon the books of the bank, and.fails to give to the bank written notice thereof, as provided by the banking act, he is not exempt from liability.
    Decided October 4, 1927.
    Affidavit of illegality of execution; from Eulton superior court —Judge Humphries. June 1, 1927.

      Candler, Thomson & Eirsch, for plaintiff in error.

      C. N. Davie, 0. A. Parle, C. S. Reid, contra.
   Bloodworth, J.

The plaintiff in error owned twenty shares of the stock of the Farmers & Traders Bank. In 1921 he sold this stock, but it still stood in his name when the bank failed in 1926. The superintendent of banks gave notice to the stockholders of the bank of an assessment which had been levied “at the rate of 100 per cent.” Acts 1919, p. 189; 8 Park’s Code Supp. 1922, § 2279 (a). The plaintiff in error refused to pay this assessment, and an execution against him was issued October 14, 1926. An affidavit of illegality was interposed, and the issue thus raised was by agreement submitted to Judge John D. Humphries, one of the judges of the Atlanta circuit, under the following agreed statement of facts: “For the purpose of the trial of the issue made in this case, the following facts are stipulated, and it is agreed that the case shall be submitted to a judge of the superior court for , a decision on the law and facts, without the intervention oí a jury. Asa G. Candler purchased on the 30th of October, 1900, twenty shares of stock in the Farmers & Traders Bank, and certificates were issued to him. These original certificates were still outstanding in his name on the books of said bank when it failed on the 12th day of July, 1926, never having been transferred on the books of said bank. The assessment of 100% by the superintendent of banks, amounting to $2000 on the twenty shares of stock, has been regularly made by the superintendent of banks. Said Asa G. Candler did, in the year 1921, sell said twenty shares of stock endorsed in blank to Paul J. Baker, who was at that time the vice president of the Farmers & Traders Bank, said trade being made through W. W. Wisdom, a stock broker; and the said banker paid Candler, through said Wisdom, $2000, being the par value of said stock at that time. Said Baker up to the time of the failure of the bank had, however, not had said stock, transferred on the books of the bank. Said Candler did not ■ at any time address to 'the Farmers & Traders Bank any formal written notice that he had sold -the stock.” After hearing argument the court entered judgment against the affidavit of illegality, and directed that the levy proceed. The defendant then filed a bill of exceptions.

Under the agreed statement of facts the issue raised in this ease is settled by sections 3 and 4 of article 18 of the banking act of 1919 (Ga. L. 1919, p. 190; Park’s Code Supp. 1922, § 2279(c)), which are as follows: “Sec. 3. Whenever a stockholder in any bank is individually liable under the charter, and shall transfer his stock, and have such transfer entered upon the books of the bank or give to the bank written notice thereof, he shall be exempt from such liability by such transfer, unless such bank shall fail within six (6) months from the date of the entry of such transfer, or from the delivery of such notice to the bank. Sec. 4.' The stockholder in whose name the capital stock stands upon the books of such bank at the date of its failure, shall be primarily liable to -respond upon such individual liability; but upon proof made that any stockholder at the date of the failure is insolvent, recourse may be had against the person from whom such insolvent stockholder received his stock, if within a period of six (6) months prior to the date of the failure of such bank.” The following portion of the brief of the defendant in error is so thoroughly in accord with the views of this court that it is adopted as a part of this opinion: “This section [sec. 3 just quoted] was intended to supersede, so far as banks are concerned, the first section of the act of 1894 (sec. 2247 of tjie Code). The other sections of the act of 1894 were, with some minor changes, reenacted in the banking act. Section 2248 of the Code appears as sec. 4 of article xvm (sec. 2279(d) Park’s Code Supp. 1922); section 2249 as section 7 of article xvm (sec. 2279(g) Park’s Code Supp. 1922), and section 2250 as section 45 of article xix (section 2280 (ss) Park’s Code Supp. 1922). Plaintiff argues that these sections can not apply because the Farmers & Traders Bank was incorporated before the passage of the banking act. It is argued that to apply these sections would change the substantive law creating the liability and impair the obligation of the contract. This argument has been completely answered by the Supreme Court. Referring to the several acts which required that notice should be given upon the transfer of stock in order to relieve the transferor of his individual liability, it was held: ‘ The act of 1838 (Code of 1882, § 1496) did not have the effect to impose upon the stockholders in a bank or other corporation a liability beyond the amount of the stock owned, but merely provided a method by which a stockholder who had transferred his stock might relieve himself of an existing' individual liability imposed by the charter of the corporation. Neither was such a liability imposed by the act of 1892 (Acts 1892, p. 55), nor by the act of 1894 (Civil Code, § 1888). These acts simply provided a different manner of discharge from liability from that prescribed in the act of 1838.’ Wheatley v. Glover, 125 Ga. 710 (1 and 2) [54 S. E. 626]. In this case it was also held, referring to that section of the act of 1894 which made the individual liability an asset of the corporation subject to be enforced by the assignee or receiver, that ‘The act referred to in the preceding note is remedial in its nature, does not affect any vested right of the creditor, and is applicable in a case where the liability arose prior to the enactment of the statute.’ Wheatley v. Glover, 125 Ga. 711 (14) [supra], See also Moore v. Ripley, 106 Ga. 556 [32 S. E. 647]; Lamar v. Taylor, 141 Ga. 227, 234 [80 S. E. 1085]. As was well said by the Supreme Court of Kansas as to an act which required notice of transfer to be given in a particular manner: ‘ The enactment merely imposed an additional duty to see that a similar notation was made upon a public record. The change imposed no restraint upon the transfer of the stock, but related only to the means by which it should be accomplished and the manner in which it might be evidenced. It is essentially a matter of method of procedure, rather than of ultimate substantial rights.’ Henley v. Myers [76 Kan. 723], 93 Pac. 168, 173 [17 L. R. A. (N. S.) 779]. ‘Whether the State may impose added conditions or duties on individuals with regard to their contracts depends on the nature of such requirements. If the additional conditions or duties imposed amount to a change in the. obligations, or in the substantial rights of a party, the statute is void; but an obligation can not be said to be impaired by a statute which merely imposes an additional duty on the owner in order that he may preserve it. A statute, therefore, which requires that within a reasonable time after its passage existing contracts shall be filed or recorded or otherwise notified to the public in order to preserve all the rights of the parties is not unconstitutional; nor is a statute void which, while reducing the time allowed, still allows a reasonable time within which to give a notice as a condition precedent to the enforcement of contract rights.’ 12 C. J. 1058. Section 3 of article xvm (sec. 2279(c) Park’s Code Supp. 1922) did- not increase or change in any way Mr. Candler’s liability as a stockholder. It did not impose any restriction or restraint on his right to sell and transfer his stock. Under the act of 1891 (sec. 2218 of the Code), unless the transfer was entered on the books of the corporation, he was primarily liable to respond upon the failure.of the bank. Section 3 provided a method by which he could relieve himself of this liability. The section was in his interest,-and was in no sense a limitation upon his rights. It is argued that the section must be. given prospective rather than retrospective operation. That the banking act was. intended to apply to banks in existence, at the time of its passage is manifest. The slightest consideration of its provisions shows this to be the case. It created the Department of Banking charged with the duty of enforcing all laws then in force, as well as all laws which should thereafter be passed. It placed all banks under the supervision of this department. At the time it went into efiiect it could operate only, on pre-existing banks. There is no more reason why section 3 of article xvm (see. 3379(c) Park’s Code Supp. 1933) should be held to apply only to banks created under the passage of the act than that any of the other numerous provisions should be held so to apply. If this section applies to this transfer, it is conceded that Mr. Candler is liable, for he did not have the -transfer entered on the books of the bank, nor did he give the bank written notice of the transfer. The stock stood in his name on the books of the bank at the date of the failure, and under section 3348, as well as under section 4 of article xvm (sec. 3379(d) Park’s Code Supp. 1933) of the banking act, he is primarily liable.” See ' Harris v. Taylor, 148 Ga. 664 (6), 669 (98 S. E. 86); Freeman v. Jackson, 146 Ga. 55 (90 S. E. 467); Welles v. Larrabee, 36 Fed. 866, 868; Hubbell v. Houghton, 86 Fed. 547, 548; Johnson v. Loflin, 103 U. S. 800 (26 L. ed. 532); 1 Michie on Banks, 110, 170; 7 R. C. L. 403, § 390.

Judgment affirmed.

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


text:
    18141.
    Haverty Furniture Co. v. Lyon-Young Printing Co.
    Decided October 4, 1927.
    Action for breach of contract; from Fulton superior court— Judge Moore. April 35, 1937.
    Lyon-Young Printing Company, publishers of The Atlanta Shopping News, sued Haverty Furniture Company for breach of an advertising contract by failure and refusal to furnish advertising copy. The defendant demurred to the petition generally and on various grounds, among which was the ground that the contract was lacking in mutuality, unilateral, without consideration, and unenforceable. It was contended that no obligation was assumed by the Printing Company; that it did not agree to sell the advertising space which the Haverty Company agreed to buy. On the other hand it was contended that obligations were imposed upon the Printing Company by the words in the first sentence of the contract: “in which shall be inserted the advertisements of the undersigned,” and the words in the next sentence: “which is to be equally divided among the several advertisers,” used with reference to the space on the first page of The Atlanta Shopping News. The contract was as follows:
   Bloodworth, J.

The principle announced in All Church Press v. Harris Advertising Agency, 36 Ga. App. 616 (138 S. E. 85), is controlling in this case, and the court erred in overruling the demurrer to the petition. See Cooley v. Moss, 123 Ga. 707 (51 S. E. 625); Morrow v. Southern Empress Co., 101 Ga. 810 (28 S. E. 998); Bashinski v. Lake, 9 Ga. App. 352 (71 S. E. 702); Martin v. Cox, 13 Ga. App. 236 (79 S. E. 39); Manget v. Gariton, 34 Ga. App. 556 (3) (130 S. E. 604).

Judgment reversed.

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

Aug. 28, 1925.

Lyon-Young Printing Company,

160-166 Luckie Street, Atlanta, Georgia.

The undersigned hereby contracts with the Lyon-Young Printing Company, publishers of The Atlanta Shopping News, for the purchase of eight-five column inches to be used for twenty-six consecutive weeks, beginning weeks of...............19..., in which shall be inserted the advertisements of the undersigned, until space contracted for has been consumed. It is also understood and agreed that I will purchase my pro rata share of space on the first page of The Atlanta Shopping News, which is to be equally divided among the several advertisers. Copy to be in publisher’s hands on a date and schedule to be .made as agreed by the several advertisers.

In consideration of the publication of the advertisements of the undersigned as specified above it is hereby agreed that the undersigned will pay to the Lyons-Young Publishing Company at its office in Atlanta, Georgia, on the 10th day of each month following publication, the pro rata part of the contract price due for the advertisements appearing during the preceding month at the rate of $1.25 per column inch of 12-% ems pica, on the basis of a guaranteed distribution of 52,000 copies weekly.

It is part of this, contract that no agreement or understanding exists except that which is specified in both original and duplicate that it can not be cancelled and that neglect to furnish copy when due gives purchaser [ ?] the right to repeat last advertisement.

. Signed: Haverty Furniture Co.,

by L. A. Witherspoon.

Lyon-Young Publishing Company, by T. J. Lyon.

Lillie, Powell, Smith & Goldstein, for plaintiff in error.

Hewlett & Dennis,, contra.


text:
    18276.
    Layfield v. O’Neill et al.

    Decided October 4, 1927.
    Damages; from Fulton superior court—Judge Pomeroy. May 4, 1927.
    ' Sidney Smith, for plaintiff in error. Hewlett & Dennis, contra.
   Bloodworth, J.

1. Tlie instructions to tlie jury as to the presumption against a party failing to produce evidence in his power or within his reach (Civil Code of 1910, § 5749) were authorized by the facts. Moye v. Reddick, 20 Ga. App. 649 (2), 652 (93 S. E. 256). See also Fountain v. Callaway Co., 144 Ga. 550 (2) (87 S. E. 651).

2. There is evidence to support the verdict.

Judgment affirmed.

Broyles, C. J., and Tjuke, J., concur.


author: Bloodworti-i, J.

text:
    18277.
    STERCHI FURNITURE CO. v. O’NEILL et al.

    The ground of the motion for a new trial which complains of the admission of certain testimony does not in itself show that the testimony complained of was harmful, and its admission ivas not cause for a n'ew trial, in view of the court’s ruling- which restricted its effect as evidence.
    It was not error to refuse to declare a mistrial because the jury heard certain testimony which ivas ruled out, the court instructing the jury that it was irrelevant and should not be considered or discussed by them.
    It was not error to refuse to declare a mistrial on the ground that the court, in instructing the jury that certain testimony, objected to as being hearsay, was admitted for the purpose of impeachment and for no other purpose, expressed or intimated an opinion that the testimony tended or could tend to impeach the witness.
    In the light of the facts and when read in connection with the remainder of the charge of the court, the instructions complained of are not cause for a new trial.
    The verdict was not so excessive as to show bias and prejudice on the part of the jury.
    Decided October 4, 1927.
    Damages; from Fulton superior court—Judge Pomeroy. May 4, 1927.
    Application for certiorari was denied by the Supreme Court.
    Jones, Hvins, Moore & Poivers, for plaintiff in error.

      Hewlett & Dennis, contra.
   Bloodworti-i, J.

1. The first special ground of the motion for a new trial does not show within itself wherein the evidence there complained of was hurtful to the defendant, and there was no error in admitting it, in the light of the special ruling of the trial judge thereon, restricting its effect as evidence.

2. While the husband of the plaintiff was'on the stand testifying in her behalf, he was asked: “After leaving there [the scene of the collision], where did you then go?” He replied, “From the scene of the wreck I went to the insurance company to—.” Because this was heard by the jury, counsel for the defendant asked that a mistrial be declared. This request was denied by the judge, and he instructed the jury as follows: “The court has ruled out the statement of the witness that after he left the scene of the accident he went to the insurance office. That evidence is irrelevant and immaterial and should not be considered by the jury. It should be eliminated from your minds altogether, and should not be discussed by you.” These instructions of the judge were proper, and there was no error in overruling the motion for a mistrial.

3. A mistrial was asked also because after a witness, G. C. Brooks, was permitted, “over the objection of the movant that it was hearsay and not a part of the res gestae and not binding on the movant,” to testify that “when Mr. O’Neill and I went out to the scene of the accident Mr. O’Neill asked John O’Neill whose fault it was, and his reply was that the jitney-bus was as much at fault as he.” The court stated to the jury substantially the following: “That testimony is admitted for the purpose of impeachment, and for no other purpose, and I will subsequently instruct you fully upon the law of impeachment.” The judge did charge on impeachment. A mistrial was asked on the ground that “that statement of the court was an expression or intimation of the court of- an opinion that the testimony tended or could tend to impeach the witness John O’Neill.” In the foregoing ruling the court did not violate the terms of § 4863 of the Civil Code (1910), and did not express or.intimate'his opinion as to what had or had not been proved. Moreover, another witness, Tom O’Neill, swore: “When we were out there at the scene' of the accident, John O’Neill said that the jitney was as much at fault as he was.” To this evidence no objection was made, and it was substantially what Brooks had sworn.

4. None of the grounds of the motion which are based on alleged errors in the charge and which are insisted upon (ground 9 of the motion is expressly abandoned in the brief of counsel for the plaintiff in error), show any reason why a new trial should, be granted, when read in the light of the facts and in connection with the remainder of the charge.

5. The verdict (for $7500) was authorized by the evidence, and was not “so excessive in amount as to indicate any.undue bias and prejudice in the minds of the jury against this movant.” Realty Bond & Mortgage Co. v. Harley, 19 Ga. App. 186 (2), 187 (91 S. E. 254), and cit.

Judgment affirmed.

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


author: Bell, J.

text:
    17875.
    Barbour v. Day Company.
    Decided October 13, 1927.
    Certiorari; from Eulton superior court—Judge Pomeroy. December 9, 1926.

      Neufmlle & Nmfville, for plaintiff in error.

      Bond Almand, contra.
   Bell, J.

1. Where, under a contract of conditional sale of personalty, the property is delivered to the purchaser, and the seller merely retains the title as security for the purchase-money, the purchaser’s default in the payment of the purchase-money will not, without more, constitute a conversion of the property. Baston v. Rabun, 115 Ga. 378 (41 S. E. 568); Young v. Durham, 15 Ga. App. 678 (5) (84 S. E. 165); Securities Trust Co. v. Marshall, 30 Ga. App. 379 (3, 5) (118 S. E. 478).

2. Where, after the purchaser in such a contract has defaulted in the payment of the purchase-money, the seller brings trover to recover the - property, and where there is no other evidence of conversion except the purchaser’s refusal, on demand, to surrender the property, the action is unaffected by the statute of limitations where it is brought within, four years from the date of such demand and refusal; and this is true although such default in payment may have occurred more than four years before the suit was filed. Hicks v. Moyer, 10 Ga. App. 488 (73 S. E. 754).

3. The judgment as rendered by the municipal court in favor of the plaintiff was not without evidence to support it. The superior court did not err in dismissing the certiorari.

Judgment affirmed.

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


author: Jenkins, P. J.

text:
    17901.
    White County Bank v. Clermont State Bank et al.

   Jenkins, P. J.

I. The general demurrer to the petition specifically sets forth the illegality of the certificate of deposit sued on, on account of its appearing by the petition that the certificate was not signed and countersigned by two officers of the bank, as provided by law. The judgment overruling the demurrer to the petition, being unexcepted to, became the law of the case, and adjudicated the right of the plaintiff to recover upon proof of the facts alleged. Lawrence v. Boswell, 155 Ga. 690, 693 (118 S. E. 45); Niemeyer v. Dougan, 31 Ga. App. 99 (119 S. E. 544); Grossman v. Atlanta, 25 Ga. App. 161 (102 S. E. 847); Reddick v. Strickland, 25 Ga. App. 275 (3) (103 S. E. 94); Thomas v. Ga. Ry. & Power Co., 23 Ga. App. 428 (98 S. E. 360). Accordingly, it has been adjudicated that the certificate of deposit sued on was not illegal and void because, as indicated by the petition, it was not signed and countersigned by two officers of the bank.

2. The court having adjudicated that the certificate of deposit was properly executed, and such a certificate of deposit being a negotiable instrument (Carey v. McDougald, 7 Ga. 84), and it appearing from the agreed statement of facts that the certificate was purchased by the plaintiff for value, and before maturity, in July, 1921, the plaintiff, is protected against any defense sought to be set up, save its alleged immoral and illegal consideration.

3. “An illegal and void contract becomes an immoral contract when it is made a crime by statute.” International Agricultural Corporation v. Spencer, 17 Ga. App. 649 (87 S. E. 1101); Rhodes v. Beall, 73 Ga. 641; Exchange National Bank v. Henderson, 139 Ga. 260, 263 (77 S. E. 36, 51 L. R. A. 549).

4. The banking law's of Georgia (Ga. L. 1919, p. 199, art. 19, sec. 18; Park’s Code Supp. 1922, § 2280(r)), provide that “no bank shall issue any certificate of deposit except in exchange for lawful money of the United States, or for checks, drafts, or bills of exchange which are the actual equivalent of such money.” Another section (Ga. L. 1919, p. 219, Park’s Code Supp. 1922, § 2281 (ee) ) makes the violation of this and other provisions of the act a misdemeanor. The purpose and effect of the prohibition quoted is to prevent a bank from pledging its credit and increasing its liability to depositors by trading its certificates of deposit for any instrument not the equivalent of cash. Banks are authorized “to discount bills, notes or other evidences of debt.” Ga. L. 1919, p. 188 (Park’s Code Supp. 1922,- § 2278(a)). Since the law presumes that every man, in his private and official character, does his duty and obeys the mandate of the law' until the contrary is proved (Truluck v. Peeples, 1 Ga. 3, 5; Bond v. Central Bank, 2 Ga. 92, 108), it will not be taken that a bank has violated the first quoted provision of the banking act upon its merely being made to appear that a certificate of deposit has been issued to a customer in an amount representing the net proceeds of a note discounted for the depositor upon the same date, since the presumption would be that the discount of the note was bona fide and independent of any condition or understanding that its purchase price would be discharged by the customer’s acceptance of a time certificate of deposit. It will be assumed, until the contrary is made to appear, that the transactions were separate and independent, and that the proceeds accruing to the customer by the discount of the note were voluntarily used by him in the purchase of the time certificate of deposit, rather than that the acceptance of the time certificate was made a condition to the discount of the note by the bank, or, in other words, that the bank and the customer agreed to exchange the time certificate for the note.

Decided October 13, 1927.

Rehearing denied November .21, 1927.

Complaint; from Hall superior court—Judge J. B-. Jones. December 22, 1926.

Application for certiorari was made to tlie Supreme Court.

Statement oe eaots by Jenkins, P. J.

The White County Bank sued Clermont State Bank and J. A. Riley on a certificate of deposit indorsed to the plaintiff by Riley, which was as follows:

Clermont State Bank 64-1012.

No. 26. Clermont, Ga. July 12, 1921.

J. A. Riley has deposited in this Bank two hundred and sixty dollars ($260.00) payable to the order of himself in current funds on the return of this certificate properly indorsed 9 months after date, with interest at 5 per cent, per annum. No interest after ........months.

5. In the instant case, all questions of law and fact having been submitted to the court upon an agreed statement of facts, the finding of the court, if authorized, will not be disturbed. Brown v. Rutledge, 20 Ga. App. 118 (3) (92 S. E. 774). In the agreed statement of facts it is stated that “the Clermont State Bank discounted a note for J. A. Riley on July 12th, 1921, said note being on O. L. Agnew for the sum of $270.00, this note being the only money or other thing of value negotiated in said bank on said dale by said J. A. Riley.” The theory under which the plaintiff would be entitled to recover involves two transactions, the discount of the note to the bank, and the subsequent purchase by the customer of the time certificate with the proceeds thereof. The theory under which the defendant would be entitled to prevail is that there was only one transaction, the discount of the note to the bank for and in consideration of its time certificate. The judge found in favor of the defendant. Since the agreed statement of facts authorizes the construction or conclusion that the discount of •the note and the issuance of the time certificate constituted the one and only transaction had between the bank and its customer, “this note being the only money or other thing of value negotiated in said bank on said date by said Riley,” it necessarily follows that the effect of the transaction was but an agreement by which the bank issued its certificate of deposit in exchange for the customer’s note. Such a transaction, under the ruling in the preceding division of the syllabus, is prohibited by law, and the court did not err in its judgment rendered for the defendant.

Judgment affirmed.

Stephens and Bell, JJ., concur.

Not subject to check. J. D. Wilson, Cashier.

The defendant bank interposed a demurrer setting up that the petition set forth no cause of action, and that the certificate of deposit sued on showed on its face that it was illegal and void because not signed and countersigned by two officers of the bank as required by law. The court overruled the demurrer of the defendant, and thereafter the case was submitted to the court for determination, without the intervention of a jury, on the following agreed statement of facts:

“The Clermont State Bank discounted a note for J. A. Riley on July 12th, 1921, said note being on O. L. Agnew for the sum of $270.00, this note being the only money or other thing of value negotiated in said bank on said date by said J. A. Riley. The cashier of said Clermont State Bank on same date issued the time certificate sued on, copy of which is set forth in the original petition, for the sum of $260.00 to J. A. Riley, due nine.months after date. The Clermont State Bank still holds the note discounted as above, said note being still uncollected, and so far as defendant can learn uncollectible; that subsequently and before said time certificate became due, said J. A. Riley sold said time certificate to White County Bank, and that White County Bank paid full value therefor less five per cent. That White County Bank made demand on said Clermont State Bank for payment of said time certificate before suit was filed in this case, and payment was refused by said Clermont State Bank.”

It is contended by the defendant that the time certificate is void under the banking act of 1919, Park’s Code Supp. 1922, § 2280 (r), which provides that “No bank shall issue any certificate of deposit except in exchange for lawful money of the United States, or for checks, drafts, or bills, of exchange which are the actual equivalent of such money, and all certificates of deposit shall be signed by one officer of the bank and countersigned by another officer or bonded employee thereof.”

On the agreed statement of facts, the court entered up judgment in favor of the defendant, to which exception is now taken.

Underwood & Henderson, A. G. Wheeler, for plaintiff.

E. B. Kenyon, for defendants.


text:
    17933.
    Western & Atlantic Railroad v. Aiken.
    Decided October 13, 1927.
    Complaint; from Catoosa superior court—-Judge Tarver. January 1, 1937.

      Tye, Peeples & Tye, Maddox, Maddox & Mitchell, for plaintiff.

      William E. & Gordon Mann, for defendant.
   Bell, J.

In this suit by a railroad company to recover for an alleged undercharge of freight on an interstate shipment of goods, of which the defendant was both consignor and consignee, the undisputed testimony, together with the documentary evidence, having established conclusively and as a matter of law that the correct amount of the freight charges, as fixed by the effective tariffs of file with the interstate-commerce commission, was $203.43 in excess of the amount set forth in the bill of lading and prepaid by the shipper, the verdict in favor of the defendant shipper was contrary to the evidence and to law. Under the controlling authorities, the plaintiff was not estopped to demand the balance of the freight due, even though the shipment may have been induced by the representation and assurance of the agent of the initial carrier that the amount which the shipper prepaid was the full and correct charge. N. Y. Central R. Co. v. York, 256 U. S. 405 (41 Sup. Ct. 509, 65 L. ed. 1016) ; L. & N. Ry. v. Maxwell, 237 U. S. 94 (35 Sup. Ct. 494, 59 L. ed. 853, L. R. A. 1915E, 665); Texas & Pacific Ry. Co. v. Mugg, 202 U. S. 241 (26 Sup. Ct. 628, 50 L. ed. 1011); W. & A. R. Co. v. Legg, 32 Ga. App. 368 (123 S. E. 31); Smith v. Charleston & W. C. Ry. Co., 36 Ga. App. 480 (137 S. E. 115). The court erred in refusing a new trial.

Judgment reversed.

Jenloins, P. J., and Stephens, J., concur.


text:
    17937.
    Ninth District Agricultural & Mechanical School v. Wofford Power Company.
   Bell, J.

1. “Declarations of an agent as to business transacted by him, in order to be admissible against his principal, must have been made by him while representing the principal in the transaction in controversy, and must also have been a part of the negotiation, -and constituting the res gestse.” National Building Asso. v. Quin, 120 Ga. 358 (2) (47 S. E. 962); Civil Code (1910), §§ 3606, 5779. “Admissions of the alleged agent of a corporation are not admissible to bind the corporation unless the agency be shown.” Amicalola Power Co. v. Coker, 111 Ga. 872 (36 S. E. 950); Ga. Steel Co. v. White, 136 Ga. 492 (71 S. E. 890).

Decided October 13, 1927.

Complaint; from Habersham superior court—Judge J. B. Jones. December 21, 1926.

J. G. & II. E. Edwards, for plaintiff in error.

Sam Kimzy, Hamilton Kimzy, contra.

2. Where, in a suit on an account against a corporation, filed on January 2, 1925, and tried on March 4, 1926, there was, as to certain items, no evidence to establish their correctness except the admissions of an alleged agent of the defendant, and where, although it appeared that .the person whose admissions were introduced was the agent of the defendant “from 1917 to 1924,” there was nothing to show when such admissions were made, or that they were made during the existence of the agency and within the scope of the agent’s authority, a verdict in the plaintiff’s favor was without evidence to support it as to such items.

3. “Evidence that a letter was mailed to a named person does not raise a presumption that he received it, unless there is also evidence that the letter was properly, addressed and duly stamped.” Rawleigh Medical Co. v. Burney, 22 Ga. App. 492 (96 S. E. 578), and cit. See also Ailey v. Lindale Store, 33 Ga. App. 63 (3) (125 S. E. 717). The court erred in admitting, over appropriate objection of the defendant, testimony offered by the plaintiff as to the mailing of certain accounts to the defendant, it not appearing that they were mailed in letters properly addressed and duly stamped.

4. The court erred also in admitting testimony of a witness for the plaintiff that the account was correct, where it appeared that the witness had no knowledge of the correctness of the account except from the plaintiff’s books, which were kept by another person and were not introduced in evidence, the correctness of the account being directly in issue under the pleadings and not otherwise established. Dougan v. Dunham, 115 Ga. 1012 (42 S. E. 390); So. Home B. & L. Asso. v. Butler, 111 Ga. 826 (35 S. E. 679); McDonald v. Williams, 94 Ga. 517 (5) (19 S. E. 830).

5. The court erred in refusing a new trial.

Judgment reversed.

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


text:
    17949.
    SOUTHERN RAILWAY COMPANY v. RUNDLE.
    1. In a suit against a railroad company for damages for the killing of a dog, an instruction to the jury that the law imposed upon the defendant the duty of exercising ordinary care to prevent the killing was not erroneous as imposing upon the defendant the duty to exercise a greater degree of diligence than the law required it to exercise.
    2. In view of the conflicting testimony, the presumption of negligence which arose upon proof of the killing was not conclusively rebutted. The evidence authorized the verdict. There was no error in refusing a new trial.
    Decided October 13, 1927.
    Appeal; from Paulding superior court—Judge Irwin. December 21, 1926.

      Gamp & Gamp, Maddox, MaUlmvs & Owens, for plaintiff in error.

      G. B. McGarity, contra.
   Bell, J.

In this action, brought in a justice’s court, against the railway company, to recover damages for the alleged negligent killing of the plaintiff’s bird-dog, the defendant filed its answer, and the case was then appealed by consent to the superior court. At the trial, after a prima facie case had been made for the plaintiff, the defendant sought to remove the presumption of negligence by proof that its agents and emplo)rees had exercised “all ordinary and reasonable care and diligence.” Civil Code (1910), § 2780. The locomotive engineer testified: “I saw the dog, after passing the bluff on the right side, go on the track; it was about four or five feet off [the track] when I saw it, and I was still blowing for the crossing; and when I got in about two hundred feet of it, it stopped right in the middle of the track. It had plenty of time ■to get across, and after it stopped it was so close I had no chance in the world to try to do anything at all. I thought the dog would get off, from the sound of the whistle. . . All I did was to blow the whistle.” The wife of the plaintiff testified that she was standing near and saw the occurrence, except that she turned her back at the instant of the killing; that the dog was on the track and visible to the engineer at a distance of 250 yards; that it “was between the rails while the train was coming that distance toward him,” having been attracted there by particles of food thrown from the defendant’s dining cars; that witness “didn’t see nor hear the railroad do anything to prevent the billing, . . didn’t hear the train blow—heard nothing but the noise of the train running.”

The trial judge instructed the jury as follows: “They [the defendant railroad company] are required, under the law, to exercise all ordinary and reasonable care to prevent the killing of the dog. . . Now, reasonable care is that care that an ordinarily prudent person would exercise about his own affairs of a similar nature. So you will [determine] whether or not the railroad has exercised that kind of care to prevent the killing of the dog. If they have, that would free them from liability and you would find for the defendant.” The defendant excepted to this charge on the ground that it in effect instructed that the defendant must exercise such care as would have prevented the killing.

In support of the exception to the charge of the court, counsel for the plaintiff in error cite the case of L. & N. R. Co. v. Rogers, 136 Ga. 674 (3) (71 S. E. 1103). In that case the judge charged that the law imposed upon the railroad company “a duty to keep a lookout and also to run the train at such speed as it could by the exercise of ordinary care have prevented the injury.” Such charge tended to impress the jury that the defendant would not be relieved unless it had exercised such care as would actually prevent the injury; while the excerpt complained of here made it clear that the defendant was only required to exercise ordinary care to prevent the killing, and would not be liable if it exercised such care, whether doing so prevented the killing or not. The judge in the present case defined “reasonable care” substantially in the language of section 3471 of the Civil Code, and specifically stated that 'the exercise of that kind of care would “free them, [the defendant] from liability.” It therefore appears that the case at bar is to be distinguished from the case relied on by the plaintiff in error. Atlanta & Birmingham Ry. Co. v. Smith, 2 Ga. App. 294 (58 S. E. 542).

The verdict can not be set aside by this court on the general grounds, since we can not say as a matter of law that the presumption of negligence was conclusively rebutted by the defendant’s evidence. There was a dispute between the engineer and the plaintiff’s wife as to the material matter of the position which the dog occupied when the engineer first saw it, if not also with reference to the blowing of the whistle (Ga. R. & Banking Co. v. Wallis, 29 Ga. App. 706, 714 (116 S. E. 883), and other matters. This conflict in the testimony affected the credibility of. the witnesses, and the jury, if they believed the plaintiff’s wife as to these issues, were authorized to disregard the testimony of the engineer altogether. Furthermore, the jury could have found that it was negligence, as alleged, for the engineer not to. have opened np the steam-cocks, and that this omission was the proximate cause of the killing. A. C. L. R. Co. v. Strickland, 125 Ga. 352 (54 S. E. 168); So. Ry. Co. v. Lang, 11 Ga. App. 8 (74 S. E. 443). Under the evidence, the determination of the question whether the presumption of negligence was rebutted was exclusively a matter for the jury, and their verdict 'will not be disturbed. Seaboard Air Line Ry. v. McDonald, 19 Ga. App. 637 (3) (91 S. E. 1053); So. Ry. Co. v. Godfrey, 36 Ga. App. 323 (136 S. E. 473). There was no error in refusing a new trial.

Judgment affirmed.

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


text:
    17952.
    DAVIS v. CITIZENS-FLOYD BANK & TRUST CO.
    1. When an alleged principal, by acts or conduct, has knowingly caused or permitted another to appear as his agent, he will be estopped to deny the agency, to the injury of third persons who have in good faith and in reasonable prudence dealt with the apparent agent on the faith of the relation. Wussbaum v. Heilbron, 63 Ga. 313, 315; 2 C. J. 461.
    2. “One who tacitly permits himself to be held out to the public as a partner, though he in fact has no interest in the partnership, will be estopped from denying his connection with the firm, and will be bound, where the opposite party was misled by the putative status and acted thereon. . . Thus, where a person knows that his name is being used as that of a member of a firm, and that he is being held out as a partner in a particular business, he is not only under the duty to prohibit such use, but it is also incumbent upon him to take such steps as an ordinarily prudent person would take in the circumstances to notify the public, as well as individuals to whom he knows that he has been so held out as a partner, that he is not a partner.” 8hap-leigh Hardware Co. v. McCoy, 23 Ga. App. 265 (98 S. E. 102); Heinlwd v. Bedingfield Co., 4 Ga. App. 176 (61 S. E. 34); Roberts v. Curry Grocery Co., 18 Ga. App. 53 (88 S. E. 796).
    3. The evidence authorised the inference that the person who signed the note had ostensible authority to do so in behalf of the defendant, and that the plaintiff payee, in extending the credit, justifiably relied thereon. In these circumstances the defendant was liable, and, being so, he can not complain that he was held as a partner, whether it be true that he was liable in fact only as an individual.
    ■ 4. In a suit on a note it is not necessary for the plaintiff to plead estoppel, in order to invoke it to combat some affirmative defense against which the principle may be applicable. There was no error in refusing a new trial.
    Decided October 13, 1927.
    Complaint; from Eloyd superior court—Judge Maddox. December 10, 1936.

      John Camp Davis, for plaintiff in error.

      Denny & Wright, contra.
   Bell, J.

The bank brought suit against John P. Davis and J. Olney Davis, as partners, upon a promissory note. John P. Davis alone defended, filing a plea of no partnership. The trial before the judge without a jury having resulted in a finding and judgment against him, he moved for a new trial on the general grounds only, and, the motion being refused, he excepted.

The evidence showed that with the knowledge and consent of his father, John P. Davis, and in the latter’s office, J. Olney Davis conducted an insurance business under the name of “John P. Davis Insurance Agency,” and that, acting within the scope of that enterprise and in that name, he executed the note sued on. The evidence also authorized the inference that the plaintiff payee accepted the note for value, relying upon the credit and responsibility of .John P. Davis, although believing, from representations of J. Olney Davis, that the two were partners. While the mere declarations of an alleged partner are not admissible to prove that he is the partner of another who denies- the existence of the partnership (see Shaw v. Jones, 133 Ga. 446 (4) (66 S. E. 240); Bender v. Hill, 30 Ga. App. 239 (117 S. E. 258), and the evidence here established without dispute that the partnership did not exist in fact, yet since the evidence warranted the inference that John P. Davis, by his conduct, had held himself out as being related, as a responsible party, in some capacity, to the business carried on under the name stated, and had permitted J. Olney Davis to pledge the credit of such business under 'ostensible authority to do so, John P. Davis could be held liable on the contract by one who extended credit on the faith of sirch relation and authority. In such circumstances he will be estopped to assert that the facts were not as they appeared to be, whether the person creating the debt did so' as an agent or as a partner. The real question is whether J. Olney Davis had apparent authority in any capacity to bind -his father. “When one of two innocent persons must suffer by the act of a third person, he who put it in the power of the third person to inflict the- injury must bear the loss.” Civil Code (1910), § 4537. Where it appeared that such apparent authority existed, and that the plaintiff extended the credit on the faith thereof, the defendant is bound, although the authority did not exist in fact, and it is immaterial what the plaintiff may have believed as to the technical relation ont of which such authority proceeded. Even assuming that the putative status was that of principal and agent, and not, as the plaintiff believed, that of partners, the defendant can not complain that he was held as a partner, where he could have been held as an individual. Doody Co. v. Jeffcoat, 127 Ga. 301 (2) (56 S. E. 421); Waldrop v. Wolff; 114 Ga. 610 (6) (40 S. E. 830), and cit.

It was not necessary for the plaintiff to plead estoppel where, as here, it was brought forward by the evidence to combat an affirmative defense. Wright v. McCord, 113 Ga. 881 (2) (39 S. E. 510); Askew v. Amos, 147 Ga. 613 (95 S. E. 5). The court did not err in refusing a new trial.

Judgment affirmed.

Jenlcins, P. J., and Stephens, J., concur.


text:
    17956.
    National Bond and Investment Company v. Bush.
    Decided October 13, 1927.
    Complaint; from city court of Albany—Judge Clayton Jones. January 21, 1927.

      Bennet & Peacock, for plaintiff.
    - Cowart & Durden, for defendant.
   Stephens, J.

1. Where the only defense to a suit upon a promissory note was contained in a plea alleging that the defendant was a surety upon the note and that the plaintiff failed te bring suit upon it in three months after notice in writing had been given to the plaintiff, as required by section 3546 of the Civil Code (1910), and where the only evidence tending to establish service of the required notice was the testimony of the defendant himself that a letter, the contents of which were not shown, was signed by him and “was sent through the ordinary course of mail,” that the defendant had no distinct recollection of mailing the letter, but that either he or his stenographer mailed all letters, and also testimony of the stenographer that, while the letter purported to have been written by her, and she guessed she wrote it, she had no recollection of writing it, and that it was usual for her or the defendant to mail the letters, the evidence was insufficient to sustain the plea. Rawleigh Medical Co. v. Burney, 25 Ga. App. 20 (102 S. E. 358); National Building Asso. v. Quin, 120 Ga. 358 (3) 364 (47 S. E. 962).

2. The verdict for the defendant was without evidence to support it.

Judgment reversed.

Jenhms, P. J., and Bell, J., concur.


text:
    17983.
    Cowart & Dancer v. Bush.
   Bell, J.

1. Where the owner of cotton placed it in storage with a warehouseman at an agreed or implied rate, “the charges on the cotton already stored could not be increased unless the party storing it consented expressly or impliedly thereto.” Bush v. Cowart, 30 Ga. App. 138 (117 S. E. 104); Montgomery v. Berry, 31 Ga. App. 701 (121 S. E. 853); Bush v. Cowart, 157 Ga. 746 (121 S. E. 687).

(a) This is true notwithstanding the receipts issued for the cotton were negotiable and for this reason the warehouseman may have had no exact knowledge as to the ownership of the cotton at the time of the proposed, increase in the storage rate. There was no presumption that the receipts were negotiated (Hobbs v. Citizens Bank of Wrens, 32 Ga. App. 522 (4), 124 S. E. 72); and furthermore, a bailee for hire not only has a lien for his charges on the thing deposited, but the bailor, in the absence of agreement to the contrary, continues to be personally liable for such charges, and it is not necessary “that the warehouseman should look to the cotton or to whomsoever the receipt for the cotton may have been transferred.” Garrard v. Moody, 48 Ga. 96 (5).

2. Under the ruling in the preceding paragraph, the court did not err in instructing the jury that the plaintiff, who was suing for the difference between the old rate paid by the defendant and the new rate, which the defendant refused to pay, would not be entitled to recover without proof that the defendant consented either expressly or impliedly to the increase in the rate. The evidence did not demand a finding that the defendant so consented, and the verdict found in his favor on such issue was therefore authorized.

3. An error in the charge of the court on the subject of interest is harmless where the jury, on sufficient evidence, finds that the plaintiff is not entitled to recover the principal sum sued for. So, even assuming that the trial judge committed 'error in charging the jury that the plaintiff could not recover interest prior to demand for payment, the jury having found against the plaintiff’s claim for the amount of the principal in controversy, such error will not require a new trial. Howard v. Ga. Ry. & Power Co., 35 Ga. App. 273 (8) (133 S. E. 57).

4. Under the issues involved in this case, evidence merely that other warehousemen had. simultaneously with the plaintiff increased their rates- for the storage of cotton and that this fact was commonly known and discussed in the community where the parties resided and did business was irrelevant and was properly excluded. Whether the proffered evidence would have been admissible if it had included proof that such increase related, by'general custom, to cotton already on storage need not be decided. See 40 Cyc. 450.

5. The account attached to the petition showed a credit of a certain sum which the defendant had paid, arid the suit was to recover the balance. In the plaintiff’s motion for a new trial error is assigned on the court’s refusal to exclude from evidence a check which had been introduced by the defendant and by which he had made the payment on the account as stated. Held: While “An admission in the pleadings by both parties is to be taken as true and the record should not be burdened by proof of the fact admitted” (Lovell v. Frankum, 145 Ga. 106 (5), 88 S. E. 569; Bankers Trust & Audit Co. v. Hanover Nat. Bank, 35 Ga. App. 619, 134 S. E. 195), the fact that the court allowed the check to remain in evidence in this case was not cause for a new trial. Each of the parties testified at some length touching the circumstances surrounding the payment, the fact of which, however, was not in dispute. This testimony was not objected to. Even if evidence of a certain fact be inadmissible under the strict rules of evidence, its admission is not fatal to the final judgment if the same fact be shown by other legal evidence to which no objection was made. Kiser Go. v. Barbre, 34 Ga. App. 447 (129 S. E. 887); Richards v. Coweta Fertilizer Co., 36 Ga. App. 1 (135 S. E. 319). Furthermore, the defendant was not likely prejudiced by the evidence objected to, considered alone.

Decided October 13, 1927.

Complaint; from Miller superior court—Judge Yeomans. January 39, 1937.

~W. I. Geer, for. plaintiffs.

N. L. Stapleton, Pottle & llofmayer, for defendant.

6. In the brief of counsel for plaintiff in error, there is no sort of reference to any of the grounds of the motion for ne\y trial except the general grounds and special grounds 4, 7, 8, and 9. These have been dealt with in the preceding paragraphs, and in none of them is reversible error shown. Other assignments of error are therefore deemed to have been abandoned.

Judgment affirmed.

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


text:
    18020.
    Lee, administrator, v. Moore et al.

   Bell, J.

1. “When one owning real estate dies, the title to the real estate passes to the heirs; and it is not.the duty of"the administrator, as such, to collect rents accruing after, the death of the intestate; and if he does so, it is not in his capacity as administrator.” Hoyt v. Ware, 156 Ga. 98 (6) (118 S. E. 734); Roberts v. Kite, 33 Ga. App. 91 (125 S. E. 719), and cases cited. An administrator can not interfere with the realty except to protect it or to take possession and sell it to pay debts and for distribution. “He is appointed for the purpose of collecting and talcing care of the effects of the deceased. Civil Code (1910), § 3935. ‘Effects’ means personalty. Rents accruing after death are no part of the ‘effects’ of the deceased. Rents accruing and unpaid at the time of death would be.” Collins v. Henry, 155 Ga. 886 (1), 889 (118 S. E. 729); Autrey v. Autrey, 94 Ga. 579 (20 S. E. 431).

2. The administrator, having no duty of renting the lands, was not liable for a failure to rent them. Hence the court erred in charging the jury that the administrator was bound for the reasonable rental value of the lands for the period in controversy, viz., the years succeeding that in which the-intestate died. Cross v. Johnson, 82 Ga. 67 (8 S. E. 56); Civil Code (1910), § 4012. Solely because of this error, the court should have granted a new trial.

Decided October 13, 1927.

Appeal; from Haralson superior court—Judge Irwin. December 20, 1926.

J. 8. Edwards, for plaintiff in error. Waller Mallhews, contra.

Judgment reversed.

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


text:
    18227.
    Whelchel v. Cox.
    Decided October 13, 1927.
    Appeal; from Bartow superior court—Judge Pittman. April 25, 1927.

      M. B. Eubanks, for plaintiff in error. Finley & Henson, contra.
   Stephens, J.

1. in. an appeal to the superior court from a judgment rendered for the plaintiff in a justice’s court upon an unconditional contract in writing, where no appearance was made nor any plea filed by the defendant in the justice’s court, and this fact was made to appear upon the hearing of a motion to dismiss in the superior court, the judge of the superior court properly dismissed the appeal brought by the defendant. Smith v. Chivers, 6 Ga. App. 154 (64 S. E. 493) ; Morgan v. Prior, 110 Ga. 791 (36 S. E. 75).

2. A recital in a judgment rendered in passing upon a motion, as to what facts appeared in evidence upon the hearing of the motion, constitutes a sufficient certification as to the evidence adduced upon the hearing of the motion.

3. Since, under the above-stated facts, the superior court had no jurisdiction to entertain the appeal, the appeal should have been dismissed sua sponte, and it is therefore immaterial that the motion to dismiss, which was filed by the plaintiff as appellee, and upon which the court acted in rendering its judgment of dismissal of the appeal, was based only upon the ground that no written plea under oath had been filed in the justice’s'court.

Judgment affirmed.

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


text:
    17938.
    Ritchie & Wells v. Irvin.
   Jenkins, P. J.

1. This case is before the court on the usual general grounds of the motion for new trial,- and the additional ground that the court erred in not directing a verdict in favor of the claimant. As has been repeatedly held by this court and by the Supreme Court, it is never error to refuse to direct a verdict.

Decided October 14, 1927.

Claim; from Habersham superior court—Judge J. .B. Jones. December 21, 1926.

Ernest J. Kimsey, I. II. Sutton, for plaintiffs in error.

J. G. & H. E. Edwards, contra.

2. "The lieu of a mortgage on personalty given contemporaneously with the sale thereof to secure the purchase money, is of superior dignity to that of a judgment rendered against the mortgagor prior to the purchase and the giving of the mortgage for the purpose stated.” Wiggins v. Tumlin, 96 Ga. 753 (2) (23 S. E. 75) ; Duncan v. Clark, 96 Ga. 263, 266 (22 S. E. 927). If, after the maturity of the purchase-money debt thus secured, the mortgagor, without requiring the foreclosure, of the mortgage, in good faith and without fraud of any kind, returns the mortgaged property to his creditor in satisfaction of the entire purchase price which the .mortgage was given to secure, and if the fair value of the property is not then greater in amount than the purchase price thus extinguished by the return of the property, such property, in the hands either of the mortgagee after its surrender or of his subsequent vendee, is not subject to such antecedent, or to an intervening, judgment against the first vendee of the property. Wiggins V. Tumlin, supra. But if a portion of tlie purchase price is paid by the original vendee at the rime the purchase-money mortgage to the vendor is executed, and the mortgage secures only the remaining unpaid portion of the purchase price, an antecedent judgment against the vendee, or a judgment rendered against him while in possession of the property under his purchase, attaches to his interest therein, and this lien can not be defeated by a private surrender of the property to the vendor in payment of the unpaid balance of the purchase price. Kidd v. Kidd, 158 Ga. 546, 551, 552 (124 R. E. 45, 36 A. L. R. 798).

3. In the instant case the claimant of the property levied upon is one who claims to have been the vendor of the property, and to have received it back from his vendee by giving credit in a stated amount upon the mortgage executed to him by the vendee at the time of the sale. It in no wise appears from the record, however, that the purchase-money mortgage, note represented the eniive purchase price of the property, nor that the amount for which credit was given by the vendor upon the return of the property represented the fair market value of the property at that time. Moreover, under the testimony of the mortgagor, it appears that the purchase-money mortgage relied upon by the claimant was not in fact executed for the purchase price of the property levied upon, but was in fact given to secure a preexisting debt. Accordingly, the jury were authorized to find that the property was subject to levy and sale under the plaintiff’s antecedent fi. fa. Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    17945.
    CITIZENS BANK OF PLAINS v. HAGERSON.
    Under section 4355 of the Civil Code of 1910, as amended (Park’s Code Supp. 1922-, § 4357(a)), a suit to revive a dormant judgment must be brought within three years from the time it becomes dormant. Under that section a judgment becomes dormant if seven years elapse “a.t any time after execution is issued thereon without an entry on the execution by an officer authorized to execute and return the same, and such entry recorded” on the general execution docket, “with the date of such record entered by the clerk.” As was held by this court in Lewis v. Moultrie Banhing Oo., 36 6a. App. 347 (136 S. E. 554, 555), where there is no reliance upon a compliance with the statute as to recording entries on the execution docket, nothing else will suffice, even as between the parties, save the record of facts upon the public dockets of the courts, showing a bona fide public effort to collect the debt. See also Nelson v. Gill, 56 Ga. 537; Graven v. Martin, 140 Ga. 651 (79 S. E. 568); Towers v. City Land Go., 31 Ga. App. 612 (121 S. E. 701). From the foregoing it follows that a levy by the sheriff of an exeeu- ' tion, followed by a sale under the levy, will not suffice to prevent the running of the dormant-judgment act, where it is not made to appear that any record of the levy and sale has been made upon the public dockets of the courts. This is true although it appears from the petition that the funds arising from the sale were retained by the sheriff upon another execution against the defendant, and paid over to the holder of the other execution, where it does not further appear that the funds were applied by order of the court to the other execution upon a money-rule or other proceeding in court which appears of record upon the public dockets of the courts. The court did not err in sustaining the demurrer to the plaintiff’s petition.
    Decided October 14, 1927.
    Complaint; from city court of Americus—Judge Harper. January 10, 1927.
    Application for certiorari was made to the Supreme Court.

      R. L. Maynard, for plaintiff. Zach Childers, for defendant.
   Jenkins, P. J.

On June 1, 1926, Citizens Bank of Plains brought suit against J. T. Hagerson, alleging that in April, 1916, the plaintiff recovered a judgment against the defendant in the city court of Americus, and that on April 10, 1916, execution was issued thereon and duly entered of record upon the general execution docket in the office of the clerk of Sumter superior court; that in November, 1917, the sheriff levied the execution upon certain land of the defendant, which was sold on December 4, 1917; that the “funds arising from the -sale of said land were retained by said sheriff upon a certain execution against said defendant, issued from the city court of Ellaville; that said execution, being of prior date, was a superior lien upon said funds, and the same was paid and applied thereon.” It is not alleged that the funds were distributed to the holder of the prior execution upon a money-rule against the' sheriff, or by order of court in any other legal proceeding. The petition sets forth that the judgment sued on is dormant, and asks judgment against the defendant for the amount due thereon. The defendant demurred upon the ground that the petition showed that the judgment sued on was dormant, and that it was more than ten years old at the time of the filing of the petition. The court sustained the demurrer and dismissed the petition, and the plaintiff excepted.

Judgment affirmed.

Stephens and Bell, JJ., concur.