text:
    19288.
    KIDD et al. v. THE STATE.
    Decided December 11, 1928.
   Bloodworth, J.

The plaintiff in error was convicted under an indictment which charged him with breaking and entering “certain cars” '“with intent to steal goods, wares, freight, and other things of value being therein.” He made a motion in arrest of judgment, upon the ground that the indictment was “null and void and insufficient in law,” because it does not allege: (a) “That the cars alleged to have been broken and entered were railroad cars;” (&) “that any goods, wares, freight, merchandise, or other thing of value were in said car or cars at the time of the alleged breaking and entering;” (c) “what thing or things the defendant intended to steal.” The indictment is sufficient to show that the cars were “railroad-cars.” It gives the number and initial of each ear, some of them being marked “N. C. & St. L.,” and it alleges that they were in “the possession, custody, and control of the Nashville, Chattanooga and St. Louis Bailway Company, lessors of the Western and Atlantic B. B. Company, and on its sidetracks and yards at Kingston, Georgia, in Bartow County.” The allegations are sufficient to show that the goods, wares, freight, merchandise, or other things of value were in said car or cars at the time of the alleged breaking and entering. It is specifically alleged that the defendants broke and entered the car with intent to steal. It is not necessary to allege what particular things they intended to steal. See Thomas v. State, 27 Ga. App. 38 (107 S. E. 418); Stokes v. State, 84 Ga. 258 (10 S. E. 740); Farm v. State, 24 Ga. App. 114 (100 S. E. 36). In addition to the foregoing, certain rules have been laid down to test the sufficiency of indictments. Section 954 of the Penal Code (1910) says: “Every indictment or accusation of the grand jury shall be deemed sufficiently technical and correct, which states the offense in the terms and language of this code, or so plainly that the nature of.the offense charged may be easily understood by the jury.” In Newman v. State, 63 Ga. 534, Justice Bleckley said: “The rule as to the sufficiency of an indictment is this: if all the facts which the indictment charges can be admitted, and still the accused be innocent, the indictment is bad; but if, taking the facts alleged as premises, the guilt of the accused follows as a legal conclusion, the indictment is good.” The learned Justice added: “The rule is sound and sensible, and ought to be recognized and accepted by all courts.” The first headnote in Williams v. State, 2 Ga. App. 629 (second ease) (58 S. E. 1072), is as follows: “Where every essential ingredient of the offense charged is set forth with sufficient clearness to enable the defendant to prepare his defense, and the jury clearly to understand the nature of the offense, the accusation is not demurrable.” The indictment in this case measures up to each of the foregoing standards, and meets all the objects specified for requiring particularity in setting out an offense, which are announced in Wingard v. State, 13 Ga. 396 (2), 400.

The court did not err in overruling the motion in arrest of judgment.

Judgment affirmed.

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


source: Caselaw Access Project

author: Broyles, C. J.

license: Public Domain

text:
    19289.
    Brooks v. The State.
    Decided December 11, 1928.
   Broyles, C. J.

1. The demurrer to the accusation was properly overruled. See, in this connection, Kunsberg v. State, 147 Ga. 591 (95 S. E. 12); Young v. State, 167 Ga. 165 (144 S. E. 726).

2. Where the hearing of a motion for a new trial is set for a future day in term time by an order which requires the movant to file a brief of the evidence within a specified time, it is within the discretion- of the court, when the motion comes on for a hearing on the day set, to refuse to dismiss it on the ground that the brief of the evidence was not filed within the time limited by the order of the court, if the movant was not chargeable with laches in failing to comply with the terms of the order. Broadway National Bank v. Kendrick, 124 Ga. 1053 (53 S. E. 576). In the instant case it is recited in the bill of exceptions that the judge did not exercise his discretion when he dismissed the motion for a new trial, but held that as a matter of law it should be dismissed upon the ground that the brief of evidence had not been filed within the time specified in his original order. These recitals in the bill of exceptions are not contradicted by anything in the record.

(а) A second or supplementary certificate by the judge to the bill of exceptions can not be considered by this court. When the judge “has signed a certificate to a bill of exceptions, he has exhausted his power in that regard, and can not add a supplementary certificate explanatory of the first.” Cordray v. Savannah Union Station Co., 134 Ga. 865 (1-a) (68 S. E. 697), and citations.

(б) The trial judge erred in holding that as a matter of law the motion for a new trial should be dismissed, and in so dismissing it.

Judgment reversed.

Luke and Bloodworth, JJ., concur.

M. B. Huíanles, for plaintiff in error.

Alec Harris, solicitor, contra.


author: Luke, J.

text:
    19290.
    KINNEBREW v. THE STATE.
    Decided Decembek 11, 1928.

      M. B. Eubanlcs, for plaintiff in error.

      Alec Harris, solicitor, contra.
   Luke, J.

The defendant was convicted, and applied for a new trial. On September 14, 1928, the trial judge set the hearing of the motion for a new trial on October 13, 1928, and allowed the defendant fifteen days in which to file a brief of the evidence. The defendant did not file the brief of the evidence. within the time prescribed in the order of the court, and, on the date set for the hearing of the motion for a new trial, the court, on motion of the solicitor, dismissed the motion for a new trial. The bill of exceptions recites that the court sustained the motion of the solicitor to dismiss because the brief of evidence was not filed within the time provided for in the order of the court, the court “holding that both the court and defendant were bound by the terms of the order allowing fifteen days in which to file the brief of the evidence.” The judge certifies that this bill of exceptions is true. Of course it would have been proper for the judge to call upon movant’s counsel to show cause why the brief of evidence had not been filed in accordance with the terms of the order of September 14, 1928, and what reason counsel had for invoking further indulgence. However, as it is apparent from the bill of exceptions that the judge did not undertake to exercise any discretion in the matter, but sustained the motion to dismiss upon the idea that the court and counsel were bound by the order of September 14, and that the court was without jurisdiction to deal with the motion for a new trial on its merits, because the brief of evidence had not been filed on or before September 29, “the judgment of dismissal should be reversed, to the end that the movant may have an opportunity of showing to the satisfaction of the court that the failure to comply with the terms of its original order was not due to the laches of counsel, if such be the truth of the matter.” See Broadway National Bank v. Kendrick, 124 Ga. 1053, 1056 (53 S. E. 577); Brooks v. State, ante, 32.

Judgment reversed.

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


author: Bloodworth, J.

text:
    19294.
    JACKSON v. THE STATE.
    Decided December 11, 1928.

      F. Larcus Clements, for plaintiff in error.
   Bloodworth, J.

In the city court of Macon the plaintiff in error was accused, under section 311 of the Penal Code of 1910, of obstructing legal process by “threatening and attempting to cut” with a large knife W. S. Pool, a deputy sheriff of the municipal court of Macon, “in executing and attempting to execute a legal process.” In the absence of a demurrer the accusation might have been sufficient to support a conviction without the allegation that the accused attempted to cut the officer with a large knife (Harrison v. State, 26 Ga. App. 645, 107 S. E. 90; Moses v. State, 6 Ga. App. 251 (2), 64 S. E. 699); yet this having been alleged, it must be proved. Fulford v. State, 50 Ga. 591; Watson v. State, 64 Ga. 61 (2); Holden v. State, 144 Ga. 338 (3) (87 S. E. 27); Southern Express Co. v. State, 23 Ga. App. 67 (2) 71 (97 S. E. 550), and cit. It is true that the officer swore that the accused, after stating that' “it wasn’t anybody going to get her furniture,” “walked over to a table in the kitchen and picked up a big long knife, turning around, and wiping it off on some towels, laying it down in a chair in the room in which I was standing, later picking up the knife, walking over towards the front door where I was standing, with the knife in her hand and her hand hanging downward. She then placed the knife on her trunk in the same room and tried to get me to go out of the house, saying that she wanted to get the money to pay off this debt. I would not leave, so she tried to shut the door, but I would not let her. I sent Mr. Souther to call for a truck to haul the furniture away, and when the truck driver came she picked up the knife and said there wasn’t anybody going to get her furniture. The truck driver run and jumped the fence, and she put her hand on the foot of the bed standing near the door and would not let me pass. Mr. Souther asked me if he should go call another officer for help. I replied that he should, and ordered him to do so.” This evidence does not show that the accused made any attempt to cut the officer. Granting that she procured and held for a time “a large knife” with which she could have cut the officer, the possession of the knife was not accompanied by any attempt to use it.

The evidence does not support the allegations of the indictment, and the court should not have overruled the motion for a new trial.

Judgment reversed.

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


author: Jenkins, P. J.

text:
    18765.
    Transylvania Casualty Company v. City of Atlanta, for use, etc.
    Decided December 13, 1928.

      Bryan & Middlebrooks, W. Colquitt Carter, for plaintiff in error.

      T. J. Lewis, contra.
   Jenkins, P. J.

The. court did not err in refusing a further continuance of the case. Judgment affirmed.

Stephens and Bell, JJ., concur.

Stephens and Bell, JJ., concur.


text:
    18780.
    METROPOLITAN CASUALTY INSURANCE COMPANY OF NEW YORK et al. v. DALLAS.
    Decided December 13, 1928.

      Bryan & Middlebroolcs, for plaintiffs in error.

      Ben H. Hill, Hooper Alexander, contra.
   Jenkins, P. J.

(After stating-the foregoing facts.) 1. By section 57 of the workmen’s compensation act (Ga. L. 1920, p. 197), it is required that an award of the industrial commission be accompanied by a statement of the findings of fact upon which the award is made. This requirement contemplates a concise but comprehensive statement of the cause and circumstances of the accident as the commission shall find it to have occurred; and it is not enough to state merely in the language of the statute that the injury is or is not found to have arisen out of and in the course of employment. Southeastern Express Co. v. Edmondson, 30 Ga. App. 697 (119 S. E. 39), explained in American Mutual Liability Co. v. Hardy, 36 Ga. App. 487 (137 S. E. 13). In other words, it is contemplated by section 57 of the act that the commission shall adjudicate and file a statement of the facts supporting the legal conclusions arrived at. In the instant case the statement by the commission of its findings of fact shows that the deceased was an office helper, employed as a janitor, and that “his duties consisted of working around the office, running errands, etc.” The commission further found, as a matter of fact, that the ordinary duties of his employment did not embrace his act in taking hold of a “live” wire which had fallen on the premises of the employer, outside the building. Its findings on questions of facts are conclusive. Ocean Accident &c. Corporation v. Council, 35 Ga. App. 632 (2) (134 S. E. 331).

2. While compensation is ordinarily not recoverable unless the injury arises out of and in the course of employment, it is the general rule in this country, established by the great weight of authority, that an employee does not, in contemplation of law, go outside his employment if, when confronted with a sudden emergency, he steps beyond his regularly designated duties in an attempt to save'himself from injury, to rescue another employee from danger, or to save his employer’s property. 6 A. L. R. 1247, and cases there cited; Baum v. Industrial Commission, 288 Ill. 516 (123 N. E. 625, 6 A. L. R. 1242). In the instant case, however, the commission has found as a matter of fact that the deceased, in catching hold of a live, smoking, and disconnected wire, lying out in the yard, in spite of the repeated warnings of a fellow employee, did not act in any such emergency, so as to bring himself within the scope and operation of such rule, but in effect found that his act amounted to wilful and intentional misconduct.

3. The findings of the commission being in effect and intent that the injury did not arise out of and in the course of the decedent’s employment, nor by virtue of a bona fide act of the decedent in stepping out of the bounds of his usual course of employment in order to serve the interests of his master when confronted by a sudden emergency, its findings upon these questions became conclusive, and the judge of the superior court erred in setting aside the findings as entered by the commission and awarding compensation. This is true without reference to the other disputed issue of fact, upon which the commission made no finding, as to whether the claimant wife was living in a state of voluntary separation from the husband at the time of his death.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    18809.
    Howell v. Booth, executrix.
    Decided December 13, 1928.

      Lamar C. Ruclcer, Carlisle Cobb, for plaintiff in error.

      Wolver M. Smith, contra.
   Jenkins, P. J.

1. This court will not control the discretion of a trial judge in granting a first new trial, unless it should appear that the verdict was demanded by the law and the facts. Civil Code (1910), § 6204. .

2. In the instant claim case, a judgment was rendered finding the property not subject, and a new trial was granted to the plaintiff. While the evidence of either the plaintiff or the claimant is not very definite as to the identification of the property claimed and of that levied upon, the proof indicates that the defendant in fi. fa. was in possession of the property at the time of the levy, thus placing the burden of proof upon the claimant; and the evidence would authorize the inference that at least a portion of the property levied upon was purchased by the defendant in fi. fa. after the issuance and recordation of the execution. Accordingly, the judgment of the court below granting a first new trial to the plaintiff in fi. fa. will not be disturbed.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    18820.
    McBrien v. Harris.
   Jenkins, P. J.

1. “Sheriffs or their deputies may serve or execute all summonses, executions, or other processes issued from justices’ courts, as such processes may now be served or executed by constables.” Civil Code (1910), § 4915.

2. “As to personal property, the seizure, and not the official entry, eonstitutes the levy.” Ayers v. State, 3 Ga. App. 305 (3) (59 S. E. 924).

Decided December 13, 1928.

Rosser & Shaw, for plaintiff in error.

3. Where a deputy sheriff executes an attachment issued from a justice’s court by levying on personal property as belonging to the defendant in attachment, and signs the entry of levy as deputy sheriff, and the defendant in attachment appears at the trial of the attachment case, and judgment is there rendered against him as defendant, and thereafter a general and special execution is issued in favor of the plaintiff and against the defendant, and the officer who seized the property under the attachment, without making an entry of levy upon the execution, advertises it for sale by posting notice as required by law, and, at the direction of the justice, on the day of the sale, cries off the property, it will not be presumed that the officer, in conducting the sale, was illegally undertaking to act as a constable and not as a deputy sheriff, and the purchaser at that sale acquires good title to the property as against the defendant in the attachment proceeding.

4. Under the foregoing rulings, the court erred in directing a verdict for the defendant in attachment, suing in trover to recover the property from one holding under the purchaser at such sale.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    18829.
    Osborn v. War Finance Corporation.
   Jenkins, P. J.

Osborn executed a negotiable promissory note to Bishop Banking Company, and that company transferred it to the War Einance Corporation, which placed the note back in the hands of the banking company, as its special agent, under a trust receipt, for collection. On the trial of the suit on the note, brought by the War Einance Corporation against Osborn, he testified, in support of his plea of payment, that he did not know that the bank had traded off the note,.and that upon being called upon by it for payment he instructed the president of the bank to convert into cash an unmatured time-certificate held by him against the bank, and to apply the proceeds, together with certain other funds held by the bank on deposit for him, to the note. The defendant swore that the bank president promised to comply with these instructions. It appears that the bank went into liquidation without compliance with the instructions. The court directed a verdict in favor of the plaintiff, and the defendant excepted. Held: While possession of the negotiable note by the bank indicated its authority to receive payment thereon, so that payment in cash by the maker to the bank as the special agent of the holder would absolve the maker from further liability (Civil Code of 1910, § 3578; Sherrod v. Springfield Baptist Church, 21 Ga. App. 200, 93 S. E. 1009), nothing save an agreed settlement of the note with the holder, or payment in cash to the bank, would amount to a satisfaction; and the defendant took the risk of the bank’s failure to carry out any executory agreement, with which it was entrusted by the maker as his agent to perform, in converting certain choses in action into cash for the purpose of being applied in payment of the note. Hirsch v. Oliver, 91 Ga. 554, 561 (18 S. E. 354). Even though the evidence were to be construed as showing an agreement by the bank to accept the time-certificate issued by it to’the defendant as in payment of the note held by it as agent for collection, such conduct on the part of the bank would not bind its principal, since it is the general rule that “a payment to an agent by releasing his personal debt is not a payment to the principal.” Bostick v. Hardy, 30 Ga. 836; Walton Guano Co. v. McCall, 111 Ga. 116 (36 S. E. 469); Mitchell v. Printup, 68 Ga. 675. The fact that the maker of the note might not have known that the bank to whose order the note was made payable had parted with its title, and held the note merely as agent for collection, would not operate to change the rule as against the rights and interest of the true owner, since the note was negotiable on its face, and it was incumbent upon the defendant to settle with the actual owner or else make payment in cash to its duly authorized agent.

Decided December 13, 1928.

James W. Arnold, for plaintiff in error.

Green <$} Michael, W. K. Meadow, contra.

Judgment affirmed.

Stephens and Bell, JJ., concur.


author: Stephens, J.

text:
    18835.
    HOGAN v. O’DELL.
    Decided December 13, 1928.

      Boyd Sloan, for plaintiff in error. Jones & Reid, contra.
   Stephens, J.

(After stating the foregoing facts.) The defendant against whom the possessory warrant issued relies upon numerous decisions of this court and of the Supreme Court which follow Trotti v. Wyly, 77 Ga. 684, wherein it was held that “unless it clearly appears that the defendant acquired the possession in one of the modes inhibited by the act of the legislature, there is nothing for the proceeding [by a possessory warrant] to rest on.” See Welborn v. Shirly, 65 Ga. 695; Ivey v. Hammock, 68 Ga. 428; Owens v. Outlaw, 105 Ga. 477 (30 S. E. 427); Allen v. Printup, 118 Ga. 630 (45 S. E. 911); Susong v. McKenna, 121 Ga. 97 (48 S. E. 695); Brown v. Todd, 124 Ga. 939 (53 S. E. 678); Oaks v. Singer Sewing Machine Co., 17 Ga. App. 517 (87 S. E. 719). He contends that his possession of the property, which was acquired bona fide by him as a purchaser from a person other than the plaintiff and without notice of its having been stolen, was not an acquirement of the property in one of the modes stated in section 5371 of the Civil Code of 1910 as grounds for the recovery of personal property by possessory warrant. This section provides that personal property which has disappeared from the “quiet, peaceable, and legally acquired possession” of a person, without his consent, may by him, if he in good faith claims title to, or interest in, or the possession thereof, be recovered by possessory warrant from a person holding possession of it “under some pretended claim and without lawful warrant or authority.”

A thief, or one who illegally acquires property with no right thereto, acquires no title to or right of possession in the property, and therefore can not convey anything. Therefore, one who purchases property from the thief, or from one whose right and title is derived solely from the thief, although the purchaser acquires the property bona fide and without knowledge of its having been stolen, acquires no right, title, or interest whatsoever in the property as against the person from whom it was stolen and who was legally entitled to its possession. In Felton v. Underwood, 9 Ga. App. 369 (71 S. E. 498), it was held that “the owner of personal property which has been stolen from his possession may by a possessory warrant recover it from one to whom the thief has recently delivered or sold it.” It appears from the record of this case, of file in this court, that the property the possession of which was sought had been stolen from the plaintiff and had been bought by the defendant from the thief, and it does not appear that the defendant when buying the property had knowledge that the property was stolen. Presumably, therefore, the defendant acquired possession of the property in good faith and without knowledge of its being stolen property.

The possession of the automobile by the defendant, irrespective of the bona tides of the defendant’s claim to the possession of the property, was “without lawful warrant or authority,” and the plaintiff, from whose “quiet, peaceable, and legally acquired possession” it had recently disappeared, and who was the owner and entitled to the possession, was entitled to recover its possession by possessory warrant.

The evidence demanded a finding for the plaintiff, and the verdict found by the magistrate, awarding the property to the defendant, was therefore without evidence to support it and contrary to law. The judge of the superior court properly sustained the certiorari brought by the plaintiff.

Judgment affirmed.

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


text:
    18837.
    Short v. Jordan.
   Jenkins, P. J.

1. While it has been'held that where a plea and answer fail to set up any ground of defense, the court may, at any stage of the trial, give the ease such direction as will disregard the plea [Bedingfield v. Bates Advertising Co., 2 Ga. App. 107 (3), 58 S. E. 320), and that this is true although no demurrer has been interposed to the plea, and evidence has been admitted without objection in support of the plea (Williams Mfg. Co. v. Warner Sugar Refining Co., 125 Ga. 408, 54 S. E. 95), yet where the defense pleaded is good in substance, although defectively set forth, such direction should not be given the case as will disregard the plea, in the absence of a special demurrer pointing out such defects. Higgingbolham v. Conway, 113 Ga. 1155 (39 S. E. 550). In the instant suit against one admitted to be a surety on a promissory note, the plea, which set up that the time of payment of the note was extended by the plaintiff, and that such act on the part of the plaintiff increased the liability of the defendant and operated to discharge him, was good in substance, and the court was not authorized, in the absence of a demurrer pointing out any defect therein, to disregard the plea and direct a verdict for the plaintiff upon the theory that no valid defense had been interposed. Hark v. Phenix Insurance Co., 113 Ga. 859 (2) (39 S. E. 304) ; Wortham v. Sinclair, 98 Ga. 173 (2) (25 S. E. 414).

Decided December 13, 1928.

Robert B. Short, for plaintiff in error. R. D. Welch, contra.

2. Where, after the maturity of a promissory note, the payee and holder accepts from the maker interest in advance, such payment and acceptance operate, in the absence of a stipulation to the contrary, to extend the time for payment of the note until the expiration of the period through which interest is paid in advance; and where such an extension of time is made without the consent of a surety upon the note, it discharges him. Civil Code (1910), § 3544; Scott v. Saffold, 37 Ga. 384 (1) ; Randolph v. Fleming, 59 Ga. 777 (2), 779.

3. It appears, without dispute, from the testimony of the plaintiff payee, that upon the maturity of the note sued on, which bore interest only after maturity, she permitted the principal debtor to pay the interest and “let it run on.” While it does not appear for what period or to what date the interest was paid, since the note bore no interest until after maturity, any payment of interest made by the principal debtor at the maturity of the note was necessarily an advance payment of interest, and operated to extend the time for payment to whatever date the interest was thus paid. The plaintiff testified that the first notice she gave the surety about the note was about three months after it became due, and the defendant testified that he had no knowledge that the note was not paid until that time. It is, therefore, inferable, from the evidence, that the defendant surety did not consent to the extension of time granted to the principal. ‘ Accordingly, the court erred in directing a verdict in favor of the plaintiff and against the defendant surety.

Judgment reversed.

Stephens and Bell, JJ., concur.


author: Belt., J.

text:
    McLeod v. Jordan.
    Decided December 13, 1928.

      Robert B. Short, for plaintiff in error. R. D. Welch, contra.
   Belt., J.

This case is controlled by the decision in the companion case of Short v. Jordan, ante.

Judgment reversed.

Jenldvns, P. J., and Stephens, J., concur.


text:
    18905.
    South v. Indemnity Insurance Company of North America et al.

   Jenkins, P. J.

1. Under section 32 of the workmen’s compensation act, as amended by the act of 1923 (Ga. L. 1923, p. 92), an employee who suffers a permanent and total loss of the use of a hand, by reason of an accident arising out of and in the course of employment, may be allowed compensation at the rate of one half his weekly wages, for a period of not more than ten weeks, for total incapacity for work, and is entitled to receive one half of his weekly wages for an additional period of one hundred and fifty weeks as compensation for the permanent handicap.

2. Under section 32 of the workmen’s compensation act, as amended by the act of 1923, an employee who suffers a permanent but partial loss of the use of a hand may.be allowed compensation at the rate of one half his weekly wages for a period of not more than ten weeks, for total incapacity for work, and is entitled to receive, for an additional period of one hundred and fifty weeks, weekly payments in such proportion of the weekly payment provided by the act for total loss of the use of such member as the partial loss bears to the total loss.

3. Under section 45 of the workmen’s compensation act, on application of any party at interest “on the ground of a change in condition, the industrial commission may at any time review any award or any settlement made between the parties and filed with the commission, and, on such review, may make an award ending, diminishing, or increasing the compensation previously awarded.” Upon an application for such review, the essentials leading up to the award are to be taken as res judicata, but the physical condition. of the employee remains open to inquiry. Gravitt v. Georgia Casualty Co., 158 Ga. 613 (123 S. E. 897) ; Globe Indemnity Co. v. Lankford, 35 Ga. App. 599 (134 S. E. 357) ; Workmen’s Compensation Acts, C. J. Appendix; 40 Cyc. 131, 132; L. R. A. 1916A., 163, 164. Thus, where the evidence before the industrial commission upon such review authorizes a finding that there has been a change in the condition of the claimant, a new award of compensation, based upon such changed condition, may be entered, although the original qward may have been based upon a disability found by the commission, at the time of making such original award, to be permanent.

Decided December 13, 1928.

4. However, under section 45 of the workmen’s compensation act, no review by the commission of an award of compensation previously made “shall affect such award as regards any monies paid.” Accordingly, while the commission may, upon reviewing an award previously made, make a new award “ending, diminishing, or increasing the compensation previously awarded,” such an award can not be made retroactive so as to be made effective as of the date of the original award, since to do so would “affect the award previously made as regards” monies paid, but the new award can only become effective as of the time it is entered, and the claimant can not be required to account for monies already paid him under the previous award.

5. Under the foregoing rulings, when the industrial commission found on review that the condition of the claimant in the instant case had changed, he was subsequently entitled only to compensation as for a permanent partial loss, instead of as for a permanent total loss, of the use of the injured member. But the commission was not authorized to impair its previous judgment by discontinuing his compensation entirely on the theory that he had already received, as for a total loss of the impaired member, more than he would be entitled to if the new finding had been made to begin with. He could not be thus required to account for monies already legally paid under the previous award; and the commission should have entered a new award allowing him subsequent diminished compensation for the continuing permanent partial loss of the use of such member in the proportion that such partial loss bears to such total loss. Accordingly, the judge of the superior court erred in affirming the award of the industrial commission.

Judgment reversed.

Stephens and Bell, JJ., concur.

John I. Uynds, for plaintiff.

Sidney Smith, James -N. Fraser, for defendant.


text:
    18908.
    Turner v. Shackleford et al.

   Jenkins, P. J.

1. “Verdicts are to have a reasonable intendment, and are to receive a reasonable construction, and are not to be avoided unless from necessity.” Civil Code (1910), § 5927. While it has been held that the construction of a verdict may be aided by a consideration of the pleadings, and that all the undisputed facts proved upon the trial may be examined and considered in construing the verdict (Mayor &c. of Macon v. Harris, 75 Ga. 761; Davis v. Tucker, 140 Ga. 250 (1), 243, 78 S. E. 909; Landrum v. Rivers, 148 Ga. 774 (9), 98 S. E. 477), this rule of construction is to be resorted to only when the intent of the jury is not reasonably apparent from the language of the verdict itself. Where the verdict is plain and unmistakable in its terms and legal effect, it must speak for itself. Anderson v. Green, 46 Ga. 361 (1). Thus, in a suit for damages brought against three persons as joint trespassers, where the jury returned the following verdict: “We, the jury, find in favor of the plaintiff in the amount of $300 damages and direct that this verdict be against T. J. and F. C. Shackelford,” the plain purport and intent of the finding was to assess damages against the two named defendants, and to relieve the other. See, in this connection, Small v. Hicks, 81 Ga. 691 (8 S. E. 628) ; Maynard v. Ponder, 75 Ga. 665. In such a case no valid or legal judgment could be entered against the defendant in whose favor the jury found. This is true even though the verdict may have been contrary to law and the evidence, in that the pleadings and the proof indicated that the actual trespass was committed by the defendant relieved by the jury, and that the liability of the defendants against whom the verdict was returned arose by reason of their having authorized such trespass.

Decided December 13, 1928.

M. B. Gannon, Hal Lawson, for plaintiff.

Shackelford, Shackelford & Davis, for defendant.

2. In such a case, where it appeared, without dispute and upon the face of the record, that the only two defendants against whom the verdict was rendered resided out of the county, and that the finding of the jury, was in favor of the one defendant on account of whose residence in the county of the suit the court acquired jurisdiction, it was proper for the court to arrest the judgment, on motion of the defendants against whom the verdict was returned. Warren v. Bushing, 144 Ga. 612 (87 S. E. 775) ; Christian v. Terry, 36 Ga. App. 815 (138 S. E. 244).

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    18912.
    Arnold v. Arnold.
   Stephens, J.

1. Where an objection to proffered testimony is sustained, but where the court announces that the objection will be overruled and the testimony admitted if the party offering it will introduce certain testimony as a foundation for the admission of the testimony offered, the introduction of the testimony indicated as the foundation for the proffered testimony amounts to a compliance by the party offering it with the ruling, and he will not be hoard afterwards to except to the ruling. The court having admitted the testimony objected to, there is no basis for an exception to its exclusion; and counsel having voluntarily introduced the testimony offered as a foundation for the proffered testimony, there is, as respects the admission of this testimony, no ruling to which exception can be taken.

2. Where the issue was as to whether an alleged marriage of one of the parties to the case was invalid by reason of a pre-existing marriage between that party and another person, the party seeking to prove the existence of the former marriage by offering parol testimony that a license for the former marriage was in existence will not afterwards be heard to object to the court’s requiring him to introduce, as a foundation for the admission of the offered testimony, evidence that the records in the court of ordinary showed that no license for the former marriage was issued, when the party offering the parol testimony complied with the ruling and introduced the required evidence as a foundation for the testimony offered.

3. This being a trial on appeal in the superior court in the case of a caveat filed to an allowance of a year’s support to a person claiming to be the widow of an intestate, and the evidence adduced presenting an issue of fact as to whether the applicant’s alleged marriage to the intestate was invalid by reason of a pre-existing marriage undissolved, the verdict found for the applicant against the caveat was authorized.

Decided Decembeb 13, 1928.

Post & Arnold, for plaintiff in error.

S. H. Dyer, A. Sidney Gamp, contra.

4. The charge of the court is not subject to exception urged by the caveator, that the court submitted to the jury a legal proposition not adjusted to the evidence.

Judgment affirmed.

Jenkins, P. J., and Bell, J., eoneur.


text:
    18914.
    Gardner v. Fleetwood.
   Jenkins, P. J.

Where the defendant in a suit on a promissory note for $244.96 filed on oath a plea of non est factum, denying that he had ever “executed any note for $244.96 to the plaintiff,” and alleging that “it is not his obligation, and was never signed by him or by any person authorized to sign for him,” the issue made by the plea was confined to the question whether or not the instrument sued on was actually signed by or for the defendant, and the plea did not raise the defense that, although signed by the defendant, the instrument was not signed by him in the shape then subsisting. Civil Code (1910), § 4295. On the trial of such a suit, where the defendant did not deny that the note was “signed by him,” but, on the contrary, admitted the execution of the instrument, and introduced evidence, admitted without objection, for the purpose of avoiding liability by showing that after its execution the note had suffered a material alteration at the hands of the plaintiff, the court might perhaps have been authorized, on its own motion, to charge the provisions of section 4296 of the Civil Code, relative to an intentional, material, and fraudulent alteration of a written instrument by a person claiming a benefit under it, inasmuch as the plea might have been amended to authorize the testimony which was in fact admitted without objection (Napier v. Strong, 19 Ga. App. 401 (2), 91 S. E. 579); but where “the judge, in stating the contentions of the parties, fully and fairly submitted the issues raised by the pleadings in the ease, the failure of the court, in the absence of a request, to instruct the jury upon a contention of one of the parties not raised by the pleadings, although supported by some evidence in the record, is not cause for a new trial.” McLean v. Mann, 148 Ga. 114 (2) (95 S. E. 985; Cowan v. Bank of Baconton, 21 Ga. App. 645 (2) (94 S. E. 808); Joseph Liebling Inc. v. Tabb, 30 Ga. App. 39 (2) (116 S. E. 666).

In the instant case it appears that the court fully and fairly stated the contention of the defendant as made by his plea, going even further than was thus required, by charging in effect that it was an issue as to whether or not the note sued on was the defendant’s obligation, and that the defendant contended it was not his obligation, for the reason that it was different in amount from a.ny note he had executed to the plaintiff. Consequently, a new trial will not be granted because the court failed, in the absence of any request, to charge otherwise and more fully the law with reference to material alterations of written instruments, as. provided by section 4296 of the Civil Code. See, in this connection, Jones v. Bank of Powder Springs, 31 Ga. App. 263 (2) (120 S. E. 422), and eases cited.

Decided December 13, 1928.

John M. Greer, for plaintiff in error.

J. J. Bull & Son, contra.

Judgment affirmed.

Stephens and Bell, JJ., ooneur.


text:
    18918.
    Trust Company of Georgia, executor, v. Jackson.
   Jenkins, P. J.

1. Under the provisions of section 5269 of the Civil Codo (1910), summons of garnishment may issue from time to time before trial, without giving additional bond. If the affidavit and bond for garnishment be based upon a pending suit, the right of the plaintiff to cause the issuance of summons of garnishment from time to time, without giving additional bond, is cut off by the trial of the pending suit and the entering of judgment therein. Ahrens v. Palton, 94 Ga. 247 (21 S. E. 523); Paton v. Chambliss, 114 Ga. 626 (2) (40 S. E. 760). But if the affidavit and bond for garnishment be based upon a judgment already obtained, summons of garnishment may issue from time to time before trial of the garnishment case, without giving additional bond, and the right of the plaintiff to have such successive summons issued is not cut off, and the affidavit and bond for garnishment do not become functus officio, until the trial of the garnishment case, since, in such case, the garnishment proceeding becomes the pending action within the meaning of the code-section cited. Ahrens v. Patton, supra; Pratt v. Young, 90 Ga. 39 (15 S. E. 630) ; Woods v. Massachusetts Mills, 17 Ga. App. 422 (87 S. E. 688). In such case the answer of the garnishee does not.end the case, no judgment being taken thereon; and until a disposition of the garnishment case, the affidavit and bond remain of full force and effect, and additional summons may issue thereon.

2. In the instant ease the motion of the garnishee to set aside and vacate • a judgment entered against her, based upon the contention that the judgment was void because it was entered on account of the failure of the garnishee to answer a second summons of garnishment, issued without an additional affidavit and bond, was, under the ruling set forth above, erroneously sustained.

3. The disputed grounds of the motion which allege lack of service of the second summons of garnishment, and the bankruptcy of the main debtor pending the garnishment proceeding, will not avail the garnishee, since there was no traverse of the return of service upon her, and since no proof was offered as to the bankruptcy of the main debtor.

Decided December 13, 1928.

John W. Morrow, for plaintiff.

Aldine & Hewitt W. Chambers, for defendant.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    18934.
    Symmes v. Rollins.
   Jenkins, P. J.

1. A discharge in bankruptcy releases the bankrupt from all his provable debts, “except such as . . are liabilities for obtaining property by false pretenses.” Bankruptcy Act, § 17 (11 U. S. C. A. § 35).

2. Where a contract is induced by the actual, moral fraud of one of the parties, his liability for property obtained under the contract may be enforced according to the terms of the contract, or the defrauded party may waive the contract and sue in tort for damages on account of the fraud. In the first event the liability of the debtor under the terms of the contract itself is a contractual liability, and a discharge in bankruptcy releases him therefrom. Ford v. Blackshear Mfg. Co., 140 Ga. 670 (4) (79 S. E. 576) ; Sanger v. Barrett (Tex. Civ. App.), 221 S. W. 1087. In the latter event the liability of the debtor is one arising in tort, for property obtained by false pretenses, and a discharge in bankruptcy does not release him therefrom. Donnelly Co. v. Milligan, 37 Ga. App. 530 (140 S. E. 918).

3. “The acceptance of a note from one who procures a sum of money by fraud, as an evidence of the debt thereby created, after the fraud had been discovered, does not take the debt out of the operation of this section, and, in a suit on the note, if the defendant pleads a discharge in bankruptcy, the plaintiff may set up fraud in his reply.” Collier on Bankruptcy (13 ed.), 616; Argall v. Jacobs, 87 N. Y. 110 (41 Am. Rep. 357); Gregory v. Williams, 106 Kan. 819 (189 Pac. 932). In such a case the giving of the note does not amount to a settlement of the fraud, but is merely an acknowledgment of the tortious liability of the maker of the note, and evidence of the debt thereby created.

4. In this ease, where the proof showed that the defendant had obtained from the plaintiff, pending an engagement to marry, various sums of money which she testified were advanced to him because of the engagement to marry and because of her belief in his expressed purpose and intent to marry her, the fact that upon discovering his intention not to carry out his contract to marry, and upon his “renouncing all marriage,” she took from him promissory notes for the amount of money he had obtained from her, did not convert his liability for obtaining property by false pretenses into a contractual liability, so that a suit upon the notes amounted to a waiver of the tort.

Decided December 13, 1928.

Poole & Fraser, for plaintiff.

William Schley Howard, E. G. Jachson, for defendant.

5. There was proof from which the jury might have found that the sum sued for was obtained by the defendant from the plaintiff by falsely representing his intention to marry her, when in fact he had no such intention, and it was error for the court to grant a nonsuit.

6. Under the ruling of the Supreme Court in Taylor v. McKee, 118 Ga. 874 (2) (45 S. E. 672), the court did not err in rejecting the proffered excerpt from the judicial records of a foreign State, since the certificate of the judge thereto failed to show that he presided in the court from which the record came.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    18944.
    Sims v. Automobile Financing Incorporated.
    Decided December 13, 1928.

      O. C. Hancock, Charles G. Reynolds, for plaintiff.

      Hewlett & Dennis, for defendant.
   Jenkins, P. J.

In the instant suit for malicious abuse of legal process in the bringing of an action in bail-trover by the defendant to recover an automobile which had been conveyed under a conditional-sale agreement, although it be conceded that the defendant vendor, by consenting to the resale of the car by the plaintiff, defeated all right to maintain successfully the trover action, the effort of the defendant to employ the bail-trover process could only have amounted to a malicious use of legal process, since it was not employed for any purpose other than such as the law intends such a process to subserve. Not only does the plaintiff concede that the instant action is intended as an action for the malicious abuse of legal process, but it could not be construed otherwise than as being for the malicious abuse of legal process, since it is not alleged that the previous trover suit had been terminated in her favor. Accordingly, the court did not err in dismissing the petition on demurrer. Robinson v. Commercial Credit Co., 37 Ga. App. 291 (139 S. E. 915).

Judgment affirmed.

Stephens and Bell, JJ., concur.


author: Bell, J.

text:
    18716.
    GARNER v. CONTINENTAL TRUST COMPANY.
    Decided December 14, 1928.

      E. F. Goodrum, for plaintiff in error.

      Jones, Jones & Johnston, contra.
   Bell, J.

Under the evidence as adduced in this case there was an issue of fact as to whether the note sued on had been altered by a change of the date from October 5 to October 6, 1925. While in one part of the defendant’s testimony “he stated that the note bore no physical evidence of said ‘6’ having been changed from any other numeral,” yet in other portions of his evidence he testified positively several times that the note was “dated October 5th, 1925.” His testimony, of course, must be construed most strongly against him, but, even so, it does not appear conclusive from the evidence either that the note was signed without being dated or that when signed it bore date of October 6, and this is true notwithstanding there may have been no physical evidence of alteration upon the note itself.

The suit was by the plaintiff as a holder by indorsement, and upon the issue as to alteration depended the question whether the defendant maker would be let in to certain defenses pleaded by him. There being a conflict in the evidence in regard to such issue, the case was left open for determination by the jury, a trial by jury having been demanded by the defendant. It follows that the judge of the municipal court erred in directing the verdict in favor of the plaintiff, and also that the superior court erred in not sustaining the certiorari.

Judgment reversed.

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


text:
    18724.
    GEORGIA RAILWAY AND POWER COMPANY v. GILBERT.
    Decided December 14, 1928.

      Colquiil & Conyers, Sidney Smith, for plaintiff in error.

      D. K. Johnston, contra.
   Bell, J.

1. “In Georgia Railway & Electric Co. v. Reeves, 123 Ga. 697 (51 S. E. 610), and S. A. L. Ry. v. Bishop, 132 Ga. 71 (63 S. E. 1103), it is clearly ruled that a person injured in alighting from a moving train, or even from a stationary train, by the running of the company’s locomotive, cars, or machinery is entitled to the statutory presumption.” Southern Railway Co. v. Parham, 10 Ga. App. 531 (5), 539 (73 S. E. 763). It follows that in the present case, which was a suit to recover damages for an injury to a passenger in alighting from a street-car, the court did not err in giving in charge to the jury the provisions of the Civil Code (1910), § 2780, as to the presumption against a railroad company in case of injury by the running of its trains or by any person in the employment and service of such company.

2. In such a case a further charge that, upon-proof of the injury as alleged in the petition, “then the presumption of negligence would arise against the defendant company and the burden would then be upon the defendant to rebut that presumption, by showing it was not negligent, and by making it appear, from the evidence, that its agents and servants exercised extraordinary care and diligence in connection with these specifications in which it is charged that its negligence consisted; or to show that the injury occurred not through its negligence, but was due to the fact that the plaintiff did not exercise ordinary care on her part, and that by the exercise of such care she could have avoided the consequences to herself of the defendant’s negligence, if it appears the defendant was negligent,” was not erroneous upon the ground that iUplaced upon the defendant a greater burden than was authorized by law. The defenses which may be interposed in a case of this character are: (1) that the company’s agents have exercised all ordinary and reasonable care and diligence to avoid the injury; (2) that the damage was caused by the negligence of the person injured; (3) that he consented to it; (4) or that the person injured could, by the use of ordinary care, have avoided the injury to himself, although caused by the defendant’s negligence. Murphy v. Georgia Ry. & Power Co., 146 Ga. 297 (3) (91 S. E. 108); Georgia R. Co. v. Thomas, 68 Ga. 744 (3). While this charge failed to include the second and third of these defenses, it was not excepted to upon that ground; and whether, under the pleadings and the evidence, the failure to include such defenses would have amounted to reversible error, if such exception had been taken, is a question not presented for decision in the present case.

3. Under the issues made by the pleadings and the evidence, the court erred in giving to the jury the following charge: “It was the duty of the defendant in this case to transport the plaintiff in a safe manner, and to offer her a reasonably safe place in which to alight from the car of the defendant; and the duty was on the defendant to exercise extraordinary care and caution to see that the plaintiff did alight in a safe place without injury to her.” Under the facts appearing, the law placed upon the defendant, as to the plaintiff’s alighting from the car, the duty only of exercising extraordinary care to furnish to the plaintiff a safe place to alight (Central of Georgia Ry. Co. v. Brown, 141 Ga. 553 (1), 81 S. E. 857); whereas the charge quoted above was reasonably susceptible of a construction which would have made the defendant liable for the plaintiff’s injury notwithstanding the defendant may have exercised such care. The learned judge doubtless did not intend that his charge should be so understood, yet it tended to mislead the jury, and for that reason a new trial should have been granted. Southern Ry. Co. v. Skinner, 133 Ga. 33 (1) (65 S. E. 134); Louisville d Nashville R. Co. v. Rogers, 136 Ga. 674 (2) (71 S. E. 1102); Civil Code (1910), § 2714.

Judgment reversed.

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


text:
    18725.
    Georgia Railway & Power Co. v. Gilbert.
    Decided December 14, 1928.
   Bell, J.

This was a suit by the husband to recover for loss of services, and for medical treatment, of his wife, who was the plaintiff in the companion case of Georgia Ry. & Power Co., v. Gilbert, ante, 56. The two cases were tried together and the rulings which have been made by this court in that case will apply also in the present case.

Judgment reversed.

Jenlcins, P. J., and Stephens, J., Concur.


text:
    18770.
    GLOBE INDEMNITY CO. et al. v. MacKENDREE.
    Decided December 14, 1928.

      Bryan d Middlebroolcs, for plaintiffs in error.

      Wright d Jackson, contra.
   Bell, J.

This is a workman’s compensation case, in which the employer and the insurance carrier are excepting to a judgment of the superior court affirming an award by the industrial commission in favor of the dependents of a deceased employee. The facts were undisputed, and, as agreed to before the commission, were as follows: William T. MacKendree was employed by Herald Publishing Company, of Augusta, Georgia, as circulation manager. The company had an agency in Eloree, South Carolina. On July 21, 1927, the employee, in accordance with his custom and with the full knowledge, consent, and approval of his employer, drove to Eloree in an automobile owned by bis employer for the purpose of transacting the business of his employer with the agent at that place. After completing such business and in the afternoon of the same day, he '“started on his return trip to make his usual report and accounting to his employer. But while proceeding in said automobile along a public State highway at a lawful speed and in a prudent and careful manner, a sudden storm overtook him while passing through a piece of woodland, and a tree was blown down by the wind across the automobile, crushing his head and producing almost instant death.”

It was admitted by the employer and the insurance carrier that such injury and death arose in the course of the decedent’s employment, so as to entitle his dependents to compensation, provided such injury'and death arose out of the employment. The parties expressly submitted that this was the only issue for determination.

It is our opinion that this case is controlled by the decision in the ease of New Amsterdam Casualty Co. v. Sumrell, 30 Ga. App. 682 (118 S. E. 786). It is unlike the case of Maryland Casualty Co. v. Peek, 36 Ga. App. 557 (137 S. E. 121), wherein the employee, while traveling upon a train in the line of his duty, was slain in an unprovoked assault by a passenger, who, after the manner of a madman or a lunatic, jumped up from his seat and began to shoot at the other passengers in the coach. As was pointed out in that case, had the employee “been injured by a derailment, a collision, a breaking through a trestle or bridge, or other travel accident, his right to compensation would be clear.” We think that in the case before us the death of the employee was the result of a travel accident.

Whether an injury would be compensable if occasioned by a storm, without other contributing cause, is not a question in this case. Nor do we find in the so-called “lightning cases” any logical precedent for a decision against compensation in the case at bar. Even in that class of cases the employer may be liable, where the employee was subjected to a greater danger from lightning by reason of his employment.

MacKendree was not killed solely by a storm, but by the force of a storm operating upon a tree which stood by the wayside. Trees do occasionally fall, and perhaps every tree must fall at some time. The particular tree stood upon the route which MacKendree was accustomed to take in the regular discharge of his duties, and his employment exposed him to such danger as might exist from the falling of this or any other tree standing along the route so traveled by him. The risk was not one which was common to all mankind, or to which the public at large was equally exposed. “Where the duties of the employee entail his presence or travel upon the highway, the claim for an injury there occurring is not to be barred because it results from a risk common to all others upon the highway under like conditions, unless it is also common to the general public without regard to such conditions, and independently of place, employment, or pursuit. [See 28 R. C. L. 804, 93; Katz v. State Industrial Commission, 232 N. Y. 420, 134 N. E. 330, 23 A. L. R. 401; Dennis v. White (England), 1917 A. C. 479, 15 N. C. C. A. 294].” It is not necessary in a case of this sort that the particular occurrence should have been foreseen or expected, but it is sufficient if after it has happened it “appears to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence.” In re McNicol, 215 Mass. 497 (102 N. E. 697, L. R. A. 1916A, 306).

The terms “arising out of and in the course of the employment” are apparently receiving in a majority of the later decisions a more liberal construction in favor of the employee than was formerly the case. See editorial note in 51 A. L. R. 508, as appended to the case of Colarullo v. Employers Liability Assurance Corp., 258 Mass. 521 (155 N. E. 425).

Under the agreed statement it must be held that the injury and death of MacKendree arose out of his employment within the meaning of the compensation act, and we accordingly affirm the judgment. See, in this connection, Atlantic Ice & Goal Corp. v. Wishard, 30 Ga. App. 730 (2) (119 S. E. 429); Metropolitan Casualty Co. v. Huhn, 165 Ga. 667 (8) (142 S. E. 121) ; People’s Coal & Ice Co. v. Newmann, 129 Minn. 502 (153 N. W. 119, L. R. A. 1916A, 344); Rodger v. Paisley School Board (Scotland), (1912) S. C. 584; Moore v. Lehigh Talley R. Co., 169 App. Div. 177 (154 N. Y. Supp. 620); Mahowald v. Thompson Starrett Co., 134 Minn. 113 (158 N. W. 913 (2)); Merrill v. Penasco Lumber Co., 27 N. M. 632 (204 Pac. 72); Industrial Commission v. Pueblo Automobile Co., 71 Colo. 424 (207 Pac. 479, 23 A. L. R. 348) ; Case of Cook, 243 Mass. 572 (137 N. E. 733, 29 A. L. R. 114).

Judgment affirmed.

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


text:
    18777.
    FARMER v. GEORGIA POWER COMPANY.
    Decided December 14, 1928.

      Porter & Mebane, for plaintiff.

      L. A. Bean, Lamar Gamp, for defendant.
   Bell, J.

This was a suit for personal injuries sustained by the plaintiff in a collision between one of the defendant’s street-cars and the plaintiff’s automobile, in which he was riding, but which at the time was being operated by his 15-year-old son. He was non-suited, and he excepted.

The evidence tended, consistently with the allegations of the petition, to show the following facts: The defendant railway company maintains a main line of street-car track in Broad street in the City of Rome. The plaintiff in the daytime was traveling north on this street and was approaching a spur or sidetrack which led from the main line into private grounds or yards of the defendant railway company, in which were a car-barn and other side-tracks leading into the barn. The plaintiff’s view of these private grounds and the barn was obstructed to some extent by a five-foot fence extending from the barn in the direction of and within 30 feet of Broad street. When he was about 150 feet from the place where the collision occurred he noticed the street-car between the barn and Broad street, moving at right angles with its own course, and being at that time about the same distance as the plaintiff was from the point of the collision, which occurred soon afterwards. The automobile and the street-car were each traveling at about the same rate of speed, — 15 or 20 miles per hour. The plaintiff saw the car first as it came out of the barn, but did not notice it again until it had approached within about four feet of his own vehicle and after it was too late to avoid the danger. The plaintiff testified to these facts, and gave the following additional testimony: “In all the years that I have been traveling that street there, noticing along there, I have seen cars switching backwards and forwards inside the grounds that did not come out. I have never seen one come out in the street without sounding, a bell, or gong, or alarm, or without stopping. The barn of the defendant company is just a storage barn up there for parking cars. . . This track which turns off from the main line of the street-car track in or near the center of North Broad street, . . and where I was struck, that is a private side-track; they use it to take cars in and out the main line. They don’t use it for passengers; I never saw any passengers on it. It does not lead anywhere to carry passengers. . . The cars run in; that is where the barn stores the cars at night; the street railway, the whole system goes in and out there, puts up their cars and goes out every night and morning. I suppose every time they need a new car they go in there and come out, and that is where they do all their repair work, and I have been knowing that all the while.” The plaintiff testified also that his faculties were good and that he did not hear “any bell at all sounded by the car as it came out there.”

The evidence authorized the inference that the defendant, by its employee in charge of the street-car, was negligent in running the street-car from its private grounds or yards into Broad street without giving some kind of warning or notice to travelers upon that public thoroughfare. Perry v. Macon &c. R. Co., 101 Ga. 400, 410 (29 S. E. 304); Collins v. Augusta-Aiken Ry. Corp., 13 Ga. App. 124 (1) (78 S. E. 944). It can not be said as a matter of law that the plaintiff was guilty of such negligence or lack of care on his part that his own conduct should be regarded as the proximate cause of the collision, or that he should be denied at least a partial recovery under the comparative-negligence rule. Samples v. City of Atlanta, 95 Ga. 110 (22 S. E. 135); City of Macon v. Jones, 36 Ga. App. 799 (138 S. E. 283). This case is unlike the ordinary railroad-crossing case, for here it appears, from the evidence, that ears were occasionally switched £backwards and forwards inside the grounds,” without passing into or across the street, as trains or cars usually do at public crossings. Compare Thomas v. Central of Georgia Ry. Co., 121 Ga. 38 (48 S. E. 683); Athens Ry. Co. v. McKinney, 16 Ga. App. 741 (86 S. E. 83). The jury could have inferred that the plaintiffs failure to keep a watch upon the car in order to ascertain fully its movement and course was due to a supposition that the car was merely switching or shifting within the yards; and we think the jury would have been warranted further in concluding that the plaintiff was not guilty of a total want of ordinary care, nor of negligence which equalled or exceeded that of the defendant, in acting upon such a supposition. It can not be held as a matter of law that the plaintiff failed to exercise ordinary care to avoid the consequences of the defendant’s negligence after the same was or should have been discovered by him. Savannah Electric Co. v. Nance, 31 Ga. App. 632 (1) (121 S. E. 690); Central of Georgia Ry. Co. v. Heard, 36 Ga. App. 332 (136 S.E. 533).

The fact that the automobile was being driven at the plaintiff’s direction by a person under sixteen years of age, contrary to statute, would not affect his right to recover if the vehicle was otherwise operated with due care, as the jury could have found was true from the evidence. Western & Atlantic Railroad v. Reed, 35 Ga. App. 538 (4) (134 S. E. 134).

Since there was some evidence which would have authorized a finding in favor of the plaintiff, the court erred in awarding a nonsuit.

Judgment reversed.

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


text:
    18897.
    Alford v. Young.
   Bell, J.

1. In this suit to foreclose a sawmillman’s lien upon lumber sawn for the defendant it can not be held as a matter of law that the verdict in favor of the plaintiff was for an amount in excess of that authorized by the evidence. The plaintiff’s testimony as it appears in the instant record was more complete and definite than was his testimony upon the first trial (Alford v. Young, 33 Ga. App. 329, 126 S. E. 268), and was sufficient to support the verdict in his favor for the amount awarded.

2. While it appeared that the plaintiff removed his sawmill from its site upon the defendant’s land where he had stacked the lumber and where he had allowed it to remain, the evidence still authorized the inference that he did not surrender possession of the lumber to the defendant, but continued to exercise some watch, care, and control over it, and to retain such possession as made it unnecessary that he should record his claim of lien in order to preserve its validity. This case' is distinguished from Daniel v. Blackwell, 30 Ga. App. 786 (119 S. E. 447). In that case the lumber was hauled from the sawmill with teams hired by the defendant and placed upon the railroad right of way some three miles from the sawmill, all possession and control being relinquished by the plaintiff lienholder.

Decided December 14, 1928.

M. B. Eubanks, Graham Wright, for plaintiff in error.

Porter & Mebane, contra.

3. The court did not err in refusing the defendant’s motion for new trial.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concwr.


text:
    18921.
    MOBLEY, superintendent, etc., v. GOODWYN.

      Decided December 14, 1928.

      Orville A. Park, O. N. Davie, J. F. Kemp, for plaintiff.

      Boykin & Boykin, for defendant.
   Bell, J.

The Bank of Roopville being in the possession of the superintendent of banks for liquidation under the act of August 16, 1919 (Ga. L. 1919, p. 135; Park’s Code Supp. 1922, § 2263 (a) et seq.), and Mrs. H. J. Goodwyn being the owner of record of 20 shares of stock in the bank, an execution was issued against her on October 29, 1926, for the sum of $2000, in pursuance of an assessment of 100 per cent.- upon the statutory liability of the stockholders. The execution, which was issued during the incumbency of the predecessor of the present superintendent, was signed “T. R. Bennett, Superintendent of Banks, by W. J. Davis, General Agent.” The defendant filed an affidavit of illegality, upon which a directed verdict was returned ih her favor. The superintendent made a motion for a new trial which the court overruled, and the movant excepted.

The grounds of the affidavit of illegality were as follows: (1) “That the said T. R. Bennett, as superintendent of banks, did not within 90 days after the said T. R. Bennett, as superintendent of banks, took charge of the Bank of Roopville, Roopville, Georgia, making [make] a careful estimate of the value of the cash assets of the said bank which could have probably been converted into cash within one year, after taking possession of the assets and the property of the bank, and the amount of cash assets which could be converted to cash to pay depositors, and immediately thereafter make assessment on this stockholder of said bank, as required by law.” (2) “That the said T. R. Bennett, as superintendent of banks, did not within 30 days after the levy of assessment on this stockholder, and notice thereof, issue an execution.” (3) “That the said execution levied was not made on a legal assessment made by the superintendent of banks, as required by law, nor was the said execution issued by the superintendent of Banks, as required by law, and for this reason is therefore void and a mere nullity, and should be cancelled.” (4) “That the said.execution being a mere nullity and void and having been placed on the records of the clerk of the superior court of Carroll county, and on the general execution docket, should be cancelled.”

The superintendent was not present at the trial, either in person or by representation, and made no traverse of the affidavit of illegality or other joinder of issue. In certain special grounds of the motion for a new trial, and in affidavits made to support the same, the superintendent sought to show that he did not even know that an affidavit of illegality had been filed and hence had no information that such a case was on the docket for trial; that had he been informed that the case would be tried, he would have traversed the grounds of the affidavit and would have shown that the same were not true. He further complained that for various reasons it was error to try the case at the time it was tried, and that, consequently, he was entitled to a new trial. Numerous affidavits were offered in rebuttal of the special grounds of the motion, and, without deciding that question, it would seem that an issue of fact was thus presented upon which the trial judge was authorized to deny and overrule these grounds of the motion. In the opinion which we entertain of the case upon the general grounds we deem it unnecessary to review and pass upon the special grounds.

Some question has been made in the briefs as to whether an assessment against the stockholders may be made by the superintendent through an agent, or must be made solely by the superintendent himself, but we think the affidavit of illegality can not be construed as raising any such question. As to this we will make further remark later on in this opinion.

Paragraph 1 of the affidavit of illegality is but a general denial that the superintendent complied with the provisions of section 20 of article 7 of the banking act (Ga. L. 1919, p. 135 et seq.). It is conceivable that the superintendent might fail in a number of particulars to comply with the provisions of this section. For instance, he might make an estimate of the value of the assets of the bank, but not make it within 90 days; or his estimate might not be a careful one. Again, he might make the required estimate within the time specified, and then fail to- make an assessment against the stockholders on the basis thereof. Without further enumeration, there are perhaps other ways in which he might fall short of a compliance with the provisions of the section mentioned above. Paragraph 1 of the affidavit of illegality contains no allegation to show wherein the superintendent failed to do the things required by that section, unless it could be construed as alleging, either that the estimate of the assets as made by him was not carefully made, or that such estimate and the subsequent assessment upon the stockholders were not made within the time specified in the act. Obviously it would not be sufficient merely to say that the estimate was not carefully made; and on the question of time, we do not think that the execution would be vitiated either because the estimate of values was not made within 90 days after the bank was taken possession of by the superintendent, or because the assessment upon the stockholders may not have followed immediately upon the making of such estimate or upon the expiration of such 90-days «period.

It is our opinion that such provisions as to time are directory only, and that the superintendent’s authority to issue an execution would not be lost merely because he may not have made the estimate and assessment within the precise time prescribed by law. Spencer v. City of Columbus, 150 Ga. 312.

Paragraph 2 of the affidavit of illegality alleges that the superintendent of banks did not, within 30 days after the levy of the assessment and notice thereof, issue an execution. The statute fails to prescribe any time within which the execution must be issued. It provides that notice of the assessment shall be given to each of the stockholders, by mail, and that if any stockholder shall refuse or neglect to pay the assessment within 30 days after the levy and notice thereof, the superintendent shall issue an execution against him. The effect of this provision is that the superintendent can not issue an-execution until he has made an assessment and given to the stockholders 30-days notice of the same, so that upon this point the affidavit alleges a compliance with the statute rather than a non-compliance by the superintendent.

In paragraph 3 of the affidavit of illegality it is alleged that the execution “was not made on a legal assessment made by the superintendent of banks, as required by law.” This is perhaps the allegation relied on by counsel for the defendant in error as raising the question whether the authority of the superintendent to levy the assessment upon the stockholders may be delegated to another as agent, or must be exercised by the superintendent himself. As indicated at the outset, we can not agree that this or any other part of the affidavit was sufficient to raise any such question.

A fair and reasonable interpretation of the language quoted above is, not that the superintendent made no assessment whatever, nor that the assessment had been made by some other person, but the plain meaning of such allegation is that the assessment made by the superintendent was not a legal one. This was but to state a bare legal conclusion of the pleader, and was insufficient to raise any sort of question as to the validity of the execution.

In the same section of the banking act to which we have just referred (§ 20 of article 7, as amended by act of 1925 (Ga. L. 1925, p. 119, 131)), it is provided that where an affidavit of illegality is filed with the levying officer, he shall return the same, together with the execution, to the superior court of the county of ¡.the residence of the stockholder, to be there tried as other illegalities filed to executions issued on judgments rendered by such courts; and we axe of the opinion that the same rules of pleading would apply to an affidavit of illegality provided for in the banking act as should be observed in other cases of affidavits of illegality.

In Sharp v. Kennedy, 50 Ga. 208 (2), it was held: “An affidavit of illegality to an execution setting up facts as a reason why the execution is proceeding illegally, must distinctly present the matter relied upon, so that, if not denied, the court may pass judgment intelligently, or if denied, that the jury may have distinctly before it the matter in issue.” Again, in Green v. Rogers, 62 Ga. 166 (2), the Supreme Court said: “In an affidavit of illegality, the effect of which is to suspend the process of the court, the grounds should be set out in such manner as to show clearly that the execution is proceeding illegally by the conduct of the plaintiff or of the officers of the law; therefore, an allegation that the mortgage was altered, without stating who altered it or that it was done without the consent of the mortgagor, was properly held insufficient.” See further, in this connection, Baker v. Akerman, 77 Ga. 89; Terry v. Bank of Americas, 77 Ga. 528 (2). The liability of stockholders of banks was created by law for the special benefit of depositors, and where an execution has been issued by the superintendent of banks which is fair and legal upon its face, the stockholder against whom it was issued should not be permitted to avoid such liability without pleading facts to show that the execution is proceeding illegally against him. We repeat, the allegation that the execution “was not made on a legal assessment made by the superintendent of banks” does not amount to an averment that no assessment was made by that officer; otherwise, why the use of the descriptive term “legal” in referring to the assessment. On reading this language, the question which naturally occurs to mind is, why or wherein was the assessment not a legal one ? And it would seem irrelevant to ask, why was an assessment not made, or if made, who instead of the superintendent'made it?

We held in Deariso v. Mobley, 38 Ga. App. 314 (3) (143 S. E. 915), that the superintendent of banks may confer authority upon an agent to issue executions to enforce the statutory liability of the stockholders. But whether he may delegate to another as his agent the power to make assessments determining the amount for which executions should be issued is a materially different question, and one which we have not as yet been called upon to decide. See, in this connection, In re Giles, 21 Fed. (2d series) 536, Carmichael v. National Park Bank, 28 Fed. (2d series) 691. We will undertake to deal with that question when it is presented, but until that time we will continue to leave it open, as we should do with every question not made in the record. Any ruling that we might make upon any such question in the present case would ’be altogether beside the mark, because if we should undertake to adjudicate the same with the result even of deciding it in favor of the defendant in fi. fa., we would still be compelled to say that the question was not raised in the record, and our judgment would be the same notwithstanding such ruling.

It may be that the superintendent has heretofore in each case made the assessments in person, and that he will continue to do so in the future. If so and if in all cases of allegation to the contrary he should join issue and make proof of the facts (which to the writer would seem the wiser course), it might be that no question would ever arise as to whether he may delegate to another the power to make such assessments. Hence, we can see no reason for going into such question at this time.

Paragraph 3 of the affidavit of illegality further alleged that the execution was not issued by the superintendent of banks as required by law, and, as shown in the briefs of counsel for the defendant in error, this was intended as an attack upon the execution because it was issued and signed by the superintendent through an agent, and not directly in his own official capacity. Under our ruling in Deariso v. Mobley, supra, this averment also failed to state any sufficient ground of illegality.

Paragraph 4 of the affidavit appears to depend upon the preceding allegations, and not to have been intended as a statement of a separate or additional defense.

It follows, from what has been said, that the affidavit of illegality failed to show any reason why the execution was proceeding illegally, and thus that the uncontroverted allegations thereof, considered as.evidence in behalf of the defendant, failed to prove any defense. Civil Code of 1910, § 5307; McLeod v. Bird, 14 Ga. App. 77 (80 S. E. 207); Barton v. Watkins Co., 31 Ga. App. 301 (120 S. E. 643); Bolton v. Keys, 38 Ga. App. 503 (2) (144 S. E. 406). The verdict in favor of the defendant in fi. fa. being therefore without evidence to support it and contrary to law, the court erred in refusing a new trial.

Judgment reversed.

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


text:
    18922.
    Mobley, superintendent, etc., v. Goodwyn, Mobley, superintendent, etc., v. Webb et al.

    18923.
    Decided December 14, 1928.
   Bell, J.

These cases are controlled by the decision in the companion case of Mobley v. Goodwyn, ante, 64.

Judgment reversed.

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


author: Bloodworth, J. Luke, J.

text:
    19134.
    POPE v. CALLAWAY.
   Bloodworth, J.

1. As amended the petition was not subject to the demurrer.

2. The court did not err in ruling out the evidence the rejection of which is complained of in special grounds 1, 2, and 3 of the motion for a new trial.

3. There is no error harmful to the plaintiff in error in that portion of the charge of which complaint is made in ground 4 of the motion.

4. Ground 5 of the motion, which complains of the refusal of the judge to give requested instructions which were in writing, "is not in proper form for consideration, for the reason that it fails to allege that the requested charge was pertinent and applicable to the facts of the case.” Cook v. State, 36 Ga. App. 582 (4) (137 S. E. 640).

Decided November 14, 1928.

Adhered to on rehearing January 16, 1929.

W. A. Slaton, for plaintiff in error. C. E. Sutton, contra.

5. The evidence authorized the verdict, and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, C. J., concurs. Luke, J., dissents.

Luke, J.

I dissent from the ruling in paragraph 2 of the decision, because I am of the opinion that the court erred in its ruling upon the admissibility of the testimony pointed out in grounds 1, 2, and 3 of the amendment to the motion for a new trial. I dissent also from the ruling announced in paragraph 3, because I think that the excerpt from the charge of the court, complained of in ground 4, was erroneous for the reason assigned.


text:
    19281.
    Day v. The State.
    Decided December 11, 1928.
    Rehearing denied January 15, 1929.
   Bloodworth, J.

1. There is no merit in either of the special grounds of the motion for a new trial.

2. Tire evidence in this case is such as to bring it within the ruling in Yonce v. State, 154 Ga. 419 (114 S. E. 325), 29 Ga. App. 173 (114 S. E. 584) ; and the judge of the trial court did not err in overruling the motion for a new trial.

Judgment affirmed.

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

J. P. Brooke, G. B. Walker, H. B. Moss, for plaintiff in error.

George D. Anderson, solicitor-general, contra.


text:
    18834.
    Brumbelow Heating & Plumbing Company Inc. v. Atlanta Furniture Company.
   Jenkins, P. J.

1. “A judgment against a garnishee, duly entered, is as to him conclusive of the proposition that the plaintiff had already obtained a valid judgment against the main debtor whose effects were sought to be reached by the garnishment proceeding.” Warner v. Burkhalter, 22 Ga. App. 71 (2) (95 S. E. 470). Moreover, by the act approved July 31, 1925 (Ga. L. 1925, p. 372), the jurisdiction of the municipal court of Atlanta, in suits involving more than $100 and less than $2500, is extended over the entire county of Pulton. Accordingly, the judgment obtained by the plaintiff against the main defendant in the instant case was not void for lack of jurisdiction of the court.

2. While it has been held that a garnishee may file an answer at any time before a motion has been made by the plaintiff to enter judgment against him for the amount of the judgment already obtained against the principal debtor in the pending action (Owen v. Moseley, 161 Ga. 62 (1), 129 S. E. 787), failure of the garnishee to file his answer by the first day of the second term after service subjects him to the risk of having his right to answer cut off by the actual entering of judgment against him. Civil Code (1910), § 5097; Gainesville Grocery Co. v. Bank of Dahlonega, 25 Ga. App. 230, 232 (102 S. E. 912). In the instant case, in which it appears that suit was brought against the principal debtor to the December term, 1926, of the municipal court of Atlanta, and a default judgment rendered against him at that term, a judgment rendered by default on the second day of the January term, 1927, against the garnishee, who had been summoned to appear at the December term of that court, was not subject to be set aside as having been entered prior to the expiration of the time during which the case should be held up in order that the garnishee might answer.

Decided December 13, 1928.

Rehearing denied February 20, 1929.

Moms Macks, Isaac M. Wengrow, Robert T. Rfurd, for plaintiff in error.

D. K. Johnston, contra.

3. If, under the provisions of section 5097 of the Civil Code (1910), a formal motion on the part of the plaintiff is necessary to a valid judgment against a garnishee in default (Owen v. Moseley, supra), where such judgment has in fact been rendered it will be presumed, nothing to the contrary appearing, that the judgment was rendered when the garnishment case was reached in its order on the docket and upon motion of the plaintiff.

4. “The writ of certiorari is simply the medium through which the judgment in a case pending before an inferior judicatory may be reviewed in the superior court.” Weaver v. Thompson, 11 Ga. App. 132 (74 S. E. 901). “The petition for certiorari can not be amended, because the judge of the superior court has no jurisdiction to try any except the questions made in the petition as it stood when he sanctioned it.” Jones v. Gill, 121 Ga. 93 (48 S. E. 688) ; Davis v. Cunningham, 31 Ga. App. 296 (1) (120 S. E. 641); Powell v. Fowler, 34 Ga. App. 186 (1) (129 S. E. 13). Accordingly, it is not permissible for a plaintiff in certiorari to file, in the superior court, a plea of bankruptcy, setting up that after the sanction of his petition for certiorari, and after the issuance of the writ, he was adjudicated a bankrupt, and thereafter discharged, and that the judgment under consideration in the certiorari proceeding was duly scheduled and became discharged by the discharge in bankruptcy of the plaintiff in certiorari.

5. The evidence authorized the finding of the judge of the municipal court against the traverse of the garnishee to the entry of service upon it.

6. Under the foregoing rulings, the court did not err in rejecting the proffered plea of bankruptcy of the plaintiff in certiorari, and in thereafter overruling the certiorari.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    18738.
    Farmers & Traders Bank v. Davis.
   Bell, J.

1. On a former hearing of this ease this court reversed a judgment of nonsuit, holding that under the pleadings and the evidence the plaintiff was entitled to recover as á matter of law, unless he had been paid the amount of his deposit, and that whether he had been so paid wias a jury question, under the evidence. The evidence of the plaintiff on the question of payment was substantially the same on the second trial, and was not conclusively rebutted by the evidence of the defendant. Hence it can not be held as a matter of law that the verdict in favor of the plaintiff as returned upon that trial was unsupported by or contrary to the evidence. Davis v. Farmers & Traders Bank, 36 Ga. App. 415 (5) (136 S. E. 816).

2. The court’s charge was not fairly susceptible to the criticism that it permitted the jury to consider the evidence touching conspiracy for another purpose than that for which the fact of conspiracy was pleaded by the plaintiff, nor was the charge upon that subject otherwise erroneous upon any ground assigned.

3. The requested instructions on burden of proof, circumstantial evidence, and preponderance of evidence were fully covered by the charge given, and thus there was no error in the refusal of any of such requests. Sandersville R. Co. v. McDaniel, 37 Ga. App. 34 (4) (138 S. E. 584).

4. In view of the rulings made by this court on the former hearing, which now are binding as the law of the case, the request to charge set forth in ground 7 of the motion for a new trial contained an incorrect statement as to the law, and for that reason the court was right in refusing the request.

5. Assuming that the request to charge set out in ground 8 of the motion embodied an abstractly correct statement of the law, yet, in view of the issues developed by the pleadings and the evidence, the language of the instruction so requested was such that it would have tended to confuse the jury and to deprive the plaintiff of the benefit of his contention as to the existence and purpose of the conspiracy, which contention was not entirely without evidence to support it. It was therefore proper to refuse this request.

6. After the fact of conspiracy is proved, the declarations of any one of the conspirators during the pendency of the criminal project and connected therewith are admissible against all. Coleman v. State, 141 Ga. 731 (2), 733 (82 S. E. 228) ; Renal Code (1910), § 1025. The same rule as to the admission of acts or declarations of conspirators applies in civil as in criminal cases. Almand v. Thomas, 148 Ga. 369 (7), 375 (96 S. E. 962). Under these principles and in view of the entire evidence on the question of conspiracy, the court did not err in admitting the evidence set out in grounds 10, 11, and 14 of the motion for a new trial.

7. Assuming that the court erred in not sustaining the defendant’s objection to the evidence set forth in grounds 12, 13, and 15 of the motion for a new trial, the error was not such as to vitiate the verdict. “Ordinarily a new trial will not be granted merely because irrelevant testimony has been admitted.” Marshall v. Morris, 16 Ga. 368 (4); Davis v. State, 153 Ga. 669 (3), 677 (113 S. E. 11) ; Southern Railway Co. v. Harper, 32 Ga. App. 267 (2) (123 S. E. 154) ; Bank of Emanuel v. Smith, 32 Ga. App. 606 (6) (124 S. E. 114).

Decided December 14, 1928.

Rehearing denied February 20, 1929.

Smith, Hammond & Smith, for plaintiff in error.

J. W. Austin, W. C. Henson, W. Paul Carpenter, contra.

8. There was no error in refusing a new trial.

Judgment affirmed.

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


text:
    18938.
    SEABOARD AIR-LINE RAILWAY CO. v. LIBERTY COUNTY ei al.

    Decided December 14, 1928.
    Rehearing denied February 20, 1929.

      Conyers & Gowen, for plaintiff in error.

      O. C. Darsey, contra.
   Bell, J.

In 1926 the proper authorities of Liberty county made the usual tax levy, which included, among others, the following items; “9. For payment of interest installment due December 1, 1926, and June 1, 1927, on $40,000 issue of court-house bonds for Liberty county; 10. For payment of interest installment due by Liberty county on Coastal Highway bonds due November 1, 1926, and May 1, 1927.” The railway company, by an affidavit of illegality interposed to a fi. fa. issued against it in behalf of the county, challenged the validity of these items, and, its contention having been overruled in the court below, it brought the case to this court. The judgment of the trial court is assigned as error upon the following grounds: (1) It appearing that the interest installments due November 1, 1926, and December 1, 1926, were paid by the county at the time they became due respectively, a tax levy for the payment of these items could not be made in the year 1926, because a tax so levied would not be due and payable by the taxpayer until December 20th of that year, subsequently to the date of the maturity and payment of such items. (2) It appearing that, as required by the constitution, there was levied by the county prior to the issuance of the bonds referred to a tax to pay the interest as it became due, the tax levy to meet such installments due November 1, 1926, and December 1, 1926, “would be a tax levy for the year 1925, due December 20, 1925/’ and there was no authority of law to relevy the same for the year 1926. (3) Since the constitution of Georgia, as to such bonded indebtedness, required that a levy to meet the interest due November 1, 1926, and December 1, 1926, should be made for the year 1925, and since it does not appear that such a levy was not made for that year, the levy and collection of such a tax for the year 1926 was without authority of law and void.

As to the facts to be referred to in this opinion, the agreed statement upon which the case was tried in the court below is not clearer or more definite than the assignments of error in the bill of exceptions.

It is our opinion that the judgment complained of is .not erroneous for any reason assigned. Passing over for the moment any question as to what is required by the constitution as to the levying of taxes for bond issues, it is true as a general proposition that taxes are levied to meet the needs of the county arising during the year in which the levy is made. City Council of Dawson v. Dawson Waterworks Co., 106 Ca. 696, 711 (32 S. E. 907); McMillan v. Tucker, 154 Ga. 154 (113 S. E. 391); Carroll v. Wright, 131 Ga. 728 (5) (63 S. E. 260); Civil Code (1910), §§ 5, 509. The interest upon the bonds appears to have been a'legal liability against-the county, and the county could have been compelled to pay it. The fact that this indebtedness was paid by the county from other funds between the date of the tax levy and the date when the tax was due and payable by the taxpayer would afford no defense to the latter, where he has not borne his share of the burden necessary to its payment. He can not step into the county’s shoes and plead the county’s act of payment as an extinguishment of his own liability to the county. Even assuming that the tax should have been levied during the year 1925, it does not appear that the levy as made in 1926 was a repetition, with the result that the taxpayer is called upon twice to contribute his pro rata of the amount necessary to retire the debt. In the absence of anything to show the contrary, public officers are presumed to have performed the duties placed upon them by law. Thus, if the tax was one that should have been levied in 1925 and if nothing else appeared, we would presume that it was so levied. But upon the same presumption as to the proper performance of official duty, it should be inferred that the tax was not levied in 1925, where it appears affirmatively that such tax was levied in 1926. The presumption would be against duplication, and in favor of the validity of the levy, upon the theory that it was merely delayed. Yow v. Sullivan, 129 Ga. 187, 192 (58 S. E. 662); Wilson v. Gaston, 141 Ga. 770 (82 S. E. 136).

What we have just said as to presumptions would seem to apply with equal force to the duty imposed by the constitution upon the county authorities to provide for the assessment and collection of an annual tax sufficient in amount to pay the principal and interest of a bonded indebtedness within the period therein prescribed. Civil Code (1910), § 6564. The general language of the second assignment of error can not be construed to mean that the county had previously made a specific levy for the purpose of raising funds with which to pay the indebtedness for interest on the bonds as it matured on November 1 and December 1, 1926. This assignment of error is construed merely as containing a statement that the county authorities, at or before issuing the bonds, did-what was required by the constitutional provision referred to above, and not as showing that a definite and specific levy was made in any particular year under the terms of section 513 of the Civil Code. •

The constitution requires only the adoption of a general order or resolution providing for the assessment and collection of an annual tax sufficient in amount to pay the principal and interest of the' debt at maturity. In case of an issue of bonds covering a long period of years, it would obviously be impossible, at the time of issuing the same, to determine the exact rate of taxation which would be requisite in any year to pay the maturing principal or interest, since this would depend upon the amount of property subject to taxation from time to time. Assessing the rate, that is “specifying the per cent, levied for each specific purpose/’ is, of necessity, a duty to be performed from year to year in connection with the regular annual tax levy (Civil Code, § 514); and is done under paragraph 1 of section 513, providing for the levy of taxes to pay the legal indebtedness of the county due, or to become due during the year, or past due. See, in this connection, Wright v. Central of Georgia Ry. Co., 36 Ga. App. 382 (137 S. E. 93); Central of Georgia Ry. Co. v. Wright, 165 Ga. 1, 21 (139 S. E. 890); Seaboard Air-Line Ry. Co. v. Wright, 157 Ga. 722 (122 S. E. 35); Civil Code (1910), § 6562.

We conclude that the contested items of the tax levy were not illegal, either because the indebtedness which the county had in view when levying the tax may have been paid before the maturity of the tax as a claim against the taxpayer, or because the assessment was or appeared to be a duplication.

Judgment affirmed.

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