text:
    16796.
    Pearce v. Bennett, superintendent, etc.
    ‘Banks and Banking, 7 C. .1. p. 494, n. 91 New.
    Limitation of Actions, 37 C. J. p. 962, n. 10.
   Bell, J.

1. As to banks incorporated under the act of 1893 and the laws amendatory thereof (Ga. L. 1893, p. 70; Ga. L. 1895, p. 55), it is provided that “the board of directors shall have power to prescribe how, and in what sums, and at what times and places any unpaid part of the capital stock shall be paid in; and in the event any stockholder shall fail or make default for sixty days to pay any call regularly made in his subscription to stock, the directors may direct suit to be brought against him forthwith for the amount of such call.” Civil Code (1910), § 2268.

2. Where a subscriber for stock in such a bank had paid his pro rata of the minimum amount required to be paid in before the filing of the application for charter (see Civil Code, § 2269), and the subscription contract did not provide otherwise, the remainder of his subscription was not due until the directors called for its payment, and the statute of limitations did not begin to run in his favor as to the unpaid installment until such condition was complied with. Compare Macon & Augusta R. Co. v. Vason, 52 Ga. 326; Cherry v. Lamar, 58 Ga. 542; Branch v. Augusta Glass Works, 95 Ga. 573 (3, 5) (23 S. E. 128); Glenn v. Howard, 81 Ga. 383 (8 S. E. 636, 12 Am. St. R. 318) ; North & South Street R. Co. v. Spullock, 88 Ga. 283 (14 S. E. 478) ; South Ga. & Fla. R. Co. v. Ayers, 56 Ga. 231 (4) ; Crawford v. Roney, 126 Ga. 763 (2) (55 S. E. 499) ; Crawford v. Roney, 130 Ga. 515 (61 S. E. 117).

(a) This case is distinguished from those in which the subscriptions were for stock in corporations other than banks and there was nothing in the subscription contracts or in the charters providing that the amounts subscribed should not become due and payable at once. See Ga. Mfg. &c. Co. v. Amis, 53 Ga. 228; Morris v. Ga. Casualty Co., 148 Ga. 29 (95 S. E. 969) ; McDonnell v. Hines, 28 Ga. App. 197 (2) (110 S. E. 505).

Decided May 14, 1926.

Complaint; from Harris superior court—Judge Eoop presiding. August 20, 1925.

W. Howell Morrow, for plaintiff in error.

Luther Roberts, J. R. Lunsford, contra.

(b) In the present case it is unnecessary to decide whether the statute would begin to run from the date of the call or from the expiration of the period of sixty days referred to in the Civil Code, § 2268.

3. This being a suit for an unpaid balance of a subscription for stock in a bank incorporated in 1918, the action, under the above rulings, was unaffected by the statute of limitations. There was no error in the court’s judgment.

Judgment affirmed.

Jenldns, P. J., and Stephens, J., eoneur.


source: Caselaw Access Project

author: Jenkins, P. J.

license: Public Domain

text:
    16801.
    Taylor v. Atlantic Coast Line Railroad Co.
    Master and Servant, 39 O. J. p. 933, n. 48; p. 939, n. 91.
    Pleading, 31 Cyc. p. 78, n. 95.
    Decided May 14, 1926.
    Action for damages; from city court of Bainbridge—Judge Spooner. August 29, 1925.
    Bettie Taylor, suing as the widow of Preston Taylor, deceased, brought an action against the Atlantic Coast Line Eailroad Company for the homicide of her husband, alleging, in substance, that the defendant had in its employ one NeSmith in the capacity of section-foreman; that on the day of the injury he was in charge of the defendant’s section-hands, including the decedent, at Brinson, Georgia; that the defendant provides its section-foremen with free use of its houses as a part of their compensation, and allows them to use the section-hands in and about their personal affairs, in cutting stove-wood, working gardens, assisting in moving their personal effects into and out of the said, houses when the defendant orders the same vacated, and in the performance of other services required of them, the free use of the said section-hands on company time being a part of the compensation of the said section-foremen; that the performance of the said duties uppn orders of and under the direction of the section-foremen is within the scope of and a part of the duties of the employment of the section-hands; that on a dayx named, the plaintiff’s husband, as a section-hand on the section at Brinson, Georgia, was under the supervision of the said NeSmith, section-foreman, and that NeSmith had the right and power, given by the defendant, to hire or discharge section-hands ; that on the morning of the homicide, at or about 6:30 o’clock, her husband reported for duty at the section-house; that he entered upon the duties of his employment; that the only other section-hand reporting for work was one Bud Cull; that about 7 o’clock that morning NeSmith ordered her husband to help other laborers remove from the section-house which the defendant had assigned to NeSmith for living quarters an upright piano belonging to one Muggridge, who was the predecessor of NeSmith as section-foreman of that section; that Muggridge was vacating said house by order of the defendant; that the piano was placed on a two-horse wagon drawn by two mules; that NeSmith failed to provide any stays or planking at the front and the hind end of the piano, to prevent slipping and rolling; that the mules were skittish and easily frightened, and were not accustomed to hauling pianos; that NeSmith knew this; that the decedent was an ignorant and uneducated negro and did not know how to haul a piano safely, nor could he have ascertained by the exercise of ordinary care that stays or planking were necessary to prevent the piano from slipping or rolling; that he did not know the nature or disposition of the mules; that NeSmith ordered him and Cull to jump up behind the piano and hold it on; that NeSmith failed to warn them of the dangers incident thereto; that they obeyed the command of their superior officer and got on the wagon, taking the position ordered; that the destination of the piano was a house in Brinson, a hundred feet to the west and one hundred yards to the north of the defendant’s station at Brinson; that, two feet to the west and in front of the gate of these premises, there was a ditch about one foot in depth; that as the front wheels of the wagon crossed the ditch the piano slipped toward the back of the wagon a few inches; that Cull failed to hold it to prevent its slipping, but jumped to the right, giving the piano a shove in the direction of the decedent; that the decedent, in accordance with his instructions, endeavored to hold it stationary; that the slipping of the piano frightened the mules and they plunged forward, causing the piano to rush out of the back end of the wagon upon the decedent, carrying him with it, falling upon him and killing him instantly.
   Jenkins, P. J.

Construing the petition most strongly against the pleader, as we must, it is at least capable of the reasonable construction that the defendant’s section foreman was palpably acting without the scope of his limited authority, in ordering the decedent to do the particular work in the performance of which he was killed. The master could not be held liable for an injury received by one of its servants in obeying such a command, and the court did not err in dismissing the petition on demurrer.

Judgment affirmed.

Stephens and Bell, JJ., concur.

The acts of negligence charged in the petition were as follows: that the defendant was negligent by and through its employee and vice-principal, NeSmith, in ordering the decedent into the said dangerous place, upon the wagon, behind the piano, drawn by skittish mules; in failing to warn the decedent of the danger of the said position; in undertaking the moving of the heavy piano without a sufficient number of capable employees; in failing to provide the decedent with a safe place to work; and, by its employee, the said Cull, in failing to steady the piano and prevent its slipping; by said Cull in deserting his place of duty, and by said Cull in shoving the piano in the direction of the decedent; and that the said acts of negligence were the proximate cause of the decedent’s death. The defendant demurred, on the grounds: that no cause of action is set forth; that the petition does not set forth a cause of action in orderly and distinct paragraphs numbered consecutively, and that it is vague and indefinite and does not apprise the court or the defendant of the theory on which the alleged liability is based. The court sustained the demurrer, and the plaintiff excepted.

Harrell & Custer, for plaintiff.

B. (?. Hartsfield, Pope & Bennet, for defendant.


author: Stephens, J.

text:
    16854.
    Graves et al. v. Campbell, ordinary, for use, etc.
    Bonds, 9 O. J. p. 84, n. 32; p. 134, n. 87.
   Stephens, J.

1. Any damage proximately resulting from the breach of duty alleged in the petition, although accruing after the institution of the suit, but before the trial, is recoverable.

2. Where a bond is given by the father of an unborn child conditioned to discharge the duties of husband to the mother whom he intends to marry, and to support the child until the child arrives at the age of fourteen years, and where the father immediately after the execution of the bond marries the mother, and then immediately breaches the bond by deserting her, and where, before the birth of the child, a suit is afterwards filed for the benefit of the wife against the sureties on the bond, to recover for its breach by the husband, and the trial takes place after the birth of the child, the expenses incurred by the wife in supporting herself and the child after the institution of the suit and before the trial are recoverable.

Decided May 14, 1926.

Action on bond; from Murray superior court—Judge Tarver. September 5, 1935.

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

Maddox, Maddox & Mitchell, contra.

3. The fact that other persons, namely, the wife’s parents, contributed to the support of her and the child, will not relieve the husband of his contractual obligation as principal in the bond to support the wife and child, and the wife may nevertheless recover on the bond as a common-law obligation a sum within the penal sum of the bond, sufficient for the support of herself and the child.

4. Under the above rulings and the law of this case as settled by this court upon a former hearing (33 Ga. App. 505, 126 S. E. 854), the petition as amended was not subject to the demurrers interposed, and the verdict found for the plaintiff was supported by the evidence and authorized.

Judgment affirmed.

Jenkins, P. J., and Bell, J., eonour.


author: Bell, J.

text:
    16867.
    YOUNG et al. v. CERTAINTEED PRODUCTS CORPORATION.
    1. Where personal property sold, by A to B is resold by B to 0, there is no implied warranty by A in favor of C.
    2. In the present action by C against A for the breach of the implied warranty which obtained in the sale by A to B, the court did not err in sustaining the general demurrer and dismissing the petition.
    Sales, 35 Cyc. p. 370, n. 18, 20.
    Decided May 14, 1926.
    Attachment; from city court of Bainbridge—Judge Spooner. September 30, 1935.

      Drake & Kirbo, P. D. Rich, for plaintiffs.

      A. B. Conger, for defendant.
   Bell, J.

The plaintiffs in this ease bought roofing from a local dealer. It proved to be affected with latent defects. They sued, not the dealer, from whom they purchased, but the dealer’s vendor, the manufacturer. The court sustained a general demurrer to the petition, and the plaintiff excepted. We construe the petition as an action for breach of implied warranty. Counsel for the plaintiff in error contend for a different construction, but, from the language used, we are very clear that none other is possible. In Smith v. Williams, 117 Ga. 782 (45 S. E. 394, 97 Am. St. E. 220), the Supreme Court said: “Where personal property is sold, and there are defects latent and concealed, and unknown to the vendee, and a subsequent purchaser is injured by reason thereof, an action for damages sounding in tort may sometimes arise against the one negligently putting the thing in circulation. Longmeid v. Holliday, 30 L. J. Ex. 430; Lewis v. Terry, 111 Cal. 39 (53 Am. St. R. 146). Compare Civil Code, §§ 3864, 3865, as to sale of unwholesome provisions and drugs. But a warranty of soundness is not negotiable' (Dukes v. Nelson, 27 Ga. 463); and if so, there is no reason why a warranty of title in the sale of personal property should stand on any different footing. A warranty does not run with the article sold. If the title is not good, the vendee must look to him from whom he purchased, and to whom he paid the consideration. Central R. Co. v. Ward, 37 Ga. 531. The remedy of the subsequent purchaser is against his immediate seller, and not against the original owner.” The petition failed to set forth a cause of action, and the demurrer thereto was properly sustained. See also Civil Code (1910), § 5516.

Judgment affirmed.

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


text:
    16882.
    Williams v. McElroy.
    Appeal and Error, 4 C. J. p. 180, n. 31, 34; p. 327, n. 98 Hew.
    Gifts, 28 O. J. p. 634, n. 83, 90; p. 659, n. 92; p. 683, n. 34.
    Husband and Wife, 30 O. J. p. 700, n. 69, 74, 78, 79; p. 706, n. 92.
   Jenkins, P. J.

1. When it appears from the record that this court is without jurisdiction of the ease, it is ordinarily the duty of this court so to declare, irrespective of whether or not any such point is made by the record. The only questions which this court is authorized to pass upon are those made by the bill of exceptions. Where from the whole bill of exceptions it is plainly apparent that exception is intended to be taken to the action of the court in granting a nonsuit and dismissing the case at the termination of the plaintiff’s evidence, and complaint is directed to the alleged error of “permitting a judgment to be rendered dismissing said suit and petition,” the bill of exceptions will not be dismissed because of the patently inadvertent use of the term “ directing a verdict” and dismissing the suit instead of the term “granting a non-suit” and dismissing the suit.

Decided May 14, 1926.

Trover; from Madison superior court—Judge W. L. Hodges. September 9, 1925.

Pierce Martin, John J. Strickland, Rupert A. Brown, R. Howard Gordon, for plaintiff.

Brwin, Brwin & Nix, Berry T. Moseley, for defendant.

2. “To constitute a valid gift, there must he the intention to give by the donor, acceptance by the donee, and delivery of the article given, or some act accepted by the law in lieu thereof.” Civil Code (1910), § 4144. In such a ease delivery may, however, be either actual or constructive. Civil Code (1910), § 4147; Hall v. Simmons, 125 Ga. 801 (54 S. E. 751). Thus, where in a trover proceeding the evidence was such as to justify a finding that the husband as donor had parted absolutely with his title in favor of the wife, and that the subject-matter of the gift (certain promissory notes) remained in a box to which the wife carried the key, but which contained articles belonging to each, and to which each continued to have the right of access, it became a question of fact for the jury to determine whether, under the circumstances, the donor had in fact relinquished control by the gift. Especially is this true because “the rule as to delivery is not so strictly applied to transactions between members of a family living in the same house, the law in such eases accepting as delivery acts which would not be so regarded if the transaction were between strangers living in different places.” Harrell v. Nicholson, 119 Ga. 458, 460 (46 S. E. 623). Nor would the fact that the negotiable instruments had not been indorsed be sufficient to defeat her right to recover if the transfer was otherwise complete, and the facts and circumstances were such as might indicate that such failure was due to ignorance, accident or mistake. Culpepper v. Culpepper, 18 Ga. App. 182 (3), 183 (89 S. E. 161).

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    16951. 16952.
    Atlanta Finance Co. v. Dean. Atlanta Finance Co. v. Richardson.
    Malicious Prosecution, 38 0. J. p. 467, n. 60.
    Process, 32 Cyc. p. 541, n. 86.
   Jenkins, P. J.

The legal process, the use of which by the defendant is complained of by the plaintiff, having been used for the purpose which it was intended by law to. subserve, the present suits can not be maintained as actions-for malicious abuse of legal process. Nor were they maintainable on the theory that the previous legal proceeding was a malicious use of legal process, since the petition fails to allege that the previous proceeding had terminated in favor of the defendant therein prior to the filing of the present actions for damages. It follows that the demurrer to the petition in each of the eases stated should have been sustained and the suits dismissed. Vandalsem v. Caldwell, 33 Ga. App. 88 (8), 90 (125 S. E. 716).

Decided May 14, 1926.

Action for damages; from Fulton superior court—Judge Bell. October 21, 1925.

Jackson & Moore, for plaintiff 'in error.

Joseph D. Lewis, W. II. Lewis, contra.

Judgment reversed.

Stephens and Bell, JJ., coneur.


text:
    16954.
    AMERICAN AGRICULTURAL CHEMICAL COMPANY v. BANK OF MADISON.
    Where a garnishee had not filed an answer before or during the second term, or even at the time of the plaintiff’s motion for a judgment against it, but did appear at the time of the motion and make the contention that an answer was not necessary, because the garnishment had been dissolved, and where the court sustained this contention and rendered a judgment by which the garnishee was relieved from answering and “absolved from the process,” and where, although this contention and the judgment sustaining it were erroneous, the garnishee tendered its answer promptly upon the adjudication by this court reversing the trial court and holding that an answer was necessary, and where there was nothing to show that the contention of the garnishee was not in good faith, the court did not err in allowing the garnishee to file the answer, or in refusing a subsequent motion to strike it on the ground that it was too late.
    Appeal and Error, 4 O. J. p. 802, n. 74 New.
    Garnishment, 28 G. J. p. 288, n. 99 New; p. 289, n. 1 New.
    Decided May 14, 1926.
    Garnishment; from Morgan superior court—Judge Park. October 16, 1925.

      J. A. Mitchell, for plaintiff.

      E. W. Butler, King, Spalding, MacDougald & Sibley, for defendant.
   Bell, J.

This is a garnishment case. The defendant having dissolved the garnishment by giving bond, the garnishee conceived that it was not required to answer. The plaintiff moved for judgment against it for the amount of the judgment the plaintiff had obtained against the defendant, the principal debtor. The garnishee thereupon invoked and obtained an adjudication that the dissolution of the garnishment relieved it of the duty of answering and that the garnishee “be absolved from the process.” The plaintiff duly moved to vacate this judgment. The motion was overruled and the plaintiff excepted. Thus the case stood when it was before this court on a former occasion. American Agricultural Chemical Co. v. Bank of Madison, 32 Ga. App. 473 (123 S. E. 921). In.the decision then rendered we held that the garnishee was not relieved from making answer, and remanded the case to the trial court for further proceedings. The garnishee then moved to be allowed to answer, and pleaded, as a reason for its failure to answer earlier, that it had relied on the dissolution bond as a discharge from the summons and on the judgment of the court sustaining its claim of such discharge. The court, over objections by. the'plaintiff, allowed the garnishee, to file the answer. . The plaintiff moved to strike it, and, the motion being overruled, the plaintiff excepted. The bill of exceptions was dismissed as being premature, but leave was granted to treat the official copy as exceptions pendente lite. See 34 Ga. App. 62 (128 S. E. 208). The plaintiff moved again in the lower court for a judgment against the garnishee. The court overruled the motion, and entered final judgment discharging the garnishee on its answer, and the plaintiff once more excepted. The only question for determination is whether the court erred in refusing to strike the answer because of the delay in filing it; for if the answer was in time, the final judgment absolving the garnishee from further liability necessarily followed.

In Owen v. Moseley, 161 Ga. 62 (129 S. E. 787), the Supreme Court said: “A proper construction of the statute is that the answer of the garnishee is not too late at any time, if it comes before or at the time the plaintiff moves to enter up judgment against the garnishee for the amount of the judgment he has obtained against the principal debtcir.” In the light of the question which was then before the court for decision, it is clear that if the answer “comes before or at the time the plaintiff moves to enter up judgment against the garnishee,” no matter when such motion is made, the garnishee may stand upon absolute right, without showing any reason for his failure to answer earlier. In the present case the garnishee had not answered before, and failed to answer at the timé of the plaintiff’s motion for judgment, and it was therefore necessary for it to show some reason legally sufficient to excuse the failure. Dannenberg Co. v. Adler-May Co., 137 Ga. 111, 113 (72 S. E. 906). In Mashburn v. Harrell, 12 Ga. App. 327, 328 (77 S. E. 207), this court said: “It is not within the discretion of the court to extend the time allowed by law to the garnishee for filing his answer, unless the reason or explanation of the delay depends upon something more substantial that the garnishee’s assertion of ignorance of the law.” In the instant case, however, there was “something more substantial than the garnishee’s assertion of ignorance of the law.” The garnishee came into court, responded to the plaintiff’s motion for judgment, and contended that an answer was not required. What is more, it sought and obtained a judgment sustaining its contention. While it is true that the position taken was unsound añd the judgment in its favor was erroneous, there is no suggestion that its contention was not made in good faith, and, in the absence of anything to the contrary, it is to be presumed that if the court had overruled its contention and adjudged an answer to be necessary, it would have complied duly with the court’s order, since to have done so would have been a compliance with the law. Considering these circumstances in connection with the fact that the garnishee tendered its answer promptly upon the final adjudication that it was necessary for the answer to be made, we think the court was warranted in allowing the answer filed and in refusing the subsequent motion to strike it. See, in this connection, McCallum v. Brandt, 48 Ga. 440; Russell v. Freedman’s Bank of Macon, 50 Ga. 576; Atlanta Journal v. Brunswick Publishing Co., 111 Ga. 718 (36 S. E. 929); Averback v. Spivey, 122 Ga. 18 (4) (49 S. E. 748); Dannenberg Co. v. Adler-May Co., Owen v. Moseley, supra.

We say the court’s ruling was authorized or “warranted.” It is unnecessary here to determine whether in the exercise of discretion the court could have ruled otherwise.

Judgment affirmed.

Jenhins, P. J., and Stephens, J., concur.


text:
    16955.
    Parker v. Parker.
    Appeal and Error, 3 C. J. p. 967, n. 42; 4 C. J. p. 866, n. 51.
    New Trial, 29 Cye. p. 827, n. 45.
    Decided May 14, 1926.
    Trover; from Bibb superior court—Judge Malcolm D. Jones. September 26, 1925.
    Anna Parker brought trover against John Parker for property-alleged to be of the value of $227.25, and obtained a verdict for $114. The defendant moved for a new trial upon general grounds, and upon the ground that “the court erred in permitting checks and notes to be introduced as evidence in said case, as described in motion for new trial, and set out in brief of evidence over the objections of the defendant.” The motion for a new trial was overruled, and the movant excepted.

      J. B. Hughes, for plaintiff in error.

      H. F. Strohecker, B. J. Fowler, contra.
   Jenkins, P. J.

1. “Under repeated decisions of this court and of the Supreme Court, each special ground of a motion for a new trial must be complete and understandable within itself, without reference to the brief of evidence or to any other part of the record.” Gaskins v. Courson, 34 Ga. App. 420 (129 S. E. 920). Under the rule stated, it is not permissible to deal with the special ground of the motion for a new trial in this case.

2.. The evidence being in conflict so that a finding for either party would have been authorized, the verdict can not be set aside on the general grounds.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    17024.
    Hornbrook v. Reed.
    Appeal and Error, 4 C. J. p. 649, n. 36.
    Courts, 15 C. J. p. 925, n. 46.
    Motor Vehicles, 28 Cyc.-p. 47, n. 20; p. 49, n. 49.
    Trial, 38 Cye. p. 1481, n. 1.
   Stephens, J.

1. In a suit to recover damages alleged to have been sustained by the plaintiff as a result of a collision between his automobile and the automobile of the defendant, where there was evidence to the effect that the collision occurred after the plaintiff had turned his automobile to the left of the road along which he was traveling when the defendant’s automobile turned into the road from another road upon the plaintiff’s right and was approaching the plaintiff, a charge to the effect that whenever the operator of any vehicle along a public highway shall meet a vehicle approaching from an opposite direction, the operator of the first vehicle shall turn to the right, as provided in Ga. L. 1921, p. 257, sec. 3 (Park’s Code Supp. § 828 (uu-7)), was applicable to the conduct of the plaintiff, and therefore adjusted to the evidence. The defendant, therefore, can not complain that the charge was harmful to him as being inapplicable to his conduct.

Decided May 14, 1926.

Action for damages; from Catoosa superior court—Judge Tarver. October 24, 1925.

M. Neil Andrews, for plaintiff in error.

McClure & McClure, contra.

2. An exception to the refusal'to grant a nonsuit will not be considered where the defendant excepts to a verdict rendered for the plaintiff upon the general grounds that it is without evidence to support it.

3. Authorities from foreign jurisdictions not being controlling in this State, it is not error for the trial judge to refuse to allow counsel in argument to read from such authorities.

4. The court properly charged the law applicable, to the issues presented by the evidence.

5. The jury were authorized to find against the defendant’s counterclaim for damages, and to find that the defendant, in turning his automobile into the road, was guilty of negligence, and that such negligence was the proximate cause of the damage sustained by the plaintiff. The verdict found for the plaintiff was authorized.

Judgment affirmed.

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


text:
    17036.
    Nicholson Live-Stock Co. v. Crumley-Sharp Hardware Co.
    Appeal and Error, 4 C. J. p. 859, n. 7.
    Decided May 14, 1926.
    Appeal; from Grady superior court—Judge Custer. October 30, 1925.

      L. W. Rigsby, for plaintiff in error. W. H. Duckworth, contra.
   Jenkins, P. J.

While the evidence as to the purchase by the defendant company of the goods in question was in conflict, the direct testimony for the plaintiff, together with the proved surrounding facts and circumstances, was sufficient to authorize a verdict in its favor, and this court can not set the verdict aside on the general grounds, which are the only exceptions taken.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    17042.
    King v. Miller.
    Dibel and Slander, 37 O. J. p. 133, n. 14 New.
    Limitation of Actions, 37 C. J. p. 780, n. 62.
    Decided May 14, 1926.
    Action for damages; from Muscogee superior court—Judge McLaughlin. October 31, 1925.

      G. D. King, for plaintiff.

      A. W. Gozart, W. Paul Miller, for defendant.
   Jenkins, P. J.

“All actions for trespass upon or damages to realty shall be brought within four years after the right of action accrues.” Civil Code (1910), § 4495. In an action for false, slanderous, and malicious words impugning the title to the plaintiff’s lands (Civil Code, § 4479), the right of action accrues to the plaintiff upon the doing of the act complained of, just as in injuries to personal reputation. Irvin v. Bentley, 18 Ga. App. 662 (3) (90 S. E. 359) ; consequently, there was no error in sustaining the general demurrer to the petition, as it affirmatively appeared from the petition that the attack made by the defendant on the title to lands of the plaintiff was made by the latter more than four years prior to the filing of the action. The authorities cited by the plaintiff in error (Athens Manufacturing Co. v. Rucker, 80 Ga. 291 (3), 4 S. E. 885; Danielly v. Cheeves, 94 Ga. 263 (3), 264, 21 S. E. 524), relative to the limitation of actions in eases of continuing trespass and continuing nuisance, where the defendant has erected a dam or other instrumentality and continues to maintain the same with continued injury from such maintenance to the plaintiff’s property, have no application in a case such as the present one, where the right of action to the plaintiff accrued upon the doing of the act complained of, and where, contrary to the rule in continuing trespass, the original act itself caused whatever injury might have been occasioned, and did not bring into existence a continuing nuisance, the continued maintenance of which results in continuing injury.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    17049.
    Smith v. Simmons, receiver.
    Evidence, 22 C. J. p. 106, n. 29 New.
    Sales, 35 Cye. p. 662, n. 85; p. 688, n. 53, 57; p. 709, n. 41.
   Stephens, J.

1. Irrespective of a recital of locality in the caption of a written instrument, the instrument, in the absence of proof otherwise, was presumably executed in the county of the official witness attesting it. Ga. L. 1918, p. 209; Park’s Code Supp,, § 4202(a). A retention-of-title contract attested by a person described as a commercial notary public of Laurens county, Georgia, although the caption of the instrument indicates that it was executed in a town in Washington county, Georgia, is presumably officially executed in Laurens county, Georgia. It nevertheless is legally entitled to record in Washington county, Georgia, the residence of the maker. Civil Code (1910), § 3307. The record of the instrument constituted constructive notice of its contents in another county of the State even after the maker has moved out of Washington county and carried with him the property which was the subject-matter of the instrument.

Decided May 14, 1926.

Trover; from Johnson superior court—Judge Camp. November 27, 1925.

J. Roy Rowland, J. L. Kent, for plaintiff in error.

G. G. Croclcett, contra.

2. A retention-of-title contract which described the property to which title was retained as “17 head of mules, the same being purchased from the said H. L. Jenkins estate,” was sufficient to give notice to third persons of the property to which title was retained. Thomas Furniture Co. v. T. & C. Co., 120 Ga. 879 (48 S. E. 333); Nichols v. Hampton, 46 Ga. 253.

3. This being a suit in trover by one representing the deceased vendor of the mules described in the retention-of-title contract against one who purchased the mules from the vendee under that contract, the evidence of the defendant to the effect that before purchasing the mules from the original vendee he made inquiry of the plaintiff as to the vendee’s mules, but did not specify any particular mules, and that the plaintiff told him that the vendee owned some mules, and that, “from the way he [the plaintiff] talked, he had a retention title to the mules,” is insufficient to authorize an inference that the plaintiff admitted to the defendant that the mules sued for and described in the retention-of-title contract belonged to the original vendee, and that the vendor, represented by the plaintiff, had no title thereto.

4. The evidence demanded the verdict directed for the plaintiff, and the court did not err as set out in any of the grounds of the motion for a new trial.

Judgment affirmed.

Jenldns, P. J., and Bell, J., concur.


text:
    17051.
    ANDERSON, trustee, v. TURNER.
    “The constitution of this State declares that all civil cases, with certain exceptions, ‘shall be tried in the county where the defendant resides.’ Civil Code (1910), § 6543. A judgment founded upon a suit in a court which had no jurisdiction of the person of the defendant is void, unless the defendant waived jurisdiction or appeared and pleaded to the merits.” McKnight v. Wilson, 158 Ga. 153, 161 (122 S. E. 702). “In such case the defendant can resort to a motion to set aside the judgment, or to a court! of equity to have the judgment cancelled. Swvnney v. WatMns, 22 Ga. 570; Jordan v. Oallaway, 138 Ga. 209 (75 S. E. 101).” McKnight v. Wilson, supra. Accordingly, the court did not err in overruling the plaintiff’s demurrer to the defendant’s motion to set aside the verdict and judgment in the instant case. The suit was personal, and not in rem. See Civil “Code (1910), § 6543; Spradlin v. Kramer, 146 Ga. 396 (91 S. E. 409).

      Judgments, 33 O. J. p. 1074, n. 43; p. 1079, n. 94; p. 1095, n. 89; 34 C. J. p. 270, n. 63; p. 423, n. 28; p. 447, n. 73.
    Venue, 40 Cyc. p. 96, n. 79.

      Decided May 14, 1926.
    Motion to set aside judgment; from city court of Atlanta— Judge Eeid. November 28, 1925.
    C. N. Anderson, as trustee for the McFarland Tourist Agency, filed suit in the city court of Atlanta, against J. L. Turner, and process was served on tbe defendant personally. A default verdict and judgment were rendered against him at the July term. On November 14, 1925, during the November term, the defendant filed a motion in that court to set aside the judgment, which motion as amended alleged that the judgment was void because at the time of the filing of the suit the court had no jurisdiction of his person, that he was at that time a resident of DeKalb county, Georgia, and that the superior court of the latter county and the city court of Decatur had jurisdiction over him; that he did not appear in the case either in person or by counsel, that he did not waive jurisdiction, and did not authorize any one to do so for him; that no evidence was submitted to the jury in the case, and the verdict and the judgment were taken by default. The motion prayed that a rule nisi, with a copy of the motion attached, be issued and served on the plaintiff. After such service and at the hearing of the motion the court overruled the plaintiff’s demurrer to the motion; and he excepted.

      G. N. Anderson, H. M. Morris, for plaintiff.

      Paul L. Lindsay, for defendant.
   Jenkins, P. J.

(After stating the foregoing facts.) While it is true that a court of general jurisdiction is assumed, either expressly or impliedly, to adjudicate the question of jurisdiction of the subject-matter, whenever it takes jurisdiction and renders judgment (Milner v. Neel, 114 Ga. 118, 121, 39 S. E. 890), and while it is also true that unless it plainly and palpably appears that the court was without such jurisdiction the judgment would not be void, since such an adjudication eliminates any question of such doubt, even though the judgment be in fact erroneous for lack of legal jurisdiction of the subject-matter (Bush v. Bank of Thomasville, 111 Ga. 664, 665, 36 S. E. 900), still this principle does not have application where the court is without jurisdiction of the person of the defendant so as to enable it to determine any question at all; and this is the case where the nonresident defendant has neither expressly waived jurisdiction of his person, nor impliedly done so by pleading to the merits of the cause, or upon an issue raised upon such specific question there has been an adjudication against him. Under the general rule fixed by the constitution, a defendant is entitled to defend a suit in the county of his residence, and he can not, against his will, be required, even by personal service, to come into a.court of another county and contest an untrue allegation as to his residence. The judgment being absolutely void, for actual lack of jurisdiction of the court rendering it, it can be set aside in the court rendering it, either in equity or at law, by the party against whom it was rendered. Dixon v. Baxter, 106 Ga. 180 (32 S. E. 24). The line of cases cited by the plaintiff in error (Ga. Ry. & El. Co. v. Hamer, 1 Ga. App. 673, 58 S. E. 54; Gillespie v. Farkas, 19 Ga. App. 158, 91 S. E. 244), to the effect that what is termed a motion to set aside, with a prayer for rule nisi, based on matters extraneous to the record and made at a term subsequent to the one at which the judgment was rendered, partakes of the nature of a motion for a new trial and is subject to the rules governing the same, are inapplicable to a proceeding to set aside a void judgment. In the latter proceeding the defendant, not having been in court, is not seeking, as a litigant in the previous trial, a new hearing, but moves for an adjudication to the effect that there has been no trial; and in such case the rules of diligence are not the same. Pryor v. American Trust & Banking Co., 15 Ga. App. 822 (84 S. E. 312). Proper venue being a fundamental prerequisite to the jurisdiction of the person of a defendant, and jurisdiction of the person being necessary to the maintenance of any suit, and not a mere privilege or exemption which a defendant is permitted to invoke, the case especially relied on in the excellent brief of plaintiff in error (King v. Phillips, 70 Ga. 409) is not controlling. In that case the defendant, being a nonresident of this State, was suable in any county of this State where he could be legally served. The mandate of the constitution was thus complied with by bringing the suit in the proper venue; and if the defendant wished to avail himself of any special exemption from being-brought into court, to which under the peculiar circumstances he might at that particular time have been entitled, it was his duty to plead and prove such facts prior to the rendition of the judgment.

Judgment affirmed.

'Stephens and Bell, JJ., concur.


text:
    17137.
    WILBANKS v. SMITH.
    The court did'not err in construing the contract sued upon as imposing upon the defendant an absolute and unconditional obligation to pay, and in directing a verdict for the plaintiff.
    Bills and. Notes, 8 C. J. p. 123, n. 89.
    Brokers, 9 C. J: p. 587, n.-99 New; p. 657, n. -56.
    Decided May 14, 1926.
    Complaint; from Habersham superior court—Judge J. B. Jones. December 4, 1925.
    Application for certiorari was denied by the Supreme Court.
    ' E. W. Smith sued J. H. Wilbanks upon the following contract: “This contract made and entered into this date between J. H. Wilbanks, as party of the first part, and E. W. Smith, as party of the second part; agreed, that J. II. Wilbanks, party of the first part, is indebted to E. W. Smith, party of the second part, in the amount of $500.00 as commission in the sale by J. II. Wilbanks of certain property in Cornelia, Ga., to W. D. Vaughn this date. Also agreed that said amount is to be paid out of note given by W. D. Vaughn to J. H. Wilbanks, known as note number 2, dated September 22, 1920, and due December 20, 1921, with interest from January 1, 1921, at the rate of 8% per annum, it is further agreed that the said $500 owed by J. II. Wilbanks to said E. W. Smith shall draw interest from January 1, 1921, at the rate of 8% per annum.” The contract was signed only by J. H. Wilbanks. It was alleged that the defendant was indebted to the plaintiff on said contract, and that the defendant refused to pay the same. The defendant filed an answer denying liability, and setting up, specially, that the purchase-money note number 2, referred to in the instrument, had never been paid, and therefore the defendant was not due the plaintiff any amount whatever. The ease was tried by a jury, and at the conclusion of the evidence each party asked for a directed verdict in his favor. The court directed a verdict for the plaintiff in the full amount sued for. The defendant filed a motion for a new trial, both on general grounds and on special grounds to the effect that the court erred in construing the contract as unconditional, in directing the verdict for the plaintiff, and in not submitting, as a question of fact, to the jury the question as to whether the said condition had been satisfied. The motion being overruled, the defendant excepted.

      J. J. <& 8am. Kimzey, for plaintiff in error.

      MoMillan & Erwin, contra.
   Jenkins, P. J.

(After stating the foregoing facts.) If the obligation sued on was conditioned upon the subsequent collection by the defendant of the debt represented in what is described as note number 2, the court erred in directing a verdict for the plaintiff. The authorities are uniform to the effect that a promise which does not pledge the promisor’s credit, but which limits the obligation to payment out of a certain fund, collected or to be collected, is a conditional promise. The only qualification of this rule is to be found in that line of cases (collated in L. E. A. 1917B, 1050) in which the happening of the event on which the promise is conditioned lies wholly or partially within the control of the promisor. Thus, where a duty of bringing about the contingency which will absolve the conditional character of the promise is left by the contract inhering in the promisor, he is under pain of performing that duty, or else his conditional promise will be transformed into an unconditional promise to pay; the rule in such cases being that if one promises to pay another a specified sum of money due the promisor from another, it is the duty of the promisor to exercise proper diligence in the collection of that money, and if he fails so to do, he can not thereafter avail himself of the condition which originally limited his undertaking. In such a case the promisee can enforce payment by alleging and proving the failure to exercise such diligence on the promisor’s part. In the instant case, while there was a duty devolving upon the defendant to use proper diligence in the collection of the note number 2 referred to, the plaintiff’s case is not planted upon any such theory, although the defendant introduced evidence to the effect that he had sued the maker of note number 2 to insolvency, and was unable to make collection of the note. The only question, therefore, which is here involved, is whether the promise was conditional or absolute. That is, whether the personal credit of the maker was pledged, or whether the stated liability was contingent upon the happening of an event stated in the instrument as a condition. In determining this question “the true test in every case is, does the instrument carry the general personal credit of the drawer or maker, or only the credit of a particular fund, and this question must be determined according to the circumstances of each case unless the language of the instrument itself puts the meaning beyond doubt.” 8 C. J. 183. The editor of the note at 8 L. R. A. (N. S.) 831, uses this general language: “As stated in the case in hand, the rule of law is well stated that, when a bill or note is payable out of a particular fund, it is not negotiable; but that, where the reference to an account or fund is only for the purpose of indicating the source from which the reimbursement is to be made, the negotiability of the instrument is not thereby affected. Whether or not a reference in an instrument to an account or fund operates against its negotiability will depend upon the intention of the maker or drawer, which is to be ascertained by a reference to the language used, or, where such language is ambiguous, by resort to the concomitant circumstances.” It might also be said that the same rule would apply where the purpose of the reference to the fund is not only to indicate the source from which reimbursement is to be made, but is also intended to extend the time for payment and to pledge the proceeds of the fund referred to in payment of the obligation. Thus, in Woolbright v. Sneed, 5 Ga. 167, it was held that “In a promise by A to B, that he will pay him so much money, fso soon as he can collect it out of C by law/ the qualification has reference to time, and not to the solvency of C. In an action by B on such a promise it is necessary for him to prove that a reasonable length of time has elapsed, for the purpose of collecting money by law, from the date of the promise.” See also Vaughan v. Dean, 32 Ga. 502. If, therefore, the instrument sued on must be taken to establish by its express terms an absolute present obligation on the part of the signer, and that the subsequent reference to note number 8 does not purport to impair such absolute obligation, but by the use of the word “also” merely extends the time of its enforcement until a pledged fund can be realized on, the effect of such supplemental provision would not operate to render the obligation conditional, although it might render it nonnegotiable, by leaving indefinite the time of payment.

It will be observed that in this additional provision, relied on by defendant as setting up a condition, the obligation itself is again distinctly and unequivocally recognized, with the additional provision that interest is to be paid on the amount thus acknowledged. There are two certain and unconditional recognitions of an absolute obligation, one prior to the reference to note number 2, which, as stated, by the use of the word “also” seeks to add to, rather than detract from, such absolute acknowledgment, and the other subsequent to the reference to note number 2, in which the debt is again unequivocally acknowledged and a promise made to pay interest thereon. Even if the reference to note number 2 could, if taken by itself, be construed as implying a promise conditional in its nature, still when the instrument is construed in its entirety such provision could not properly be construed as a defeasance of the precedent and subsequent absolute obligation, but should be construed as an additional promise to do more than that, to wit: hold the proceeds of note number 2 as a pledge for the promise sued on. As was said by Judge Bleckley in Moseley v. Walker, 84 Ga. 274, 276 (10 S. E. 623) : “The absolute promise to pay $600 'on the first of November, 1878, was not qualified in any way by the subsequent provisions of the instrument. The conditional undertaking to render 2,000 pounds of cotton as rent, was no defeasance upon the antecedent undertaking to pay money, but was a stipulation to do more than pay the money—that is, to pay rent in addition to the agreed rate of interest, which was twelve per cent., or if not in addition, in lieu of the interest.” In that case the court says, “A conditional incident of failing to pay an absolute debt will not render the debt itself conditional.” Nor would the supplemental provision in the contract in the instant case, having the effect of deferring payment and obligating the maker to use the proceeds of note number 2 in satisfying his twice stated absolute obligation, have the effect of impairing such obligation. See generally 35 L. R. A. 64!).

•Counsel for the plaintiff in error, in their excellent brief, have presented with much ability their contention that the obligation was restricted to whatever might be derived from note number 2. They present two cases which it has been difficult to distinguish from the line of rulings that we have felt should control our decision. The cases just referred to are Wilson v. Morrison, 29 Ga. 269, and Corbett v. State, 24 Ga. 287. The effect of the ruling in tbe Wilson case is that the stipulation, “said note to be paid out of a certain note I have this day traded to said Morrison on L. B. Perryman, when collected, due at the same time as the above,” amounted to a condition that the note sued on could be collected when the “traded” note was collected, and “not before;” in other words, provided only the “traded” note was collected. In the Wilson case, since the note sued on expressly provided a fixed date of maturity, the purpose of such a reference could not be, as in the instant case and as was said by Judge Nisbet in the Woolbright case (5 Ga. 167), a qualification as to time only. Furthermore, in the Wilson case the purpose of such reference could not be (as here) to pledge as collateral the note referred to, since in the Woolbright case the note referred to had already been “traded.” Accordingly, in the Woolbright case the only possible purpose and effect of the reference must have been to impose a condition. Moreover, under the authority of the Moseley case (supra), since the instrument in the instant case does contain a complete and absolute obligation, it would not be affected by an additional and supplemental provision, even though such might be construed as a conditional obligation. Much to the same effect might be said with reference to the Corbett case, since the reference in that case could not mean that the fund referred to was thereby intended to be assigned or pledged, as in the instant case appears to us to have been the manifest purpose. Moreover, the previous ruling of the Supreme Court in the Woolbright case (5 Ga. 167), if applicable, would be controlling.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    17146, 17177.
    Calhoun Oil & Fertilizer Company v. Western and Atlantic Railroad; and vice versa.

    Appeal and Error, 4 C. J. p. 180, n. 34; p. 694, n. 98.
    Courts, 15 C. J. p. 961, n. 36; p. 963, n. 45.
    Trial, 38 Cyc. p. 1372, n. 64.
   Jenkins, P. J.

1. Where an order sustaining a special demurrer to the petition was sustained, with time granted for amendment to cure the defect, and the plaintiff, without showing any reason why compliance with the terms of the order could not be made, filed an amendment'within the time allowed, but which in no! way actually cured the defect adjudicated to exist, and thereafter the defendant moved to dismiss the petition, on account of the plaintiff’s failure to comply with the court’s order, and the plaintiff made no further effort to amend his petition in order to comply with that adjudication, it was error for the judge to refuse the motion to dismiss, since his previous adjudication sustaining the special demurrer, to which no exception was taken, became the law of the case, and the court was thereafter powerless to hold to the contrary. A verdict having been rendered in favor of the defendant, and the plaintiff’s motion for a new trial having been overruled, the plaintiff excepted, and the defendant filed a cross-bill of exceptions, complaining of the refusal of the court to dismiss the petition on account of the plaintiff’s failure to amend as required.

2. “Under our system it is contemplated that a party who is dissatisfied with the judgment below will file a main bill of exceptions independent of the exceptions which may be filed by the other party. Each party may do this, and the result be two different and independent bills of exceptions in the same case. Where one party is satisfied to abide by the result of the trial in the court below, he may still, if the other party brings the case up for review, wish to correct certain rulings made against him so as to prevent their repetition in the event a new trial is ordered. ' In such case his remedy is by cross-bill of exceptions. If the judgment below does not leave the case to be again tried, then by filing a cross-bill of exceptions a party necessarily, under our system, places himself in the attitude of one who is willing to' abide the judgment below if it be left undisturbed. The questions made in his cross-bill will be considered only where the judgment on the main bill is reversed or modified.” Hammond v. Conyers, 118 Ga. 539, 540 (45 S. E. 417). It is the duty of the appellate court to “hear argument upon such cross-bill of exceptions, and to decide the questions therein made, if a reversal of the judgment of the court below is ordered.” Civil Code (1910), § 6139.

3. Erom an examination of the main bill of exceptions it appears that the court erred in refusing to permit the sequestered witness to testify (Howard v. Echols, 31 Ga. App. 420, 120 S. E. 815, citing Thomas v. State, 7 Ga. App. 615, 67 S. E. 707, and Wallace v. Mize, 153 Ga. 374 (8), 112 S. E. 724) ; and therefore the defendant in the court below would not be entitled to an affirmance of the judgment rendered in its favor, complained of in the main bill of exceptions; but since the question raised by the cross-bill is controlling and renders any further trial of the ease impossible, and since it appears from the cross-bill that the court erred in refusing to dismiss the petition on account of the plaintiff’s failure to amend his petition as required, it is hereby adjudicated that the court erred in refusing to dismiss the petition as amended; and in view of this ruling it is unnecessary to' deal with the merits of the main bill of exceptions.

Decided May 14, 1926.

Action for damages; from Gordon superior court—Judge Tarver. November 28, 1925.

STATEMENT OE EACTS BY JENKINS, P. J.

Calhoun Oil and Fertilizer Company, plaintiff in error in the main bill of exceptions, brought an action for damages against the Western & Atlantic Eailroad, alleging that fire was set to its oil mill, and the mill almost completely destroyed, by the defendant’s engines; and that the said damage was caused by the defendant’s acts of negligence in named particulars. The defendant demurred to the petition generally and specially and the special grounds of the demurrer were overruled except those aimed at two particular paragraphs of the petition. One of these paragraphs alleged: “Said fire originated from and was caused by live and lighted sparks, cinders, and coals emitted from the locomotive engine or engines of the defendant herein.” This paragraph was demurred to as follows: “ Specially to the allegations of paragraph 10, because the same are too general and indefinite, failings to state from what engine or engines of defendant the fire originated.” The other paragraph was as follows: “Said property was almost totally destroyed and rendered entirely and completely worthless. Said building was damaged to the extent and in the amount of $10,-000. Said machinery was heated and burned and ruined and rendered entirely unfit for operation, and put into the condition of junk with only the value of junk. The damage on said machinery was at least $15,000.” This paragraph was demurred to as follows: “Specially to the allegations of paragraph 20, because the same are too vague, general, and indefinite, and state a conclusion of the pleader, and fail to sufficiently specify what were the particulars of the damage to the building, and the same is true as to the failure to specify the particulars of the damage to the machinery.” The order of the trial court upon the demurrers was as follows: “On hearing plaintiff is required to amend within ten days to meet criticism contained in demurrers to paragraphs 10 and 20 of petition, the other grounds of demurrer are overruled.” Within the time allowed, the following amendment to the petition was. filed and allowed: “10 (a). Plaintiff adds to paragraph 10 the following words, to wit: ‘as hereinafter detailed/ The plaintiff filed also an amendment to paragraph 20 of the petition, and again amended it before the motion to dismiss, the petition, hereafter referred to, was passed upon. (As this amendment is very lengthy and seems to have met the complaint made in the demurrer, it is not quoted here.) Thereupon the defendant filed a motion to dismiss the petition on the ground that the amendment failed to cure the defects pointed out by the special grounds of the demurrer. This motion was overruled, and the defendant filed exceptions pendente lite. The trial of the case resulted in a verdict for the defendant. The plaintiff filed a motion for a new trial both upon general and special grounds, and the overruling of the motion is complained of in the main bill of exceptions. The defendant filed a cross-bill of exception complaining of error in the refusal of the court to dismiss the petition upon its_ motion. One of the grounds of the motion for new trial is that the court refused to allow the plaintiff to put up as a witness a person who had remained in the courtroom and heard the testimony after all witnesses had been sequestered under a ruling of the court.

Judgment reversed on the cross-hill of exceptions; nrf,ain hill dismissed.

Stephens and Bell, JJ., concur.

7. A. Henderson, J. M. Lang, for plaintiff.

Tye, Peeples & Tye, J. G. B. Erwin, for defendant.


text:
    16680.
    CENTRAL OF GEORGIA RAILWAY CO. v. EVANS.
    1. Tlie Carmack amendment to the interstate-commerce act provides that a suit on a bill of lading, for loss of or damage to freight, shall be maintained by the holder of the bill of lading or by the party entitled to recover thereon. The Cummins amendment provides that “‘holder’ of a bill means a person who has both actual possession of said bill and a right of property therein.” Under Georgia law, a bill of lading may be transferred by delivery (Orr v. Planters Phosphate &e. Oo., 8 Ga. App. 59, 60, 68 S. E. 779; Baker v. Central Grooery Co., 15 Ga. App. 377, 379, 83 S. E. 504), and presumptively one in possession of such an instrument is the legal holder thereof. However, even if such be the rule under the Federal statute, in the instant case, as to one of the ears of fruit sued for, while the petition, as amended, alleges that the plaintiff was the lawful holder of the bill of lading and was the party entitled to recover thereon, the effect of his evidence was to explain his physical possession of the bill of lading as bding the legal possession of the corporation to which it was issued and of which he was president, and for which he was acting in his fiduciary capacity. Under such admitted state of facts, the corporation to which it was issued being still the holder of the contract, and the plaintiff being a mere official custodian thereof, a suit can not be maintained thereon in the name of the individual having bare physical possession, as thus explained. Accordingly, a recovery for the plaintiff under what is designated as count 3 of the petition was unauthorized.

      Appeal and Error, 4 C. J. p. 969, n. 56; p. 1004, n. 63.
    Cari’iers, 10 C. J. p. 85, n. 14; p. 86, n. 19; p. 204, n. 48; p. 354, n. 41, 44 New; p. 360, n. 20; p. 371, n. 55 New; p. 392, n. 35; p. 393, n. 53, 60; p. 394, n. 65.
    Evidence, 22 C. J. p. 528, n. 25; p. 551, n. 52; p. 642, n. 50.
    Trial, 38 Cyc. p. 1711, n. 19.

      2. The demurrer to the petition was ineffective and the question raised thereby is controlled adversely to the contentions of the plaintiff in error by the ruling of this court in Southern Railway Co. v. Standard Growers Exchange, 34 Ga. App. 534 (130 S. E. 373).
    3. Whether the refrigerator ear actually furnished by the defendant to the plaintiff on the latter’s requisition was such as could and did afford standard’ refrigeration for the character of service specified when expeditiously handled and re-iced to full capacity at all regular icing stations en route was, under the conflicting evidence upon that issue, a question to be determined by the jury. The fact that under the rules of the interstate-commerce commission the carrier might be held liable for a failure to provide a car of the type specified in the shipper’s requisition does not extinguish the common-law obligation that the car when thus furnished shall afford reasonable efficiency in the service specified, nor do such rules purport to nullify that obligation, but, on the contrary, rule 130 recognizes that reasonable protective service must be provided.
    4. The numerous special exceptions relating to the admission and rejection of testimony, exceptions to the charge of the court and the failure to charge as requested, have been carefully examined; and we do not find any substantial or harmful error such as would authorize setting the verdict and judgment aside. The question as to whether the car furnished could and did afford proper refrigeration between the points of shipment, when re-iced at regularly established icing stations, was one of opinion. “Where the question under examination, and to be decided by the jury, is one of opinion, any witness may swear to his opinion or belief, giving .his reasons therefor.” Civil Code (1910), § 5874. “The opinions of experts, on any question of science, skill, trade, or like questions, are always admissible; and such opinions may be given on the facts as proved by other witnesses.” Civil Code (1910), ’§ 5876. Under these two familiar rules, none of the testimony admitted over objection is subject to the exceptions taken. The charge of the court, taken as a whole, was fair and complete, and properly presented to the jury the issues involved. A proper interpretation of the excerpt from the charge in which the judge told the jury that he could not charge as a matter of law that the carrier should have furnished “this kind of a car or that kind of a car” can not, especially when taken in connection with the entire charge, be reasonably taken to mean anything else but that whatever shape, size, or equipment the car might consist of, the question was whether or not it would furnish proper refrigeration for the character of service requested. The failure specifically to charge as requested that the defendant would not be liable for any injury done to the goods by the plaintiff’s delay in loading was fairly covered by the charge upon the issue made as to whether the goods were in good order when accepted by the defendant. The court, having submitted the controlling issues involved, did not err in failing specifically to charge, as requested, upon the effect of rule 35 of the interstate-commerce commission, which was in evidence, and which is quoted from in the preceding headnote; there being no issue as to whether the carrier had furnished a refrigerator car as contemplated under that rule, but the contest being- solely as to whether the refrigerator car actually furnished would properly refrigerate in the particular service which the plaintiff had specified. Nor did the court err in failing to charge that if the loss was occasioned by what was analogous to an act of God, but to which loss the negligence of the defendant contributed, the damages awarded should be apportioned accordingly.
    Decided May 15, 1926.
    Rehearing denied June 18, 1926.
    Breach of contract; from Houston superior court—Judge Malcolm D. Jones. June 12, 1925.

      Harris, Harris & Popper, Duncan & -Nunn, for plaintiff in error.

      John R. L. Smith, Grady G. Harris, J. LeGonte-Smith, contra.
   Jenkins, P. J.

Something might be said in elaboration of the third division of the syllabus. As to the first count the plaintiff made out a prima facie case by showing himself to be the lawful holder of the bill of lading; that the goods were received by the defendant for shipment in good condition, and that when delivered by it they were damaged by decay; and that he was damaged thereby to an amount named. In order for the defendant carrier to absolve itself from liability for the damage to the shipment, it then became incumbent upon it to show that the loss was occasioned by an act of God or of the public enemy, unmixed with any negligence on its own part contributing thereto. Where, as here, however, the shipment consisted of perishable goods, the rule just stated is complied with by showing that the loss was occasioned by an inherent vice in the goods themselves or by their ■natural deterioration, unmixed with contributory negligence on the part of the defendant. The defendant, contending all the while that the goods were properly handled, including proper refrigeration, apparently does not undertake to show that their decay, while thus properly refrigerated, was attributable to mere natural deterioration, but relies upon proof to the effect that the loss to the properly handled and properly refrigerated shipment was occasioned by a certain named vice or disease inherent in the goods at the time of their shipment. In undertaking to absolve itself from contributory negligence in the loss thus occasioned, the defendant submitted proof for the purpose of showing, and did show, that the shipment of peaches was handled with proper expedition and that the refrigerating car in which they were conveyed was re-iced to full capacity at all regular icing stations between the point of shipment and the point of destination, as required by the bill of lading. This, according to the defendant’s contention, was all that it was required to show under its contract of shipment in order to be relieved from the presumption of contributory negligence for a loss which it contends was occasioned by what was the equivalent of an act of God. It nevertheless went further and undertook to prove that the car furnished by it and in which the freight was handled was not only such as was in compliance with plaintiff’s requisition calling for a refrigerator car, but was such a car of that type as was suitable for the character of service specified. The plaintiff, in rebuttal, disputed the existence .of the inherent vice claimed by the defendant to have existed in the goods, and likewise disputed the defendant’s evidence to the effect that standard refrigeration was provided, by showing that such was not the case, since it could not have been afforded by the car furnished, which, according to his evidence, was not the sort of refrigerator car which could or did afford standard refrigeration for the service specified, and consequently was not suited for the service called for, but was a short car, with small ice bunkers, old and antiquated, and which was primarily intended to be used as a dairy car for handling in a limited territory, and was entirely unsuited and inadequate to maintain standard refrigeration on a long haul between Fort Valley, Georgia, and St. Louis, Missouri, when iced only at such icing stations as were regularly provided for. Plaintiff insists, and correctly so, that under the interstate-commerce law the defendant could not contract against liability occasioned by its own negligence, but appears to tacitly concede that, under the evidence, a lack of proper refrigeration could be charged only by reason of the inefficiency of the car employed. Under the tariff rules of the interstate-commerce commission a shipper, in requesting a ear, is only permitted to specify in general terms the type of ear desired, such as “refrigerator, ventilator, box, etc., and the character, of service desired.” It is also true that under these tariff rules (with certain exceptions not material here) “no detailed instructions from shipper as to protective service will be accepted other than hinder refrigeration/ hinder standard ventilation/ etc.” Thus, for a failure to furnish, upon request, a car of the type requested, such for instance as “a refrigerator car,” the rules of the interstate-commerce commission afford the shipper his remedy; but it is nevertheless true that for a failure to furnish a refrigerator car such as would afford proper protection for the character of service specified, the remedy is afforded by the common law; and the carrier is liable under common-law rules and principles for any damage occasioned by its negligence in failing so to do. “It is the primary duty of the common carrier to furnish vehicles suitable in every respect in building strength, and mode of construction, for the safe transportation of the various kinds of property which are usually carried by it, and any failure to observe its duty in this regard will render it liable for loss or injury caused thereby.” 10 C. J. 85. Under the evidence submitted on this issue, it was for the jury to say whether the defendant had carried the burden imposed upon it by showing, as it sought to do, that the loss was brought about by the inherent disease referred to, and, if so, whether it was free from negligence contributing thereto. Upon the first of these propositions, the jury, in determining the existence and effect of such alleged inherent vice, could consider not only the testimony bearing directly upon that question, but might also consider in connection therewith all the surrounding facts and circumstances throwing light -upon such ultimate question by a process of elimination. Upon the second proposition,—that is, the question as to defendant’s negligence,—there was no dispute except as to the .question as to proper refrigeration, and no contention is made as to that, except as to whether the car furnished, when re-iced at all regularly established icing stations, could and did afford the proper amount of protecting refrigeration for the shipment. Under tbe conflict of tbe testimony upon that issue tbe jury were authorized to find that the shipment lacked proper refrigeration on account of tbe inefficiency of tbe ear furnished by tbe. defendant, when re-iced at the ordinary icing stations, between tbe points of shipment, and that tbe furnishing of such an inefficient car constituted negligence contributing to the damage sustained.

Judgment on the first count affirmedj and on the remaining count, designated as No. 8, reversed.

Stephens and Bell, JJ., concur.


text:
    16767.
    Cuthbert v. Schofield.
    Appeal and Error, 4 C. J. p. 1147, n. 60.
    Negligence, 29 Cyc. p. 430, n. 94; p. 453, n. 86; p. 472, n. 26,
   Jenkins, P. J.

1. “Where the owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries occasioned by his failure to exercise ordinary care in keeping the premises and approaches safe.” Civil Code (1910), § 4420. Where, however, in an action of an injured invitee for damages the petition failed to allege that the owner and occupier of the premises had actual knowledge of the decayed condition of the underside of the upper steps of the outside stairway, but did allege that the upper step which gave way “was apparently sound and in safe condition,” and based her petition upon the theory that it was the absolute duty of the owner to make an inspection of the premises, for the purpose of keeping them in repair, irrespective of any apparent fact or circumstance which might, to a reasonably prudent person, in the exercise of ordinary diligence, indicate the necessity of any such inspection, the trial judge Sid not err in dismissing the petition on demurrer, and the judge of the superior court did not err in refusing to sanction the certiorari. The degree of diligence' required by the quoted code-section in keeping the premises safe is not stated as consisting either of slight diligence or of extraordinary diligence, but is stated to consist of ordinary care, such as a prudent householder might reasonably be expected to exercise. In the absence of actual knowledge of the defect in the step, the top of which was exposed to the rain and the underside of which to the air, and which “was apparently sound and in a safe condition,” it would seem that to require an inspection of the underside of such a step in order to ascertain if, contrary to appearances, it was in fact in an unsound arid unsafe condition, would be to demand the exercise of a most extraordinary degree of diligence. The rule here announced is not in conflict with the decisions in those cases (such as Fulton Ice & Coal Co. v. Pece, 29 Ga. App. 507, 116 S. E. 57, chiefly relied upon by the plaintiff in error) in which the owner or occupier of land is required, under the terms of the Civil Code (1910), § 4420, to exercise ordinary diligence towards an invitee, in discovering and repairing defects in the premises entered upon. It is ordinary diligence in discovering such a defect which is required; and where, as in the instant case, the owner is without actual knowledge of the defect, and it is shown by the petition that there is nothing to indicate the propriety or necessity of making an inspection to ascertain the possible or probable existence of any defects, ordinary diligence does not require an inspection “where he had no reason to think an inspection was necessary.” 29 Corpus Juris, 472 (2). In the Pece ease, supra, the vessel subjected to heavy pressure and which occasioned the injury was not alleged to have been “apparently sound and in a safe condition,” but was shown to have been not only old but “worn” and actually “leaking.” Besides, the rule of inspection might be applied with much greater rigidity in cases relating to such dangerous instrumentalities prior to being subjected to high and dangerous pressure.

Decided May 15, 1926.

Petition for certiorari; from Bibb superior court—Judge Mathews. August 14, 1925.

L. D. Moore, B. Gubbedge Snow, for plaintiff.

Jones, Parle & Johnston, for defendant.

2. The request set forth in the brief of counsel for the plaintiff in error, that in the event this court should approve the refusal of the superior court to sanction the certiorari, the judgment of this court should require the allowance of certain amendments to the petition, can not be granted, since, as we view the ease, the suggested amendments would not materially affect or strengthen the petition. See, also, in this connection, as perhaps bearing upon the propriety of granting such a request, Ayres v. Taylor, 54 Ga. 264, 265; Couch v. White, 18 Ga. App. 198 (89 S. E. 183).

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    16841.
    Brown et al. v. West.
    Abatement and Revival, 1 O. J. p. 143, n. 47.
    Appeal and Error, 4 O. J. p. 920, n. 53.
    Assignments, 5 C. J. p. 895, n. 15; p. 896, n. 17, 20; p. 996, n. 59; p. 999, n. 73, 79; p. 1000, n. 88,°89; p. 1022, n. 76 New.
   Jenkins, P. J.

1. Where creditors make a full written assignment of their claim to a third person, although it be to secure a lesser indebtedness of theirs to the assignee, the assignment vests in the assignee the full legal title to the entire chose in action; and in such a case the assignee is vested with the right to maintain an action for the full amount of the chose in action, being charged with the duty of holding the excess, above the amount of the secured debt, as trustee for the assignors.

Decided May 15, 1926.

Complaint; from Fulton superior court—Judge Ellis. August 89, 1985.

This was a suit by F. T. West against George Brown and Mck Mallas, for the foreclosure of a lien for the original sum of $738, later increased by an amendment, which lien was claimed on account of labor and material furnished in building five stores on Central Avenue, Atlanta, Georgia. On the trial the following transfer by the plaintiff was introduced in evidence: “Georgia, Fulton County.—Know All Men by these presents that I, F. T. West [the plaintiff], for value received, do hereby transfer, sell, assign, and convey and deliver to Dr. W. M. Etheridge all my right, title and interest in and to a claim I hold against George Brown and Nick Mallas for $732.00, same being the balance on labor and material furnished in the building of five stores on Central Avenue and East Fair street, in which a lien has been filed and recorded, same being No. 316564, book number 273, page 528, November 4, 1921, in which suit has been instituted to foreclose said lien, being number 50932, Fulton superior court. This assignment is made for the purpose of securing an indebtedness of $300.00 due by F. T. .West to Dr. W. M. Etheridge. [Signed] F. T. West.”

2. Where such an assignment of a chose in action is not made until after the assignor has filed suit on the assigned claim, the suit in the name of the original plaintiff is not thereby abated; but the original plaintiff, without amendment and without the presence of the assignee, may continue to prosecute the claim to a judgment, holding the amount represented by the secured debt as the trustee for the assignee. Wood v. McGuire, 21 Ga. 576 (4) ; Suwannee Turpentine Co. v. Baxter, 109 Ga. 597 (35 S. E. 142).

3. A partial transfer of a chose in action is good as a legal assignment only when it has been assented to by the debtor. When he has so assented, separate suits at law may be maintained by both the assignor and the assignee for their respective interests in the chose in action. A partial assignment of a chose in action may, however, be good in equity without the consent of the debtor, but in such ease only one suit may be maintained thereon; and such suit must be in a court of equity, with the assignor, the assignee, and the debtor as parties in the case. See Rivers v. Wright, 117 Ga. 81 (43 S. E. 499). Accordingly, where suit was brought upon a claim against the defendant, and it was made to appear that pending the action the plaintiff assigned the full claim sued upon to another as security for a lesser debt of the plaintiff to that person, and that, too, apparently without the debtor’s consent, it was prejudicial error against the plaintiff to restrict his right of recovery to the value of the assignor’s equity of redemption in the assigned cause of action, and to instruct the jury that if they should find for the plaintiff, they should deduct therefrom the amount of the secured debt. This is true for the reason that such an instruction was tantamount to holding that the assignment was but a partial assignment of the chose in action, and valid as such even though the defendant had not consented thereto, and that the cause of action had become split so as to limit the plaintiff’s recovery to the unassigned interest remaining in him. Both of such implied holdings were erroneous, in view of the rule stated above.

3. The exception here taken is by the defendant, and it is a well-recognized principle of law that “a defendant against whom a verdict has been returned can not complain that the verdict is for a less amount than that demanded by the evidence ” (Pullman Co. v. Schaffner, 126 Ga. 609 (4), 610, 55 S. E. 933, 9 L. R. A. (N. S.) 407) ; and since it is true that the charge complained of by the defendant could only have resulted in the rendition of a verdict less in amount than might otherwise have been returned, the defendant can not complain.

Judgment affirmed.

Stephens and Bell, JJ., concur.

The judge charged the jury as follows: “If you find that this plaintiff is entitled to recover, then you would pass to the question of how much, and on the question of this assignment to this doctor the court instructs you that whatever verdict you find, if for the plaintiff, you should deduct from that verdict the amount due on this assignment from the amount which the plaintiff might be otherwise entitled to recover.” The verdict was: “We, the jury, find for the plaintiff in the sum of $1235.19 principal, and interest $282.94,—$1518.13, less $300.00 assignment, and interest $66.50,—$366.50.—$1151.63.” The defendants moved for a new trial on general grounds and on the ground that the court erred in the foregoing charge. This motion was overruled, and the movants excepted.

Key, McClelland & McClelland, for plaintiffs in error.

Scott, Hornbuclcle & Moore, contra.


text:
    16849.
    UNITED STATES FIDELITY & GUARANTY CO. et al. v. WATTS.
    1. No question as to the constitutionality of any aet of the General Assembly is made by the present record. This court has jurisdiction of the case, and the act which counsel for defendant in error has attacked by brief in this court as being unconstitutional must be treated as valid.
    2. Under the provisions of section 3 of the act approved August 7, 1917, the treasurer of Sumter county became ex-officio clerk of the board of roads and revenues of that county. As such, he was an officer and not an employee.
    3. The award of the industrial commission was illegal, and the superior court erred in not sustaining the appeal therefrom.
    Appeal and Error, 4 C. J. p. 710, n. 73.
    Courts, 15 O. J. p. 1038, n. 39.
    Officers, 29 Cye. p. 1364, n. 28.
    Workmen’s Compensation Aets, C. J. p. 48, n. 50 New.
    Decided May 15, 1926.
    Appeal; from Sumter superior court—Judge Littlejohn. September 5, 1925.

      Bryan & Middlebrooks, for plaintiffs in error.

      J. A. BLixon, contra.
   Bell, J.

H. D. Watts, clerk (or ex officio clerk) of the county commissioners of Sumter county, received an injury for which he sought compensation under the workmen’s compensation act. From an award in his favor by the industrial commission the alleged employer and the insurance carrier appealed to the superior court, by which court the award was affirmed, and the appellants excepted. The principal question for determination is whether the claimant was an employee of the county at the time of his injury. His insists that he ivas. The county and the insurance carrier contend on the other hand that he was an officer.

The board of commissioners of roads and revenues of Sumter county was created by' an act of the General Assembly, approved December 13, 1871. See Ga. L. 1871-2, p. 225. Section 7 of this act provided as follows: “That said board may elect a clerk, whose duties shall be defined by said board, with' such compensation to be paid out of the county treasury as they may see proper to give him; said compensation, however, not to exceed thirty dollars per annum.” The aet of 1871 was amended in 1879 “so as to authorize said board of commissioners for the county of Sumter to pay the clerk of said county an annual.salary not exceeding two hundred dollars,” the salary, when “fixed,” to be paid out of any funds of the county treasury of Sumter county on the warrant of the commissioners. Ga. L. 1878-9, p. 344. In 1917 the legislature passed an act placing the county treasurer upon a salary of one hundred dollars per month, and providing, in section 3, that “from and after the first day of January, 1918, the treasurer of Sumter county, Georgia, shall, in addition to the duties now required of him by law, be ex-officio clerk of the board of commissioners of roads and revenues of Sumter county, Georgia, and shall do and perform all the clerical work of said board, and shall receive no fees or compensation for such work in addition to the salary fixed by section one of this act.” Ga. L. 1917, p. 390.

The following facts were developed in the trial before the industrial commission: Mr. Watts was county treasurer at the passage of the act of 1917, but another was then serving as clerk, and continued to do so for some time thereafter. Ultimately the question arose as to whether, in view of this act, the duties of clerk should not be performed by Mr. Watts. He contended that the provisions of the act which undertook to impose such additional duties on the treasurer were not binding, and the matter was referred to the county attorney. This attorney, according to his testimony before the industrial commission, then advised the board, “as to this part of [the act] that refers to the clerk of the board,” “that the duties of the treasurer were prescribed under a general law applicable to all treasurers of .counties of the State, and that the legislature could not' by a special bill impose other duties on the treasurer of Sumter county, because it would be in violation of the constitutional provision forbidding the passing of a special law; that the general law which was of force and in existence as applicable to treasurers” is contained in the Civil Code, § 576, the terms of which the attorney stated in his opinion to the board and repeated in his testimony in the present case. This witness further testified that he advised the board that “in his judgment . . section 4 [3?], imposing upon the treasurer of Sumter county the additional duty of being clerk of [or?] secretary for the board of commissioners of Sumter county, would be in violation of the constitution, which forbids the passage or enactment of a special law covering matters for which provision had been made by a general law, and that these duties could not be imposed upon Mr. Watts; that he could refuse to perform them as treasurer.” The evidence showed also that “Mr. Watts did refuse to perform the duties for the board unless they paid him additional salary.” Whereupon the county commissioners agreed to pay Mr. Watts a salary in addition to that to which he was entitled as treasurer, and “he took up the duties as clerk in 1919.” The claimant introduced in evidence the minutes of a meeting of the board of commissioners, held on January 7, 1924, as follows: “Board of county commissioners of roads and revenues of Sumter county. Met in regular session. . . The following election for the year 1924 was made by the board: H. D. Watts, clerk, at $85.00 per month.” Also the record of a meeting held on February 4, 1925, was introduced, and showed the following: “Moved and seconded to raise the clerk’s salary to $100.00 per month.” The claimant had performed the duties of clerk continuously from the time he “took them up” in 1919 until his injury on March 28, 1925.

In making its award the industrial commission stated: “Capt. Watts was filling a dual position, that of county treasurer and that of clerk of the board of county commissioners of roads and revenues. lie was not injured as county treasurer, but as said clerk, and as such clerk is entitled to compensation. The duties delegated to him under the act seem to have been clearly unconstitutional, and were so recognized by the county attorney and by the board. Therefore he could not have been acting in the capacity of county treasurer, for which no compensation could have been payable, but he was acting in the capacity of clerk of the board of commissioners of roads and revenues, for which he is clearly entitled to compensation, and it is .so held.”

Counsel for defendant in error contends that, inasmuch as the duties of county treasurer are prescribed by the general law as contained in the Civil Code, § 576, the section of the act of 1917, which undertakes to impose upon the county treasurer the duties of clerk of the board of commissioners, is unconstitutional and void, for the reason that it violates the following provision of the constitution: “Laws of a general nature shall have uniform operation throughout the State, and no special law shall be enacted in any case for which provision has been made by an existing general law. No general law affecting private rights shall be varied in any particular case by special legislation, except with the free consent, in writing, of all persons to be affected thereby; and no person under legal disability to contract is capable of such consent.” Civil Code (1910), § 6391. The proposition is then urged that Mr. Watts did not become clerk, or ex-officio clerk, of the county commissioners by virtue of the act of 1917, but that he assumed the duties of such position by a contract entered into between himself and the board on his refusal to recognize the validity of the act, and that consequently he was an employee and not an officer at the time of his injury.

As appears from the foregoing statement, the only way in which the validity of the act of 1917 was questioned before the industrial commission was by proof that the claimant some years previously had refused to recognize it, that the county attorney had then advised the county commissioners that as to the provisions in question it was unconstitutional, and that they had accepted and acted on his opinion. That is to say, it was merely shown by evidence that at some other time and place the validity of the act had been questioned by the parties, and that they had concluded, and had acted upon' the theory, that it was unconstitutional. This did not amount to an attack upon its constitutionality before the industrial commission. But that tribunal held it to be unconstitutional any way, and the superior court affirmed the ruling. On exceptions then brought to this court to review the judgment, is a constitutional question made in the record? The answer to this question will have relation to this court’s jurisdiction, as well as to the ultimate question for decision. See Park’s Code Supp. (1922), §§ 6502, 6506.

In Griggs v. State, 3 Ga. App. 683 (60 S. E. 364), “the plaintiff in error was found guilty of running a freight-train on the Sabbath day. His case was tried upon an agreed statement of facts before the judge of the superior court. The running of the freight train was admitted. The defendant relied, for his defense, on the exemption provided by the amendment to § 420 of .the Penal Code, passed in 1899 (Acts of 1899, p. 99). The judge of the superior court placed his judgment, finding the defendant guilty, upon the ground that the act of 1899 was unconstitutional and therefore afforded Griggs no defense.” His judgment was as follows: “It is considered and adjudged by the court that the defendant, A. Griggs, is guilty, as charged, because of the uneonstitutionality of the act of 1899 (Acts 1899, pp. 88, 89), approved December 14, 1899. And the court adjudges said act to be unconstitutional, and adjudges the defendant guilty.” This court certified the case to the Supreme Court, and.in response to the question propounded the Supreme Court held: “This court will not pass upon the constitutionality of a statute unless it appears that the question was made in the court below and passed upon by ■ the trial judge, and further that the particular provision of the constitution alleged to have been offended by the statute was clearly designated.” Griggs v. State, 130 Ga. 16 (60 S. E. 103). When the case was thereafter returned to the Court of Appeals for final disposition, the court, speaking through Judge Russell, said: “The only logical effect of the decision of the Supreme Court in the present case is to hold that the judge of the superior court does not have the power to declare a legislative enactment unconstitutional, unless there is specified some particular provision of the fundamental law which is violated. And where an act is so held to be unconstitutional, without any reference to the provision of the constitution offended, an appellate court, considering the judgment upon review, must, in the absence of any specification or direction as to how and wherein and for what reason the act in question is unconstitutional, give superior weight to the general presumption to which reference has heretofore been made. In the absence of any special reason showing why a specific legislative enactment is unconstitutional, and unless it is also shown what particular provision of the fundamental law the act in question violates or offends, every law as passed by the General Assembly of this State must be presumed to be constitutional.” In Lee v. Central of Georgia Ry. Co., 147 Ga. 428 (94 S. E.. 558, 13 A. L. R. 156), the Supreme Court ruled as follows: “In his judgment granting a second new trial, after verdict in an action of tort, the judge of the city court of Savannah declared unconstitutional the provision of the act of 1915, relating to that court, which refers to a second new trial. This ruling was made upon oral argument of counsel, no question of the constitutionality of the act of 1915 having otherwise been raised. Held, that the Court of Appeals of this State has jurisdiction of a writ of error from the judgment.” One of the conclusions to be deduced from these cases is, that the trial judge should never declare an act unconstitutional, in the absence of a proper challenge, and that, even where he volunteers to do so, the reviewing court must, nevertheless, regard the law as valid. Since the claimant did not attack the act as being unconstitutional, in the trial before the industrial commission, he could not thereafter be heard to sustain the award upon such ground, in the superior court or elsewhere. Shepherd v. City of Jackson, 18 Ga. App. 216 (2) (89 S. E. 161); Campbell v. Hutcheson, 23 Ga. App. 111 (2) (97 S. E. 555); Edwards v. McNair, 152 Ga. 486 (110 S. E. 280); Bolton v. City of Newnan, 147 Ga. 400 (2) (94 S. E. 236). And see further, in this connection: Dobbs v. Bullard, 149 Ga. 553 (101 S. E. 122); City of Atlanta v. Standard Life Ins. Co., 149 Ga. 501 (2) (101 S. E. 122); Johnston v. Brenau College-Conservatory, 146 Ga. 182 (5) (91 S. E. 85); Patterson v. Bank of Alapaha, 148 Ga. 356 (96 S. E. 863); Spielberger v. Hall, 159 Ga. 511 (126 S. E. 391); Savannah, Florida & Western Ry. v. Hardin, 110 Ga. 433 (35 S. E. 681); Laffitte v. Burke, 113 Ga. 1000 (39 S. E. 433). We conclude that no constitutional question is raised, and it follows that this court is not without jurisdiction to pass upon the case, and that in arriving at our decision the act of 1917 is to be dealt with as constitutional and valid.

The act being presumed to be valid, the claimant was ex-officio clerk of the county commissioners and, being such, was an officer and not an employee. Cooper v. State, 101 Ga. 783 (29 S. E. 22); Wright v. Gamble, 136 Ga. 376 (71 S. E. 795, 35 L. R. A. (N. S.) 866, Ann Cas. 1912C, 372); Worthy v. Cheatham, 142 Ga. 440 (83 S. E. 113); Marlow v. Savannah, 28 Ga. App. 368 (110 S. E. 923); Tucker v. Shoemaker, 149 Ga. 250 (99 S. E. 865); Board of Education of Doerun v. Bacon, 22 Ga. App. 72 (95 S. E. 753). Being an officer under the provision 'of the statute just referred to, he could not claim to be clerk under a private contract between himself and the county. Twiggs v. Wingfield, 147 Ga. 790 (95 S. E. 711, L. R. A. 1918E, 757). But even if we should ignore the act of 1917 (which we can not do), would it not be true that the claimant occupied the status of an officer under the act of 1871? See Worthy v. Cheatham, supra.

The claimant was not entitled to compensation unless he was an employee. Marlow v. Savannah, supra. The award of the industrial commission was illegal, and the superior court erred in not sustaining the appeal.

Judgment reversed.

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


text:
    16856.
    Burton v. Hardeman & Sons.
    Garnishment, 29 O, J. p. 316, n. 28,
    Decided May 15, 1926.
    Rehearing denied June 15, 1926.
    Garnishment; from Cobb superior court—Judge Blair. July-20, 1925.

      H. B. Moss, for plaintiff in error. J. Glenn Giles, contra.
   Jenkins, P. J.

Hardeman & Sons sued King on an open account and garnished Burton, who was the landlord of King, his cropper. To Burton’s answer to the summons of garnishment, denying that any indebtedness which might be shown on a settlement was subject to garnishment, Hardeman & Sons filed a traverse. They afterwards recovered a judgment in their suit against King. Subsequently King sued his landlord, Burton, and obtained a judgment for $246.81, which was transferred to Hardeman & Sons, and by them levied on property of Burton. Burton filed an affidavit of illegality, on the ground that the same had been settled, by reason of the fact that prior to the transfer of the judgment and fi. fa. he paid King $50 and agreed to pay to Hardeman & Sons $100, which $100 was tendered to them and refused. The issues made by the affidavit of illegality and the traverse to the garnishee’s answer were, by consent of parties, tried together, and the court directed a verdict finding in favor of the traverse, and final judgment was rendered against the garnishee. The judge announced that he would let the illegality ease stand for the present. Held: If the plaintiff in fi. fa. in the garnishment proceeding, after the levy of the garnishment, had proceeded to obtain a valid title to the garnished debt, his lien under the garnishment levy would have become merged with his title; but if at the time he undertook to obtain title to the garnished fund the garnishee and the defendant had already fully liquidated the garnished debt by private settlement, he would obtain nothing but a fi. fa. which had become functus officio, the receiving of which could not affect his garnishment lien. Accordingly, since the private settlement between the defendant and the garnishee pending the levy of garnishment did not affect the rights of the garnishing plaintiff; and since the subsequent acquisition by such plaintiff of the satisfied fi. fa. in favor of the defendant and against the garnishee did not affect the plaintiff’s lien under the levy of the garnishment, and since the defendant waived any claim he might have to exemption, the court did not err in directing a verdict in favor of the plaintiff, sustaining the traverse. It will follow that the plaintiff’s levy upon the property of the garnishee under the fi. fa. transferred to plaintiff should be dismissed and the fi. fa. quashed.

Judgment affirmed.

Stephens and Bell, JJ., eoncwr.