text:
    17007.
    RAINES v. THE STATE.
    The evidence was sufficient to exclude every reasonable hypothesis save that of the defendant’s guilt of the offense of manufacturing intoxicating liquor.
    It is not cause for a new trial that a witness was asked certain questions, which he did not answer, as to his having made whisky.
    Criminal Law, 17 C. J. p. 209, n. 85.
    Intoxicating Liquors, 33 C. J. p. 758, n. 80, 81.
    Decided March 2, 1926.
    Conviction of making liquor; from Dade superior court—Judge Tarver. November 9, 1925.

      B. T. Brock, J. M. Lang, for plaintiff in error.

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

Lonnie Baines was convicted of manufacturing intoxicating liquor. The evidence shows that he and one Hartline were on a wagon coming towards a still; that there were about eighteen hundred pounds of sugar, one hundred pounds of malt, four or five kegs, and a gun on the wagon; that the wagon was driven up at the side of the beer boxes near the.still and the defendant helped unload the above-mentioned material, the defendant “standing up near the brakes handing off some stuff;” that “there was some beer at the still, there was thirteen boxes that would hold about five hundred gallons to the box, and thirty barrels holding sixty gallons to the barrel;” that “a good deal of that beer was ready to run;” that the beer, “drunk to excess, would make one drunk, and did make Lonnie Baines drunk;” that “there was a still there in the furnace; it had been fired up; and there was about four gallons of whisky there in a little shack about twenty steps from the still;” that “they were unloading the wagon where the still and beer was;” and that, “from the appearance of that place, liquor had recently been made there; that there was a considerable quantity of ash and cinders there;” that horses had been there before, and their tracks were similar to those of the' horses that the defendant and Hartline were driving on this occasion. This evidence was sufficient to exclude every reasonable hypothesis save that of the defendant’s guilt of the crime charged.

Error is alleged because a witness for the defendant “was required by the court to give answers to certain questions, and because certain questions were asked him” relative to his having made whisky himself. This ground of the motion for a new trial shows that on the trial the controversy was relative to the rights of the witness rather than to those of the defendant on trial. It alleges that what transpired was prejudicial to the defendant, but it does not show that this ground of objection was urged at the time the objection was made. It does not show what objection was urged at the time to the question being asked, but it does show that the defendant’s counsel objected to the witness answering, on the ground that he should not be required to incriminate himself, and requested the court to “explain his rights to refuse to answer on the ground that it would incriminate him.” This the court did fully and correctly, and the witness did not answer the question. The defendant has no just complaint because the court properly complied with the request of his counsel.

The case of Hartline v. State, 34 Ga. App. 224 (129 S. E. 123), cited by plaintiff in error, is easily differentiated from the one under consideration. In that ease the defendant was charged with manufacturing alcoholic liquors and convicted of “attempting to manufacture such liquor,” and this court held that the evidence was not sufficient “to support the verdict rendered.” The indictment and the verdict in the case now under consideration were for manufacturing alcoholic liquor, and there was sufficient evidence to authorize the jury to find that the crime was actually consummated. The defendant either made alcoholic liquor or he did not. The evidence does not authorize a conviction for an attempt. Penal Code, § 19. The whisky was in a shack only about twenty steps away from the still where the defendant was unloading this material, but the beer, which according to the evidence was intoxicating, was right at the place where he was unloading the material. See Belcher v. State, 25 Ga. App. 493 (103 S. E. 852).

We find no error in the court’s charge, and no merit in any of the grounds of the motion for a new trial.

Judgment affirmed.

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


source: Caselaw Access Project

author: Luke, J.

license: Public Domain

text:
    17008.
    FEDERAL RESERVE BANK OF ATLANTA v. LANE et al.

    The maker and the accommodation indorser of a promissory note, who resided in different counties, could be sued jointly in the county of the residence of the indorser.
    Venue, 40 Cyc. p. 99, n. 87; p. 100, n. 91.
    Decided March 2, 1926.
    Complaint; from Seminole superior court—Judge Yeomans. October 21, 1925.

      Vance Ouster Jr., for plaintiff.
   Luke, J.

In Seminole county the Federal Beserve Bank sued Lane, a resident of Miller county, Georgia, and Yanlandingham, a resident of Seminole county, upon a promissory note. The petition alleged that Lane was the maker and that Yanlandingham was an indorser. Yanlandingham pleaded “that he was and is only an accommodation indorser on said note.” Lane pleaded that he was not a resident of Seminole county, but was a resident of Miller county. 'The record shows that a second -original was, by proper order of court, issued, with appropriate process, and was duly served by the proper officer upon Lane in Miller county. No traverse of the entry of service was made by Lane. Upon the hearing of the case Lane did not appear in person to testify, but Yanlandingham testified that Lane resided in Miller county, and that the note sued upon was a renewal of a note originally payable to him and subsequently made to the bank, and that he indorsed the note as a surety or indorser; that the purpose. of his indorsement ivas that he should stand personally good for the payment of the note. Upon the conclusion of the evidence the court passed the following order: “On motion of plaintiff’s counsel, it appearing to the court that H. G. Lane as maker of the note sued on is a resident of Miller county, Georgia, and that W. H. Vanlandingham is only an indorser on said note and is a resident of Seminole county, Georgia, and it further appearing that this suit should have been brought in the county of the residence 'of the maker of said note, the within suit is dismissed and, the pl'eas to the jurisdiction are sustained with cost against the plaintiff.” Error is assigned upon this ruling.

The judgment of the court in sustaining the pleas to the jurisdiction and in dismissing the suit was error. The defendant Vanlandingham pleaded that he was an accommodation indorser. “The principal and surety to a promissory note are joint and several promisors, and joint promisors may be sued in the residence of either.” Heard v. Tappan, 116 Ga. 933 (43 S. E. 377); Civil Code (1910), § 3541. See also Booth v. Huff, 116 Ga. 8 (42 S. E. 381, 94 Am. St. R. 98). The plea of Vanlandingham and his evidence, construed most strongly against him, brought Lane and Vanlandingham into the cause as joint promisors, and the suit could properly have been brought either in Miller or in Seminole county. See, in this connection, Daniel v. Browder-Manget Co., 11 Ga. App. 789 (76 S. E. 176), and cases cited. The two cases, Glennville Bank v. Deal, 146 Ga. 127 (1) (90 S. E. 958), and Arnold v. Atlanta Oil & Fertilizer Co., 11 Ga. App. 581 (1) (75 S. E. 900), are, in our opinion, in conflict, but the conflict, under the facts of this case, is immaterial.

Judgment reversed.

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


author: Bloodworth, J.

text:
    17010.
    JACKSON, guardian, v. MATHIS et al.

    Since the enactment of the uniform procedure act of 1887 (Civil Code, §§ 5538, 5514) which “provides that in suits in the superior court founded on a legal or equitable cause of action, for a legal or equitable remedy or both, relief of an equitable or legal nature may be had in the same action, the dismissal of the plaintiff’s petition on demurrer as being without equity will not have the effect of dismissing a cross-bill of the defendant, alleging additional matters germane to the original petition, and praying affirmative relief, although the relief prayed is not equitable in character and is cognizable in a court of law.”
    Dismissal and Nonsuit, 18 C. L p. 1208, n. 39.
    Decided March 2, 1926.

      Complaint; from Cook superior court—Judge Knight. November 4, 1925.

      Jeff. 8. Story, Hendricks & Hendricks, for plaintiff.

      E. K. Wilcox, J. J. Murray, T. G. Oonnell, for defendants.
   Bloodworth, J.

In the brief of plaintiff in error, after the statement that “there is only one "question to be determined by the court in this case,” we find the following: “The question to be determined is, does the dismissal of the plaintiff’s petition and putting it out of court in [end?] the suit, or can the defendant proceed with the cross-action after putting his adversary, together with his petition, out of court?” This question seems absolutely settled adversely to the contention of the plaintiff in error by a number of decisions of the Supreme Court. In Ray v. Home & Foreign Investment Co., 106 Ga. 496 (4) (32 S. E. 605), Mr. Justice Cobb said: “The answer in the nature of a cross-bill containing matter germane to that set up in the original petition, the dismissal of the plaintiff’s petition did not carry such an answer with it. . . That portion of the answer which was in the nature of a cross-bill and prayed for affirmative relief against the plaintiff remained in court in order that the issues raised therein might be determined. . . Nor was it any ground for the dismissal of such an answer that the relief prayed for was not of an equitable nature. It has long been the law that where a court of equity obtains jurisdiction for one purpose, it will retain it until complete justice has been done to all parties. Civil Code, § 3925; Mays v. Shivers, 7 Ga. 238; Martin v. Tidwell, 36 Ga. 332. But without regard to this rule of law, under the practice prevailing in this State since the passage of the uniform procedure act of 1887 the superior courts have full power in all cases to grant complete relief to all suitors, applying in aid thereof either legal or equitable remedies, or both.” In McCall v. Fry, 120 Ga. 663 (48 S. E. 201), Justice Cobb said: “The purpose of the uniform procedure act of 1887 was to vest in the superior courts the authority to settle in one suit the controversy between the parties, without reference to the question whether the plaintiff’s cause was legal or equitable, or whether the defendant’s defense was one which a court of law would recognize or one which, under the old procedure, would have required the interposition of a court of equity in order to give effect to equitable rights or to enforce equitable remedies, ordinary or extraordinary. When a plaintiff sues a defendant in the superior court, the policy of the law, as indicated by the acts of 1884 and 1887 and kindred legislation, requires the controversy growing out of the cause of action alleged by the plaintiff to be settled in that suit, and that the plaintiff shall not be .harassed by other suits growing out of 'the same controversy, although they are based upon independent claims, legal or equitable, which the defendant might have against the plaintiff in reference to the cause of the controversy. A defendant in a suit in the superior court is bound to set up all defenses that he has to the suit, either legal or equitable, and to pray for all the relief needed in aid thereof, ordinary or extraordinary, and he can not at will decline to litigate as a defendant over these matters and bring an independent suit against his adversary, who has already brought him into court.”

The headnote in Lacher v. Manley, 139 Ga. 802 (78 S. E. 188) is as follows: “Prior to the uniform act of 1887 (Civil Code, §§ 5538, 5514) the involuntary dismissal of an equitable petition for want of equity carried with it the defendant’s cross-bill which only prayed for legal relief (Johnamsen v. Tarver, 74 Ga. 402); but if the cross-bill alleged facts germane to the plaintiff’s petition, entitling the defendant to independent and distinct equitable relief, the dismissal of the petition did not interfere with the defendant’s right to a hearing and trial on the matters set up in the cross-petition. Ryan v. Fulghum, 96 Ga. 234 (22 S. E. 940). Since the enactment of 1887, which provides that in suits in the superior court founded on a legal or equitable cause of action, for a legal or equitable remedy or both, relief of an equitable or legal nature may be had in the same action, the dismissal of the plaintiff’s petition on demurrer as being without equity will not have the effect of dismissing a cross-bill of the defendant, alleging additional matters germane to the original petition, and praying affirmative relief, although the relief prayed is not equitable in character and is cognizable in a court of law.” In the opinion in that case Presiding Justice Evans said: “Since that enactment equitable and legal relief may be given in the same action in the superior courts; and there is now no reason for giving effect to the old equity rule that a cross-bill will not be retained after the original bill is dismissed, unless it prays affirmative equitable relief. By virtue of the statute, if the cross-petition sets up matters germane to the allegations of the original petition, and prays affirmative relief, the involuntary dismissal of the plaintiff’s petition will not carry with it the cross-petition, notwithstanding the relief therein prayed for may be cognizable at law.” In Troup v. Martin, 158 Ga. 181, Justice Gilbert said: “Since the passage of this law known as the uniform-procedure act of 1887, it is immaterial whether the relief prayed for by J. C. Troup (a defendant) is of a legal or equitable nature. There must be a prayer or prayers for affirmative relief either legal or equitable, which is germane to the original petition. Ray v. Home &c. Investment Co., 106 Ga. 492 (32 S. E. 603); Pearson v. Courson, 129 Ga. 656 (5) (59 S. E. 907); Becker v. Donalson, 133 Ga. 864 (7), 873 (67 S. E. 92), and authorities cited; Lacher v. Manley, 139 Ga. 802 (78 S. E. 188). In the Ray case it was shown how the ‘uniform procedure act’ changed the law on the question here involved, and the cases decided before the passage of the act were differentiated from the case decided since the passage of that act.” In the case under consideration the cross-bill “sets up matters germane to the allegations of the original petition and prays affirmative relief.” The case of Jellico v. Bailie, 130 Ga. 447 (60 S. E. 998), cited and relied upon by counsel for plaintiff in error, is easily differentiated by its facts from the present case. In the Jellico case the Supreme Court held that the auditor to whom the case had been referred erred in not dismissing the petition and “in retaining it and using it as an admission on which to- predicate a judgment;” that “the defendant can not put his adversary’s case out of court and at the same time retain it in court.” Nor is the principle we are announcing here in conflict with the ruling in Morse v. Turner, 20 Ga. App. 108 (92 S. E. 767). In that case Judge Jenkins (p. 113) said: “Where no process is attached to the suit and such deficiency has not been waived, either in terms or by appearance or pleading, it is manifest that the court would have no jurisdiction to render judgment against the defendant. The appearance made by the defendant was special and for the sole and specific purpose of denying jurisdiction of himself by the court, and on this ground he obtained a dismissal of the suit. It therefore does not seem that, while denying that he was a party, lie could, maintain the suit in his own behalf under the bond given therein and recover a judgment thereon.”

The “dismissal of the plaintiffs petition and putting it. out of court” ends the case so far as his obtaining a judgment is concerned, but it does not prevent the defendant from proceeding to judgment with his cross-bill.

Judgment affirmed.

Broyles, 0. J., and Bloodworth, J., concur.


text:
    17012.
    GIALELIS v. ROWE.
    The evidence authorized the verdict, and there was no error that requires a reversal of the judgment. Certiorari, 11 O. J. p. 204, n. 70.
    Decided March 2, 1926.
    Certiorari; from Fulton superior court—Judge Humphries. November 11, 1925.

      B. K. Johnston, for plaintiff in error.

      James L. & Will G. Moore, contra.
   Luke, J.

Plaintiff recovered a judgment in the municipal court of Atlanta in a suit on a contract alleged to have been entered into by him and defendant for services to be rendered by plaintiff as an attorney at law in representing defendant and three others charged with misdemeanors. The evidence having authorized the verdict, and there having been no reversible error in either the charge or rulings of the court, the petition for certiorari was properly denied.

Judgment affirmed.

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


author: Bloodwoeth, J.

text:
    17013.
    TRAVELERS INSURANCE COMPANY et al. v. HAMILTON.
    The finding of the industrial commission “upon the facts can not be reviewed in the superior court, if there is evidence to support its finding. Such finding can not be reviewed in the appellate court.”
    Workmen’s Compensation Acts, C. J. p. 122, n. 40.
    Decided March 2, 1926.

      • Appeal; from Fulton superior court—Judge Humphries. November 18, 1925.

      McDaniel & Neely, Harry D. Greene, for plaintiffs in error.

      M. F. Garter, F. F. Childress, contra.
   Bloodwoeth, J.

Under the workmen’s compensation act B. H. Hamilton filed his claim with the industrial • commission for compensation on account of injuries sustained because of hot asphalt falling on his neck while he was in the employ of S. E. Finley. The commissioner who heard the case decided against the claimant and denied any compensation whatever, upon the ground that the claimant failed to report to his employer the injury as required by law. Claimant appealed to the full commission, which sustained the finding of Commissioner Kilburn. An appeal was then taken to the superior court, which held that the industrial commission erred in its finding, and remanded the case to the commission for another hearing. To this judgment Finley, the employer, and the Travelers Insurance Company, the insurance carrier, excepted.

In Maryland Casualty Co. v. Fngland, 160 Ga. 810 (129 S. E. 76), the Supreme Court said: “The design of the workmen’s compensation act is to furnish a speedy, inexpensive, and final settlement of the claim of injured employees. The act abhors and shuns protracted and complicated litigation over the facts of any case. Conner’s Case, 121 Me. 37, 115 Atl. 520; Gravitt v. Georgia Casualty Co., 158 Ga. 613, 616 (123 S. E. 897). For this reason the act makes the finding of the industrial commission upon the facts final and conclusive. The finding of that body upon the facts can not be reviewed in the superior court, if there is any evidence to support its finding. Such finding can not be reviewed in the appellate court. The finality of a finding of the industrial commission upon the facts of a case is conclusive and binding upon all the courts. The purpose of the act in making such finding conclusive was to avoid the law’s delay, which is often the subject of complaint. . . In Georgia Casualty Co. v. Martin, 157 Ga. 909 (122 S. E. 881), the ruling of this court is in accordance with the principle which we now announce. In that case we held that ‘the finding of the commission upon the issues of fact is conclusive as to those issues in the reviewing court, there being evidence to sustain it.’ ” In the case under consideration it was a question of fact whether notice was given by the injured person to his employer, as required by section 23 of the workmen’s compensation act (Ga. L. 1920, p. 180). On appeal from the holding of Commissioner Kilburn that such notice had not been given, the full commission held: “The evidence clearly shows that no report of the accident was made as required by section 23 of the act; that the employer had no knowledge of the accident as contemplated by this section, and that the rights of the employer were prejudiced to the full extent of his liability by the failure of the employee .to give proper notice.” As there is some evidence to support this finding, under the foregoing ruling of the Supreme Court it can not be reviewed either by the superior court or by the appellate court.

The judge of the superior court erred in setting aside the finding of the industrial commission and in remanding the case to the commission for another hearing. See, in this connection, United States Fidelity and Guaranty Co. v. Hall, 34 Ga. App. 307 (129 S. E. 305 (41)).

Judgment reversed.

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


author: Bloodworth, J. Bloodworth, J.

text:
    17016.
    MILLER v. EQUITABLE CREDIT CO. INC.
    Where a defendant “was adjudged a bankrupt within four months after a levy of an attachment, he can plead his discharge, and prevent any judgment, general or formal, from being rendered against him and his sureties.” Alvaton Mercantile Oo. v. Galdwell, 156 Ga. 317 (3) (119 S. E. 25).

      (a) Even where the creditor holds a note containing a waiver of homestead, and fails “to apply to the bankruptcy court for an order staying the grant of a discharge of the bankrupt until his right under the waivers of exemption in such notes could be enforced in the State court, and a discharge is granted to the bankrupt, such discharge will prevent the creditor from obtaining a judgment in rem against the exempted property and from subjecting it to his debt, such debt not falling within the exceptions specified in the bankruptcy act.”
    Bankruptcy, 7 O. J. p. 192, n. 67; p. 198, n. 96; p, 396, n. 90.
    Decided March 2, 1926.
    Adhered to on reheabing, June 15, 1926.
    Attachment; from city court of Eloyd county—Judge Bale. November 9, 1925.
    Certiorari was granted by the Supreme Court.

      M. B. Eubanks, for plaintiff in error.

      Willingham, Wñght & Covington, contra.
   Bloodworth, J.

An attachment for the balance due on the purchase price of an automobile was issued on September 13, 1924. The attachment was levied November 7; a replevy bond was given November 10; the defendant was adjudged a bankrupt November 12, and filed his original answer on November 10. A declaration-in attachment was filed January 2, 1925, and the defendant was discharged in bankruptcy on April 11, 1925. Plaintiff amended its declaration in attachment and alleged that the note given for the purchase price of the automobile contained “a retention-of-title contract on the automobile involved in this case,” and that the automobile was set aside by the trustee in bankruptcy to the defendant as a part of his homestead. The defendant, on September 15, 1925, filed an amendment to his answer, alleging his discharge in bankruptcy. The judge of the city court of Floyd county, who heard the case without a jury, “entered a judgment against the defendant and his security on the replevy bond, and a special judgment in rem against the automobile, and stay of execution against the defendant T. C. Miller.” To this judgment th« defendant excepted.

As there is no vendor’s lien in this State, and as it clearly appears that the attachment was levied “and a bond to dissolve was given within four months of the adjudication of the principal a bankrupt,” the court erred in rendering the foregoing judgment. Alvaton Mercantile Co. v. Caldwell, supra; Graham Co. v. Richer son, 115 Ga. 1002 (42 S. E. 374).

Judgment reversed.

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

ON REHEARING.

Bloodworth, J.

In the brief of counsel for defendant in erro? is the following: “ It is true the attachment in the case now under review was levied within this four-months period, and the lien was therefore created within that period. But for the fact that the debt and contract on which this attachment is based are foi the purchase-money of the property levied upon, waive the homestead, and the property has been claimed and set aside to plaintiff in error as an exemption in the bankruptcy court, the rule laid down in the Alvaton Mercantile Co. case would apply.” In the original opinion in this case attention was called to the fact that there was no vendor’s lien in this State. Civil Code (1910), § 3373; Echols v. Head, 68 Ga. 152. In the Graham case, 115 Ga. 1002, cited in the original opinion, the defendant was indebted to the plaintiff “upon an unsecured account for the purchase-money of certain goods sold to him by them.” The defendant filed a petition in bankruptcy; the debt was duly scheduled, and the plaintiffs were properly notified. The goods were set apart to the bankrupt by the trustee, for an exemption. An attachment for the purchase-money was issued and levied on the goods. After the defendant was discharged in bankruptcy he pleaded his discharge in bar of a recovery on the attachment. In discussing that case the Supreme Court, speaking through Mr. Justice Fish (p. 1003), said: “A discharge in bankruptcy releases a bankrupt from all his provable debts except those expressly excepted by the bankrupt act, and a debt for purchase-money is not among those excepted. It is true that under the constitution of this State an exemption is subject to levy and sale for the purchase-money thereof, but our law gives a vendor no lien for purchase-money; and before exempted property can be sold for its purchase-money, judgment must be obtained against the debtor and execution be levied on the property. If the debtor be discharged in bankruptcy, he is thereby absolutely released from the purchase-money debt, and the creditor holding the same can not obtain judgment thereon in order to have the property sold. If there be no judgment and execution, the question whether or not the exemption is subject for the purchase-money can not arise. Hoskins v. Wall, 77 N. C. 249.” In Bowen v. Keller, 130 Ga. 36 (60 S. E. 174, 124 Am. St. R. 164), Mr. Justice Holden said: “The debt which the plaintiffs in error are seeking to enforce was provable in bankruptcy, belonging to a class dischargeable thereby; the plaintiffs in error had notice of the bankruptcy proceedings; and a discharge having been secured and pleaded by the defendant before the plaintiffs made effectual their proceedings against the exemption in the hands of the receiver by obtaining a decree in rem fastening a lien thereon, such discharge operated to destroy the, right of action upon which the proceedings were based.” In the Alvaton Mercantile Co. case, also cited in the original opinion, headnotes 1 and 2 are as follows: “1. When the defendant in an attachment replevies the property attached, by giving bond with security, conditioned to pay the amount of the judgment which the plaintiff may recover, the property attached is released from the lien of the attachment, the attachment is dissolved and is at an end, and the case proceeds as an ordinary suit at law. 2. If the debt which it is sought to enforce by the attachment is one provable in bankruptcy, and the defendant has been discharged as a bankrupt, he can plead his discharge and prevent the recovery of a general judgment against him.” In the opinion (pages 319, 320) Mr. Justice Hines said: “If the debt which it is sought to enforce by the attachment is one provable in bankruptcy, and the defendant has been discharged as a bankrupt, he can plead his discharge and prevent the recovery of a general judgment against him. Fort-Mims & Haynes Co. v. Branan-Akers Co., 140 Ga. 131 (78 S. E. 721). If the defendant was adjudged a bankrupt within four months after the levy of the attachment, he can plead his discharge and prevent any judgment, general or formal, from being rendered against him and his sureties; but where the defendant dissolves the attachment by giving bond with sureties, conditioned to pay the amount of the judgment which the plaintiff may recover, the bond takes the place of the attachment as security for the debt of the attaching creditor; and where the attachment debtor, more than four months after the levy of the attachment and the giving of bond for the dissolution of the attachment, is adjudged a bankrupt, and is thereafter discharged as such, the bankrupt act does not prevent the State court from rendering judgment against him, with a perpetual stay of execution, for the purpose of permitting the plaintiff to take judgment against the sureties on the bond given to dissolve the attachment. . . The rule is otherwise when the attachment was levied and the bond to dissolve was given within four months of the adjudication of the principal a bankrupt. When the property of the debtor is attached and is released on bond less than four months before he is adjudged a bankrupt, and the debtor is subsequently discharged, the surety on the bond is released.”

The note upon which the attachment in this case was based contained a clause in which the maker waived “all rights of exemption which they have or may have under the constitution and laws of this State or any other State or of the Hnited States.” Counsel for plaintiff in error insists that under this waiver the rule laid down in Coker v. Utter, 152 Ga. 157 (2) (108 S. E. 538), and in similar cases, that “A discharge in s bankruptcy does not discharge the lien of a judgment obtained within four months prior to the adjudication of bankruptcy, upon a note waiving the homestead exemption allowed by the laws of this State upon lands set aside by the bankrupt court as exempt” (McKenney v. Cheney, 118 Ga. 387, 45 S. E. 433), would apply. But in such cases there were judgments which were obtained prior to the discharge in bankruptcy, whereas in the case now under consideration there was no lien and no application to the court “for an order staying the grant of a discharge of the bankrupt until his right under the waivers of exemption in such notes could be enforced in the State court.” In Joyner v. Bank of Menlo, 156 Ga. 753 (120 S. E. 5), the Supreme Court said: “A creditor holding a waiver of homestead exemption from his debtor, but having no lien, -may apply for a stay of discharge in a court of bankruptcy, and the State court will impound the property set apart in a court of bankruptcy upon the claim for exemption, and subject it to the plaintiff’s demand when he obtains a lien. Bell v. Dawson Grocery Co., 120 Ga. 628 (48 S. E. 150); Bowen v. Keller, 130 Ga. 31 (60 S. E. 174, 124 Am. St. R. 164) ; McBride v. Gibbs, 148 Ga. 380, 384 (96 S. E. 1004); Meinhard v. Pincus, 200 Fed. 736. Notes of his debtor which contain waivers of exemption rights do not give to the creditor any lien, equitable or otherwise, on the -property of the debtor which he had scheduled in bankruptcy and which had been set apart to the bankrupt as a homestead exemption. Coffey v. Mitchell, 139 Ga. 430 (77 S. E. 561). If the creditor holding such notes fail to apply to the bankruptcy court for an order staying the grant of a discharge of the bankrupt until his right under the waivers of exemption in such notes could be enforced in the State court, and a discharge is granted to the bankrupt, such discharge will prevent the creditor from obtaining a judgment in rem against the exempted property and from subjecting it to his debt, such debt not falling within the exceptions specified in the bankruptcy act. Bowen v. Keller, supra; Richards v. Shields, 138 Ga. 583 (75 S. E. 602); Valdosta Guano Co. v. Green, 149 Ga. 610 (101 S. E. 538).” See Morris Fertilizer Co. v. White, McCurdy & Co., 158 Ga. 41 (122 S. E. 692); Bush v. Winchester-Simmons Co., 159 Ga. 433 (2) (126 S. E. 8); Richards v. Shields, 138 Ga. 583 (3, 3a) (75 S. E. 602).

Judgment adhered to.


text:
    17017.
    TANKSLEY, alias RICKERSON, v. THE STATE.
    Failure to charge the jury on the law of circumstantial evidence, when there is no request for such a charge, is not ground for a new trial in a case in which a conviction is not wholly dependent on such evidence.
    Prejudicial remarks of the judge to counsel in the presence of the jury on the trial of a criminal ease, where there is no motion for a mistrial, are not cause for a new trial.
    The verdict was not unsupported by evidence.
    Criminal Law, 16 C. J. p. 1140, n. 61; p. 1151, n. 5; 17 C. J. p. 271, n. 41.
    Decided March 2, 1926.
    Making intoxicating liquor; from Columbia superior court-judge A. L. Eranklin. November 6, 1925.

      J. B. & T. R. Burnside, for plaintiff in error.

      George Hains, solicitor-general, John M. Graham, contra.
   Bloodworth, J.

1. This case is not dependent wholly- on circumstantial evidence, and, in the absence of a timely and proper written request therefor, the court did not err in failing to instruct the jury upon the law of circumstantial evidence. McRae v. State, 27 Ga. App. 614 (2) (109 S. E. 688).

2. Where during the trial of a case an oral request is made that the judge give in charge to the jury the law of circumstantial evidence, and in reply to the request the judge uses language which counsel for the defendant considers prejudicial to the cause of his client and which he insists “amounts to an expression of an opinion on the part of the court as to the defendant’s guilt,” the proper procedure is for counsel fox the defendant to move for a mistrial. If the judge overrules such a motion, then his ruling can be made a ground of a motion for a new trial. The defendant can not take the chance of an acquittal and after conviction make such ruling a ground of a motion for a new trial. Both this court and the Supreme Court have adhered to this rule since the rendition of the decision in Perdue v. State, 135 Ga. 277 (1) (69 S. E. 184). See Barnett v. Strain, 151 Ga. 554 (107 S. E. 530); Schwall v. Quitman Oil Co., 21 Ga. App. 396 (2) (94 S. E. 648); Sorrow v. State, 32 Ga. App. 504 (1) (123 S. E. 914).

3. This court will not say that the jurors who tried this case did not have before them any evidence to support their finding; the trial judge was satisfied with the verdict, and the judgment is

Affirmed.

Broyles, C. J., and Lulce, J., concur.


text:
    17028.
    Wood v. The State.
    Criminal Law, 17 C. J. p. 271, n. 41.
    Decided March 2, 1926.
    Pointing pistol; from Pulaski superior court—Judge Graham. October 17, 1925.

      H. B. Coates, for plaintiff in error.

      M. R. Boyer, solicitor-general, contra.
   Luke, J.

This case being here upon the general grounds of the motion for a new trial only, and there being evidence to support the verdict of guilty, and the verdict being approved by the trial judge, this court will not interfere. '

Judgment affirmed.

Broyles, O. J., and Bloodworlh, J., concur.


text:
    17029.
    Slagle v. The State.
    Criminal Law, 16 C. J. p. 1373, n. 75; 17 C. J. p. 33, n. 30.
   Bloodworth, J.

1. Where a defendant was sentenced to serve a sentence outside the confines of the chain-gang upon compliance with certain terms of probation, and where after the sentence and prior to its expiration the trial judge issued an order requiring the defendant to show cause why the probation should not be revoked, which order was placed in the hands of an arresting officer of the county, and the defendant, having been acquainted with this fact, defied arrest by the officers, and where there was ample evidence that the defendant violated the terms of the probation, and where the trial judge, under these facts and before the expiration of the original sentence, revoked the probation and ordered the defendant to serve the remainder of the sentence inside the chain-gang, and where the defendant could not be, and was not, caught by the officers until after the expiration of the original sentence, at which time, after due examination, he was again sentenced, such lapse of time did not invalidate the orders of the court or prevent the service of the sentence imposed. Shamblin v. Penn, 148 Ga. 592 (2) (97 S. E. 520).

Decided March 2, 1926.

Revocation of probation; from Gordon superior court—Judge Tarver. October 3, 1925.

J. M. Lang, for plaintiff in error.

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

2. While certain collateral issues have been invoked in this case, the real and controlling issue is whether or not the judge erred in revoking the permission for the defendant to serve his term outside the chain-gang; and where one is sentenced for a violation of a criminal statute, and, on conditions named in the order, is allowed to serve the sentence outside the confines of the chain-gang, and, while thus serving the sentence, violates the terms of his parole, and becomes a fugitive from justice, and thereafter the court, “after hearing evidence and due examination into the premises,” revokes the permission for the defendant to serve his term outside the chain-gang, this is not such a final judgment as is subject to review on a bill of exceptions. Antonopoulas v. State, 26 Ga. App. 787 (107 S. E. 359).

Writ of error dismissed.

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


text:
    17039.
    MARSHALL v. THE STATE.
    Failure to charge the jury that everything in the residence of a married woman is presumed to be in the possession of her husband was not error under the facts of this case, in which a married woman was tried on the charge of possessing intoxicating liquor.
    Criminal Law, 16 C. J. p. 1058, n. 37.
    Decided March 2, 1926.
    Accusation of possession of liquor; from city court of Valdosta —Judge Little. November 10, 1925.

      W. P. Perry, for plaintiff in error.

      A. T. Woodward, solicitor, contra.
   Luke, J.

Mamie Marshall was convicted of possessing Whisky. The only special ground of the motion for a new trial is that the court failed to charge the jury that everything in the residence of a married woman is presumed to be in the possession of her husband. The evidence shows that an automobile drove up in front of the residence of the defendant, and some one in the car blew the horn; that Mamie Marshall went out to the car and got a jug or bottle and carried it into the house; that later an officer saw, through a window of the house, a gallon jug of intoxicating liquor on the table in the kitchen and told the defendant to hand it to him through the window, which she did; that this officer and another then went into the house and found two other gallon jugs or bottles containing whisky, and that no one else was in the room with defendant then; that her husband was not at home at that time, but was at some point in Florida. The defendant put up no witness, and none of this evidence was denied by her in her statement, nor did she deny that the whisky belonged to her. There was no request to charge that the contents of the house were presumed to be in the possession of the husband; and,'under the facts of this case, there was no error in failing to do so.

Judgment affirmed.

Broyles, C. J., and Bloodworlh, J., concur.


text:
    17043.
    HILL v. THE STATE.
    Failure to charge the jury on the law applicable to circumstantial evidence, although the evidence against the accused was circumstantial, does not, under the facts of this case, require a new trial.
    Criminal Law, 17 C. J. p. 351, n. 26; p. 352, n. 48.
    Decided March 2, 1926.
    Conviction of adultery; from Madison superior court—Judge W. L. Hodges. November 9, 1925.

      Corners G. Moore, for plaintiff in error.

      A. 8. Slcellon, solicitor-general, contra.
   Bloodworth, J.

“While the failure of the court upon a criminal trial, in which the evidence against the accused is entirely circumstantial, to instruct the 'jury concerning the rule. applicable to evidence of this character would, in a close or doubtful case, be cause for a new trial, such failure will not require another trial when the guilt of the accused is clearly and convincingly proved, and the charge as to the amount and character of proof requisite to a lawful conviction is such as to leave no room for doubt -that the verdict would have been the same even if the court had in terms stated to the jury that, in order to warrant a verdict of guilty, the evidence must not only be consistent with the guilt of the accused, but inconsistent with every other reasonable hypothesis.” Toler v. State, 107 Ga. 682 (33 S. E. 629). The principle announced above is controlling in this case. In the opinion in that case Presiding Justice Lumpkin said: “We are fully satisfied, after a careful reading of the evidence and an examination of the instructions given-to the jury, that the result would and ought to have been the same even if the court had in terms stated to the jury that, in order to warrant a conviction, the evidence must not only be consistent with the guilt of the accused, but inconsistent with every other reasonable hypothesis. This being so, we do not think it would be right to reverse the judgment and order a new trial. We are convinced that exact justice has already been done, and that, to all intents and purposes, the accused had a fair and impartial trial.” We adopt this language as applicable to the ease under consideration.

Judgment affirmed.

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


text:
    17055.
    Sanders v. The State.
    Criminal Law, 17 C. J. p. 271, n. 41.
    Decided March 2, 1926.
    Conviction of manufacture of liquor; from Morgan superior court—Judge Park. November 13, 1925.

      B. B. Lambert, for plaintiff in error.

      Joseph B. Duke, solicitor-general, contra.
   Luke, J.

The motion for a new trial being based on general grounds only, and the jury having by their verdict said that the evidence of guilt was sufficient, and the trial judge having approved the verdict, this court will not interfere.

Judgment affirmed.

Broyles, O. J., and Bloocfrworth, J., eoneur.


text:
    17056, 17057.
    Young v. The State (two cases.)
    Intoxicating Liquors, 33 C. J. p. 759, n. 98; p. 761, n. 53.
    Decided March 2, 1926.
    Accusations of violation of prohibition law; from city court of Springfield. November 9, 1925.
   Bloodworth, J.

In neither of these cases is there any evidence to support the verdict, and the judgment in each case is

Reversed.

Broyles, O. J., and Luke, J., eoneur.

On the same evidence, Young was convicted of possessing intoxicating liquor and of transporting such liquor. It was testified that in the defendant’s car three gallons of liquor were found in a closed suitcase claimed by John Gaines, who was riding in the car with the defendant and with several others; that the defendant was “about drunk,” that his breath smelt of liquor, and that an empty half-pint flask, which had contained liquor, was in the bottom of the car in front, where he was sitting; that Gaines had a half-pint flask of liquor in his pocket, and his sister, who was in the car, had two half-pints in her stockings; that Gaines and his sister pleaded guilty to having liquor in their possession, and that the defendant neither admitted nor denied that any of the liquor belonged to him. Gaines testified that the defendant did not know that they had the liquor, and that the defendant was not drunk. It was testified that Gaines and his sister got off a train and were walking-in the road, and the defendant came along in the ear and, at their request, picked them up. The defendant, in his statement at the trial, said that none of the liquor belonged to him, that he did not know, until the sheriff came and opened the suitcase, that there was any liquor in it, and that he did not drink any liquor on the trip.

G. T. Guyton, for plaintiff in error.


text:
    16827.
    Sawyer v. Campbell Coal Company.
    Appeal and Error, 4 O. J. p. 905, n. 41.
    Decided March 3, 1926.
    Complaint; from city court of Macon—Judge Jordan. July 15, 1925. "

      W. A. McClellan, Thomas A. Jacobs Jr., for plaintiff in error.

      Martin & Martin, contra.
   Luke, J.

The evidence amply authorized the verdict, and none of the grounds of the amendment to the motion for a new trial show reversible error.

Judgment affirmed.

Broyles, G. J., and Bloodworlh, J., concur.


text:
    16833.
    HIGH v. HOLLIS.
    Without special authority, attorneys at law can not receive anything in discharge of a client’s claim but the full amount in cash (Civil Code of 1910, § 4956); and where the defendant to a suit contends that he settled the claim by paying the plaintiff’s attorney less than the full' amount thereof, the burden is upon the defendant to show affirmatively that the plaintiff’s attorney had special authority from his client to make the settlement. Kaiser v. Eaneoek, 106 Oa. 217 (32 S. E. 123).

      {a) Especially is such a burden upon the defendant when he admits a prima facie case for the plaintiff and assumes the burden of proof.
    Attorney and Client, 6 C. J. p. 659, n. 40; p. 662, n. 58; p. 663, n. 62; p. 666, n. 97,
    Decided March 3, 1926.
    Complaint; from city court of Madison—Judge Lambert. September 1, 1925.

      M. G. Few, for plaintiff.

      Anderson & Wood, for defendant.
   Luke, J.

This is a suit upon a promissory note executed by the defendant. The defendant’s sole plea as amended was that he had settled the claim by paying the plaintiff a sum of money less than the full amount of the claim. Upon the trial the undisputed evidence was that he did pay to the plaintiff’s attorney such a sum of money. The attorney, however, testified that when the payment was made the agreement was that it was to be credited on the defendant’s note and not to be accepted as a settlement of the claim. The only evidence tending to support the defendant’s plea was that of the defendant, and his evidence was vague, uncertain and self-contradictory. His evidence, construed most strongly against him, as it must be, showed that the alleged settlement of the claim was made by him and the plaintiff’s attorney, and that the plaintiff was not present. He failed to produce a scintilla of evidence showing or tending to show that the plaintiff’s attorney had special authority from the plaintiff to make the settlement, or that the plaintiff had afterwards ratified her attorney’s action. On the other hand the undisputed evidence of the plaintiff and her attorney was that the attorney had no such special authority, and that the alleged settlement of the claim by the attorney had never been ratified by the plaintiff. It follows that the defendant failed to carry the burden imposed upon him, and that a verdict in favor of the plaintiff for the full amount of her claim was démanded.

The above-stated ruling being controlling in the case, it is unnecessary to pass upon the special grounds of the motion for a new trial.

Judgment reversed.

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


text:
    16904.
    PALMER-MURPHY CO. v. RAWLINGS.
    Since the plaintiff could not have recovered without showing the receipt by the defendant of notice of “the time of expected arrival” at the port of Savannah of the nitrate contracted for, and since the evidence failed to show affirmatively that the defendant received either of the two letters by which alone it was sought to show such notice, the verdict for the defendant was correct.

      (a) Errors were committed during the course of the trial, but, in view of the foregoing conclusion, they are immaterial.
    Appeal and. Error, 4 O. J. p. 649, n. 36.
    Evidence, 22 O. J. p. 98, n. 9; p. 99, n. 13; p. 100; n. 26.
    Decided March 3, 1926.
    Action for breach of contract; from city court of Sandersville —Judge Goodwin. October 5, 1925.

      Evans & Evans, Whitman & McGowen, for plaintiff.

      E. W. Jordan, J. J. Harris, for defendant.
   Luke, J.

Palmer-Murphy Company sued C. G. Rawlings for breach of a written contract whereby he contracted to purchase from the plaintiff 200 tons of nitrate of soda. Savannah was the port of delivery, and the contract provided that the buyer was to give shipping instructions “promptly after notice of time of expected arrival” of the nitrate at Savannah, and that failure to give such instructions might, at the seller’s option, be deemed refusal to take the nitrate. There was a verdict for the defendant, and the overruling of plaintiff’s motion for a new trial is complained of.

The plaintiff undertook to show notice to the defendant of the expected arrival of the nitrate, by two letters designated in the record as “D” and “E.” J. L. Palmer, the plaintiff’s president, swore unqualifiedly that both letters were properly addressed, stamped, and mailed. However, he further swore that his assocíate in business, Mr. Murphy, wrote letter “D”; that he did not know whether he or Mr. Murphy mailed it, and that he knew it was stamped and mailed just as well as if he had “done it” himself. In regard to letter “E,” Mr. Palmer swore that he wrote it, and further: “I couldn’t swear that I physically mailed it, but I am sure it was mailed.” Mr. Murphy was not sworn. While the foregoing is not all of the plaintiff’s evidence in regard to these letters, it is a fair summary, and is, in our opinion, enough to indicate that it was in large measure conjectural and opinionative, and insufficient to raise the presumption that the letters were received by the defendant, by affirmatively showing that they were properly addressed, stamped, and mailed. See Rawleigh Medical Co. v. Burney, 25 Ga. App. 20 (102 S. E. 358).

Judgment affirmed.

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


text:
    16908.
    Ford v. The State.
    Criminal Law, 16 C. J. p. 1179, n. 69.
    Decided March 3, 1926.
    Conviction of possession of liquor; from city court of Carrollton —Judge Hood. October 2, 1925.

      Beall & Beall, for plaintiff in error.

      Emmett Smith, solicitor, contra.
   Luke, J.

Ford was convicted of violating the prohibition statute. The

evidence, while raising a strong suspicion of the defendant’s guilt, was not, in our opinion, sufficient to authorize his conviction. For this reason the court erred in overruling his motion for a new trial.

Judgment reversed.

Bloodworth, J., coneurs. Broyles, O. J., dissents.


author: Lttke, J.

text:
    16978.
    DERRESAW v. THE STATE.
    The evidence relied upon to convict the accused of cruelty in the driving or treatment of a horse did not authorize a conviction, the evidence being circumstantial and not sufficient to exclude every reasonable hypothesis save that of the guilt of the accused.
    Animals, 3 C. J. p. 73, n. 30.
    Criminal Law, 16 C. J. p. 764, n. 54.
    Decided March 3, 1926.

      Accusation of cruelty to animal; from city court of Wrights-ville—Judge Blount. November 11, 1925.
    The accusation charged that on October 14, 1925, Lawson Derresaw did “unlawfully, cruelly drive and cruelly treat” a described horse belonging to William Oliver. Oliver testified that on a Wednesday night, a little before sundown, he lent the horse to Lawson Derresaw to go' to Donovan, and that Derresaw promised to be back the next morning; that the horse “was in bad condition when he came back; he looked like he had been driven all night.” The witness further testified: “Lawson said he promised to be back early and it was a mighty hot morning, when I asked him why he had driven so hard. . . I said, Tut him in the lot and go to work/ He was in a sweat. I didn’t see him again during that day. Next time I saw him he was stiff; his legs were stiff. He is still in bad condition; he has been damaged. I have only used him to knock around a bit since. His shoulder is stiff. He is in bad condition, but whether he got it that morning or the next time he carried him off, I don’t know. He wasn’t in a lather, but had been. His legs were stiff and are still stiff. . . He is about twelve or fifteen years old. He was the family horse, gentle, fat, and pretty heavy. . . The horse is not accustomed to being driven on long distances. I am accustomed to drive him a distance of seven or eight miles. . . It is seven miles from my house to Harrison. I let him have the horse to go to Mr. Harrison’s place at-Donovan. . . He was to come back early next morning, and he was back early. The horse is a free sweater; some horses sweat easier than others. . . He was wet with perspiration and was panting. I have never seen him pant before. He was jerky. He got back about light. . . I let him [the defendant] have the horse again. . . The horse was in bad shape when he brought him back the second time. He came back Saturday afternoon. I came here and signed for him to be prosecuted on November 5. . .1 had Lawson prosecuted for treating my horse cruelly on the 14th day of October; that was Wednesday. The second time I let him have my horse I didn’t know he had gotten him in that condition. . . I don’t know whose driving-caused that; he was in Lawson’s possession. . . I don’t know whether the horse was driven Thursday or Friday night or not. I have various negroes on my farm; they could have come to my barn; any of them that wanted him could have gotten him without my knowledge and driven him and put him back.” “There was no sign of any whip on the horse, no bruises or the hide knocked off, nothing -to show that he was mistreated except that he was stiff.” Another witness testified that on the 14th of October, 1925, about dark, the defendant drove up to the house of the witness in 'a buggy with a horse of the kind described in the accusation; that the horse “looked like he had been driven unreasonably hard,” and the witness said to him, “If you drive that horse like that you will kill him;” that the defendant said the horse got scared up at the church (500 yards from the house of the witness) and started to run; the horse was wet with sweat and was breathing fast; the witness did not see any whales on him. Another witness testified that he was present when the defendant hitched up the horse; that the horse was driven severely on Wednesday night, but the defect did not show up until Saturday; he did not hear any complaint until Saturday; “some mules and horses got stove up and you don’t know why.” The defendant, in his statement at the trial, denied that he had driven the horse hard or mistreated him, and said that “anybody could drive him one mile or two and he would be wet with sweat.”

      G. 8. Glaxion, for plaintiff in error.

      J. Boy Rowland, solicitor, contra.
   Lttke, J.

Lawson Derresaw was convicted of cruelly treating a horse. The State relied upon circumstantial evidence that the defendant drove the horse too hard. The evidence showed that “there was no sign of any whip on the horse, no bruise, nor the hide knocked off.” It showed also that the prosecutor prosecuted Derresaw in this case because he (Derresaw) had been acquitted on another charge, while the prosecutor’s negro was fined $50. The evidence relied upon for a conviction was not sufficient to exclude every reasonable hypothesis save that of the guilt of the accused, and the court erred in overruling, the motion for a new trial.

Judgment reversed.

Broyles, G. J., and Bloodworlh, J., concur.


author: Broyles„ O. J. Broyles, C. J.

text:
    16998.
    MORRIS-FORRESTER OIL COMPANY v. WHITE EAGLE OIL AND REFINING COMPANY.
    Appeal and Error, 3 C. J. p. 967, n. 42; p. 979, n. 64; 4 C. J. p. 1023, n. 46.
    Trial, 38 Oye. p. 1593, n. 71.
    Decided March 3, 1926.
    Rehearing denied April 14, 1926.
    Garnishment; from city court of Atlanta—Judge Reid. October 17, 1925.
    Application for certiorari was made to the Supreme Court.

      Parker & Patterson, J. Caleb Clarke, for plaintiff in error.

      Jones, Evins, Moore & Powers, contra.
   Broyles„ O. J.

1. The admission of the documentary evidence, complained of in the amendment to the motion for a new trial, was not error.

2. Ground 2 of the amendment to the motion for a new trial, complaining of the direction of a verdict in favor of the plaintiff, is defective, in that it gives no reason why such direction was erroneous. Under repeated rulings of the Supreme Court and of this court, a ground of a motion for new trial must be complete and understandable within itself. This ground, to be complete and understandable within itself, should have stated wherein the court erred in directing the verdict.

3. There is no merit in the remaining special ground of the motion for a new trial, complaining of the refusal of the court to direct a verdict for the defendant. The refusal to direct a verdict is never error.

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

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

ON MOTION ROE REHEARING.

Broyles, C. J.

In their motion for a rehearing counsel for the plaintiff in error contend that this court, in ruling that the ground of the motion for a new trial, complaining of the direction of a verdict in favor of the defendant in error, was too incomplete and defective to be considered, in that it gave no reason why such direction was erroneous, overlooked the decisions of the Supreme Court and of this court which hold that an assignment of error complaining merely of the direction of a verdict is sufficient, and means that the evidence adduced in the trial did not under the law demand the verdict directed. Those decisions were not overlooked, but, as they refer to assignments of error in bills of exceptions, they are not controlling upon the question whether a ground of a motion for a new trial is complete and understandable within itself. In this case the ground in question does not show what issues were raised in the pleadings, whether there were controversies about tbe facts of the case, or whether the questions were purely ones of law. The ground, therefore, failed to-show whether the alleged error in directing the verdict was an error of law or of fact. Even in a bill of exceptions, where the case was heard on pleadings which did not disclose upon what issues it was tried and disposed of, an exception which alleges merely that the court erred in directing a verdict for one of the parties is not sufficient. Turner v. Alexander, 112 Ga. 820 (38 S. E. 35); Howell v. Pennington, 118 Ga. 497 (1) (45 S. E. 272).

Motion denied.


author: Broyles, C. J.

text:
    17001.
    Bank of Waynesboro v. Davis.
    Sales, 35 Oye. p. 323, n. 1.
    Decided March 3, 1926.
    Trover; from Burke superior court—Judge Hardeman presiding. October 29, 1925.

      F. V. Heath, for plaintiff in error.

      FulTbright & Burney, contra.
   Broyles, C. J.

1. Where personalty is sold on, cash sale, title does not pass till the purchase-money is paid; and where the purchase-money is never paid, the vendee acquires no title which he can transmit to a third person. Bowen v. DeLoach, 13 Ga. App. 458 (79 S. E. 371). Under this ruling and the facts of the instant case, there was no error in the charge of the court set forth in the third ground of the amendment to the motion for a new trial.

2. The remaining special grounds of the motion for a new trial show no reversible error, and the verdict was authorized by the evidence.

Judgment affirmed.

Luke and Bloodworth, JJ., conour.


text:
    17006.
    Sorrow v. The State.
    Criminal Law, 17 O. J. p. 271, n. 41.
    Decided March 3, 1926.
   Broyles, C. J.

The motion for a new trial is based upon the usual general grounds only; the verdict is authorized by the evidence; and, the finding of the jury having been approved by the trial court, this court is without authority to interfere.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

Conviction of manufacture of liquor; from Madison superior court—Judge W. L. Hodges. October 28, 1925.

Berry T. Moseley, for plaintiff in error.

A. S. Slcelton, solicitor-general, contra.


text:
    17005.
    Mayfield v. The State.
    Decided March 3, 1926.
    Conviction of manufacture of liquor; from Madison superior court—Judge W. L. Hodges. October 28, 1925.

      Berry T. Moseley, for plaintiff in error.

      A. S. Skelton, solicitor-general, contra.
   Bloodworth, J.

This is a companion case to that of Sorrow v. State, ante, 201, and is controlled by the ruling in that case.

Judgment affirmed.

Broyles, O. J., and Luke, J., eoneur.


text:
    17009.
    Farmers & Merchants Bank v. Willie, executrix.
    Certiorari, 11 C. J. p. 128, n. 2 New; p. 132, n. 40, 57; p. 148, n. 2 New; p. 153, n. 67; p. 178, n. 46 New; p. 198, n. 18.
   Broyles, C. J.

1, A bill of exceptions which, after reciting that a petition for certiorari was presented to the judge and he refused to sanction it, alleges that the applicant excepted to the order of the judge refusing to sanction the petition, “and now excepts and assigns the same as error on the grounds that said petition for certiorari should have been sanctioned on each and every ground of error contained in said petition for certiorari,” contains an assignment of error sufficient to bring under investigation the grounds of complaint embraced in the petition for certiorari. Central of Ga. Ry. Co. v. Woolsey, 112 Ga. 365 (1) (37 S. E. 392).

2. Where a bill of exceptions based upon the refusal of the judge to sanction a petition for certiorari embodies what is there alleged in substance to be an exact copy of that petition, and where the judge certifies that the bill of exceptions is true, the petition for certiorari is sufficiently verified. Lake v. Kellum, 99 Ga. 130 (24 S. E. 874).

3. Under the above-stated rulings, the motion to dismiss the bill of exceptions is denied.

4. This case was tried in the city court of Cairo and proceeded to verdict and judgment in favor of the defendant; the plaintiff’s motion for a new trial was overruled, and the movant then presented to the judge of the superior court a petition for certiorari. The judge refused to sanction the petition, on the ground that “motion for a new trial was presented before the judge of the city court of Cairo, and petition presents no cognizable error to this court.55 The right of certiorari is a constitutional right, and may be used to review any final judgment of an inferior court. It may be exercised without moving for a new trial, or it may be employed to review the judgment refusing to grant a new trial. Young v. Broyles, 16 Ga. App. 356 (1) (85 S. E. 366). The judge, therefore, erred in refusing to sanction the petition for certiorari.

Decided March 3, 1926.

Rehearing denied April 14, 1926.

Petition for certiorari; from Grady superior court—Judge Custer. September 28, 1925.

J. A. Pope, 8. P. Cain, for plaintiff in error.

Ira Carlisle, M. G. Barwiclc, contra.

Judgment reversed.

Bloodworth, J., concurs. Luke, J., disqualified.


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

text:
    17011.
    DABNEY v. BENTEEN.
    Appeal'and Error, 4 C. J. p. 648, n. 25 New; p. 840, n. 30; p. 843, n. 65.
    Judgments, 34 C. J. p. 207, n. 5; p. 329, n. 55; p. 333, n. 59; p. 334, a. 65; p. 376, n. 16.
    Decided March 3, 1926.
    Rehearing denied April 14, 1926.
   Broyles, C. J.

1. “Until the end of the term at which rendered, judgments are in the ‘breast of the court,5 and may be set aside or modified at the judge’s discretion; but to set aside a final judgment based on a verdict, except for defects appearing on the face of the record, the verdict must also be set aside; and the verdict is not ‘within the breast of the court5 in the sense that the judgment is.55 Ga. Ry. & Electric Co. v. Hamer, 1 Ga. App. 673 (58 S. E. 54), and citations.

2. To set aside a verdict and judgment, even where the movant alleges that the verdict was obtained by fraud, it must be shown, among other things, that the movant has a meritorious defense. Roberts v. Roberts, 150 Ga. 757 (1) (105 S. E. 448), and citations. It is obvious that the burden is on the movant to show by a preponderamce of the evidence that he has a meritorious defense, and that where he fails to carry the burden the judge has no discretion in the matter except to deny the motion.

3. In the instant case, conceding (but not deciding) that the demurrer to the motion to set aside the verdict and judgment was properly overruled, upon the hearing of the motion the movant failed to show by a preponderance of the evidence that he had a meritorious defense. On the contrary, the overwhelming weight of the evidence was against his defense. Under these facts, and the- above-stated rulings, the court erred in sustaining the motion and setting aside the verdict and judgment.

Judgment reversed.

Luke and Bloodworth, JJ., concur.

Trover; from city court of Atlanta—Judge Reid. November 5, 1925.

Lowndes Calhoun, for plaintiff. Helen Douglas, for defendant.

ON MOTION ROE REHEARING.

Broyles, C. J.

It is true as contended by counsel for the defendant in error in her motion for a rehearing that this court has authority to correct errors of law only. The correction of errors of fact is beyond its jurisdiction. In the instant case, however, it appearing that the court abused its discretion in setting aside the verdict of the jury and the judgment based thereon, the error was one of law. The ruling stated in the 4th headnote of Bunn v. Hargraves, 3 Ga. App. 518 (60 S. E. 223), that “this court has no power to determine that the preponderance of the evidence is in favor of one party to a cause rather than the other, or to award a new trial in any case where there is any evidence sufficient to support the verdict rendered (italics ours),” is obviously not controlling in a case like the one at bar.

Rehearing ■ denied.


text:
    17018.
    Orr v. Colt Company.
    Appeal and Error, 4 O. J. p. 864, n. 34.
    Decided March 3, 1926.
    Complaint; from Heard superior court—Judge Roop. November 13, 1925.

      D. B. Whitaker, Smith & Taylor, for plaintiff in error.

      Hall & Jones, contra.
   Broyles, C. J.

The verdict was authorized by the evidence, and none of the grounds of the amendment to the motion for a new trial show reversible error.

Judgment affirmed.

Luke and Bloodworth, JJ., concw.


author: Beoyxes, C. J.

text:
    17020.
    Davis v. The State.
    Criminal Law, 17 C. J. p. 271, n. 41.
    Decided March 3, 1926.
    Embezzlement; from Grady superior court—Judge Custer. October 29, 1925.

      J. A. Pope, S. P. Cain, for plaintiff in error.

      B. C. Gardner, solicitor-general, Ira Carlisle, contra.
   Beoyxes, C. J.

The amendment to the motion for a new trial is merely an elaboration of the general grounds'; the verdiet is authorized by the evidence; and, the finding of the jury having been approved by the trial judge, this court is without authority to interfere. . .

Judgment affirmed.

Luke and Blood/worth, JJ., oonour.


author: Beoyxes, O. J.

text:
    17038.
    Stewart v. The State.
    Criminal Law, 17 C. J. p. 271, n. 41.
    Decided March 3, 1926.
    Conviction of forgery; from Eulton superior court—Judge Howard. November 28, 1925.

      Audley M. Lane, for plaintiff in error.

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

The verdict was authorized by the evidence, and none of the grounds of the amendment to the motion for a new trial (some of which were disapproved by the court) show cause for a reversal of the judgment below.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.


text:
    17044.
    Kilgore v. The State.
    Criminal Law, 16 C. J. p. 1043, n. 36; 17 C. J. p. 271, n. 41.
    Decided March 3, 1926.
   Beoyxes, C. J.

Under the facts of the case, the failure of the court to instruct the jury upon the law of “misfortune or accident” was not error. The remaining special grounds of the motion for a new trial are without merit; and the verdict was amply authorized by the evidence.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

Conviction of assault and battery; from Carroll superior court —Judge Roop. November 21, 1925.

Smith & Taylor, for plaintiff in error.

W. Y. Atkinson, solicitor-general, S. Holderness, Boykin & Boykin, contra.


text:
    17156.
    Strickland v. State.
    Decided March 3, 1920.
    Indictment for murder; motion to change venue; from Hall superior court—Judge J. B. Jones. January 12, 1926.

      G. F. Kelley, B. P. Gaillard Jr., for plaintiff in error.

      Robert McMillan, solicitor-general, contra.
   Bloodworth, J.

This case is controlled by the rulings in Rawlings v. State, 33 Ga. App. 826 (2, 3) (127 S. E. 881).

Judgment affirmed.

Broyles, O. J., and Luke, J., concw.


author: Jenkins, P. J.

text:
    16670.
    Southern Saw Mill Company v. Herzfield.
    Contracts, 13 C. J. p. 656, n. 82; p. 657, n. 90.
    Sales, 35 Cye. p. 171, n. 42; p. 584, n. 58; p. 592, n. 53.
   Jenkins, P. J.

In a former decision by this court in this case it was held that the petition set forth an absolute refusal by the defendant to accept the goods contracted for, and was not subject to general demurrer. See Herzfield v. Southern Saw Mill Co., 31 Ga. App. 323, 327 (120 S. E. 666), in which there is a statement as to the pleadings. On the trial the plaintiff struck the first count of the petition and relied solely upon the second count, which set forth that after being notified by the defendant that it would not accept the goods, which had already been manufactured and were ready for delivery, the plaintiff reclaimed them for his own use, and was entitled to the difference between the contract price and the market price at the time and place for delivery. Held:

1. “A party to an executory contract may always stop performance on the other side by an explicit direction to that effect, though he thereby subjects himself to the payment of such damages as will compensate the other for the loss he has sustained by reason of having his performance checked at that stage in its progress.” Mecliem on Sales of Personal Property, quoted in Oklahoma Vinegar Co. v. Carter, 116 Ga. 140, 144 (42 S. E. 378, 59 L. R. A. 122, 94 Am. St. R. 112). “If one bound to perform a future act, before the time for doing it declares his intention not to do it, this is no breach of his contract; but if his declaration be not withdrawn when the time comes for the act to be done, it constitutes a sufficient excuse for tlie default of tlie other party.” Parsons on the Law of Contracts, quoted in Oklahoma Vinegar Co. v. Carter, supra. See also Ansley v. Hightower, 120 Ga. 719 (4) (48 S. E. 197), and eases there cited; German American Ins. Co. v. Davidson, 67 Ga. 11; 23 R. C. L. 1408, § 234. Thus, .while it appears to be'the rule that an unqualified notice to the seller by the purchaser that he will refuse to accept the goods under the terms of the sale agreement will, if not withdrawn, dispense with any subsequent tender by the seller on the date set for performance, yet where, as here, the seller did not elect to act upon such anticipatory breach by bringing suit for such damages as may have accrued, and where there is proof indicating that before the date set for final performance the buyer withdrew his renunciation and announced his readiness to accept the goods, it became incumbent upon the seller to comply with his own obligations under the contract, by tendering the goods in accordance with the contract as modified by any subsequently agreed extension of the time for delivery. If the proof should disclose that a tender of the goods contracted for was made by the plaintiff seller and refused by the defendant purchaser by the time contemplated in the new agreement, the defendant would be liable in damages for the difference in the market price and the contract price of the goods at the time of the breach under the amended contract. If, however, the seller himself failed to tender the goods by the time promised under the extension agreement, he could not recover. The rule as to the measure of damages in a case such as just indicated, where during the life of the original contract a new agreement as to the time of execution is alleged to have been arrived at, differs from the rule in those cases in which, after the termination and breach' of the original contract, there has been a conditional waiver as to the time for performance. In the latter case, on failure to comply with the new proposal, the damages are measured by the injury sustained under the original breach. See Gude v. Bailey, 4 Ga. App. 226, 230 (61 S. E. 135) ; Georgia Creosoting Co. v. McIntosh Land &c. Co., 23 Ga. App. 561 (1) (99 S. E. 166).

Decided March 12, 1926.

Action for breach of contract; from city court of Thomasville— Judge Little presiding. June 15, 1925.

Titus & Dehle, for plaintiff in error. W. I. MacIntyre, contra.

as the maker chose not to expend in extinguishment of the payee’s

2. In the instant case the portion of the charge excepted to in the 6th ground of the motion for a new trial is erroneous in failing to take cognizance of the defendant's contention as to the alleged withdrawal of the defendant’s refusal to accept and failed to impose upon the plaintiff the duty to tender the goods as contracted for in accordance with the extension agreement. It is not deemed necessary to deal with the other grounds of the motion.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    16683.
    FARMER v. BAIRD et al.

    The trial court having overruled a former motion to set aside the judgment attacked by the motion now under consideration, and the latter motion not showing any, special reason why its ground of attack should not have been included in'the previous motion, and the effect of the overruling of the previous motion béing to adjudicate that the judgment attacked could not be set aside for any reason that was or could have been assigned, the doctrine of res judicata applied to the second motion, and the court erred in sustaining that motion.
    Judgments, 34 O. J. p. 818, n. 92; p. 869, n. 56; p. 874, n. 68; p. 883, n. 45; p. 915, n. 55; p. 919, n. 57; p. 920, n. 58.
    Orders, 29 Cyc. p. 1522, n. 80.
    Decided March 12, 1926.
    Certiorari; from Fulton superior court—Judge E. D. Thomas. June 2, 1925.

      Savage & Crawford, for plaintiff.

      Joseph B. Bei-man, for defendants.
   Jenkins, P. J.

Under the doctrine of res judicata, whenever there has been a judgment by a court of competent jurisdiction in a former litigation between the same parties, based upon the same cause of action as a pending litigation, the litigants are bound to the extent of all matters put in issue or which under the rules of law might have been put in issue by the pleadings in the previous litigation. Civil Code (1910), § 4336; Perry v. McLendon, 62 Ga. 598; Hill v. Cox, 151 Ga. 599, 604 (107 S. E. 850); Hollinshead v. Woodward, 128 Ga. 7, 15 (57 S. E. 79); Bostwick v. Perkins, 1 Ga. 136, 139; Loganville Banking Co. v. Forrester, 17 Ga. App. 246 (87 S. E. 694); Fowler v. Davis, 1 Ga. App. 549 (57 S. E. 939). A somewhat different rule applies in regard to the doctrine 'of estoppel by judgment, since the latter doctrine has reference to previous litigation between the same parties based upon a different cause of action. Worth v. Carmichael, 114 Ga. 699 (1) (40 S. E. 797); Draper v. Medlock, 122 Ga. 234 (50 S. E. 113, 69 L. R. A. 483, 2 Ann. Cas. 650). In the latter case, there is an estoppel by judgment only as to such matters as were necessarily or actually adjudicated in the former litigation. That is to say, there is an estoppel by judgment only as to such matters within the scope of the previous pleadings as necessarily had to be adjudicated in order for the previous judgment to be rendered, or as to such matters, within the scope of those pleadings, as might or might not have been adjudicated, but which are shown by aliunde proof to have been actually litigated and determined. In the instant case the previous motion to set aside the judgment and the present motion to arrest the judgment are the same in purpose and effect, and necessarily constitute the same cause of action, both seeking to destroy the validity of the judgment attacked. It follows from what has been said that since the present motion in arrest of judgment fails to show any special reason why its ground of attack could not and should not have been embodied in the previous motion to set aside (see, in this connection, Civil Code (1910), §§ 4584, 4585; Johnson v. Driver, 108 Ga. 595 (34 S. E. 158); Beverly v. Flesenthall, 142 Ga. 834 (83 S. E. 942), and cases cited), and since the previous judgment of the trial court overruling the motion to set aside amounts to an adjudication that the original judgment could not be set aside for any reason that was or which might have been assigned, that judgment renders the subsequent motion in arrest subject to the application of the doctrine of res judicata, and the trial court erred in not sustaining such contention.

Judgment reversed.

Stephens and Bell, JJ., concur.


text:
    16690.
    Cooke v. Faucett et al.

    Bills and Notes, 8 O. J. p. 522, n. 88; p. 762, n. 51; p. 915, n. 88 New; p. 929, n. 35.
    Partnership, 30 Oye. p. 419, h. 60; p. 584, n. 72 New.
    Pleading, 31 Cyc. p. 351, n. 36 New.
   Jenkins, P. J.

1. “The existence of a copartnership when once established is presumed, as to third persons, to continue until notice of dissolutibn has been given.” Brady v. Phillips Mule Co., 27 Ga. App. 444 (3) (108 S. E. 809), and eases there cited. Accordingly, where the holder of a promissory note brought suit thereon against an alleged partnership as maker, and a named indorser, and a plea of no partnership was filed by one of the alleged partners, in which it was set up that at the time of the execution of the note there was in fact no such partnership, for the reason that the partnership had a-short time before been dissolved, the plea was demurrable because of its failure to allege that notice of such dissolution had been given as required by law, or that both the original payee and the present holder of the note, at the time of the accrual of their respective rights in it, had actual knowledge of such dissolution; and the court erred in overruling such demurrer to the plea of no partnership. See Richards v. Butler, 65 Ga. 593 (2) ; Ewing v. Trippe, 73 Ga. 776; Askew v. Silman, 95 Ga. 678 (1) (22 S. E. 573); Pyron v. Ruohs, 120 Ga. 1060 (4) (48 S. E. 434) ; Burch v. Americus Grocery Co., 125 Ga. 153 (53 S. E. 1008) ; Merchants & Farmers Bank v. Johnston, 130 Ga. 661 (2) (61 S. E. 543, 17 L.R.A. (N.S.) 969, 14 Ann. Cas. 546) ; Bank of Covington v. Cannon, 133 Ga. 779 (67 S. E. 83) ; Parker v. Southern Ruralist Co., 15 Ga. App. 334 (83 S. E. 158) ; Skeffington v. Daniel, 18 Ga. App. 262 (2) (89 S. E. 458) ; Civil Code (1910), §§ 3166, 3172.

Decided March 12, 1920.

Complaint; from city court of Thomasville—Judge MacIntyre. June 23, 1925.

Eva Luke Ilay, for plaintiff.

THus & T)ekle, for defendants.

2. One of the defenses which may be maintained against the suit of a bona fide holder upon a negotiable instrument is a plea of non est factum. But “if a partnership, trader any circumstances, has the implied right and power to execute notes, one to whom they are offered in the market has a right to presume that they were issued under the circumstances which gave the requisite authority.” 8 Corpus Juris, 522. It follows, that as against the rights of such a holder a plea of non est factum, filed either by the alleged partnership or by an alleged partner, would amount simply to a denial of the factum of the partnership’s execution of the instrument, in the absence of any further allegation that both the original payee and the present holder' of the instrument were charged with notice of the limitations in authority; and such plea would not, under the circumstances stated, be allowed to concern itselE with particular restrictions of authority in the executing1 partner as between themselves. Accordingly, where the indorsee and holder of a promissory note brought suit thereon against an alleged partnership, as maker, and a named indorser, and a jilea of non est factum was filed by one of the alleged partners, in which it was alleged that lie had nothing to do with the execution of the note, that ho had not given authority to any one so to bind him, and that the note was given to the original payee in settlement of a transaction which was purely personal with the member who executed it, the plea was demurrable because of its failure to deny the factum of the execution of the note in the partnership name by any other member of the firm, and because of its failure to allege that the plaintiff took the note with notice of the executing member’s lack of authority and of its private dealing; and the court erred in overruling1 such demurrer to the plea of non est factum. See Wingate v. Atlanta National Bank, 95 Ga. 1 (4) (22 S. E. 37) ; Griffin v. Colonial Bank, 7 Ga. App. 126 (66 S. E. 382) ; Davis v. Howell Cotton Co., 101 Ga. 128, 129 (28 S. E. 612) ; Civil Code (1910), § 4280.

3. The court having erred in the demurrers to the pleas of no partnership and of non est factum, the subsequent proceedings in the case were nugatory; and it follows that it was error to grant the nonsuit.

Judgment reversed.

Stephens and. Bell, JJ., concur.


text:
    16698.
    City of Dawson et al v. Carter.
    Municipal Corporations, 28 Cyc. p. 1341, n. 29; p. 1390, n. 15; p. 1436, n. 13; p. 1465, n. 36.
   Jenkins, P. J.

Plaintiff sued the city and a construction company jointly for personal injuries to .himself, caused by his making use of a bridge in the public street in going from a hotel at which he was a guest to a taxicab. He alleged that the construction company, under some contract with the city, was placing water-mains for the city in a ditch dug by the company in a public street, and, with the knowledge and consent of the city, constructed the said bridge across the ditch, “for the purpose of accommodating guests of the hotel to cross the ditch, going to and from taxicabs, to the hotel;” that the said bridge was defectively constructed, in that the planks were not fastened down but left loose; that the city had knowledge of the defective condition, which had existed for a week, and that while he was using it a plank gave way and he was precipitated to the ditch and injured. He alleged negligence both in the construction and the maintenance of the bridge in such defective condition. He alleged that when he «crossed the bridge it was night, and that the defendants were negligent in not having-lights or other devices to warn travelers of its dangerous condition; that the bridge appeared to be safe and suitable for travel and was traveled by the public, and its unsafe condition was unknown to .him. The case came to this court on exceptions to the overruling of demurrers to the petition. Held:

1. The petition was not subject to the demurrers of the construction company on the ground that it showed that the demurrant was not liable to the plaintiff, because it showed what that company did in the premises was done for the city. On the other hand, it appearing that the construction company had itself been the active agency in actually constructing the bridge in a defective condition, it would be liable for such negligent construction, whether it was acting as a principal and independent contractor or as an agent of the city. Nor was the petition1 subject to the other grounds of demurrer urged by the construction company.

2. The petition was not subject to the general demurrer of the city. It was alleged that the construction company, through some contract with the city, constructed the bridge, and that the city knew of its defective condition for a week before the injury. Therefore, the city could be held liable by proving either that it in fact constructed the bridge, or that it in fact maintained the same in a public street. No special demurrer was filed by the city on the ground of a misjoinder of parties or of causes of action.

3. This ease is distinguishable from Crawford v. Mayor &c. of Griffin, 113 Ga. 562 (38 S. E. 988), in that in the present ease it did not appear that a private party had erected the bridge, without any active authority of the city for his own personal and private use. In the instant case it is alleged that the bridge was maintained by the city as a public passageway across an obstruction in the street, placed there by the city, and that the public was invited to make such use of it. In such a case the city must keep the bridge in a reasonably safe condition, or suffer the consequences of its neglect. See City of Griffin v. Stewart, 22 Ga. App. 362, 364 (2) (96 S. E. 219).

Decided March 12, 1926.

Action for damages; from city pourt of Dawson—Judge Edwards. July 13, 1925.

TP. T. Lane, B. B. Marlin, B. B. Jones, for plaintiffs in error.

TP. H. Gurr, contra.

Judgment affirmed.

Stephens and Bell, JJ., concur.


text:
    16717.
    Planters Warehouse et al. v. Sims.
    Warehousemen, 40 Cyc. p. 441, n. 46; p. 449, n. 8; p. 463, n. 39; p. 465, n. 54 New; p. 474, n. 15 New; p. 478, n. 32; p. 483, n. 62.
    Decided March 12, 1926.
   Jenkins, P. J.

*1. “An action of trover against the warehouseman, to recover the property represented by the receipt, is an appropriate remedy, where he fails or refuses, on demand, to deliver the property to the holder of the receipt.” Bank of Sparta v. Butts, 4 Ga. App. 308 (6) (61 S. E. 298).

2. Proof of failure to surrender the property on demand establishes a prima facie case of conversion.

3. No defense is established by showing that the property has not been applied to the defendant’s use; since any misfeasance amounting to an unauthorized use or disposition of the property or any portion thereof, or exercise of dominion over it, constitutes a legal conversion. Farkas v. Powell, 86 Ga. 800 (13 S. E. 200, 12 L. R. A. 397; 26 R. C. L. 1098, § 3).

4. Accordingly, in such a suit, where the defendants failed to deliver the property on demand in accordance with the terms of the storage agreement, they, as warehousemen, can not overcome the prima facie ease against them on the theory of disproving a conversion, where their pleadings and proof show that after separating and removing the portions of the plaintiff’s cotton which had been allowed to rot while in storage, they proceeded to sell the damaged portion and allowed the remainder to become so commingled with other cotton that it was impossible for them to identify and produce it, and where it does not appear that such repacking, sale, and commingling were acts such as were contemplated as being within the scope of the storage agreement, or that they were so specially authorized by the plaintiff. See Berney v. Marks, 69 N. Y. Supp. 993 (34 Misc. 527).

5. It follows that the court did not err in assuming that a conversion had been shown, and restricting the issues submitted to the jury to the personnel of the defendant partnership and the value of the converted cotton.

Judgment affirmed.

Stephens and Bell, JJ., concur.

Trover; from Barrow superior court—Judge Stark. June 13, 1925.

G. A. Johns, B. JG. Kimball, for plaintiffs in error.

Joseph D. Quillian, contra.


text:
    16738.
    MANSOR v. WILCOX.
    The petition alleges that the prosecution complained of as malicious was pending on charges preferred by the defendant before an empanelled grand jury in the district court of the United States for the southern district of Georgia at the June term, 1920, and likewise at the December term, 1920, of that court. It does not appear that the prosecution terminated prior to the termination of the December term, 1920; and under the ruling of this court in Pickard v. Bridges, 7 Ga. App. 463 (67 S. E. 117), the mere subsequent inactivity of the defendant could not of itself establish the termination of the prosecution until the discharge of the next grand jury at the June term, 1921, which is alleged to have been on or about June 15, 1921. Accordingly, the present action, filed March 20, 1923, was not prematurely filed, nor was it barred by the statute of limitations. See Tyler v. üpclmrch, 31 Ga. App. 599 (121 S. E. 521); Civil Code (1910), § 4497. The court did not err in overruling the demurrers to the petition.
    Malicious Prosecution, 38 C. J. p. 411, n. 43; p. 441, n. 88 New; p. 443, n. 6; p. 458, n. 73.
    Decided March 12, 1926.
    Action for malicious prosecution; from city court of Yalclosta —Judge Little. July 31, 1925.

      K. K. Wilcox, T. G. Connell, for plaintiff in error.

      B. P. Cain, Whitaker & Dukes, contra.
   Jenkins, P. J.

While the defendant’s demurrers to the petition are on the ground that it shows on its face that it is barred, and while he contends in his brief that the failure of the grand jury to act during three successive terms establishes this fact, no contention is made in the briefs of counsel with reference to the fact that the record indicates also that a warrant had been previously sworn out before a United States commissioner. The record is not clear as to what action was taken under the warrant, before the commissioner; but it does appear that the plaintiff in the instant case had, after the institution of such warrant, given bond to appear before the next session of the Federal grand jury. Whether this action was taken under a commitment, or under a waiver of commitment by the defendant in the criminal prosecution, does not appear. At any rate the record discloses that the prosecution under the warrant terminated, and that the grand jury acquired solo and exclusive jurisdiction thereof. It follows, as is apparently assumed by all parties, that the only question for determination is whether. the prosecution had become abandoned in the only tribunal which had jurisdiction thereof.

The case of Garrett v. Foy & Adams Co., 21 Ga. App. 613, 614 (2) (94 S. E. 822), presents a different situation, inasmuch as the decision in that ease is based upon the theory that the prosecution, so far as the record showed, was still pending before the magistrate; there being nothing in that case to indicate that jurisdiction had been transferred to the grand jury. In a case such as that, where the case remains pending before the magistrate, the mere fact that sessions of the grand jury may have intervened would not indicate an abandonment of the case before the magistrate, where it appeared to remain actually pending. It is therefore our opinion that the ruling in the ease of Pickard v. Bridges, supra, is controlling; for while it appears in the latter case that the defendant in the criminal prosecution had been dismissed before the magistrate, the essential importance of this fact lies not in the results of the magistrate’s decision, but in the fact that his jurisdiction had been terminated. It might also be stated that if in the instant case it should be made to appear that the magistrate in fact bound over the plaintiff in the present suit to await action by the Federal grand jury, this, under the decisions, would not preclude an action for malicious prosecution. See Luke v. Hill, 137 Ga. 159 (5) (73 S. E. 345, 38 L. R. A. (N S.) 559); Lindsay v. West, 6 Ga. App. 284 (2) (64 S. E. 1005); Darnell v. Shirley, 31 Ga. App. 764 (7) (122 S. E. 252).

Judgment affirmed.

Stephens and Bell, JJ., concur.